Volume 221 — Illinois Reports

<p>Original petition for mandamus.</p>

L. C. Ruth, Judge, presiding. This is an action on the case, brought in the circuit court of DuPage county by appellee for the death of his intestate, Oresta J. Richardson, alleged to have been caused by the negligence of the appellant company. The cause was tried before the court and a jury, and resulted in a verdict and judgment in favor of appellee for the sum of $2500.00.

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

<p>1. Instructions-—instruction should not assume facts in controversy. Where the evidentiary facts justify different conclusions the question of negligence is one of fact, and the instructions should be so drawn as to state the law upon a supposed or hypothetical state of facts, leaving the jury to find the ultimate fact.</p> <p>2. Same—when instruction assumes that act was negligent. An instruction, in an action against a railroad company, which authorizes a recovery on certain conditions if the jury believe “that the defendant carelessly or negligently operated its said train or car by running the same past the station platform, so as to cause the deceased to alight upon the ground or tracks of the defendant,” and subsequently refers to “such negligent acts,” is erroneous in assuming that the running of the train past the platform, which was not disputed, was negligence and that it caused the deceased to alight where .he did.</p> <p>3. Same—instruction as to measure of damages must refer to the evidence. An instruction authorizing the jury, if they find for the plaintiff, to assess her damages “at such reasonable sum as she may be entitled to recover under all the facts and circumstances-proved in the case, not exceeding $5000,” is erroneous in not requiring the assessment to be based upon the evidence as to damages for which the law allows a recovery.</p> <p>4. Common carriers—carrier’s exercise of care is to be consistent with operation of road. An instruction stating that common carriers of persons are required to do all that human care, vigilance and foresight can reasonably do, in view of the character and mode of conveyance adopted, to prevent accidents to passengers, is erroneous in omitting the qualification that the degree of care is to be consistent with the practical operation of the road.</p> <p>5. Negligence—degree of care to be exercised by child. Children of sufficient age to be capable of exercising some degree of care for their own safety must exercise the ordinary and reasonable care which ought to be expected of children of like age, capacity, intelligence and experience.</p> <p>6. Same—recovery cannot be based upon acts of negligence not alleged. A verdict for the plaintiff in an action for negligence can not be sustained upon the ground that the defendant was guilty of certain acts of negligence which were not alleged in the declaration nor submitted to the jury by the instructions.</p>

Writ op Error to the Criminal Court of Cook county; the Hon. R. S. Tuthill, Judge, presiding. At the June term, 1905, the grand jury of Cook county returned into the criminal court of said county an indictment against Louis Young, Edward C. Keefe, and one McCormick, charging them 'with unlawfully and feloniously obtaining from Patrick H. Greear, on the 15th day of June, 1905, the sum of $1200 in cash by means of the confidence game.

<p>1. Wills—presumption of law is against intestacy. In determining the intention of the testator, the presumption of law is that he intended by his will to dispose of all his property and to leave none as intestate estate.</p> <p>2. Same—rule in Wild’s case does not apply in Illinois. In Illinois, where our statute gives a fee unless the contrary appears, the rule in Wild’s case, which in certain cases enlarges, by construction, a life estate into an estate tail, does not apply. (Davis v. Ripley, 194 Ill. 399, adhered to.)</p> <p>3. Same—will construed as devising an estate in fee. Where a will devises land in fee to the testator’s son alone, without any limitation over upon failure of issue, but provides that in the event he should have children by his wife they should be tenants in fee with him, an estate in fee simple passes to the son subject to the provision admitting his children as tenants in common, and the fact that there are no children does not cut down the fee to a life estate.</p>

<p>Appeal from the Circuit Court of Cumberland county; the Hon. M. W. Thompson, Judge, presiding.</p>

John Gibbons, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the circuit court of Cook county against the appellant, in favor of the appellee, for $5000 damages for negligently causing the death of appellee’s intestate. * From the evidence it appears that the deceased, Bernard McDonough, was a lieutenant of one of the fire companies of the city, of Chicago; that at about 10:3o o’clock of the night of…

<p>1. Elections—proposition to adopt amendment to Torrens Land law should be printed at top of regular ballot. The provision of section 2 of the act of 1903 to amend the Torrens Land law, requiring the clerk, when the question of the adoption of the amendment is to be voted on, to cause the proposition “to be printed at the top of the ballots to be used at said election” is mandatory, and the use of a separate ballot therefor is unauthorized, even though there are other public questions to be voted upon which require the use of a separate ballot.</p> <p>2. Same—when election to adopt amendment is void. An election to adopt the amendment of 1903 to the Torrens Land law is void where the proposition is not printed at the top of the ballot, above the names of the candidates to be voted for, but in second place upon a separate ballot containing four other propositions.</p> <p>3. Same—the form prescribed for presenting question to voters must be followed. Printing the word “yes” after the words “For extension of Torrens land title system” and the word “no” after the words “Against extension of Torrens land title system,” instead of leaving the spaces following the two propositions entirely blank, as shown in the form prescribed by the statute, renders the negative of the proposition ambiguous and is in plain disregard of the statute.</p>

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

. Writ oE Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. John Gibbons, 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. E. F. Dunne, Judge, presiding.</p>

