Volume 219 — Illinois Reports

<p>Writ or Error to the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.</p>

JESSE Holdom, Judge, presiding. On July ¿5, 1903, Frank M. Munger and M. J. Henaughan, the appellants, who are residents and tax-payers of DeKalb county, filed a bill in the superior court of Cook county for an injunction to restrain John V. Crowe and Albert J. Crowe, who are residents of Cook county, from removing the west wing of the court house at Sycamore, in DeKalb county, from its present site to another part of the court house grounds.

<p>1. Triae—permitting leading questions will not reverse unless there is substantial injury. Permitting leading questions to be asked will not work reversal unless the trial court has so abused its discretion in that regard that substantial injury has resulted.</p> <p>2. Criminae eaw—what not essential to the crime of allowing minor girl to stay in house of prostitution. The keeper of a house of prostitution who permits an unmarried female under the age of eighteen years to live, board, stop or room in the house is guilty of a crime, under the statute, regardless of whether such female practices prostitution or is wanting in virtue.</p> <p>3. Same—prosecution is not bound to prove the knowledge by keeper of houset of ill-fame that an inmate is a minor. In a prosecution against the keeper of a house of prostitution for permitting an unmarried female under eighteen years of age to stay in the house, the People are not bound to prove knowledge, by the keeper, of the age of such inmate.</p> <p>4. Same—when instruction as to credibility of defendant’s testimony is not erroneous. An instruction directing the jury that in determining the degree of credibility to be accorded to the defendant’s testimony they had a right to consider, among other things, the fact, if it was a fact, that she had been contradicted by other and credible witnesses, is not erroneous, as authorizing the jury to discredit her testimony if she had been contradicted by other credible witnesses.</p>

Writ oE Error to the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding. At the June term, 1903, of the county court of Cook county, the county collector applied for judgment against the property of plaintiff in error for the first and second installments of a special assessment levied for paving Turner avenue, in the city of Chicago.

Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.

J. A. Creighton, Judge, presiding. This is a petition, filed by the appellee in the circuit court of Sangamon county, against the appellant as superintendent of schools of said Sangamon county, praying for a writ of mandamus, commanding appellant to change the date of a teacher’s certificate issued by appellant to appellee, so that said certificate should show upon its face the true date of its issuance.

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

Original petition for mandamus. This is an original petition for mandamus, filed in this court on June 8, 1905, by the People upon the relation of F. R. Power, Patrick L. Touhy, F. G. Crary and F. A. Andrews against James A. Rose, Secretary of State, praying that a writ of mandamus issue, directed to said Rose, as Secretary of State, commanding him as hereinafter set forth. Rose, as Secretary of State, filed an answer to the petition.

Richard S. Farr and, Judge, presiding. At the trial of a certain criminal case in the circuit court of Carroll county the regular panel of jurors was exhausted by reason of challenges thereto. The court ordered a special venire to be issued for fifty jurors to fill the panel for the trial. Objection was made by the defendants to the service of this venire by the sheriff, and the appellee, George Durham, was appointed as a special bailiff by the court, for this purpose.

<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. Lockwood HonorE, Judge, presiding.</p>

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

M. F. TulEy, Judge, presiding. In this cause the Appellate Court for the First District reversed the judgment of the circuit court of Cook county, which was against Miller, without remanding the cause, on the ground that neither the declaration nor the evidence shows a cause of action against the defendant.

