Volume 225 — Illinois Reports

<p>Appeal' from the County Court of Cook county; the Hon. Frank Harry, Judge, presiding.</p>

<p>Writ op Error to the County Court of Lake county; ■the Hon. Dwight L. Jones, Judge, presiding.</p>

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

<p>InEormaTion to disbar.</p>

<p>1. Evidence—when proof of careful habits is competent upon a question of due care. Where there are no eye-witnesses to a fatal, accident at a railroad crossing, proof'that the deceased was a woman of careful habits is competent, as tending, with the natural instincts of self-preservation, to show that she was exercising ordinary care for her safety.</p> <p>2. Same—what does not render proof of careful habits incompetent. Proof of careful habits of the deceased is not rendered incompetent by the subsequent testimony of .the engineer that he saw the deceased when she was within a few feet of the track, but that she stopped when he sounded the alarm and that he did not know she had been struck by the train until told of it the next day.</p> <p>3. Same—admissibility of a book of ordinances—force as evidence. A book of ordinances purporting to be printed by the authority of the municipal corporation is prima facie evidence of the passage and publication of the ordinances but is- not conclusive.</p> <p>4. Same-—what essential to overcome prima facie proof made by introducing book of ordinances. To overcome the prima facie proof made by introducing a book of ordinances in evidence it is not sufficient that the journal of the proceedings of the municipal corporation has cast a doubt upon the validity of the ordinance by giving incorrectly the date of its passage and the title of the chapter in which it was included, but it must be shown that the ordinance was never, in fact, passed.</p>

<p>WRiT OE Error to the Circuit Court of Cook county; the Hon. J. W. Magic, Judge, presiding.</p>

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

Writ or Error to 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>1. Special assessments—a village collector’s delinquent list is not essential, to prima facie case. Upon application for judgment and order of sale for a delinquent special assessment, proof of the village collector’s delinquent list is not essential to the prima facie case, and if the village collector has not made a proper return of the delinquent list such matter is one of defense which must be proved.</p> <p>2. Same—when judgment of sale should be entered. The county collector’s sworn report of delinquent lands, together with proof of publication and notice of the application for judgment of sale for a delinquent special assessment, makes a prima facie case, and judgment must be entered thereon unless good cause to the contrary is shown.</p> <p>3. Same—when a description of property assessed is sufficient. An assessment of property by the same description as that under which the owner of such property acquired title, is, as against him, a good description, notwithstanding a failure of the plat on which the description is based to fix any monument by which the property can be located.</p>

Theodore Brentano, Judge, presiding. The appellee filed his bill in the superior court of Cook county October 27, 1904, praying that two deeds which he signed as grantor, and in which his children, Clayton A. Pratt, Rodney K. Pratt and Elizabeth C. Phelps, are named as grantees, be canceled and set aside as a cloud upon the title to the property therein described, on the ground that • the said deeds were never legally delivered.

<p>1. Mortgages—what facts do not amount to an extension of a mortgage. An oral agreement by the mortgagee to extend time of payment of the mortgage, made with the grantee of the mortgaged premises, provided the latter would execute certain interest notes and pay the mortgagee’s agent for renewal papers, will not constitute a binding extension, where, through the fault of such grantee, who took offense at the mortgagee’s agent, the papers for the extension were never in fact executed.</p> <p>2. Practice—when a defendant is'not entitled to quash service and- vacate default. One who is made defendant to a foreclosure proceeding as the owner of the premises and in possession, and whose sole defense to the proceeding is an alleged agreement between himself and the mortgagee extending the time of payment, is not entitled to have the service upon other defendants quashed and their default vacated where they do not raise any question as to said service themselves.</p> <p>3. Same—when cause is properly referred to master in chancery. The issues in a proceeding to foreclose a mortgage are properly referred to a master in chancery by the court without first hearing evidence and declaring the rights of the parties, where the only issue of fact is whether the parties had agreed to an extension of the time of payment.</p> <p>4. Masters in chancery—when objection that master in chancery was not legally appointed is properly overruled. An objection that the master in chancery to whom the issues in a foreclosure' case were referred was not legally appointed because the form of the order prepared for the clerk was not signed by the ten judges of the court is properly overruled, where an order appointing the masters in chancery for such court was entered of record.</p> <p>5. Same—item for computing the amount due is not illegal. An item in the charges of the master in chancery of two dollars for computing the amount due from the defendant in a foreclosure proceeding is not covered by the fees for taking the testimony, and is not illegal.</p> <p>6. Same—litigants should not be charged for unnecessary time spent by the master. The purpose of the statute permitting courts in Cook county to allow to masters in chancery compensation for examining questions referred to them and reporting conclusions is to give the master fair remuneration for time necessarily spent in that way, and litigants should not be required to pay for time unnecessarily spent by the master pondering over simple questions of fact.</p> <p>7. Same—master’s report is not intended to include testimony and exhibits. All that is required of a master in chancery is that he report his conclusions as to the questions of fact, and it is not intended that his report shall contain testimony or be expanded with letters or other exhibits.</p> <p>8. Same—objection to master’s charges may be made after the report is returned to court. Objection to the master’s charges may be made after the report is returned to the court, and it is not necessary such objection be made before the master and renewed as an exception before the court and that a motion be entered to re-tax the costs.</p>

M. F. TulEy, Judge, presiding. August 9, 1895, appellee filed his bill in the circuit court of Cook county against appellant to enforce' a mechanic’s lien for balance claimed to be due for furnishing material and labor in the erection and construction of a building for appellant. The contract between the parties was in writing, and provided that appellee should furnish all labor and material and complete the building dn accordance with plans and specifications made byE.

<p>1. Deeds—intent to give effect to deed is essential to a valid delivery. The question whether there has been a valid delivery of a deed is a mixed question of law and fact, but there must in all cases be something, either acts or words, or both, which constitutes an intention to thereby give effect to the deed.</p> <p>2. Same—when deed is not delivered. A deed executed by a wife to her husband and handed to him, and placed by him, without recording, in a box which he thereafter kept in a bank, which deed covered property purchased the same day in the wife’s name under a deed which was duly recorded, is not delivered so as to pass title, where it clearly appears the parties intended the deed to be destroyed if the wife survived the husband and to be recorded only in case the husband survived the wife.</p> <p>3. Same—fact that deed is handed to grantee personally does not necessarily show delivery. Giving the grantee of a deed possession thereof for the purpose of safe keeping does not pass title under the rule that a delivery in escrow cannot be made to the grantee, where it is the intention of the parties that the deed shall not become effective unless the grantor should' die before the grantee.</p>

Solon Philbrick, Judge, presiding. Appellant Samuel Eppstein was, and had been for several years prior to June 7, 1904, the owner of premises in the city of Champaign, Illinois, known as No. 41 Main street. The legal title was in his son, William D. Eppstein, but there is no dispute that the premises really belonged to his father.

