Volume 227 — Illinois Reports

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. J. A. Creighton, Judge, presiding.</p>

A. H. Frost, Judge, presiding. This is an action on the case in the superior court of Cook county by appellee, against appellant, to recover for personal injuries sustained by falling on a public sidewalk on the west side of Forty-second avenue, near West Madi-' son street, in the city of Chicago.

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. Joseph E. Gary, Judge, presiding.

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

<p>1. Special assessments—county plat books are admissible as tending to show existence or non-existence of streets. Comity plat books are admissible in evidence upon the question whether the street to be improved has been opened across an objector’s property ; but they are not conclusive, particularly where it appears that for several years deeds or dedications, unaccompanied by plats, had not been recognized in keeping up the plat books.</p> <p>2. Same—when exclusion of evidence is not harmful error. Refusal to admit in evidence in a special assessment proceeding a county plat book intended by an objector to show that the street had not been opened across his property is not harmful error, where the objector offered no evidence whatever, except such book, to show that the street had not been opened or was not in use or that the land therefor had not been acquired by the petitioner.</p> <p>3. Same—when assessment of property as one tract is proper. An entire unsubdivided tract of land bisected by the street to be improved is properly assessed as an entire tract, and not as separate parcels with the street as the dividing line.</p> <p>4. Same—points not decided by county court cannot be raised on appeal. Points not specifically insisted upon among the numerous legal objections to a special assessment and not decided by the county court cannot be urged on appeal.</p>

E. R. E. Kimbrough, Judge, presiding. On February 14, 1906, a contract was entered into between appellant and appellee whereby the latter agreed to trade his farm of one hundred and sixty acres in Clark county, Illinois, for one hundred shares of stock of the Marshall AVarehouse Company and $8800 additional, making the total consideration for the farm $20,000.

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

<p>1. Religious societies—what is necessary to constitute a religious society. In order to constitute a religious society there must be a membership of persons associated together which collectively constitutes the society, with such officers as are required, or at least a definite collective body acting as a society.</p> <p>2. Same—religious society may be dissolved by abandonment or non-user. If there has been no collective body associated together, acting as a society, for such a period of time that an inference of abandonment necessarily follows, the society must be regarded as dissolved, even though there has been no formal dissolution by agreement of the members.</p> <p>3. Same—when trust fund reverts to heirs. Where a religious society which was in existence and exercising its functions at the death of a testatrix is made the beneficiary of a trust fund, but subsequently, for a period of fifteen years, has had no pastor, has held no meetings or religious services of any sort and has allowed its church building to decay, the society must be regarded as dissolved, and the trust fund reverts to the heirs of the testatrix.</p> <p>4. Same—what is not siifficient to re-create a society. Where a religious society which was the beneficiary of a trust fund has abandoned all its purposes for a period of fifteen years the society must be regarded as dissolved, and the mere. fact that, after the filing of a bill by the heirs of the testatrix to construe the will and determine the ownership of the fund, eleven persons who were formerly members of the society meet and elect three of their number as trustees is not sufficient to re-create the society and re-invest the trust fund in it.</p>

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

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

E. R. E. Kimbrough, Judge, presiding. Thomas George brought this action on the case against the Jones & Adams Company to recover damages for a personal injury received by plaintiff below while engaged as a driver in the coal mine belonging to the defendant company.

Joseph E. Gary, Judge, presiding. This is an action on the case for a personal injury, in which Anton Barzak, appellee, recovered $5000 damages against appellants, doing business as the Deering Harvester Company, in the superior court of Cook county, which judgment, upon appeal to the Appellate Court for the First District, has been affirmed, and the cause has been removed to this court by this further appeal.