<p>Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.</p> <p>This is a petition for mandamus, filed on February 1, 1905, in the circuit court of Cook county by the People upon the relation of the commissioners of Lincoln Park, against the board of education of the city of Chicago for a writ'of mandamus to be directed to the said board, commanding it to certify in its next annual budget or estimate, to the proper officers of the city of Chicago, for sufficient funds to provide for the payment of $3684.71, the amount of money alleged to be due the relators on January 30, 1905, by reason of the failure of the appellant to pay the five installments of special assessment warrant No. 196,257, for the "improvement of Diversey avenue boulevard in Chicago, from Clark street to the Chicago river, and the five installments of special assessment warrant No. 203,949, for the electric lighting of said boulevard, as said assessments were levied against eight lots of twenty-five feet frontage each, abutting upon Diversey boulevard and owned and occupied by the appellant for a public school building and playground.</p> <p>The appellant, the Board of Education of the City of Chicago, filed a demurrer to the petition. This demurrer was overruled, and the appellant elected to stand by its said demurrer, whereupon an order was entered directing a peremptory writ of mandamus to issue, commanding the board in accordance with the prayer of the petition. The present appeal is prosecuted from such order or judgment.</p> <p>The petition, after reciting that the appellee, the commissioners of Lincoln Park, was a corporation created under an act of the legislature, and after reciting that the board of education was created by an act of the legislature, etc., alleges that the appellee, petitioner herein, being the commissioners of Lincoln Park, under the powers conferred upon it by the legislature, and with the consent of the corporate authorities of the towns within which Lincoln Park is situated, is empowered to levy special assessments for the purpose of making local improvements on the various boulevards and parkways within its jurisdiction; that, on January 7, 1899, it filed with the consent of the corporate authorities of the town of Lake View and under the name of said town for the use of the appellee a petition in the Superior Court of Cook county in cause No. 196,257 for the improvement of Diversey avenue boulevard from Clark street to the Chicago river; that a report or assessment roll was prepared and filed in the said cause by the commissioners, appointed for that purpose by the court, and the court, by judgment entered of record on September 20, 1899, confirmed said assessment roll ih all particulars; that, on January 15, 1900, appellee filed, with the consent of the corporate authorities of the town of Lake View, and in the name of said town for the use of said commissioners in the Superior Court of Cook county in cause No. 203,949, a certain other petition for a local improvement, consisting of an installment of an electric lighting system on said Diversey avenue boulevard; that a report or assessment roll was prepared and filed in said cause by the commissioners appointed for that purpose by the court, and said assessment roll was confirmed by the judgment of said court in all particulars on May 5, 1900; that said property, consisting of eight lots, was used by the board of education for a public school building and playgrounds and abuts Upon Diversey avenue boulevard; that the said boulevard was selected and taken in accordance with the statutes by said park commissioners, as a boulevard, several years before the levying of the said assessments; that all things, required by the statute for the levying of said assessments, were performed in accordance with such requirements; that due notice was given to the board of education of the filing of said petitions; that no objection thereto was ever made or filed by the board of education in either of said causes; that, upon the confirmation of said assessments, the appellee caused the boulevard to be improved in accordance with the ordinance and specifications adopted for that purpose, and such improvements have been for a long space of time fully completed and opened for use, and said public school building, and the board of education, derive a great and lasting benefit from said improvements; that warrants were duly issued by the clerk of the Superior Court, directed to the county collector, authorizing him to collect the said special assessment on warrant No. 196,257, and that there were due certain amounts upon the first, second, third, fourth and fifth installments, with interest, etc.; that upon the falling due of the installments on warrant No. 203,949, the appellant refused to pay the collector the amounts levied against said property for said assessment, and that certain amounts are due for the first, second, third and fourth installments, with interest; that the fifth installment of said last named warrant will not fall due until January 5, 1905; that the total amount due, exclusive of interest, including the said fifth installment, is $3122.64; that a deficiency existed in both of said special assessments for the improvement of said Diversey boulevard, after its completion, for a large amount; that the premises, upon which said special assessments were levied, are described in the books of the board of education as “School tax fund property,” “being no part of section 16 or acquired in any way from funds derived from that source;” that the board, appellant herein, has never paid said special assessments, levied against its property, although requested to do so, and refuses to pay the same; that the board is liable for special assessments levied on its property and should pay the same out of funds, obtained by said board in the manner provided by law; that annually it is the duty of the board of education to submit to the proper officer of the city of Chicago its estimate of the amount of funds needed for the ensuing year, stating in said estimate the items for which said funds are needed, but that said board, in violation of its duty, has refused, and still refuses to include in said estimate any items or sums necessary for the payment of said special assessments; that there was due on warrant No. 196,257 on January 30, 1905, including interest and costs, as in the judgment of confirmation provided, the sum of $3091.42, and upon warrant No. 203,949 on the same date, including interest and costs, as in said judgment provided, the sum of $593.29, making a total then due to appellee of $3684.71.</p>

A. W. DESELM, Judge, presiding. This was a condemnation proceeding begun in the county court of Will county by the filing of a petition by the appellant company, against the appellee, to condemn, under the statute, a strip of land one hundred feet in width across the eighty-acre, farm owned by appellee.

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

<p>Appeal from the County Court of Marion county; the Hon. Charles H. Holt, Judge, presiding.</p>

Writ oí Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Mason county; the Hon. T. N. Míhán, Judge, presiding.

<p>1. Drainage—collector’s report is not limited to taxes due for that year. The county collector’s report of delinquent drainage assessments is not limited to the year for which the report is made, but may include assessments which fell due in former years and also those due and unpaid on the 10th of March of the next year.</p> <p>2. Same-—when failure of collector’s return to give year assessments zvere due is not fatal. Failure of the county collector’s return, the caption of which recites that it is a list of lands reported for the year 1904, to specifically state that certain drainage assessments were due in March of 1905 is not fatal, where the drainage treasurer’s report, on which the collector’s report was based, expressly states that the assessments were due March 1, 1905; and the omission may be corrected on application for sale.</p> <p>3. Same—collector’s return need not show what assessment is for nor to whom payable. Where the report of the treasurer of a drainage district identifies the delinquent assessments as a special drainage tax for a certain district it is not essential that the county collector’s return show what the assessments are for nor to whom they are payable when collected.</p> <p>4. Same—affidavit of drainage treasurer to report of delinquent assessments is not jurisdictional. The affidavit of the treasurer of a drainage district to his report to the county collector of delinquent assessments is not jurisdictional, and it is not error for the court, on application for judgment of sale, to permit an affidavit to be filed curing the defect.</p>

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

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

E. O. Brown, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a decretal order of the circuit court of Cook county entered in said cause on the 13th day of April, 1904, setting aside a sale of the premises involved in this cause to the German Old-People’s Home, one of the appellees, and refusing to confirm an alleged sale thereof to the appellant, and the order of a re-sale of said premises.

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

Solon Philbricic, Judge, presiding. Appellant, Isaac Kuhn, filed his bill in the circuit court of Champaign county against the appellees, Samuel Eppstein, William D. Eppstein, the Trevett & Mattis Banking Company and John McDonell, for the specific performance of a contract.

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. Edward P. Vair, Judge, presiding.