<p>1. Special assessments—property omitted is presumed not to be beneMed. The presumption arising from the report of the superintendent of special assessments as to a proposed sewer district is that property omitted from the district will not be benefited, and this presumption is not overcome by the mere fact that the omitted property abuts upon the line of the proposed improvement.</p> <p>2. Same—fact that ordinance provides for a house-slant in front of lot does not show that lot will be benefited. The fact that a sewer ordinance provides for a house-slant to be placed in front of a certain lot is not conclusive of the fact that such lot will be benefited, and if the superintendent of special assessments, when he investigates the territory of the district, finds that the lot will not be benefited it is his duty not to assess it.</p> <p>3. Same—parts of unsubdivided tract cannot be omitted from assessment if other parts are benefited. If parts of an unsubdivided tract of land will be benefited by a proposed sewer but other parts will not be benefited the whole tract should be assessed, since it can not be arbitrarily divided for the purpose of assessment; but the fact that certain parts will not be benefited should be considered in determining the equitable portion of the assessment to be borne by the entire tract.</p> <p>4. Same—what not ground for including land in district. The fact that an unsubdivided tract of land is assessed in its entirety for a proposed sewer does not, of itself, show that certain lots lying opposite the extremities of the unsubdivided tract, upon the other side of the street, should have been included in the district and assessed for the improvement.</p> <p>5- Same—ordinance need not specify thickness of house-slants. A sewer ordinance providing for house-slants of vitrified tile-pipe of a certain internal diameter to be placed at regular intervals need not specify the thickness of such slants.</p> <p>6. Evidence—when maps and plats do not show length of sewer. Maps and plats showing the distance between the inner street lines of the streets in which a sewer has its termini but which do not Show the distance which the sewer projects beyond such street lines, the location of the sewer in such streets not appearing therefrom, do not show the length of the sewer.</p> <p>7. Trial—when refusal to adjourn trial is proper. Refusal to adjourn the hearing of a sewer assessment case until the objector could measure the sewer is proper, where no reason is shown why the measurement was not taken before the trial and no suggestion was made before entering upon the hearing that the objector was not then prepared to present his evidence on that question.</p>

Writ op Error to the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding. This was an action of debt, brought by the city of Dan-ville in the circuit court of Vermilion county against Stamper Q. Lamm and Edward C. Lamm, partners doing business as S. Q. & E. C. Lamm, to recover certain penalties for the violation of an ordinance of said city.

Writ oE Error to the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding. At the July term, 1904, of the county court of Cook county, upon the application of the county collector of said county, judgment and order of sale was rendered for a delinquent special assessment against certain lands owned by plaintiffs in error in the town of West Chicago.

Elbridge Hanecy, Judge, presiding. On July 21, 1897, in the circuit court of Cook county, the city of Chicago commenced this action in debt against Adam Wolf, as principal, and other persons as his sureties on the official bond of said Wolf as treasurer of the said city of Chicago.

<p>1. Contracts—one who accepts and retains goods is liable for contract price. One who accepts goods under a contract and appropriates them to his own use cannot defeat an action for the purchase price on the ground that the goods are not of the exact quality or description called for by the contract, since his remedy, in the absence of a warranty, is to refuse to accept the goods when delivered or return them within a reasonable time after discovering the alleged departure from the terms of the contract.</p> <p>2. Same—what must be shown to justify recoupment of damages for failure to deliver on time. In an action for the purchase price of a quantity of opera chairs, in order to justify a recoupment of damages for failure to deliver part of the chairs within the time specified, which is claimed to have exempted defendant’s tenants from paying rent for the opera house during the delay, the defendant must show a valid contract with his tenants to that effect, the terms of which he had been unable to comply with because of delay.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>1. Jurors—nature and strength of opinion formed by juror is to be determined by trial court. The nature and strength of the opinion which a juror admits he has formed from reading a- newspaper account of the case is to be determined by the trial court, which may consider the source of the opinion and the manner, appearance and candor of the juror as well as his statements, and the determination of the trial court should not be set aside unless error is manifest.</p> <p>2. Same—effect where juror states that he has formed an opinion. Whether the fact that a juror has formed an opinion as to the case is cause for challenge depends largely upon the strength of such opinion, as ranging from a mere impression to a settled conviction ; and the mere fact that he states that it will require evidence to change that opinion and that he will otherwise give his verdict in accordance with such opinion is not cause for challenge, irrespective of the degree of evidence its removal will require.</p> <p>3. Same—fact that juror has formed hypothetical opinion is not ground for challenge. The mere fact that a juror has formed an opinion based upon a newspaper account of the case is not ground for challenge, where he has no knowledge or conviction as to the facts of the case or the truth of the newspaper account, is not biased or prejudiced and has not expressed his opinion.</p>

Writ or Error' to the Branch 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. John Domitski, the plaintiff in error, brought an action on the case in the superior court of Cook county against the American Linseed Company, defendant in error, and the Wright & Hills Linseed Oil Company.

Writ op Error to the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Samuel Newlin, the plaintiff in error, was on March 2, 1905, arrested and taken before a justice of the peace of Iroquois county to answer to the charge of burglary preferred against him. The hearing was continued to March 7, 1905, and Newlin, failing to give bail, was committed by said justice to the county jail of Iroquois county.