<p>1. MurdEr—law as to homicide by intoxicated person. Where one who is voluntarily intoxicated commits a homicide under such circumstances as would have constituted murder by one not intoxicated, the intoxication is neither defense nor excuse.</p> <p>2. Same—when instruction with respect to intoxication properly given. Where the fact of the defendant’s intoxication is in evidence as a necessary part of the case against him for murder, it is proper to give instructions correctly stating the law as respects the intoxication of one committing a crime, even though the defendant does not interpose his intoxication as a defense.</p> <p>3. Same—a mistaken belief in appearances, caused by intoxication, is not a defense. The belief in danger, such as justifies the killing of a person, must be such a belief as a reasonable person would have entertained under the circumstances and in view of the appearances, and if such belief arises only from the. intoxicated condition of the person entertaining the same, it neither excuses his action nor reduces the grade of his offense.</p> <p>4. Same—when killing cannot be justified under the plea of self-defense. One who has killed another cannot justify his action under the plea of self-defense, whgre it would not have appeared to a reasonable person in a like situation with the defendant that he was in danger of great bodily harm or of losing his life.</p> <p>5. Same—an instruction may state that facts constitute murder. If the facts stated in an instruction necessarily constitute murder, it is proper for the instruction to state that they do constitute such offense in law, without any qualification as to manslaughter being inserted.</p> <p>6. Same—when judgment of conviction will not be reversed. A judgment of conviction which is fully sustained by the facts proven and justified by the law will not be reversed for slight or immaterial errors in instructions.</p> <p>7. Instructions—when ambiguity of instruction is not prejudicial. An instruction informing the jury that they might find the defendant guilty of murder, or they might find him guilty of manslaughter if they found from all the evidence, beyond a reasonable doubt, that he was not guilty of murder, is not prejudicial as tending to place the burden on the defendant to prove he was not guilty of murder, where other instructions clearly require the prosecution to prove, beyond a reasonable doubt, every material fact necessary to constitute such crime.</p> <p>8. Same—when instruction as to the weighing of testimony is not harmful. While the law raises no presumption as to whether a witness has testified truly or falsely, yet it is not harmful to give an instruction advising the jury to attribute misstatements of witnesses to other causes than an intention to commit perjury, where the instruction does not direct the jury to give credit to any particular witness or witnesses.</p> <p>9. Trial—a party must object to improper statements of opponent and obtain ruling. To preserve for review alleged improper statements of counsel in his argument the opposing counsel must object thereto and obtain a ruling, and if he chooses to remain silent, under an arrangement with the court that his exceptions will save themselves without interrupting the argument, he will not be allowed in a court of review to take advantage.of objectionable statements that may have been made.</p>

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

<p>Appeals and errors-—when no question is presented for the Supreme Court. Upon appeal to the Supreme Court from a judgment of the Appellate Court affirming the judgment in an action at law, if there was no motion to direct a verdict in the trial court and no assignment of error argued as to the giving or refusal of instructions or the admission or exclusion of evidence, there is no question presented for review by the Supreme Court.</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. Arthur H. Frost, Judge, presiding.

<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. M. Kavanagh, Judge, presiding.</p>

E. R. E. Kimbrough, Judge, presiding. This is an action in assumpsit in the circuit court of Vermilion county. The declaration originally consisted of one count, to which a demurrer was sustained by the court. By leave of court an additional count was filed, a general and special demurrer to which was sustained. Appellants having excepted to this ruling of the court, stood by the additional count and judgment was rendered against them for costs.

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

<p>This case is controlled by the decision in Wiemers v. People, 225 Ill. 82.</p>

<p>1. Taxes—when equity will entertain bill to enjoin collection of tax. Equity will entertain a bill to enjoin the collection of a tax where it appears from the bill that the complainant, after complying with the statute and making a sworn statement of deductions, had no taxable credits, but that the assessor fraudulently and without the knowledge of the complainant added a large sum to the schedule as credits which had already been included in the list of deductions, and that the board of review refused to strike such item from the schedule and through ill-will arbitrarily increased the assessment still further.</p> <p>2. Same—effect where one allegation of bill is indefinite. The fact that one allegation of a bill to enjoin the collection of a tax is indefinite in stating that the complainant did not have any credits upon the first day of April, “as he now remembers,” does not justify the court in refusing to entertain the bill, where, ignoring such allegation, there remain enough averments in the bill to entitle the complainant, prima facie, to the relief prayed.</p>

James A. Creighton, Judge, presiding. The original bill in this case was filed in the circuit court of Jersey county May 3, 1904, to set aside a deed and require the appellee to deliver to appellant all of the personal property procured by him from Mary J. Knapp, deceased. On January 5, 1905, appellant, by leave of court, filed a supplemental bill to contest an alleged will of said deceased which had been probated in the county court of Jersey county on October 18, 1904.