Writ oE Error to the Appellate Court for the Eirst District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

<p>1. SpEciai, assessments—when engineer’s- estimate is not defective. Using the words “all other expenses” instead of “all lawful expenses” does not subject engineer’s estimate to the objection that items of expense payable only out of the general funds of the city had been included in the estimate, where the items specified in the estimate and which make up the total amount of the estimated cost are all lawful expenses.</p> <p>2. Same—provisions of Improvement act relating to notice are not unconstitutional. The provisions of the Local Improvement act relating to notice are not unconstitutional, as not expressly providing for notice to the “owner” of the property assessed.</p> <p>3. Same—effect of failure of ordinance to specifically'give the height of curb at alley intersections. Failure of a paving ordinance to specifically fix the height of the curb at the alley intersections is not fatal to the assessment, where such height sufficiently appears from a consideration of all the provisions of the ordinance relating to the description and construction of the curb.</p>

Appear from the Appellate Court for the First District;—•' heard in that court on appeal from the Superior Court of Cook county; the Hon. R. W. Wright, Judge,-presiding. . This is an appeal from the judgment of the superior court of Cook county against appellant for $21,450 in favor of appellee, rendered November 11, 1904, on a verdict in an action for personal injury. The original declaration contained only one count, to which the defendant filed a plea of not guilty.

<p>1. Special assessments—when compliance with provisions of ' the Improvement act of 1897 is not essential. Where special assessment proceedings were pending in a court of this State at the time the Local Improvement act of 1897 took effect, all future proceedings in the cases, including supplemental assessments, are governed by the laws existing prior thereto, and the provisions of the latter act not embodied in the former ones need not be complied with.</p> <p>2. Same—when a judgment sufficiently describes property and amount due. A judgment and order of sale for a delinquent special ■assessment sufficiently describes the property and the amounts due which refers to an attached schedule, which is made a part of the order and which sets forth such descriptions and the amounts due.</p> <p>3. Sams—what is not an improper inclusion in a judgment. A judgment and order of sale covering the special assessment, “printer’s fees and costs,” instead of “interest, penalties and costs,” does not authorize a double recovery of printer’s fees, as being specifically provided for and also' included in the general term “costs.”</p>

F. A. Smith, Judge, presiding. Appellant brought an action in assumpsit December 2, 1901, against Henry C. Ross, Alexander H. Seelye and D. Planner, obtaining service on Ross only. The declaration alleged that the three defendants, by the name of Planner, Seelye & Ross, executed two promissory notes on December 27, 1890, at Wausau, Wisconsin, payable to the order of P. B. Champagne, each for the sum of $4332.33, due, respectively, one and two years after date.

<p>1. Special assessments—when ordinance■ is not unreasonable. An ordinance providing for the construction of a sewage pumping station and system of sewers in a sparsely settled village will not be held to be unreasonable even though the assessment is very large in proportion to the value of the property assessed, where it appears that the low value of the property is due mainly to lack of drainage and sewage facilities and it is not denied that the property will be benefited to the extent assessed.</p> <p>2. Same—what is essential to assessment for sewer where property is not on line of sewer. If property not on the line of the proposed sewer and not afforded immediate connection therewith is to be assessed for constructing the sewer, a drainage district must be created and provision be made securing to such property the privilege of draining into the sewer in future development of the system.</p> <p>3. Same—what does not preclude second sewer assessment. Including in a drainage district lots not on the line of the proposed sewer and assessing such lots a small amount as benefits for the privilege of draining into the sewer in the future, does not preclude the inclusion of such lots in another district and the assessing of them.for the construction of a sewer to connect with the one previously constructed.</p> <p>4. Same—what may be assessed as costs of levying assessment does not depend upon amount estimated. The amount which property owners will have to pay as costs in a special assessment proceeding depends upon the legitimate items of cost after they have been ascertained and not upon the amount estimated, and hence, upon application for confirmation, if the amount estimated as the cost of levying and collecting the assessment does not exceed the six per cent allowed by the statute, it is not error to refuse to permit inquiry as to what items were included in such estimate.</p> <p>5. Same—when objectors cannot show that property is arbitrarily omitted. Objectors to an assessment for the construction of a sewer cannot show that other property will be benefited by the improvement but has been arbitrarily omitted, where they fail to show that such property has any connection with the sewer or any privilege of connection.</p> <p>6. Same—right of village to construct pumping station, by special assessment, on its own lots. An ordinance for the construction of a sewage pumping station and a system of sewers, which does not provide for the acquiring of the lots for the site of the pumping station by private purchase but only that such station shall be built upon lots already owned by it, is not illegal, even though, had the lots not been already purchased, they would have had to be acquired by condemnation and special assessment of the property benefited.</p>

<p>1. Appeals and errors—when the Appellate Court’s judgment is conclusive of facts of claim against estate. The allowance of a claim against an estate for money loaned to the deceased does not require the exercise of chancery powers by the probate court, and hence the judgment of the Appellate Court confirming such an allowance is conclusive of the controverted facts in the case.</p> <p>2. Evidence—admissions of deceased to third persons are competent though administrator defends. To sustain a claim against an estate for money loaned to the deceased where there is no. written evidence of such claim, admissions by the deceased to a third party may be proved notwithstanding the administrator of such deceased person is defending.</p> <p>3. Same—law does not presume existence of' written evidence of loan. In the absence of any contention that a claim against an estate for money loaned the deceased, with interest thereon, was evidenced by any writing, the law does not presume there is in existence better evidence of such loan than parol testimony.</p> <p>4. Same—one who raises defense of Statute of Limitations has the burden of proof. An administrator who raises the defense of the Statute of Limitations to a claim for money loaned, where there is nothing in the claim itself which shows when the loan was made except that less than five years’ interest was claimed, has the burden of establishing such defense, the same as though a written plea had been filed and traversed, and it is not essential that the claimant prove, in the first instance, that the claim is not barred.</p>

the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Lake county; the Hon. C. H. Donnelly, Judge, presiding.

Lockwood Honoré, Judge, presiding. On April 17, 1902, appellee, the city of Flora, for the use of A. L. Ide & Sons and the General Electric Company, began an action in debt in the circuit court of Cook county against the appellants, Aaron M. Searles and the National Surety Company.

<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>

' the Superior Court of Cook county; the Hon. Theodore Brent ano, Judge, presiding.

Writ or Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county;' the Hon. Theodore B.rentano, Judge, presiding.