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

<p>Appeals and errors—recitals of legal conclusions in decree do not take place of certifícate of evidence. Recitals in a decree for a complainant in a bill to remove cloud from title, that the complainant’s grantor was at the time of the execution and delivery of the deed of sound and disposing mind, that the consideration was adequate and that the deed was obtained in a lawful manner, without fraud or undue influence on the part of the complainant or anyone, are in some particulars recitals of legal conclusions, and are not sufficient to supply the place of a certificate of evidence and sustain the decree.</p>

<p>Stare decisis—when a decision on former appeal in ejectment must be adhered to. A decision by the Supreme Court upon appeal in ejectment will be adhered to upon a second appeal, notwithstanding the doctrine of res judicata does not apply to statutory new trials in ejectment, where the same legal principles are involved and the same evidence is introduced, coupled with some additional evidence which is not material in character and does not change the result.</p>

<p>1. Eminent domain-—what evidence authorises taking strip i2¡ feet wide for right of way. Proof that it was necessary to take a strip of land 125 feet wide for railroad right of way through the defendant’s land for “borrow purposes,” in order to take out material for fills when the cuts were insufficient to fufnish the same, and also for the purpose of making proper drainage, brings the case within clause 4 of section 19 of the Railroad act of 1891, relating to cuttings and embankments.</p> <p>2. Same—compensation for laid taken is independent of any consequential damages to the land not taken. The true measure of compensation for a strip of farm land taken for railroad right of way is its fair cash market value independent of any consequential damages to other lands not taken.</p> <p>3. Same—when question is properly rejected as leading. Where a witness for the defendant in condemnation testifies that he is not very familiar with the defendant’s farm but thinks it is worth a certain price per acre, the question, “Wouldn’t it be worth more than that upon the market?” is properly rejected as leading.</p> <p>4. Same—effect where right of way cuts off farm buildings. In condemnation, where the petitioner’s right of way divides the defendant’s land so as to leave one tract without farm buildings, the damage to such land is not what the land would be worth without the buildings, but what would be the damage thereto by the fact that the tract having farm buildings thereon was separated from the other tract by the railroad, which rendered access to such buildings less convenient.</p> <p>5. Same—what does not justify question as to looming money on land. The fact that the petitioner’s right of way divides the defendant’s farm into two parts, one of which borders on a highway while the larger part does not, does not justify the question whether or not loan companies would loan money on land having no access to a highway, since it is the railroad company’s duty to place farm crossings over its railroad whereby access may be had to highways.</p> <p>6. Same—what evidence is not admissible to discredit witness. To discredit the statements of a witness for the petitioner as to the depreciation in value of defendant’s farm, it is not competent to show that the witness had previously stated in a conversation with a certain person that he would not have a railroad run through his farm for $20 an acre.</p> <p>7. Instructions—when inaccuracy of instruction is harmless. Inaccuracy of an instruction upon the question of the burden of proof of damages to land not taken for petitioner’s right of way, in stating that “the presumption of law is that there is no damage to the adjacent land,” is harmless, where the verdict shows that even if the jury considered such statement they concluded that the presumption was overcome.</p> <p>8. Same—when instruction as to effect of stipulation is not improper. In condemnation, an instruction to the effect that certain stipulations filed by the petitioner by which it bound itself to construct and operate its road in a particular manner should be taken into account by the jury in arriving at their verdict is not improper.</p> <p>9. Same—when an instruction as to disregarding testimony not based upon stipulations is proper. Where the petitioner in condemnation has bound itself, by stipulation, to do certain things not required by the statute, it has a right to have the jury instructed that if they believe that any witnesses who have testified to damages to adjacent land have not based their evidence upon such additional requirements and stipulations the jury may disregard such evidence so far as it is not based upon the stipulation.</p>

<p>Appeal from the Appellate Court for. the Second' District ;—heard in that court on appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.</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. Elbridge Hanecy, Judge, presiding.</p>

<p>1. Medicine and surgery—the act of 1903 applies to unlicensed dentists practicing before act took effect. Section 3 of the Dental Surgery act of 1905, (Laws of 1905, p. 320,) providing that no person, unless previously licensed to practice dentistry in Illinois at the time the act shall become operative, “shall begin’.’ the practice of dentistry without first obtaining a license from the State Board of Dental Examiners, applies to unlicensed dentists practicing in Illinois before the act of 1905 took effect.</p> <p>2. Criminal law—counts of information charging an unlawful practice of dentistry on different persons may be joined. Counts of an information, each of which charges unlawful practice of dentistry upon different persons, may be joined, and it is not error to refuse to require the prosecution to elect upon which count trial will be demanded.</p> <p>3. Same—time of offense, if not of the essence, need not be precisely laid. The time of the commission of a misdemeanor, if not of the essence of the offense, need not be precisely laid, and proof that the offense was committed on any day before the filing of the information and within the period of limitation is sufficient.</p> <p>4. Same—whether defendant had a license to practice dentistry is a matter of defense. In a prosecution for practicing dentistry without a license the People do not have the burden of proving that the defendant did not have a license, since his possession of a license is a matter of defense which devolves upon defendant to establish.</p> <p>5. Constitutional law—the practice of dentistry is subject to regulation under police power of State. Legislative regulations for excluding unqualified persons from the practice of dental surgery are within the police power of the State.</p> <p>6. Same—section 3 of Dental Surgery act of 1903 does not make unlawful discrimination. Section 3 of the Dental Surgery act of 1905 (Laws of 1905, p. 320,) is not unconstitutional, as granting to citizens of other States privileges and immunities not enjoyed by citizens of this State.</p> <p>7. Same—section of Dental Surgery act does not confer arbitrary pozuers 011 board of examiners. Section 4 of the Dental Surgery act of 1905, in providing that the board of examiners shall make rules and regulations to establish a uniform and reasonable standard of educational requirements to be observed by dental schools, does not grant arbitrary powers to the board, since the reasonableness of such rules is subject to review by the courts.</p> <p>8. Same—section 5 of Dental Surgery act is not class legislation. Section 5 of the Dental Surgery act of 1905, in providing the act shall not prevent regularly licensed physicians from extracting teeth nor prevent dental students from doing work under the supervision of competent instructors in a dental school, is not unconstitutional as class legislation.</p> <p>9. Same—one violating Dental Surgery act may be committed to jail until fine is paid. Section 14 of division 14 of the Criminal Code, providing that where a fine is inflicted the court may order, as part of the judgment, that the offender be committed to jail until the fine is paid, applies to convictions for violations of the Dental Surgery act of 1905, notwithstanding section 11 of that act, fixing the penalty, makes no reference to a j ail sentence.</p>