A. H. ChETlain, Judge, presiding. This action is a suit at law brought by appellee, against appellant, to recover $250 for salary claimed by appellee to be due from appellant for services rendered as vice-president of the Manufacturers’ Exhibition Building Company, a private corporation, for the months of March and April, 1903.

Arthur W. Deselm, Judge, presiding. The appellant, the Illinois, Iowa and Minnesota Railway Company, filed its petition in the county court of Will county to condemn for a right of way .764 of an acre of land across the north-west corner of an eighty-acre tract owned by appellee, Frederick Borms.

<p>1. Deeds—deed given to custodian but subject to recall is not delivered. A deed enclosed in an envelope and given to a custodian to be delivered after the grantor’s death, but with the reservation that the grantor retained the right to recall it, is not delivered, and is not operative as a deed though delivered by the custodian after the grantor’s death.</p> <p>•2. Wiles—when recital cannot be given effect of a devise. A recital in a will referring to certain property as having been theretofore deeded, the deed to which is invalid for want of delivery, cannot be given the effect of a devise; nor does the recital aid in establishing that there was a valid delivery of the deed so as to make it operative.</p> <p>3. Partition—rule where one co-tenant* has made improve- . ments. In partition, where one co-tenant has made improvements, the court should, if possible, allot to him the portion so improved without considering the value of the improvements; but if such a division cannot be made the court should allow him remuneration for increased value of the premises caused by the improvements.</p> <p>4. Same—zy/í^M provision in partition decree is erroneous. In partition, where the defendant, in his answer and cross-bill, sets up the making of improvements while in possession of the land as the ground for insisting upon his ownership and the validity of his deed, it is error, on awarding partition, to decree that the defendant’s notes, which he had given to his father for money borrowed to pay for the improvements and which were a part of the general estate, should be canceled to the extent of a certain part of the amount expended for the improvements.</p>

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Linus C. Ruth, Judge, presiding.</p>

<p>1. Constitutional law—provision requiring bills to be signed by president of Senate is mandatory. The provision of section 13 of article 4 of the constitution, requiring every bill which has passed both houses to be signed by the president of the Senate and the speaker of the House, is mandatory, even though such signatures are not conclusive evidence that the bill was properly passed.</p> <p>2. Sams—act of 1905, to extend jurisdiction of county and probate courts, is unconstitutional. The act of 1905, (Laws of 1905, p. 186,) to extend the jurisdiction of probate courts and county courts having probate jurisdiction, so as to include the complete administration of testate estates, is unconstitutional, not having been signed by the president of the Senate.</p>

<p>1. Redemption—what does not affect legality of redemption. The legality of a redemption which complies with the statute in all respects is not affected by the fact that the party making such redemption had previously obtained an order of court restraining the sheriff from issuing any deed or from paying over any redemption money pending an appeal from an order denying a motion to set aside the sale and certificate of sale.</p> <p>2. Same—party may redeem pending appeal. One who appeals from an order denying his motion to set aside an execution sale and obtains an order restraining the sheriff from making any deed or paying over any redemption money pending the appeal has a right to redeem from the sale before the appeal is determined, and it is not essential to the legality of such redemption that the amount paid include interest on the amount of the bid from the time of the sale to the time the appeal is finally determined.</p> <p>3. Damages—when alleged loss of interest is in the nature af damages. Alleged loss of interest on redemption money from the time it was paid to the sheriff until the final determination of an appeal from an order denying a motion to set aside the sale, pending which appeal the sheriff was restrained by an order of court from paying over the redemption money, is in the nature of damages, for the recovery of which the party sustaining the same must look to the security afforded by the bond filed when the appeal was allowed and the restraining order entered.</p>

<p>1. Res judicata—when judgment of Supreme Court is not res judicata. A judgment of the Supreme Court reversing a judgment of sale for the first installment of a special assessment upon the ground that on the record then before the court there had not been a substantial compliance with the terms of the ordinance, and remanding the cause generally, is not res judicata on application for judgment of sale for the second installment under a different record.</p> <p>2. Constitutional law—what is due process of law. An orderly proceeding wherein a person is served with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect his rights before a court having power to hear and judicially determine the case, is due process of law.</p> <p>3. Same—when denial of right to appeal or writ of error does not affect validity of statute. The fact that the right of appeal or writ of error in a purely statutory proceeding is denied by the express terms of the act does not affect the validity of the statute.</p> <p>4. Special assessments—a judgment under section 84 of the Improvement act is res judicata. A judgment of the county court under section 84 of the Local Improvement act, after notice to the property owners, approving the certificate of the board of local improvements that, an improvement has been completed in substantial compliance with the terms of the ordinance, is res judicata of that question in a-' subsequent proceeding to collect the assessment.</p>