<p>1. Process—power of legislature to provide for constructive service on residents of State. The legislature has power to provide for a constructive service of process by publication and mail in lieu of actual service, in a case where process cannot be actually served upon the defendant in the county where the statute expressly authorizes the suit to be begun, even though the defendant resides in and is in the State.</p> <p>2. Same—when personal judgment against resident may be rendered 011 constructive service. A personal judgment in an action at law may be rendered against a defendant residing in this State and who is within its. borders, upon constructive service of process, where the manner of such service is such that it is reasonably probable the defendant will receive notice of the pendency of the suit before judgment is rendered against him.</p> <p>3. Railroads—when constructive service is authorized on railroad having principal otñce in this State. Section 4 (paragraph 5) of the Practice act and sections 12 and 13 of the Chancery act authorize service by publication and mail in an action on the case against a railroad company whose principal office- is located in Illinois but outside of the county where the injury occurred and where the suit is brought, where the sheriff makes return upon the summons that the defendant has no officer or agent in such county upon whom process can be served.</p> <p>4. Constitutional law—when provision for service by publication is due process of law. The constructive service of process provided for in section 4 (paragraph 5) of the Practice act, in connection with sections 12 and 13 of the Chancery act, upon a railroad company having its principal office in Illinois, but which, as shown by the return of the sheriff on the summons, has no officer or agent in the county where the suit is brought upon whom process can be served, constitutes “due process of law,” within the meaning of the - constitution.</p>

<p>Appear from the Circuit Court of Lee county; the Hon. R. S. Farr and, Judge, presiding.</p>

<p>1. Evidence—alterations in instrument must be explained before its introduction. Alterations of a material character in a written instrument must be satisfactorily explained before it can be admitted in evidence; but such explanation may appear from the face of the instrument itself or may be made by extrinsic evidence.</p> <p>2. Same—when copy of ordinance bearing changes is properly admitted. A copy of a special assessment ordinance, properly certified to be a true copy of the original, made upon a blank from which, apparently, the printed matter not corresponding with the original ordinance was stricken out and other provisions inserted with a pen and ink, making an ordinance harmonious throughout, is properly admitted in evidence without extrinsic explanation of the changes.</p> <p>3. Special assessments—when ordinance sufficiently provides for excavating and filling. A sewer ordinance which fixes the size of the sewer pipe, and the grade, below city datum, of the bottom of the inside of the sewer throughout its entire length, furnishes sufficient data for the engineer’s estimate of amount required for excavating and filling.</p> <p>4. Same—'-resolution for a sewer improvement need not provide for details. The resolution for a sewer improvement need not enter into a detailed description thereof, such as providing for house-slants, man-holes, catch-basins, sewer connections, and man-hole and catch-basin covers; and the fact that the ordinance does make provision for such details does not constitute a substantial variance between the resolution and the ordinance.</p> <p>5. Same—when the question of city’s power to construct sewer cannot be raised. The question of the power of the' city of Chicago to construct a sewer by special assessment cannot be raised in the absence of proof in the record that the system of sewers of the sanitary district has been completed.</p> <p>6. Same—when engineer’s estimate does not include illegal item of cost. An estimate of the cost of an improvement, “including labor, materials and all other expenses attending the same,” the specific items of cost contained in the estimate being certain amounts for “granite combined curb and gutter, etc.,” “paving, etc.,” and “adjustment of sewers, etc.,” there being no illegal item of cost specifically mentioned, cannot be said to include items of cost which are required to be paid by the city out of the general fund.</p> <p>7. Constitutional law—section 2 of article 2 of constitution construed. Section 2 of article 2 of the constitution, relating to due process of law, secures to every one the right to have notice of any proceeding by which he may be deprived of his property, so that he may have an opportunity to defend against such proceeding.</p> <p>8. Same—“due process of law” does not require personal notice of special assessment. “Due process of law” does not necessarily require personal notice to the owner of property specially assessed for an improvement, and the legislature has power to provide for constructive notice which will afford to the property owner an opportunity to contest the validity of the assessment.</p> <p>9. Same—Local Improvement act does not deprive a person of property without due process of law. The various notices required by the Local Improvement act to be sent by mail to the person who paid taxes on the property for the last preceding year and by posting and publication satisfy the constitutional provision relative to “due process of law,” and such act is not unconstitutional in that respect.</p>

<p>1. Deeds—testamentary deed must have the formality of a will. An intended disposition of property which is testamentary in character and not to take effect until the grantor’s death is not operative unless declared in writing, in strict conformity with statutory enactments regulating the making of wills.</p> <p>2. Same—when trust cannot be enforced. A valid trust, to be. executed after the grantor’s death, may be created by making a deed absolute in form and specifying the purposes of the trust in a separate instrument, which is either signed by the grantee or the trust otherwise admitted by him in writing; but it must appear that the title vested in the grantee during the grantor’s lifetime, otherwise the trust cannot be enforced.</p> <p>3. Same—when deed is not well delivered. The mere handing of a deed to the grantee by the grantor does not pass title, where it was the intention of the parties that the grantor was not to part with the title during her lifetime, but that after her death the deed, in connection with separate instruments executed by the grantor designating the objects of her bounty, would control the disposition of the property if it had not already been sold.</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. Lockwood HonorE, Judge, presiding.</p>

<p>Railroads—when track repairer is 'guilty of negligence. An experienced track repairer working at the crossing of his employer’s railroad with the'double track of .another company is guilty of negligence, as a matter of law, where he kept a lookout for trains in one direction only, whereas he had not looked for ten minutes in the other direction, although he knew that the engine which struck him had passed that way to a water tank half a mile away and must return for its train, and although the engine and cars were constantly in plain view had he raised his eyes and looked. (Indiana, Illinois and Iowa Railroad Co. v. Otstot, 212 111. 429, distinguished.)</p>

Lockwood Honoré, Judge, presiding. This was an action of case, originally brought in the circuit court of Cook county on February 25, 1902, by William E. Likes, the appellee, against the Chicago and Milwaukee Electric Railway Company (hereinafter referred to as the railway company) to recover damages for a personal injury sustained by Likes on November 4, 1901.

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

<p>Appeals and Errors—what does not justify an appeal without certificate of importance. An appeal from the judgment of the Appellate Court affirming a judgment against the plaintiff for costs after a jury trial, cannot be taken to the Supreme Court without a certificate of importance, upon the theory that as to a certain amended count laying damages in excess of $1000, to which a demurrer was sustained, there was “no trial of an issue of fact,” where such count charged the same negligence of the defendant in infecting plaintiff’s family with the small-pox, but charged, in addition, false representations by the defendant which induced plaintiff to allow him to continue his professional visits. - (Robarás v. Wabash Railroad Co. 194 111. 361, followed.)</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. Joseph E. Gary, 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. E. NEwlin, Judge, presiding.</p>

<p>1. Special assessments—necessity of improvement is primarily a question for the city council. The necessity for a particular local improvement is a question committed by the law to the city council, and courts will not interfere to prevent such improvement except when it clearly .appears that the ordinance for the improvement is so unreasonable and oppressive as to render it void.</p> <p>2. Same—kind of pavement to be laid is determined by the city. The kind of pavement to be laid in a certain street is a question to be determined by the city, and the courts will not ordinarily interfere with such determination.</p> <p>3. Same—what is considered in determining reasonableness of ordinance. In determining the question of the reasonableness or unreasonableness of an ordinance the court must have regard to all existing circumstances, contemporaneous conditions, objects sought to be attained, and the necessity or want of necessity for the improvement.</p> <p>4. Same—court should not hold ordinance void for unreasonableness except in clear case. All presumptions are in favor of the reasonableness and validity of an improvement prdinance properly passed by the city council, and courts can declare it void only when it is clear, from the proof, that it is unreasonable and oppressive.</p>

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

<p>Appeal from the Circuit Court of Mercer county; the Hon. Emery C. Graves, Judge, presiding.</p>

Theodore BrEntano, Judge, presiding. On May 31, 1904, the Goodman Manufacturing Company became involved in a strike with its employees. On August 9, 1904, the superior court of Cook county, on application of the company, issued an injunction restraining certain persons therein named, their confederates, servants and agents, from in any way interfering with the company, its property or employees until the further order of the court.