J. W. Mack, Judge, presiding. This was an appeal from a judgment of the Appellate Court affirming a decree of the circuit court of Cook county sustaining a demurrer to a bill filed in that court by the appellant to require the appellees, as executors and trustees under the will of the father of appellant, Dion W. McDevitt, deceased, to sell real estate of which the testator died seized, for the purpose of paying appellant a legacy of $3000 given her by the will of said Dion…

<p>Appeals and errors—co-plaintiffs not assigning error must be summoned and severed. A party may, in the first instance, sue out a writ of error in the names of all his co-plaintiffs or co-defendants, but if they do not appear and assign error they must be summoned and a judgment of severance obtained as to them.</p>

Appear from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Corostin D. Myers, Judge, presiding. This is an action on the case commenced in the circuit court of McLean county by appellant, against appellee, to recover for injuries alleged to have been sustained by him while a passenger on the appellee’s train.

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding.</p>

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

<p>1. NegeigencE—a child under seven years is incapable of contributory negligence. Prior to the age of.seven years a child is incapable of such conduct as will constitute contributory negligence, and in an action by him for damages for injuries occasioned by the defendant’s negligence, the negligence of the child’s parent cannot be imputed to him to sustain the defense of contributory negligence.</p> <p>2.. Evidence—what evidence competent in an action for injury from falling icicle. In an action against the owner of a building for an injury to the plaintiff from the falling of a mass of ice from the gutter, proof that the windows in another building than the one where the plaintiff was were broken by the falling ice and several boards of a platform leading to the defendant’s building were also broken is competent, as tending to show the force with which the ice fell.</p> <p>3. Same—when certified copy of deed is admissible in personal injury case. In an action against the owner of a building for an injury to the plaintiff from the falling of a mass of ice from the gutter, a certified copy of a deed of the property to the defendant is admissible, as tending to show the. ownership and control of the property by the defendant at the time of the accident.</p> <p>4. Same—whether ice zvould have formed again had the accumulation been removed is immaterial. Where the negligence complained of is the allowing of a mass of ice to accumulate in the gutter of a building, the question whether ice would have formed ■again had the accumulation been removed is immaterial.</p> <p>5. Trial—court cannot compel plaintiff to submit to examination of injury. In a personal injury case the court has no power to make and enforce an order requiring the plaintiff to submit to an examination of disinterested physicians as to extent of his injury.</p> <p>6. Instructions—when instruction does not make the jury sole judges of damages. An instruction stating that if the jury find for the plaintiff and that he has sustained damages it is not necessary, in order to enable them to estimate the damages, “that any witness should have expressed an opinion as to the amount of such damages, but the jury themselves must make such estimate from the facts and circumstances in proof and by considering them in connection with their knowledge, observation and experience in the affairs of ordinary life,” is not erroneous as making the jury the sole judges of the damages.</p> <p>7. Same—when error in instruction is cured. Error in an instruction permitting a minor child to recover damages for loss of time and inability to work in the future, without excluding the period of his minority from such time, is cured by another instruction expressly stating that no recovery can be had for medical services or for diminution in earning capacity during minority, and that all evidence as to such matters must be disregarded.</p>

Colostin D. MyERS, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Third District affirming a decree of the circuit court of McLean county.

<p>1. Appeals and errors—direction to submit case to jury does not preclude directing a verdict. A direction in the remanding order of the Supreme Court to submit the issues to another jury does not justify the trial court in refusing to direct a verdict in accordance with the law and the evidence in the case.</p> <p>2. Practice—correct practice where issues of fact in mandamus proceeding in Supreme Court are certified for trial. Where issues of fact in an original mandamus proceeding in the Supreme Court are made up and certified to a lower court for trial, the lower court, when a motion to direct a verdict is interposed, should apply the same rules as would apply had the suit been instituted in that court.</p>

Writ or Error to the Circuit Court of Woodford county; the Hon. S. S.- Page, Judge, presiding. This was a writ of error sued' out by Anna Wuerzbui'ger and Eddie Wuerzburger on May 26, 1904, from this court, to review a decree of the circuit court of Woodford county entered on the 17th day of December, 1885.

<p>1. Deeds—what does not make a deed testamentary in character. A deed vesting a present estate in the grantee subject to the grant- or’s life estate is not rendered invalid, as an attempted revocation of the residuary clause in the grantor’s will, by the fact that the consideration named in the deed is to be deducted from the grantee’s share of the grantor’s estate according to the will of the grantor.</p> <p>2. Witnesses—when the complainants are competent witnesses. The defendant in a suit to set aside a deed, the consideration for which is to be deducted from the grantee’s share of the grantor’s estate according to his will, defends as a grantee and not as an heir or devisee of the grantor, and the complainants are not disqualified as witnesses under section 2 of the Evidence act.</p>

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

Writ or Error to the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding. On February 5, 1901, the plaintiff obtained a judgment in assumpsit in the circuit court of Tazewell county for the sum of $15,545.62 upon four promissory notes signed by the defendant. On November 30, 1903, the defendant was adjudged a bankrupt by the United States District Court.