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

<p>1. Evidence—party not entitled to cross-examine counsel who made affidavit for introducing copy of deed. Where an affidavit for the introduction of a certified copy of a deed is positive in its terms and meets all the requirements of the statute, the opposite party is not entitled to cross-examine the affiant as to the truth of the affidavit.</p> <p>2. Same—what is not a variance. Where a bill to remove a cloud alleges that complainant is the owner of the premises in fee simple, an allegation that she derived her title by a deed from a certain person and his wife is superfluous; and where the deed offered in evidence is objected to because of lack of evidence of the official character of the notary who took the wife’s acknowledgment to the deed in a foreign State, the deed may be given in evidence as the deed of the husband alone, without creating a material variance.</p> <p>3. Cloud on title—when allegation of ownership is sustained. In a proceeding to remove a cloud from title, proof of a warranty deed to complainant, coupled with proof that at the time the bill was filed persons living in a house on the premises were paying rent to the complainant, is sufficient proof of complainant’s allegation of ownership.</p> <p>4. Same—re-imbursement is a condition precedent to relief in setting aside a tax deed. It is a condition precedent to relief in a proceeding to set aside a tax deed as a cloud upon title, that the complainant shall re-imburse the holder of the deed for moneys expended, with interest thereon.</p> <p>5. Tender—tender before suit begun is essential to decreeing costs against the holder of tax deed. To justify decreeing the costs against the holder of the tax deed sought to be set aside as a cloud, the complainant must, before commencing suit, tender the whole amount paid at the tax sale, with subsequent taxes, costs and interest, and keep such tender good by bringing the money into court.</p> <p>6. Same—when tender is sufficient to justify apportioning costs. In a proceeding to set aside a tax deed and a quit-claim deed to an undivided one-third interest in the premises, if the holder of the quit-claim deed is represented by counsel at the hearing before the master, an offer made to her counsel before the hearing to pay the amount due her, coupled with the fact that the money is left with the master and brought into court on refusal of counsel to accept it, is sufficient tender to justify the court in requiring her to pay one-third of the master’s charges.</p> <p>7. VbnuS—what is reasonable notice of a change of venue is largely discretionary with the judge. The obligation of a judge to grant a change of venue to one who brings himself within the provisions of the statute is imperative; but the statute requires reasonable notice, and what is reasonable notice in a particular case must be left to the judge to whom the application was made, and that discretion will, not be interfered with on appeal unless abused.</p>

<p>1. Evidence—when refusal to strike out answer is not reversible error. Refusal to strike out the answer, “I have been a nervous wreck ever since,” to a question put to the plaintiff as to her physical condition since the injury for which she is seeking to recover damages, is not reversible error, where there is other and ample evidence in the record to show her physical condition.</p> <p>2. Instructions—when instruction does not assume to direct a verdict without proof of injury. An instruction stating that the questions involved, as alleged in the declaration, of negligence by the defendant, if any, and reasonable care by plaintiff, if any, “are what are known as questions of fact, which it is the duty and province of the jury to determine under the law and the evidence in the case,” does not assume to summarize the elements of recovery and direct a verdict without proof of the fact of the injury.</p> <p>3. Same—when instruction does not submit question of law to the jury. An instruction telling the jury that if they believe, from the evidence, that the plaintiff has proved the allegations contained in one or more counts of the declaration by a preponderance of the evidence she is entitled to recover, is not erroneous as submitting a question of law to the jury.</p> <p>4. Appeals and Errors—question whether verdict was excessive is not open to review in Supreme Court. Whether the verdict in an action for personal injury was excessive is a question of fact, upon which the judgment of the Appellate Court is conclusive.</p>

Appbai, from the Branch Appellate Court for the First District;—-heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. S. TuThirr, Judge, presiding.

<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. Charles M. WalicER, Judge, presiding.</p>

William L. Pond, Judge, presiding. This is an appeal from a judgment óf the county court of Cook county, rendered January 20, 1905, confirming an assessment against the property of objectors, levied to defray the cost of curbing, grading and paving with macadam, and a combined curb and gutter, Millard avenue from Ogden avenue to West Thirtieth street in Chicago. Ogden avenue intersects Millard avenue at Twenty-first street.

Writ oe Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. M. Kavanagh, 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. John L. Heary, Judge, presiding.

Original petition for mandamus. This is an original petition for mandamus, filed in this court by the People on the relation of the North American Restaurant and Oyster House against Arthur H. Chetlain, one of the judges of the superior court of Cook county, commanding him to sign and seal a bill of exceptions, and permit the same to be filed of record.

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

<p>1. Mortgages—when mortgage is presumed to be for purchase money. A mortgage by a grantee to his grantor, executed, acknowledged and recorded on the same day the deed between the parties was made, will be presumed, in the absence of evidence to the contrary, to be a purchase money mortgage, and the mortgagor’s widow, even though she did not sign the mortgage, is not entitled to dower as against the mortgagee and those claiming through him.</p> <p>2. Parties—wife not a necessary party to bill to foreclose purchase money mortgage. A wife is not a necessary party to a bill to foreclose a purchase money mortgage executed by her husband but in which she did not join.</p> <p>3. Jurisdiction—on collateral attack the presumptions are in favor of jurisdiction. When a foreclosure decree is attacked collaterally, the specific objection to jurisdiction being that the defendant was notified to appear on the second instead of the first Monday of the term, if there was ample time between the time the defendant was notified to appear and the time the decree was rendered for the defendant to have been served with process, by summons or publication, it will be presumed such service was had.</p> <p>4. BriEES—new points cannot be raised in reply brief. Points relied upon for reversal should be urged in the original brief of the appellant or plaintiff in error and cannot be urged for the first time in the reply brief, and when so urged will be disregarded.</p>