- Richard M. Skinner, Judge, presiding. The will of Joseph Ward, deceased, who died July 18, 1903, was admitted to probate in Bureau county on September 14, 1903, and letters testamentary were issued to his son, Nathaniel S. Ward. The testator, at the time of his death, was seized and possessed of real and personal property. He left him surviving nine children and the descendants of two deceased daughters as his heirs-at-law, who were also the devisees named in his will.

E. F. Dunne, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming the decree of the circuit court of Cook county sustaining appellees’ demurrer to appellants’ bill for a vendor’s lien, and other relief, and dismissing said bill for want of equity.

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

<p>Writ or Error to the Circuit Court of Kane county; the Hon. H. B. Willis, Judge, presiding.</p>

<p>1. Winns—when word "heirs” is word of limitation. The word . “heirs” is a word oí limitation where it is not used to describe individuals, but to designate heirs generally or the whole line of heirs in succession.</p> <p>2. Same—the word "heirs,” when used as a word of limitation, marks out the estate granted. The word “heirs” is not to be construed as a word of purchase unless there are other controlling words showing such intention by the person using it, and if used as a word of limitation its effect is to mark out the estate granted.</p> <p>3. Same—contingent remainder may be released to life tenant. A remainder to named persons, or their heirs in case the life tenant died without leaving children who would, if living, take the fee, may be released by deed to the life tenant so as to vest in her the title of such remainder, whether regarded as vested or contingent.</p> <p>4. Same—when a life tenant becomes vested with entire estate. Where there is a devise of the income of one-third of the testator’s property to his daughter in trust for her natural life and at her death to her children, if any are living, but if she dies without children the remainder to be divided between named children of the testator or their heirs, and the children so named as remainder-men convey, with a covenant of further assurance, their entire interest to the daughter, who has no children, the daughter becomes vested with the entire estate so devised, subject to the contingent remainder to her child or children should any be born to her, and if she dies leaving no child, the estate will pass to her heirs, devisees or grantees.</p>

<p>1. Criminal law—effect of discharge for want of speedy trial. A person committed for crime who has obtained his discharge from the court for failure of the People to bring the case to trial within the time prescribed by the statute enacted' to carry into effect the constitutional guaranty of the right to a speedy trial, cannot be committed or held for the same offense under a second indictment.</p> <p>2. Habeas corpus—habeas corpus does not lie for correction of errors. If a court has jurisdiction of a criminal offense and of the person of the accused, the question whether errors or irregularities have occurred in the exercise of such jurisdiction can be determined only by writ of error and not by a writ of habeas corpus.</p> <p>3. Same—when habeas corpus is the proper remedy. Where a person committed for crime has obtained from the court where the indictment is pending an order for his discharge for want of a speedy trial but is held in the custody of the sheriff under a second indictment for the same offense, the writ of habeas corpus is the proper remedy to enforce the order of the court entitling him to his discharge.</p>

<p>1. Eminent domain—when a verdict will be set aside as excessive. A verdict in condemnation will be set aside as excessive, notwithstanding the amount is within the range of the testimony and the jury viewed the premises, if it appears the verdict is the result of passion or prejudice.</p> <p>2. Same—it is error to allow proof of what petitioner paid for other land. In a proceeding to condemn a strip of land through a farm for a railroad right of way, it is error to permit the defendant to prove what the petitioner had paid per acre for land for railroad purposes in the vicinity of the land sought to be taken.</p> <p>3. Same—jury’s view of premises is to be considered. An instruction in a condemnation proceeding, where the jury viewed the premises, which requires the jury to fix the value of land taken and, the damage to the land not taken from a consideration of the evidence, is misleading, where it does not require them to consider their view of the premises as in the nature of evidence.</p> <p>4. Same—when instruction as to damage from vibration, etc., should not be given. An instruction in condemnation especially calling attention to damages by reason of noise, vibratiqn, cinders and smoke should not be. given, where the nearest of the defendant’s buildings is four hundred and fifty feet from the defendant’s 'railroad, and where it does not appear that the witnesses as to damages to land not taken based their testimony upon a consideration of such elements.</p>

<p>Appeal from the County Court of Logan county; the Hon. Donald McCormick, Judge, presiding.</p>

<p>1. Schools—when members of city council are ex officio school directors. A special charter authorizing the city council in a city which forms one school district to appoint a board of school inspectors to manage the schools of the city empowers such council to define the duties of the school inspectors, and the members of the council are therefore ex officio members of the board of education, within the meaning of the act of 1879, as amended, (Hurd’s Stat: 1905, p. 1842,) and under section 2 of such act the mayor, with the consent of the council, should appoint a board of education to manage the schools in the place of the board of school inspectors.</p> <p>2. Same—when a school tax is invalid. A board of school inspectors appointed by the city council of a city under the provision of a special charter which has been repealed by the act of 1879, requiring the mayor to appoint a board of education, which shall determine the amount of the school tax and certify the same to the city council, under the hands and seals of the president and secretary of such board, cannot be regarded as a de facto board of education under the act of 1879, and a school tax based upon the estimate of such board of school inspectors is invalid.</p> <p>3. SA-Mt-^-when school tax cannot be validated by amendment. A school tax based upon the estimate of a board of school inspectors appointed and acting under the supposed authority of a special charter provision which had been repealed by the act of 1879, (Hurd’s Stat. 1905, p. 1842,) cannot be validated, upon application for judgment of sale, by attempting to amend the certificate of levy so as to make it conform to the one required by section 4 of the act of 1879, which must be based upon the certificate of the president and secretary of the board of education.</p>