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

<p>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 L. Healy, Judge, presiding.</p>

<p>This case is controlled by the decision in Gardner v. City of Chicago, 224 Ill. 254.</p>

Appear from the Appellate Court for the Third District ;■—heard in that court on appeal from the Circuit Court of Greene county; the Hon. Robert B. Shirrey, Judge, presiding. Charles A. Weimer died intestate in Greene county on March 5, 1903, leaving him surviving Sue A. Weimer as his widow, and Edith, aged seventeen years, and Karl, aged twelve years, as his children and sole heirs-at-law.

<p>Appeal from the Circuit Court of Rock Island county; the Hon. W. H. Gest, Judge, presiding.</p>

Louis; the Hon. W. J. N. Moyers, Judge, presiding. This is an action in case, brought by appellee in the city court of East St.. Louis, to recover from appellant for personal injuries sustained while in the service of said company. A tackle block or pulley was fastened to a stationary point by a rope or lashing. Through this pulley ran a hauling rope, one end of the hauling rope bearing a large hook and the other end being wrapped around the drum of a stationary engine.

<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. Theodore BrEnTano, Judge, presiding.</p> <p>This is an appeal from the judgment of the Appellate Court for the First District affirming a decree of the superior court of Cook county which confirmed a master’s report of sale in partition proceedings.</p> <p>Appellant states in his brief that no errors are assigned which question the findings of the court below as to the rights and interests of the parties in the premises or the proceeds thereof; that the errors assigned are only to the proceedings subsequent to the entry of a decree on November 4, 1904, awarding partition and appointing commissioners to make the same. The commissioners appointed under said decree reported that the premises could not be divided without prejudice to the parties and appraised the value at $2700. The court thereupon decreed that the property be sold by the master to the highest bidder for cash, but not for less than the required two-thirds of the appraised valuation. On January 13, 1905, the master reported that he had advertised in accordance with the decree but had received no bid equal to two-thirds of the value fixed by the commissioners. On the same day a decree was entered approving this report of the master and appointing three new commissioners to partition or re-value the property. These three commissioners on January 17, 1905, reported that the premises could not be divided without prejudice and fixed their value at $2300. On this date a decree was entered approving the report of the commissioners and ordering a sale of the premises by the master to the highest bidder for at least two-thirds of the valuation, after notice by publication once each week for. two successive weeks. February 7, 1905, the master reported that he had sold the premises at public auction, after giving the notice required by the last decree, to the highest and best bidder, Maria Flatsch, for $1533.34; that she had deposited $150 of the purchase price and was willing to pay the balance on the approval of the report. February 9, 1905, objections were filed to the report by appellant and other defendants, which, on hearing, were overruled and the sale was approved, from which order appeal was taken to the Appellate Court.</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. Axel Chytraus, Judge, presiding.</p>

<p>Writ op Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the City Court of Alton; the Hon. J. F. Dunnegan, Judge, presiding.</p>

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

<p>1. Pleading—when refusal of leave to file rejoinder is proper. Refusal of leave to file a rejoinder to a replication in an action of ejectment is proper, where the motion for leave was not made until the second trial of the case and no reason given for the delay.</p> <p>2. Ejectment—who must be made parties where premises are occupied. Under section 6 of the Ejectment act, where premises are actually occupied by some person, the actual occupant must be named as defendant in the suit, and all other persons claiming title or interest in the premises should be joined as defendants.</p> <p>3. Same—denial of claim of title or interest must be by verified plea. In ejectment, where the defendants’ claim of title or interest is first set up in the replication to a verified plea denying possession, it is necessary that the defendants file a rejoinder denying, under oath, any claim of title or interest in order to permit proof of that fact in defense.</p> <p>4. Same—default of one defendant does not admit cause of action against other defendants. The default of the defendant named as the actual occupant in an ejectment suit does not admit the cause of action against the other defendants who appear and plead, and does not relieve the plaintiff of the necessity of establishing his case as against them.</p> <p>5. Same—when court should not direct a verdict for the plaintiff. In ejectment, where the defendant named as actual occupant is defaulted but the other defendants file pleas of not guilty and verified pleas denying possession, which are not traversed in the replication alleging that such defendants claimed some title or interest, if the proof shows that the person named as actual occupant was not in possession of the lots, but that as the owner of the adjoining lot she had, by mistake and without claim of title or right, placed her division fence upon one of the two lots in controversy, both of which were vacant, but had removed it as soon as she discovered her mistake, it is error to direct a verdict for the plaintiff upon mere proof of title in him.</p>

R. S. Tuthill, Judge, presiding. Appellees filed their bill in equity to the March term, 1903, of the circuit court of Cook county praying that an instrument in writing that had been admitted to probate as the last will of Frederick Sutton, and the probate thereof, might be set aside and declared null and void and that the estate of Frederick Sutton be distributed as intestate estate.