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

<p>1. Trial—counsel have a right, in argument, to attack the witnesses. In argument before the jury counsel have a right to draw any and all proper inferences, arising from the evidence tending to show that the testimony of a witness is untrue, even though there has been no attempt to impeach the witness in any regular mode.</p> <p>2. Instructions—when instruction is erroneous as destroying effect of argument. An instruction holding that denunciation of witnesses by counsel should not influence the jury to disregard or disbelieve the testimony of any unimpeached witness is erroneous, as practically destroying the effect of argument on the credibility of witnesses or the weight to be given their testimony.</p> <p>3. Same—instruction holding that the law presumes an unimpeached witness has testified truly is erroneous. There is no presumption of law that an unimpeached witness has testified truly, and an instruction so holding is erroneous as infringing upon the province of the jury, where the witnesses for one side contradict the witnesses for the other side and there is no attempt to impeach any witness.</p> <p>4. Same—practice of injecting argument into instruction is not approved. The practice of injecting, as an argument, into an instruction a prefatory statement of law which, though riot incorrect, does not relate to any fact in the case is not approved, the purpose of instructions being to state and explain the law applicable to the facts of the case.</p> <p>5. Sams,—when instruction as to duties of carrier toward passengers for hire is not unwarranted. Giving an instruction relating to the duties of a carrier of passengers for hire is not unwarranted, even though the carrier disputes the relation, where the declaration alleges facts which, if proved, would show that plaintiff was a passenger, and where there is evidence tending to support the allegations of the declaration.</p> <p>6. Same—question of credibility of witnesses is for the jury. Where witnesses contradict each other and the result of the case depends upon their credibility, it is for the jury to determine which they will believe, and it is not the right of the court to take that question from them by instructions.</p> <p>7. Carriers—relation of passenger and carrier is contractual but may be proved by circumstances.’ The relation of passenger and carrier is contractual and does not arise from the mere fact that a person runs toward a moving car to get on board, but the relation may be proved by circumstances.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John L. Healy, Judge, presiding.</p>

Samuel L. Dwight, Judge, presiding. This is an action on the case, brought by the appellees, Campbell, Hunt & Adams, against the appellant railroad company.

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

<p>1. Pleading—nature of petition is determined from its allegations, form and the relief prayed. If the allegations of a petition clearly show that it is a petition to contest an election, the facts that it is endorsed “Bill in chancery; petition to contest election,” and'that a portion of the prayer is for “such other relief as equity, justice and the good conscience of this court will grant,” do not determine the character of the petition as a bill in chancery.</p> <p>2. Same—when failure to enter a formal order overruling demurrer is not fatal. Where a special demurrer is filed to a petition to contest an election on the ground that the petition is a bill in chancery and that courts of chancery have no jurisdiction in such cases, and is considered together with a motion to transfer the case to the common law docket, which is allowed, and a plea in abatement is filed after the case is transferred, failure to enter a formal order overruling the demurer is not fatal.</p> <p>3. Elections—rules of chancery apply to an election contest though the proceeding is purely statutory. A proceeding to contest an election is purely statutory and is not regarded as a cause at law or in equity, and it is not error for the court to transfer the proceeding from the chancery to the common law docket; but as the rules of chancery practice apply, a plea in abatement is not proper, even though the cause is on the common law docket.</p> <p>4. Waiver—when objection to sufficiency of service is waived. By appearing generally and demurring to a petition to contest an election the defendant waives any ground of objection to the sufficiency of the service, and also the right to afterwards enter a special appearance and object to the jurisdiction of the court over his person.</p>

<p>1. Criminal law—record must be free from substantial error to sustain conviction. Where there is a conflict of the evidence as to the guilt of the accused the record must be free from substantial error in order to sustain the verdict, particularly one imposing the death penalty.</p> <p>2. Same—right of counsel, on cross-examination, to assume previous answer is untrue. It is proper, on cross-examination, for counsel to assume that some previous answer of the witness is untrue, either from willfulness or want of recollection, and he may put his questions in various forms to show that fact; and it is error for the court to deny that right where the cross-examination is not pursued to an unwarrantable extent.</p> <p>3. SamL—when remark of court is prejudicial. A remark by the court giving the jury the impression that the witness whom counsel for the accused was cross-examining had emphatically denied making the statement counsel for the accused is seeking to show she did make is prejudicial error, where the record shows that the witness had merely testified that she did not think she made the statement.</p> <p>4. Same—when question is leading and improper. After a witness for the People has identified the accused as the person who fired the shots, it is improper to allow counsel for the People to induce the witness to emphasize his former statement by asking the leading question, “Are you positive that he is the man that shot” the deceased?</p> <p>5. Same—right of accused to give his version of transaction after the arrest. Where the police officers who arrested the accused are allowed to testify as to what was said by him after he was arrested, it is error to refuse to permit the accused to give his version of the conversation.</p> <p>6. Same—right of accused to base cross-examination on statements of witness at coroner’s inquest. Where a witness has positively identified the accused on the trial, counsel for the accused have the right to cross-examine the witness as to whether he had not stated at the coroner’s inquest that he was not positive of such identification, and are not restricted to proof of the coroner’s minutes containing the signed statement of the witness.</p> <p>7. Same—■court should not express opinion on the facts. It is not the province of the court, in a criminal case, to express in the jury’s hearing any opinion upon the facts, either orally during the trial or in the form of instructions.</p> <p>8. Same—what remarks by court are reversible error. Where, on motion of counsel for accused (who relied on an alibi) to strike out a statement by a witness that he found the back door of the store where deceased was shot, open, the court says, “The evidence here is that the defendant walked that way,” and afterwards, upon counsel’s suggestion that “some defendant did,” the court says, “No, this defendant; two witnesses have testified; the colored man testified that he went out that way,” such remarks are reversible error.</p> <p>9. Same—when instruction as to proof of alibi is misleading. An instruction stating that “in this case what is known as an alibi,—that is, that the defendant was at another place at the time it is claimed the offense was committed,—is, in part, relied on by the defendant, to render the evidence of an alibi satisfactory it must cover the whole time of the transaction in question, so as to render it impossible that the defendant could have committed the act,” is misleading.</p>