<p>1. Special assessments—hozv an assessment shall be made is a question for the legislature. A special assessment for a local improvement must be limited to the benefits conferred upon the property, and the constitution secures to the property owner certain rights, but so long as those rights are not infringed the questions whether the assessment shall be based upon an estimate of the probable cost, or upon the actual cost after the improvement is completed, are for the legislature.</p> <p>2. Same—failure to properly itemize estimate of cost does not render ordinance void. Failure to properly itemize the engineer’s estimate of the cost of a proposed local improvement renders the ordinance insufficient to support the assessment but does not render it void, and a new assessment may be levied to pay for the work done under such ordinance.</p> <p>3. Same—estimate of cost is unnecessary where work has been completed. After work has been completed and the actual cost ascertained the provisions of the Local Improvement act relating to probable cost have no application, and in levying a new assessment under sections 57 and 58 of the Local Improvement act no estimate of the cost is necessary; nor is it of any importance that the estimate of cost under the'original ordinance was not properly itemized.</p> <p>4. Same—when new assessment is properly levied. A new assessment is properly levied, under sections 57 and 58 of the Local Improvement act, where the work was completed under an ordinance which, upon error confessed by the city, was held insufficient for a failure to itemize the estimate of cost, for which reason the judgment of confirmation was reversed and subsequently vacated and set aside.</p> <p>5. Same—extent to which preliminary steps are jurisdictional. While "the requirements of the statute preliminary to the passage of a special assessment ordinance are mandatory, and are jurisdictional in the sense that they are essential steps in the proceeding culminating in the assessment, yet they are not all necessarily essential to the jurisdiction of the court to hear and determine the controversy. (Clarke v. Chicago, 185 111. 354, Bass v. Chicago, 193 id. 109, Bickerdike v. Chicago, 203 id. 636, and Becker v. Chicago, 208 id. 126, explained.)</p> <p>6. Same—city complies with section 34 of Improvement act by mailing the notice. The provision of section 34 of the Local Improvement act, concerning the notice of the passage of an ordinance to build a sidewalk by special assessment, is complied with where the city mails such notice within the time specified, and the fact that the failure of the property owner to receive such notice deprives him of the privilege of building the sidewalk himself is no defense to' the assessment.</p> <p>7. Same—what is not bad faith in constructing an improvement. One who has obtained the contract for constructing a sidewalk to be paid for by a special assessment which has been confirmed, can not be charged with bad faith in proceeding with the work merely because he was notified by one of the property owners, before the work was begun, that the latter would sue out a.writ of error to reverse the judgment because the estimate of the engineer was not properly itemized'.</p>

<p>Appear from the County Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding.</p>

<p>Appear from the Circuit Court of Sangamon county; the Hon. O. P. Thompson, Judge, presiding.</p>

W. C. Johns, Judge, presiding. Joña M. Tohill, the appellee, filed a bill for injunction in the circuit court of Macon county to restrain Hugh W. Hill, .the appellant, from removing thirty-two rods of hedge fence on the line between the lands of appellant and those of appellee; The bill attacks the constitutionality of one section of the statute in reference to division fences. A temporary injunction was granted in term time, after notice to appellant.

<p>1. Wills—question whether the court erred in directing verdict■ does not involve weight of evidence. Whether the court erred in directing the jury to find for the defendants to a bill to contest a will does not involve any question as to the preponderance of the evidence or the credibility of witnesses or the force of evidence tending to impeach the witnesses, but only whether there was any evidence fairly tending to sustain the allegations of the bill with respect to its charges of undue influence and want of testamentary capacity.</p> <p>2. Same—when verdict should not be directed. A verdict for the defendants to a bill to contest a will for undue influence and want of testamentary capacity should not be directed, where there is evidence that the testator, at the time of making the will, was very old and suffering from a disease which weakened his mental faculties, had been taking morphine to quiet his pain, was in delirium or coma much of the time, and that, although a man of education, he made crosses for his signature to the will, which disposed of his entire estate to strangers to the blood and .to the exclusion of his relatives, none of whom were present or knew of his illness, and where the beneficiaries of the will were the children of the woman with whom the testator was boarding and who was active in procuring the will to be made.</p> <p>3. Same—undue influence need not be necessarily that of the beneficiaries. The undue influence which will invalidate a will need not be necessarily- exerted by the beneficiaries but may be exerted by a third person, such as the mother of the beneficiaries, and proof of such influence may be wholly circumstantial or inferential.</p> <p>4. Same— contestants may prove friendly relations with the testator. Evidence tending to show that friendly relations existed between the testator and some of his relatives is competent, as bearing upon the issues, where a will disposing of the testator’s property to strangers to his' blood is sought to be set aside for undue influence or want of testamentary capacity.</p> <p>5. Same—declarations inconsistent with will cannot be shown. Declarations by the testator, at different periods of his life, with reference to his intended disposition of his property, are admissible in evidence if consistent with the provisions of the will but not if inconsistent therewith, except in so far as they may have a tendency to show the mental condition of the testator.</p>

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

<p>Appeal from the County Court of St. Clair county; the Hon. John B. Hay, Judge, presiding.</p>

<p>1. Wipes—when devise of use of land passes fee. A devise to the testator’s son of the use of one-half the testator’s real estate during his life after the death of his mother, who died before the testator’s death, and at the death of the son “to his legal heirs,” is equivalent to a devise ,of the land itself, being absolute and unlimited, and under the rule in Shelly’s case passes a' fee simple title to the son.</p> <p>2. Same—when devise creates a fee simple inheritance. A devise to the living nieces of the testator of the entire income from an undivided one-half of the testator’s real estate, subject to certain charges but with no limitation over, passes a fee simple inheritance in the land itself under section 13 of the Conveyance act, there being no less estate appearing to have been devised by construction or operation of law; and the living nieces are tenants in common of such undivided one-half of the real estate, subject to the charges, liens upon the land and claims of creditors.</p> <p>3. Same—nature of estate devised does not depend upon amount of income. An absolute and unqualified devise of the income of land, subject to certain charges, is equivalent to a devise of the land itself, irrespective of the question whether the income is sufficient to pay the charges against it, since the nature of the estate devised does not depend upon the amount of income which the property produces.</p>

<p>Appeal from the Circuit-Court of Clay county; the Hon. Truman E. Ames, Judge, presiding.</p>

<p>1. Taxes—levy of town tax in gross sum for “town purposes” is invalid. A levy of a town tax in a gross sum for “town purposes,” there being nothing further in the certificate of levy to show what such purposes were, is invalid.</p> <p>2. Same—rule for extending tax levied at the 'maximum rate. Where a tax levy equals the maximum rate allowed by the law, the total amount of tax which may be lawfully extended is ascertained by computing the tax, at that rate, upon the basis of the equalized value as fixed by the State Board of Equalization, then, for all taxes other than State taxes, the rate percentum against each $100 is ascertained by dividing the result so obtained by the valuation as fixed by the county board of review.</p> <p>3. Same—power of a board of education to levy tax to create sinking fund to pay bonds. A board of education has power to levy an annual tax for “building purposes,” within the statutory limit, which shall be sufficient not only to pay the interest on outstanding bonds, the proceeds of which have been used in erecting school buildings, but also to create a sinking fund sufficient to pay the principal of the bonds when they fall due. , (People v. Peoria and Eastern Ry. Co. 216 111. 221, followed.)</p> <p>4. Same—when an objection to a certificate of levy is waived by stipulation. An objection that a certificate of levy by the board of education states that the tax is to pay principal and interest on bonded indebtedness instead of stating it to be for “building purposes,” is waived by. a stipulation by which the objectors to the tax agree that the levy was made for the purpose of paying principal and interest on school bonds, the proceeds of which were entirely used in erecting school buildings in the district.</p> <p>5. Same—when tax should not be computed on the State board’s valuation. Where the amount of a tax for school purposes is less than the maximum rate allowed by law, the valuation fixed by the county board of review, and not that fixed by the State Board of Equalization, is properly used in computing the tax at such rate.</p> <p>6. Same—tax for purchase of a school site is properly included in tax for building purposes. A tax levied for the purchase of a school house site, authorized by a vote of the people of the district, is properly included in the tax for building purposes.</p>