<p>1. Appeals and Errors—whether telephone poles obstruct the highway is a question of fact. Whether telephone poles are so erected in the highway as to interfere with other uses of the highway by the public is a question of fact, upon which the findings and judgments of the trial court and Appellate Court are conclusive.</p> <p>2. Telephone companies—failure of commissioners to designate place for poles does not preclude suit for obstructing road. A telephone company which places its poles as designated by the highway commissioners is not liable to a penalty for obstructing the highway; but if the commissioners fail to designate the portions of the highway to be used, though requested to do so, the telephone company acts at its peril in placing poles, and if they interfere with other uses of the highway the company may be proceeded against for obstructing the highway without being first notified by the commissioners to remove the poles.</p>

<p>1. Insurance—provisions of policy for company’s benefit, may be waived by it. Provisions of a fire policy requiring an appraisal in case of disagreement and the furnishing of proofs of loss are for the benefit of the company and may be waived by it, and if there is any evidence tending to establish such waiver the question should be submitted to the jury.</p> <p>2. Same—what tends to show waiver of right to appraisement and proofs of loss. Evidence that the defendant insurance company offered to pay the amount of the loss as fixed by its adjuster, and, subsequently, as fixed by its own appraiser and the umpire selected by him, the owner’s appraiser having refused to act with the umpire selected, and that such offers were unconditional, the only dispute being the amount of the loss, tends to show a waiver by the company of its right to an appraisement and to proofs of loss.</p> <p>3. Same—when defect in verdict is cured by remittitur. In an action on a fire policy, if there is any evidence tending to show the property was damaged in excess of the amount of the verdict, error in not deducting the amount for which the policy provided, by reason of the fact that another policy had been placed on the property, is cured by a remittitur of that amount.</p> <p>4. Instructions—effect where instruction omits elements. An instruction attempting to direct a verdict, which omits an essential fact or element, cannot be cured by another instruction supplying the omission, but if the instruction does not attempt to direct a verdict the omitted fact or element may be so supplied.</p> <p>5. Evidence—when letter from owner to insurance company is admissible. A letter to a fire insurance company from the owner of the damaged building, written after the appraisers had disagreed over the selection of the umpire, in which the owner insisted that disinterested appraisers be appointed before a certain date or he would bring suit, is admissible in an action on the policy as tending to show that the owner was not refusing to submit the question of loss to appraisement under the terms of the policy.</p>

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

Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Fulton county; the Hon. G. W. Thompson, Judge, presiding. This is a petition for a statutory writ of certiorari from the circuit court to the county court sitting in probate, directing said court to send up the record and proceedings upon the hearing of a claim of the petitioner, plaintiff in error herein, against the estate of Matthew Beer, deceased.

Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Jeese Holdom, Judge, presiding. -This is an action of assumpsit, brought in the Superior Court of Cook county in the summer of 1901 by. the Bank of Whittier, appellee herein, against appellant, the First National Bank of Chicago, to recover the amount of a certificate of deposit for $1650.00 issued by oné D. F. Parsons, a banker, which certificate the.…

F. A. Smith, Judge, presiding. Appellee began an action on the case in the circuit court of Cook county against appellant to recover damages for the death of John Klonowski, who was killed by a wagon belonging to appellant on October 17, 1900, on Paulina street, near Forty-sixth street, in the city of Chicago.

Charles M. Walker, Judge, presiding. Edward P. Griswold died leaving a last will and testament, and left him surviving, as his widow, heirs and legatees, Mary C. B. Griswold, Edward B. Griswold, Mary Maude Griswold, Grace Griswold and Harold T. Griswold.

<p>1. Mines—conscious violation of Mining act is willful. A conscious failure to observe and comply with the provisions of the Mining act, even though no evil intent induces the failure, is a willful violation, and whether such violation was the proximate cause of the injury complained of is a question of fact for the jury.</p> <p>2. Same—when instruction as to the defendant’s violation of the statute “proximately contrifoiting to” the injury is not erroneous. An- instruction authorizing h recovery if the defendant’s willful violation of the Mining act “proximately contributed to” the injury is not erroneous, where the failure to properly inspect the mine for gas is the willful violation relied upon, and the evidence tends to show the injury was the result of an explosion of gas at the time a shot was fired.</p>

<p>This case is controlled by the decision in Hull v. Sangamon River Drainage District, 219 Ill. 454.</p>

<p>Writ oe Error to the Circuit Court of Fayette county; the Hon. Truman E. Ames, Judge, presiding.</p>

Frank Harry, Judge, presiding. Appellant, the Chicago Southern Railway Company, filed a petition in the county court of Iroquois county for condemnation of a strip of land across the farm of William T. Nolin, the appellee, which is situated in Iroquois county. The strip extends north and south through the farm. The south 950.7 feet of the strip is 200 feet in width and the balance is 100 feet in width.