<p>1. Mandamus—application for leave to file petition in mandamus is ex parte. Application for leave to file a petition for mandamus is ex parte, and, in deciding the question of leave to file, only the petition, and suggestions in support of it, will be considered.</p> <p>2. Same—proper office of writ of mandamus stated. Mandamus lies to compel the performance of some duty which the respondent owes either to an individual or to the public; but the duty must be specific, and of such a character that the court can prescribe a definite act or series of acts which will constitute performance.</p> <p>3. Same—mandamus does not lie to enforce general course of official conduct. Mandamus will not lie to control and regulate a general course of official conduct by the respondent, nor to enforce the performance of official duties generally, though prescribed by statute, it not being practicable in such case for the court to prescribe the particular acts necessary to be done to constitute performance, nor could the court supervise and enforce the doing of such acts.</p> <p>4. Same—a court cannot govern a city by mandamus. Mandamus does not lie against the mayor of a city to compel him to close tippling houses on Sunday or to enforce observance of the liquor laws generally, by forfeiture of licenses, etc., since it is not within the sphere and jurisdiction of a court to assume ordinary governmental functions.</p>

Writ or Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. R. S. TuThill, Judge, presiding.

Axel Chytraus, Judge, presiding. This was a suit in partition, begun in the superior court of Cook county by John E. Packard, claiming to be the owner of an undivided half interest in a certain strip of land sixteen feet in width and about six hundred feet long, in the city of Chicago, alleging that his sister, Felicia N. Norris, was the owner of the other undivided half interest in said premises.

<p>1. Appeals and Errors—alleged defective ordinance should be contained in the abstract of record. The Supreme Court will not search the record for alleged defects in a special assessment ordinance where the appellant has failed to set out any part thereof in the abstract of record.</p> <p>2. Special assessments—lots assessed as one parcel will be presumed to have been improved as one. Lot's assessed as one parcel will be presumed, on appeal, to have been improved as one parcel, in the absence of anything in the record to show the contrary.</p> <p>3. Same—when record and report may be amended. Under section 191 of the Revenue act, where the first installment of a special assessment appears in the city treasurer’s report and the tax judgment sale and redemption record against one of two lots assessed as one parcel and the second installment against the other, it is proper, on application for judgment of sale, to grant leave to amend the report and record to show the true facts.</p> <p>4. Same—when entry of judgment is erroneous. Where an assessment is confirmed against two lots as one parcel but the first assessment appears against one lot and the second against the other in the tax judgment sale and forfeiture record, and the county treasurer fails to make an amendment, allowed by the court, to show the facts, it is error to enter a judgment of sale in such condition of the record.</p> <p>5. Same—defects in delinquent list and in notice are waived by general appearance. Alleged insufficiencies in the published delinquent list and in the notice of application for judgment of sale are waived where the objector appeared and made a general defense.</p>

<p>1. Special assessments—when recital as to notice of re-docketing is sufficient on collateral attack. A recital in an order of the county court re-instating a special assessment proceeding, that the transcript of the order of the Supreme Court reversing the judgment and remanding the cause had been filed in said court for more than ten days and that due notice had been given that a motion would be made by the petitioner to re-docket the cause, is a sufficient showing, on collateral attack, as to notice of re-docketing.</p> <p>2. Same—orders re-instating a cause do not require formality of a judgment. Orders re-instating a cause for further proceedings are not adjudications of issues and do not require the formality of a judgment.</p> <p>3. Same—judgment may refer to a following schedule. It is not a valid objection to a special assessment judgment that, instead of using the word “aforesaid” and following the schedule containing the list of the property and the several amounts, it refers to a following attached schedule and makes the same a part of the judgment.</p> <p>4. Same—when judgment does not allow a double recovery of printer’s fees. A special assessment judgment rendered for the special assessment, printer’s fees and costs, means printer’s fees and other costs, since printer’s fees are one item of the costs and can be taxed but once.</p>

A. AkERS, Judge, presiding. On September 29, 1903, appellee, as the administrator of the estate of Frederick Weber, sued appellant in an action on the case for an injury resulting in the. death of his decedent by such decedent being struck by a locomotive and train of cars on appellant’s railroad near Quincy, at the crossing of a public highway. The declaration counts directly upon the negligence of appellant and its servants.