<p>Appeal from the County Court of Montgomery county; the Hon. M. J. McMurray, 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. Charles M. WalkER, Judge, presiding.</p> <p>This is an action in assumpsit brought by the appellee, against the appellant, in the circuit court of Cook county, to recover the amount due on a promissory note reading as follows :</p> <p>“$5000. Chicago, August 12, i8p2.</p> <p>“On or before two years after date, for value received, I promise to pay to the order of Bradner Smith & Co. the sum of five thousand dollars, at their office, with interest thereon at the rate of six per cent per annum, payable semi-annually.</p> <p>“This note is secured by a trust deed to Charles M. Smith, trustee, of even date herewith, on real estate in Chicago, S. % of Lot 7, Blk. 24, Bushnell’s addition to Chicago, 413 Dearborn avenue, and is to bear interest at the rate of seven per cent per annum after matUrity'</p> <p>Daniel Stern.”</p> <p>When the case was submitted to the jury the evidence showed that interest due at the rate of $300 a year was paid 011 the note (semi-annually) in full each year, up to and including 1900. The note was introduced in evidence, with the payments of interest, and appellant thereupon offered in evidence a discharge in bankruptcy by the United States District Court for the Northern District of Illinois, showing that he had filed the petition in that court asking for discharge of all his debts existing on September 27, 1899, including this note, and that an order discharging him from those debts was entered in that court October 6, 1900. It was agreed that a part of the interest on the note for the year 1899 and all the interest for 1900 was paid after the petition in bankruptcy was filed. Evidence was also offered by appellee tending to show that appellant, after the petition in bankruptcy had been filed, promised to pay the debt in full. This promise was denied by appellant. A verdict was returned in favor of the plaintiff assessing its damages at $6418.36, and judgment rendered thereon. On appeal taken to the Appellate Court the judgment of the circuit court was affirmed, and the case was thereupon appealed to this court.</p>

<p>1. Special assessments—court may permit additional objection to be filed after taking case under advisement. The county court, for good cause shown, may, at any time before entering a judgment confirming a special assessment, permit an additional objection to be filed, even though the other objections have been heard and the case taken under advisement.</p> <p>2. Same—when refusal to strike additional objection from files is not error. A refusal to strike from the files an additional objection that the ordinance was unreasonable and oppressive, upon the ground that the objection was too general, is not error, where the evidence in support of the objections already heard largely covered the question of the reasonableness and necessity for the improvement and no request was made by the city to introduce additional evidence after the new objection was filed.</p>

Writ or Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. S. TuThiia,, Judge, presiding. This is a writ of error to review the judgment of the Appellate Court for the First District affirming the decree of the circuit court of Cook county dismissing for want of equity a bill for mechanic’s lien filed against defendants in error’s testator.

<p>1. Mortgages—when fraud in executing trust deed does not affect its validity as security. The fact that the grantee in a deed may have perpetrated a fraud upon his grantors in executing a trust deed securing to a third person a first lien for money loaned by him in good faith upon the title as it appeared of record, without any negligence on his part and without knowledge or notice of the fraud, does not affect the validity of such trust.deed as security.</p> <p>2. Evidence—what will not sustain decree declaring deeds to be forgeries. A decree canceling certain deeds as forgeries upon the ground that the name of the original grantee was erased and another name substituted after the deeds were executed cannot be sustained, where the preponderance of the evidence shows that as to two of the deeds there had been no erasure whatever, and that as to the other the erasure and substitution were made after the deed was prepared but before it was executed, and that the change was explained to the grantors.</p>

<p>x. Taxes—when county tax should not be extended at maximum rate. Where a county tax is levied at the maximum rate, and the assessed valuation as fixed by the county board of review, plus railroad property, exceeds the valuation fixed by the State Board of Equalization, the tax should be extended upon the county board’s valuation at such a rate as will produce the total amount of tax which may be levied, as ascertained by multiplying the State board’s valuation by the maximum rate.</p> <p>2. Same—when city tax is not illegal. A city tax is not illegal because the tax levy ordinance does not contain a list itemizing the amount levied so as to show the amount levied for each purpose, where it sets out in detail the items of the appropriation ordinance, thus making it a matter of mere mathematical computation to ascertain the amount levied for each purpose. {Otis v. People, 196 111: 542, and People v. Peoria, Decatur and Bvansville Railroad Co. 116 id. 410, distinguished.)</p>

<p>1. Mines—negligence of vice-principal is the negligence of the master. An employee of a mining company who is entrusted with the duty of looking after the conditions attending the proper ventilation of his section of the mine and the safety of the miners working therein, is, as to such duty, the vice-principal of the master, and his negligence in that regard is the negligence of the master.</p> <p>2. Feeeow-sErvanTs—when question of fellow-servants does not arise.' Where a certain person, on the day of an accident resulting in the death of a miner, is, in the absence of the regular man, performing the latter’s duties with respect to the conditions attending the safety of the men, he is in that respect the representative of the master, and the question of fellow-servants is not in the case.</p>

Thomas G. Windes, Judge, presiding. This is a bill filed in the circuit court of Cook county by the People, upon relation of John J. Healy, State’s attorney, and John J. Healy, State’s attorney, upon the relation of Ralph Clarkson, against the Clean Street Company, (a corporation,) the city of Chicago and George H. Jenney.

<p>Writ of Error to the Criminal Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

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

<p>1..Names—corporation has property right in its name. A corporation, whether organized for pecuniary profit or not, has such a property right in its corporate name as will be protected by a court of equity by enjoining the use by another company of the same name or of one so similar as to mislead the public.</p> <p>2. Mandamus—mandamus will not be issued in a doubtful case. The writ of mandamus will only be issued where there is a clear legal right to be performed or a duty which ought to be enforced.</p> <p>3. Same—when mandamus will not be issued to compel Secret tary of State to issue certificate of incorporation. Mandamus will not be awarded to compel the Secretary of State to issue a certificate of incorporation under the name of “National Liberty League” where there is another corporation already in existence under the name of “National Liberty Legion,” since the effect of such course would be to mislead the public in dealing with such corporations.</p>

<p>1. Appeals and Errors—when permitting amendment, to answer must be upheld. Permitting a defendant in chancery to amend his answer upon motion supported by affidavits will be upheld on appeal, where the affidavits are not incorporated in the record, having been lost from the files and no effort made to supply them.</p> <p>2. Fraud—party electing to abide by contract cannot afterwards rescind it. One who has relied entirely upon the material representations of the other party in making a contract for an exchange of properties may, upon learning such representations were false, elect to rescind the contract; but if he treats the property as his own after full knowledge of the fraud, makes a contract for its care and does not attempt to rescind or make restitution until he begins a suit for that purpose several months later, during the pendency of which he receives the income from the land, he must be regarded as having ratified the contract.</p>

R. S. TuThill, Judge, presiding. In July, 1897, certain stockholders of the Mechanics’ and Traders’ Savings, Loan and Building Association filed a bill of complaint in the circuit court of Cook county asking for the appointment of a receiver and the winding up of the corporation.