<p>1. Pleading—demurrer to plea should be carried back. Upon argument of a demurrer to a plea to an information in the nature of quo warranto the whole record is open, and it is error for the court to overrule the respondent’s motion to carry the demurrer back to the first defective pleading.</p> <p>2. Quo warranto—an information in quo warranto should distinctly aver the legal existence of office. An information in the nature of quo warranto to oust the respondent from an office created by ordinance should distinctly and affirmatively aver the legal existence of the office, otherwise the information will not lie.</p> <p>3. Same—when the legal existence of office of chief sanitary inspector is not shown. An information in quo zvarranto, by setting out an ordinance authorizing the health commissioner to appoint “an assistant commissioner of health, a secretary, a register of vital statistics, medical sanitary inspector, meat inspectors, sanitary policemen and sanitary policewomen, having full police powers, and such other employees as may be necessary,” etc., does not show the creation, under such ordinance, of the office of chief sanitary inspector.</p> <p>4. Same—legal existence of office cannot be established by appropriation of money to pay salary. The legal existence of an office cannot be established by proof of the appropriation of public money, by ordinance, for the payment of the salary or compensation of the incumbent of the alleged office.</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. A. H. Chetlain, Judge, presiding.</p>

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

Theodore BrenTano, Judge, presiding. This is an appeal by Sidney Misc.er, appellant, from a decree entered by the superior court of Cook county in favor of Fred Glasbrenner, appellee, setting aside a sheriff’s deed dated November 26, 1904, to certain real estate situated in that county.

Louis; the Hon. W. J. N. Moyers, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Fourth District affirming a judgment of the city court of East St. Louis, in a personal injury suit, for the sum of $100.0.

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

<p>1. Eminent domain—when instruction as to elements of damage is improper. An instruction authorizing the jury, in assessing damages to farm land not actually taken for right of way, to consider danger of stock being killed or injured in the future, damages from fire by passing engines, and all other damages that they may believe may be reasonably expected to ensue from the construction and operation of the railroad, is erroneous, where it fails to confine the consideration of such matters to their effect upon the market value of the land.</p> <p>2. Same—use for which land is best adapted must affect its present value. The highest and best use which the owner of land is entitled to have considered by the jury in fixing the compensation for land taken and damages to that not taken must be such a use as affects the present, and not the future, market value of the land; and possible or imaginary uses, or probable future uses dependent upon circumstances, cannot be considered.</p>

<p>1. Wills—mental condition shown to exist is presumed to continue. A mental condition of the testator once shown to exist is presumed to continue if it is of a continuous nature; but there is no presumption that a mental condition connected with a new and impaired physical state, arising after the execution of the will, existed previously.</p> <p>2. Same—condition of the testator after making will cannot be shown if it is a new condition. The mental condition of the testator after the will has been executed can be shown only where the evidence will tend to show his condition at that time, and not if the subsequent condition appears to have arisen from a new cause which was not in operation when the will was executed.</p> <p>3. Same—when testator has sufficient testamentary capacity. If the testator’s mind and memory at the time he executes his will are sufficiently sound to enable him to intelligently understand the business he is engaged in, he has the testamentary capacity required by the law.</p> <p>4. Same—when refusal to give instruction that it is an executor’s duty to defend the will is error. Refusal to give an instruction in a will contest that it was the duty of the executor to defend the will is error, even though the executor made no objection to an unwarranted attack upon him by counsel for the complainant, who stated that all parties desired to have the will set aside except the executor, who wanted his commissions for managing the estate as executor and trustee.</p> <p>5. Same—proponent is entitled to beneM of the presumption of soundness of mind. Under the issue of want of testamentary capacity made on a bill to contest a will, the burden is on the party asserting the validity of the will to make proof of testamentary capacity ; but when such proof is made, the law adds the presumption of sound mind, which applies to all men, and the evidence of want of testamentary capacity must be sufficient to neutralize both the testimony in favor of testamentary capacity and the presumption of law.</p> <p>6. Same—testator is presumed to know contents of will which he signed. A testator is presumed to have understood the nature and contents of the will which he signed, and proof of his signature to the will is, as a general rule, prima facie proof that he understandingly executed the same.</p> <p>7. Same—when instruction as to burden of proof is erroneotis. An instruction directing the jury to find the instrument in contest is not the will of the testator if they believe, from the evidence, that the evidence is evenly balanced upon the question whether he understood the nature and effect of the said supposed will at the time the same was executed, is erroneous, in failing to give the proponents the benefit of the presumptions of law.</p>

Writ or Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Held: but not controlling in this case.” The issues were found for the defendant in error, and judgment was rendered against plaintiff in error for costs. This judgment has. been affirmed by the Appellate Court; and the present appeal is prosecuted from such judgment of affirmance.

<p>Appeal from the County Court of McLean county; the Hon. Rolland A. Russell, Judge, presiding.</p>

Writ oe 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. R. D. W. Holder, Judge, presiding.

Colostin D. Myers, Judge, presiding. The facts in this case are thus stated by the Appellate Court in its opinion deciding the case: “Parker S. Kempton was engaged in the manufacture of drain tile and brick at Budd, Illinois. He commenced business in February, 1892, and conducted the same until December, 1893, in the name of P. S. Kempton.

Elbridge HanECy, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment for $7499.36 rendered by the circuit court of Cook county against the appellants and in favor of appellee.

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

Charles T. Moore, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Fourth District affirming a judgment of the circuit court of Madison county in favor of appellee, against appellant, for $8500, in a suit for personal injuries.