<p>1. Wills—proponents not limited in circuit court to testimony of subscribing witnesses. On appeal to the circuit court from an order of the county court denying probate the proponents are not limited to the testimony of the subscribing witnesses.</p> <p>2. Same—affidavits of subscribing witnesses in county court may be proven by proponents to contradict their testimony. Proponents of a will are required by law to produce the subscribing witnesses in the circuit court, if alive and sane and within the jurisdiction of the court, and hence may prove the affidavits of such witnesses made in the county court, for the purpose of contradicting their testimony as given in the circuit court, where there is conflict.</p> <p>3. Same—what is not essential to valid attestation. It is not necessary for a testatrix to state or for the subscribing witnesses to know that the instrument which they attested was her will nor for her to acknowledge to them that she had signed it, it being sufficient if she acknowledged to them, either by words or acts, that the instrument was her act and deed.</p> <p>4. Same—what necessary to cast burden of proving absence of fraud upon one standing in confidential relation. In order to cast upon one standing in confidential relationship to the textatrix the burden of proving the absence of fraud or undue influence in making the will, such person must be shown to have been directly connected in some manner with the making of the will, and it is not enough to show that he was present in the house when the will was executed.</p>

Writ op Error to the Criminal Court of Cook county; - the Hon. Frank Baker, Judge, presiding. Charles C. Lamb, the plaintiff in error, was indicted at the December term, 1899, of the criminal court of Cook county for the crime of murder. Upon a trial he was, by the verdict of a jury, found guilty of that crime, and his punishment was fixed at confinement in the penitentiary for the term of his natural life.

O. P. Thompson, Judge, presiding. This was a suit in assumpsit, brought in the circuit court of Cook county in the name of the Preble Machine Works Company (hereinafter referred to as the machine company) by James M. Arnold, its receiver, against the Illinois Steel Company, (hereinafter referred to as the steel company,) to recover damages for a breach of contract.

<p>1. Taxes—when a tax levy cannot be validated—res judicata. A judgment by the Supreme Court holding a particular tax levy to be invalid is a final adjudication that the tax is invalid, and the legislature has no power to thereafter validate the levy and thereby make the tax collectible, even though the act is passed before the remanding order is filed in the lower court.</p> <p>2. Res judicata—when lower court can only enter final judgment without re-trial. Where the Supreme Court decides that a tax levy is invalid, which is the only issue in the case, the lower court, upon reversal and remandment, has no power except to enter a final judgment without re-trial, even though the Supreme Court gave no specific direction to that effect.</p>

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

Lockwood Honors, Judge, presiding. The questions involved in both of these cases are identical and will be disposed of together.

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

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

<p>Partition—when bill for partition and accounting zvill not lie. Where a testator leaves his estate, real and personal, to his widow, to be “paid or divided” among his children equally, as she may deem best, the children are not entitled to any portion of the estate until the widow éxercises her power of appointment, and they cannot maintain against her a bill for partition and an accounting of rents and profits.</p>

Writ os Error to the Circuit Court of Carroll county; the Hon. James S. Baume, Judge, presiding. This is a bill, filed on July 13, 1901, in the circuit court of Carroll county to set aside the will of Caroline Mark, deceased.

<p>1. Drainage—grantor of a deed placed in escrow is properly counted as an owner in signing a petition. A grantor in a deed placed in escrow may properly sign a petition to organize a drainage district under the Levee act, where the deed was not to be delivered until several months after the hearing upon the petition.</p> <p>2. Same—who are .properly counted as signers of a drainage petition. A life tenant and his adult children, representing four-sixths of the remainder combined with the life estate, are properly counted as signers of a petition to organize a drainage district under the Levee act.</p> <p>3. Same—right of commissioners to leave out lands benefited by district. In a proceeding to organize a drainage district under the Levee act, if the proposed district does not include all the land that will be benefited, the commissioners, under section 12 of the act, may alter the boundaries so as to include such portion of the new lands as will not have the effect of making the signers of the petition less than the number required by the statute, and may leave out the remainder of the new lands even though they will be benefited by the proposed work.</p> <p>4. Same—commissioners under Levee act cannot assess benefits. The provisions of the Levee act for assessing damages by the commissioners or by a jury being unconstitutional, the commissioners have no power to make an assessment of benefits except where no part of the lands are taken and the owner makes no claim of damages in excess of benefits, since the question of compensation for land taken and damages to land not taken, which must be submitted to a jury in a proceeding under the Eminent Domain act, involves the consideration of special benefits.</p>

<p>1. Specific performance—specific performance is not a matter of right, irrespective of equities. Specific performance of a contract -will not be decreed if there is anything which makes it inequitable, from a change of circumstances or otherwise, that the complainant should have his contract performed.</p> <p>2. Same—when specific performance is properly denied. Specific performance of a contract to convey land is properly denied when the complainant refused to accept the abstract of title tendered, and, after several attempts by the defendant to correct the alleged defects, notified the defendant that he would not accept a conveyance and demanded payment of the amount agreed upon to be forfeited, in reliance upon which notice and demand the defendant re-possessed himself of the premises and remained in possession two months before the bill was filed.</p>

Theodore BrenTano, Judge, presiding. This is an appeal from a decree of the superior court of Cook county setting aside and canceling a deed made by the appellee to appellant and declaring the same to be a cloud upon the title of appellee.

Writ op Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Jpssp Holdom, Judge, presiding.