<p>1. Special assessments—what must appear from estimate of cost. The engineer’s estimate of the cost of a proposed improvement should be sufficiently itemized and specific to give the property owners a general idea of what it is estimated will be the cost of the substantial, component elements of the improvement.</p> <p>2. Same—estimate should show of what material the street gutter crossings are to be made. The engineer’s estimate of the cost of a paving improvement should show of what material the street gutter crossings are to be made, as well as the estimated cost thereof, and if the curb is to be laid upon a foundation of other material than the earth, should show the estimated cost of such material.</p> <p>3. Same—when objection to estimate may be raised. An objection that the engineer’s estimate is inaccurate, insufficient and uncertain and the requirements of the statute in regard to the estimate have not been complied with is sufficient to cover the objection that the estimate was not properly itemized, where no motion was made to have the objection to the estimate more specifically point out its defects.</p> <p>4. Same—when Court should permit objections to merits to be Med. After the court has overruled the legal objections to a special assessment, it should allow objections going to the question of benefits and the proportionate share of the cost of the improvement to be filed, unless a jury trial or further controversy upon those questions has been waived, and its refusal to do so and to allow a jury trial is error. •</p>

<p>1. Taxes—road tax in town under the labor system must be extended upon commissioners’ original certificate. A road and bridge tax for a town under the labor system is illegal which is extended upon a certified copy of the highway commissioners’ certificate of levy instead of upon the original certificate, as required by section 119 of the Road and Bridge act.</p> <p>2. Same—additional road tax is permitted only in view of some contingency. Section 14 of the Road and Bridge act permits an additional road and bridge tax levy only in view of some contingency, which must be certified, together with the extra amount desired, by the commissioners to the board of town auditors and the assessor, a majority of whom must consent, in writing, to the additional levy.</p> <p>3. Same—when an additional road tax is invalid. An additional road and bridge tax is invalid where the highway commissioners certified to no contingency for which it was required, the board of auditors and the assessor consented to the additional levy “for the specific purpose of iron bridge,” and the tax, when finally made by the commissioners, was “to liquidate roads and bridges.”</p>

Writ oE Error to the Circuit Court of Monroe county; the Hon. B. R. Burroughs, Judge, presiding. This is an action of ejectment in the circuit court of Monroe county, brought by defendant in error against plaintiff in error, to recover possession of a strip of land thirteen and one-half feet wide across a forty-acre tract.

<p>Appear from the County Court of Williamson county; the Hon. W. F. Srater, Judge, presiding.</p>

<p>1. Constitutional law—right of citizen to engage in business is subject to State’s police power. The right of a citizen to follow any legitimate business or occupation as a means of livelihood is subject to the paramount power of the State to impose any reasonable regulations the public welfare may require.</p> <p>2. Same—legislature may regulate business of plumbing. The legislature has power to regulate the business of plumbing by imposing such restraints and prescribing such requirements as it may deem proper for the protection of the public against the evils resulting from the incapacity and ignorance of persons engaged in such business as master plumbers, employers of plumbers or journeymen plumbers. ,</p> <p>3. Same—classification by population, as a basis for legislation, may be proper. A classification of cities, towns and villages by population, as a basis of legislation, may be properly made, if there is a rational difference of situation or condition found in the municipal corporations placed in the different classes.</p> <p>4. Same—classification of cities in act relating to plumbers is rational. The act of 1897, (Laws of 1897, p. 279,) requiring all plumbers in cities, towns and villages of 5000 inhabitants or more to obtain certificates, and requiring cities, towns and villages of 10,000 or more inhabitants to appoint and maintain a board of examiners to inquire into the qualifications of persons engaged in plumbing and to issue certificates, is not unconstitutional as respects the classification of such cities by population.</p> <p>5. Same—a law is general if it operates on all persons similarly situated. A law is general and uniform if it operates alike upon every person in the State who is brought within the conditions and circumstances prescribed by the law.</p> <p>6. Same—the act of i8p7, relating to plumbers, is constitutional. The act of 1897, (Laws of 1897, p. 279,) requiring plumbers in cities, towns and villages of 5000 or more inhabitants to obtain certificates, and requiring cities, towns and villages of 10,000 or more inhabitants to appoint and maintain a board of examiners to inquire into the qualifications of persons engaged in the plumbing business and issue certificates, is a valid exercise of the police power of the State, is not a local or special law and does not confer arbitrary powers upon the boards of examiners.</p>

<p>1. Executors and administrators—administrator required to use only ordinary skill and diligence. While an executor or administrator must act with the highest degree of fidelity and good faith in the performance of his duties, yet he is held only to the exercise of such skill and diligence as an ordinarily prudent man bestows upon his own similar private affairs, and if his acts stand the test of such rule he is not liable to the estate for loss which may be sustained, there being no fraud or collusion.</p> <p>2. Same—what does not show lack of ordinary skill in selling stock. That an administrator sold stock in a corporation, the ordinary market value of which was $250 per share, for $600 per share during a period when rival corporations were buying up the stock to obtain control of the corporation does not show lack of ordinary skill and diligence, even though other persons received as high as $1500 per share, where, had the competition suddenly ceased, as it was likely to do at any time, the price of the stock would have dropped back to its normal value.</p> <p>3. Same—the fact that administrator sold his own stock at same price shows good faith. That an administrator acted in good faith in selling stock of the estate at a certain price is shown by the fact that he sold his own stock in the same corporation for that price.</p>

Writ oe 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. John Gibbons, Judge, presiding.

<p>. 1. Equity—equity has no common law jurisdiction to entertain bill to contest a will. At common law a court of equity has no jurisdiction to entertain a bill to contest a will, but such jurisdiction has been conferred in Illinois by statute, provided the bill is filed within the period fixed by law.</p> <p>2. Same—jurisdiction to entertain bill to contest will cannot be waived. If a bill to contest a will shows upon its face that it was not filed within the period fixed by law the court is without jurisdiction to entertain it, and the fact that the point is overlooked, an answer filed and a hearing had culminating in a decree, which is reversed by the Supreme Court on the merits and the cause remanded generally without specific directions, does not preclude the defendants from withdrawing their answer upon the re-docketing of the cause and raising the question óf want of jurisdiction by demurrer, since such want of jurisdiction cannot be waived.</p>

Lockwood Honors, Judge, presiding. The Attorney General of Illinois, at the relation of certain electors of the town of Lemont, in Cook county, filed an information in the nature of quo warranto in the circuit court of that county challenging the right of Peter Markiewicz to the office of commissioner of highways in said town.