<p>1. Judgments and decrees—equity may entertain bill by infant to impeach decree. A court of equity may entertain a bill on behalf of minors to impeach a decree for fraud or for errors of law appearing upon the face of the record, and such bill may be filed during minority or within the period allowed after majority for prosecuting a writ of error.</p> <p>2. Same—when decree will not be set aside. A decree will not be set aside at the suit of a minor where the court had jurisdiction of the parties and of the subject matter, and persons who were not parties to the suit have, in good faith and in reliance upon the decree, acquired interests in the subject matter of the suit.</p> <p>3. Same—what does not overcome finding of jurisdiction. Recitals in a decree finding that the court had jurisdiction of the subject matter and that the parties had been served with process or entered their appearance are not overcome, upon collateral attack, by the return of the summons issued against a defendant named Nona Stocks showing service upon “Noma” Stocks, nor by the entry of appearance of the other defendants, in which the defendant Nona Stocks appeared to be a complainant.</p> <p>4. Same—when a decree on hill to reform deed is inoperative. Upon a bill to reform a deed by striking out the words “her bodily heirs,” if the decree finds such words were improperly inserted but instead of ordering them to be stricken out of the deed directs the ■defendants or the master in chancery to make a new deed, the decree, and the master’s deed executed in pursuance thereof, are inoperative, and do not divest the title vested in the children of the grantee under the words “her bodily heirs,” and are not to be considered in determining the right of such children to partition, even as against subsequent purchasers.</p>

<p>1. Courts-—court may set aside order during term. A term of court is regarded in law as one day, and any judgment or decree entered during the term may be set aside or amended by the court, during the same term, of its own motion or for good cause shown, as justice and the right of the case may require.</p> <p>2. Same—appearance of attorney is binding until withdrawal of record by leave of court. An attorney having entered his appearance of record for a client cannot terminate his relation of attorney until there is a withdrawal of such appearance entered of record by leave of court.</p> <p>3. Same—notice to attorney appearing of record is notice to the client. Notice to the attorney appearing of record for the defendant, of a motion to vacate an order dismissing the bill, entered at the same term, is notice to the defendant, and the court is not without jurisdiction to vacate the order of dismissal even though the appearance of the attorney is withdrawn at the time set for hearing.</p> <p>4. Same—what does not preclude setting aside oi'der dismissing bill. The fact that the affidavit of the complainant in support of a motion to vacate an order dismissing her bill shows that the order was entered in pursuance of an agreement, there being nothing in the order itself indicating that fact nor fixing any right of the parties beyond terminating the suit, does not deprive the court of jurisdiction to vacate the order without requiring the filing of an original bill, where the affidavit further shows that the agreement was violated by the defendant.</p> <p>5- Same—when affidavit shows good cause for setting aside an order of dismissal. An affidavit by complainant in support of a motion to vacate an order dismissing her bill, which shows that the defendant induced her to dismiss her bill by entering into an agreement which he did not intend to keep, shows good cause for vacating the order at the same term, even though it does not show any false representation by the defendant of any existing fact.</p> <p>6. Same—a consent decree can be attacked only by original bill. A decree entered by solemn agreement of the parties, as shown by the decree itself or by other evidence consistent with the record, can be attacked only by an original bill in the nature of a bill of review.</p>

<p>Appeals from the Superior Court of Cook county; the Hon. W. M. McEwen, Judge, presiding.</p>

E. F. Dunne, Judge, presiding. This was a petition for mandamus, filed in the circuit court’of Cook county by N. C. VanSlooten, the relator, to compel the board of commissioners of Cook county to audit the report of relator as commissioner of Canada thistles and noxious weeds. A demurrer to the petition was sustained, and the relator appealed to this court.

<p>Appeal from the County Court of DeWitt county; the Hon. Fred C. Hill, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This is an appeal by the property owners from a judgment of condemnation rendered by the superior court of Cook county in a proceeding instituted by appellee. The petition was filed on January io, 1905. The property involved is lot 10, which is forty-eight feet in width, and the east sixteen and one-quarter feet of lot 11, in block 28, in a certain subdivision in the city of Chicago. The property has a depth of two hundred feet.

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

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

Orrin N. Carter, Judge, presiding. This is a consolidation of four cases in this court. All are between the same parties. Each bears the same title, and is an appeal by Gage from a judgment and order of sale made by the county court of Cook county in a special assessment proceeding. The cases in this court are numbered 4506, 4508, 4512 and 4514.

<p>1. Trial—when evidence as to subsequent physical conditions should go to jury. Where the evidence shows that the plaintiff was a strong, healthy woman before the injury to her spine; that immediately thereafter she suffered serious pains; that her genital organs became diseased and within a few weeks she became unable to walk or take any exercise without great pain, and that she underwent two operations for ovarian cyst, the question whether such conditions were the result of the injury is properly left to the jury under proper instructions, even though the physicians who testified could not state with certainty whether the diseased conditions requiring the operations were or were not caused by the injury.</p> <p>2. Same—when motion to strike out testimony is properly denied. A motion to strike out testimony relative to the physical condition of the plaintiff in a personal injury case is properly denied, where the testimony was admitted without objection or any promise on the part of plaintiff’s counsel to show that such conditions were the result of the injury.</p> <p>3. Evidence—when proof as to what plaintiff earned prior to injury is admissible. Under an allegation that the plaintiff “was and is hindered and prevented from transacting and attending to her business and affairs, and lost and was deprived of divers great gains and profits which she might and otherwise would have acquired,” proof that the plaintiff, prior to her injury, earned on an average of $300 a year making dresses, is proper.</p>

Writ op Error to the County Court of Lake county. The rehearing rule to which reference is made in the opinion announced in this case is in the following words : “Rule 30.

Writ or Error to the Superior Court of Cook county; the Hon. M. Kavanagh, Judge, presiding. The complainant filed a bill in chancery in the superior court of Cook county against the defendant for the adjustment of a partnership account alleged to remain unsettled between them, and to require the defendant to convey to him the undivided one-half of certain real estate situated in Cook county, alleged to belong to the co-partnership, the title of which was in the defendant.