John Gibbons, Judge, presiding. This is an action of assumpsit, brought on July io, 1900, in the circuit court of Cook county by the appellees, William D. Kent and Mathias Benner, constituting the firm of M. Benner & Co., against the appellant, William Fitzgerald, to recover a balance of indebtedness, claimed to be due upon a building contract, together with interest thereon. The trial resulted in a verdict and judgment in favor of the appellees for $6000.00.

<p>Writ of Error' to the Circuit Court of Shelby county; the Hon. Samufu L. Dwight, Judge, presiding.</p>

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

R. S. Tuti-iill, Judge, presiding. This is a bill, filed in the circuit court of Cook county on April 6, 1903, by appellant against the appellees as defendants, asking for an injunction, restraining Henrietta Radzinski from collecting two judgments, recovered by her against the New York Life Insurance Company, as garnishee, in two attachment suits, numbered 172,898 and 180,-265, and that the New York Life Insurance Company be restrained from paying out and disposing of any…

<p>Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.</p>

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

<p>1. False imprisonment—a private citizen must prove guilt to justify arrest. In an action for false imprisonment against a private individual for arresting, or causing an officer to arrest, the plaintiff without a warrant, the defendant can justify the arrest only by showing that a crime was committed and that the plaintiff was guilty of the crime.</p> <p>2. Same—when instructions do not apply to false imprisonment. Instructions, in an action against a private individual for malicious prosecution and false imprisonment, which hold that it is not necessary for the defendant to prove the actual guilt of the plaintiff if there was probable cause for the arrest and the defendant acted without malice, are not applicable to the count for false imprisonment, and are properly modified by restricting them to the count for malicious prosecution.</p> <p>3. Same—allegation that arrest was without probable cause is surplusage. An allegation in a count charging the defendant, who is a private individual, with false imprisonment, to the effect that the arrest and imprisonment were without reasonable or probable cause, is surplusage.</p>

<p>1. Trial—questions of contributory negligence and assumed risk are not questions of law if evidence is conflicting. In an action by a servant against the master for injuries received while at work, the questions of contributory negligence and assumed risk are not questions of law for the court where the evidence is conflicting, or where, conceding the plaintiff’s evidence to be true, with the inferences that may legitimately be drawn therefrom, reasonable men might differ in their conclusions as to such questions.</p> <p>2. Fellow-servants—when instruction as to fellow-servants is properly refused.' An instruction which holds that if the plaintiff, who was a carpenter, worked in such a position and so close to the crane-man that he could see how the latter performed his work then the two were fellow-servants, is properly refused, as assuming that such facts would create the relation of fellow-servants even though the crane-man had not seen the carpenter and did not know he was working in the position he occupied, since the relation between servants must be mutual to make them fellow-servants.</p> <p>3. Instructions—giving least favorable of two instructions on same subject is not error. Where two instructions upon the same subject are offered the court is not required to give both, and it is not error if it gives the one the least favorable to the party submitting it.</p>

Alexander W. Hope, Judge, presiding. This is an action on the case, brought in the city court of Alton by Emma Webb, the appellee, against the Alton Railway, Gas and Electric Company, the appellant, to recover damages for a personal injury sustained by appellee by reason of being thrown from a moving street car owned and controlled by appellant in the city of Alton. A trial before a jury resulted in a verdict for $5000. The plaintiff remitted one-half of this amount.

<p>Writ oE Error to the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.</p>

Robert W. Wright, Judge, presiding. The appellant, Wiley J. Littlejohn, on June 16, 1903, brought an action of ejectment in the superior court of Cook county against Chicago, Evanston and Lake Superior Railway Company, Chicago, Milwaukee and St. Paul Railway Company, and Chicago and Milwaukee Electric Railway Company, appellees, to recover a strip of land 163.7 feet in width at the north end thereof and 111.2 feet in width at the south end, and about 324 feet in length,…

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

<p>Appeals and Errors—assignment of errors is essential. An appeal from the Appellate Court must be dismissed where nothing is shown in the abstract with reference to the proceedings in that court, and no assignment of errors is written upon or attached to the transcript of the record of that court.</p>

Writ oE Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.

<p>Appeal from the County Court of Tazewell county; the Hon. Jesse Black, Judge, presiding.</p>

Colostin D. Myers, Judge, presiding. Appellant, Charles A.- Mason, filed a bill in the circuit court of McLean county for partition of 240 acres of land, claiming an undivided one-third in the whole of said premises. The bill as filed was demurred to and the demurrer was sustained by the chancellor and a decree entered accordingly, from which decree this appeal is prosecuted to this court.

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. JESSE Hoedom, Judge, presiding. This is an action of debt, brought on January 13, 1904, in the superior court of Cook county by the appellee against the appellant, as surety upon an appeal bond. Three pleas were filed, to which the appellee, plaintiff below, demurred.

Writ os Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. A. H. ChETeain, 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. M. Kavanagh, Judge, ■ presiding.

<p>1. SpEciae assessments—extent to which section 42 of Local Improvement act applies to all assessments. Section 42 of the Local Improvement act, in so far as it fixes the time when the clerk shall issue the warrant to the collector, applies to all assessments, whether payable in installments or in one payment.</p> <p>2. Same—assessment not delinquent until section 84 of Local Improvement act has been complied with. A special assessment is not delinquent until after the certificate of the cost and filial completion of the work has been filed, as required by section 84 of the Local Improvement act, and an application for judgment of sale made before such section is complied with cannot be maintained.</p>