<p>Appeal from the Appellate Court for the First District;— heard in that court on, writ of error to the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.</p>

<p>1. Evidence—admissibility of a telephone conversation. In an action by a bank against a commission firm for the proceeds of drafts cashed by the plaintiff which the defendants failed to pay, a telephone conversation between plaintiff’s cashier and some one in the business office of the defendants, had with reference to other drafts drawn by the same person on the defendants, in which the party talking from the defendants’ business office said such drafts would be paid, is admissible, notwithstanding the witness does not know with whom he was talking.</p> <p>2. Instructions—when instruction is bad for singling out defendants’ witnesses. An instruction which, after defining the two methods of impeaching a witness, states that “if the jury believe that any witness for the defense has been successfully impeached by either of the methods aforesaid, then you are at liberty to disregard the evidence of such witness, except so far, if at all, as he may have been corroborated,” etc., is misleading in singling out the witnesses for the defendants.</p> <p>3. Witnesses—false testimony must have been knowingly and willfully given to give rise to impeachment. A witness who has been contradicted upon a material matter by other witnesses, or has made statements out of court upon a material matter contrary to his testimony in court, is not necessarily impeached, unless his false testimony as to such material matter was knowingly and willfully given.</p>

<p>1. Drainage—decision of commissioners that parties have connected drains can only be questioned by quo warranto. The determination of drainage commissioners, under section 42 of the Farm Drainage act, that certain land owners outside of the district had "connected their drains with those of the district and that their lands should therefore be added to the district and specially assessed, can be questioned only by a direct proceeding in quo zvarranto.</p> <p>2. Same-—what cannot be shown to defeat drainage assessment. Upon application for judgment of sale for a drainage assessment levied upon lands added to the district by. the drainage commissioners under section 42 of the Farm Drainage act, upon the ground the owners of the lands had connected their drains with those of the district, it cannot be shown, to defeat the assessment, that the land owners had not, in fact, connected with the drains of the district. {Payson v. People, 175 111. 267, explained.)</p>

Writ oe Error to the Circuit Court of McDonough county; the Hon. John A. Gray, Judge, presiding.

<p>1. Taxes—railroad property need not be used exclusively for railroad purposes. Property used mainly for railroad purposes does not lose its character as railroad property because it is used, to a certain extent, for other purposes.</p> <p>2. Same—combination railrbad and toll bridge properly classed as railroad track. A bridge owned by a railroad company and used mainly for railroad purposes, although roadways for wagons are attached to the bridge by brackets and toll charged for use of such roadways, is properly classed, in its entirety, as railroad track, and when so assessed by the State board any attempt by the local authorities to tax the easement in the bridge and the support furnished by it and its piers to the roadways is to that extent an attempt to tax what has already been assessed and taxed.</p> <p>3. Same—right to operate toll,bridge is a franchise. The right of a railroad corporation to operate a toll-bridge and take tolls is a franchise, which the local assessor or board of review has no power to assess for taxation; and if such franchise is included in an attempt by the assessor or board of review to assess the bridge itself the tax is illegal.</p>

<p>Appeal from the Circuit Court of Effingham county; the Hon. S. L. Dwight, Judge, presiding.</p>

<p>1. Contracts—when a contract of hiring is mutual as respects period of service. A contract of hiring which recites that the employee is to begin service on a certain date and be employed as manager, and that “it is mutually understood that said position” is for a term of five years, is not lacking in mutuality upon the alleged ground that the employee did not agree to serve for five years.</p> <p>2. Same—when justification of discharge of employee is a question of law. Where there is no conflict in the evidence, the question of what amounts to a legal justification for the discharge of an employee hired under a written contract is one of law for the determination of the court.</p> <p>3. Same—what is not legal justification for discharge of an employee. The fact that a former employee of a certain corporation loaned a copy of the agency list to a rival corporation is not a legal justification for the discharge of such person after he had again been employed by the former corporation, where he was not in the employ of such corporation at the time he loaned the book, and where the fact that he had done so was known to the vice-president of the corporation, and consequently to the corporation, for a year before he was discharged.</p>

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Randolph county; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>1. Railroads—whether a railroad should maintain fence is a question of law. Whether a railroad company is required to fence its right of way at some particular place is a question of law, to be determined from a construction of the statute.</p> <p>2. Same—duty of a railroad company to construct wing fences and cattle-guards. At whatever places a railroad company is expressly or impliedly exempt from fencing its right of way it must construct and maintain wing fences and cattle-guards at the termini of the portions of the right of way required to be fenced.</p> <p>3. Same—railroad must erect wing fences and cattle-guards at crossing of its line with another railroad. A railroad company is, by necessity, exempt from fencing its right of way at the grade crossing of its line with another railroad, and hence it is bound, in law, to erect wing fences and cattle-guards at such crossings.</p> <p>4. Same—fact that another railroad has neglected to pei'form its duty is no defense. The fact that the stock killed by a railroad upon its right of way came upon the same from the right of way of another railroad company which had failed to properly maintain its wing fences and cattle-guards at a nearby highway crossing is no defense to an action for damages under section 68 of the Railroads act, where the defendant company had no wing fences or cattle-guards at the crossing of its road with such other railroad.</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. Robert W. Wright, Judge, presiding.</p>

<p>1. Municipal corporations—city has no authority to furnish electric light to private citizens. The rule making a municipal corporation liable for its negligence, the same as an individual, where it is furnishing water or gas both for public and private use and is negligent with respect to such acts, does not apply to the matter of electric lights, since a city has, under the statute, no authority to furnish electric light to private consumers.</p> <p>2.. Same—city bound to use reasonable care to keep street free from dangerotis obstructions. Regardless of the ownership.of an electric light plant, it is the duty of a municipal corporation to use reasonable care not to suffer or permit uninsulated wires to so obstruct the public streets as to render them dangerous to persons using the same.</p> <p>3. Same—what is no defense to charge of negligence in permitting live wire to obstruct street. A declaration charging negligence on the part of a village in suffering an uninsulated electric wire to so obstruct the street as to render it dangerous to persons using the same, is not answered by pleas averring that the city was operating the electric light plant under its police power to light the streets, or that it was, without lawful authority, furnishing light to private consumers, and it is proper to sustain demurrers thereto.</p> <p>4. Same—right of person to assume that objects placed in the streets are safe. A person walking upon a public- street has a right to presume that objects placed thereon by the municipal authorities are harmless, unless the appearance of the objects shows them to be otherwise or he has notice of their dangerous character.</p> <p>5. Same—city is bound to maintain electric light plant in a safe condition. In view of the dangerous character of electricity a city is bound to construct and maintain its electric light plant in a safe condition, and it cannot escape liability for its negligence in that regard by casting upon the injured person the burden of notice of the dangerous character of electricity, and of the wires, poles and machinery connected therewith.</p> <p>6. Same—when a notice of danger is essential to contributory negligence. The fact that a person walking along a street took hold of a guy wire attached to a pole standing in the street does not bar a recovery against the village for his death, occasioned by receiving an electric shock, unless he knew or had reason to believe that the guy wire was charged with electricity.</p>