A. H. Chetlain, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District, affirming a judgment of the Superior Court of Cook county in favor of appellee, and against appellant, for $1500.00, and costs of suit, in an action on the case, brought to recover damages on account of the death of William H. Rockhold, caused, it is alleged, by the negligence of the appellant.

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

<p>1. Cloud on title—what proof is prima facie sufficient to sustain hill to set aside invalid tax deed. An administrator’s deed regular on its face, reciting the decree of the probate court, the sale, approval and confirmation, is prima facie sufficient as a title, when coupled with proof of possession by the grantee, to sustain a bill to set aside" an invalid tax deed.</p> <p>2. Same—when tax deed is void. Section 194 of the Revenue act, which makes the county clerk’s certificate to the delinquent list process for the sale, contemplates that such certificate shall be made on the day of the sale, otherwise the certificate is void as process; and a tax deéd based on a sale under such void process is also void.</p> <p>3. Same—when parties cannot complain of provisions of decree. Where a decree sets aside a tax deed as void but does not set aside certain quit-claim deeds and a trust deed made by the holder of the tax deed, but merely enjoins the defendants from claiming or asserting any title to the premises by virtue of the tax deed, the defendants cannot complain, on appeal, that there was no evidence to sustain the allegations of the bill that the quit-claim deeds and trust deed were void.</p>

<p>1. Special assessments-—unauthorised order of court recalling warrant does not affect the warrant. An order of the county court recalling a warrant as to certain property until the further order of the court is a nullity, where the proceedings have not been abandoned nor the judgment vacated or materially modified, and does not affect the validity of the warrant nor deprive the court of jurisdiction to render judgment of sale when the warrant is again returned delinquent.</p> <p>2. Same—sufficiency of engineer’s estimate cannot he questioned on application for sale. The sufficiency of the engineer’s estimate of the cost of a proposed local improvement cannot be attacked upon application for judgment and order of sale.</p> <p>3. Same—clerk’s memorandum on warrant does not affect validity of judgment. A memorandum placed by the clerk upon the warrant to show what property had been sold for taxes after the assessment was confirmed, together with the name of the purchaser, does not affect the validity of the judgment of confirmation and furnishes no defense to an application for judgment and order of sale.</p>

J. W. Mack, Judge, presiding. Oh July 16, 1901, the appellee, John Lockington, began an action of trespass on the case against the appellant, Leslie C. Hughes, in the circuit court of Cook county, for fraud and deceit in the sale of a certain piece of real estate. The facts upon which the action was founded were substantially as follows: John Lockington had known Hughes three or four years prior to September, 1900, having done work for him.

<p>1. Judicial sales—when master may require cash deposit to secure bid. Where the successful bidder at a master’s sale fails to make good her bid within the twenty days allowed by the master, thus necessitating another sale, if the same person is the highest bidder at the second sale the master may require her to put up a cash deposit at once to secure her bid, the terms of the sale provided for in the decree being cash in hand on day of sale, and in default of her doing so may re-sell the property to another bidder.</p> <p>2. Same—when party cannot complain that one-half of the corn growing on premises was sold. Where, at the time a bill for partition is filed, the land is occupied without a lease by one of the tenants in common, who plants a crop of corn with full knowledge that the partition sale is to be held within a few days, the land may be sold with the growing corn if the decree is silent as to crops, none having been planted at the time it was rendered, and the occupying co-tenant has no cause for complaint because the master reserved one-half of the crop for her and sold one-half with the land.</p>

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

<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. Homer Abbott, Judge, presiding.</p>

M. Kavanagh, Judge, presiding. In July, 1902, S. R. Chamberlain and Gordon C. Blair were vessel agents and vessel brokers in the city of Chicago.

<p>Writ of Error to the Circuit Court of Piatt county; the Hon. W. C. Johns, Judge, presiding.</p>

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. Julian W. Mack, Judge, presiding. This is an action on the case in the circuit court of Cook county by appellee, Joseph Aufmann, against the North Chicago Street Railroad Company, appellant, to recover for personal injuries.

<p>Writ oe Error to the Circuit Court of Edgar county; the Hon. J. W. Craig, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. O. P. Thompson, Judge, presiding.

<p>Easements—what creates an easement of passage. Where the owner of several lots having no alley at the rear builds a walk making a'passageway from the inside lot across the others, upon the conveyance, by such owner, of one of the lots without reference to the passageway across it being made in the deed, an easement of passage becomes at once appurtenant to the other lots if the marks of the burden be open and visible, and passes with such lots whether mentioned in-the deeds of conveyance or not, and each subsequent purchaser talces subject to the easement in favor of the other lots, as it is apparent from an inspection of the premises at the time of the purchase.</p>

<p>1. Instructions—when use of word “should” does not make an instruction objectionable. The word “should,” in an instruction stating that in determining the preponderance of the evidence the jury “should” take into consideration the opportunities of the witnesses for seeing or knowing the things about which they testify; their conduct while testifying; their interest, if any, in the suit, and the probability or improbability of the truth of their statements in view of all the other facts-proved, is not objectionable as being an exclusion of other elements from the jury’s consideration.</p> <p>2. Same—when omission of element from instruction as to duty of carrier to passenger is not fatal. Omitting from an instruction stating the duty of a carrier to its passenger, the element requiring such care to be consistent with the mode of conveyance adopted is not ground for reversal, where there is nothing within the issues before the jury requiring the submission to them of thé question arising on the omitted element.</p>