<p>Appeal from the Appellate Court for the First District;— heard in that court oh writ of error to the Circuit Court of Cook county; the Hon. Lockwood HonorE, Judge, pre- ■ siding.</p>

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

<p>1. Municipal corporations—privilege of operating street railway is property. The privilege of constructing and operating a-street railway is a property right, for which a city may exact compensation when granting the privilege; but the fact that the city-may also grant such privilege gratuitously does not make the property right any the less valuable to the company upon which the privilege is conferred.</p> <p>2. Mortgages-—mortgage of street railway line covers the right to operate the line. A mortgage or trust deed covering a railroad or street failway line covers not only the rails, ties, poles and other component parts of the line, but als.o the right to operate the line as a railroad or street railway.</p> <p>3. Constitutional law—street railway certificates issued tinder the Mueller law create an indebtedness of the city. Street railway certificates issued under section 2 of the Mueller law (Laws of 1903, p. 287,) create an indebtedness against the city, where, by their terms and the terms of the mortgage or trust deed securing them, the street railway property purchased therewith, together with the right to operate such railways for a period of twenty years after a foreclosure sale, is pledged to secure their payment.</p> <p>4. Same—when the issue of street railway certificates is illegal. Where a city is indebted so near to its constitutional limit that the amount represented by street railway certificates issued under section 2 of the Mueller law, added to the existing indebtedness, will make a sum in excess of the amount of indebtedness the city may constitutionally incur, the issue of such certificates is illegal.</p> <p>5. Same-—a right of action against city is not essential to an indebtedness. The mere fact that certificates issued by a city expressly preclude the holder from bringing an action against such , city, does hot, of itself, prevent the issue and sale of such certifi- cates from creating an indebtedness against the city, where property of the city other than the tangible property, and its income, purchased with the proceeds of sale of such certificates, is pledged to secure the payment of the certificates. (City of Joliet v. Alexander, 194 Ill. 457, followed.)</p>

W. H. C-EST, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Second District affirming a judgment for $10,000 rendered by the circuit court of Rock Island county against the Republic Iron and Steel Company, appellant, in an action for personal injuries brought by William A. Lee, the appellee, against appellant and Joseph Worker. The declaration consisted of three counts.

<p>1. Drainage—power of Sanitary District of Chicago to agree to build levee. Under the law of its organization the Sanitary District of Chicago has power, in compromising a suit to condemn land for use in changing the channel of the DesPlaines river, to agree, in consideration for a deed to the land desired, to build a levee to protect the remaining lands from overflow, although the levee must, if built, cross lands the district does not own, including part of a highway and railroad right of way; and if it has full knowledge of all the facts and accepts the deed and uses the land for a new channel, it cannot lawfully refuse to perform its agreement upon the ground that the expense of building the levee greatly exceeds the value of the land to be protected.</p> <p>2. Specific performance—equity may enforce grantee's agreement contained in the deed. An agreement whereby the grantee, as a part of the consideration for the deed, is to build a levee to protect the remaining lands of the grantor may be specifically enforced by a court of equity, even though the deed is signed only by the grantor and not by the grantee, and regardless of the question whether the agreement, for that reason, is or is not a covenant.</p> <p>3. Same—when a defendant cannot complain that cotirt assessed damages. Where a grantee agrees, as a part of the consideration for the deed, to build a levee to protect the remaining lands of the grantor, and enters upon the land and so uses it that he cannot restore it to the owner in its original condition but refuses to build the levee, he cannot complain that the court, instead of decreeing specific performance, as sought by the grantor, found in accordance with the defendant’s contention that the cost of the work would greatly exceed the damages sustained, and for that reason assessed the complainant’s damages in accordance with the evidence.</p>

R. S. Farrand, Judge, presiding. This was an action of debt commenced in the circuit court of LaSalle county in the name of the People, for the use of Christian G. Sauer and .Charles B. Sauer, partners doing business under the firm name of Sauer & Son, against the appellant, under the provisions of sections 22 and 23 of “An act in relation to fencing and operating railroads,” approved March 31, 1874, in force July 1, 1874, (Hurd’s Stat. 1905, p. 1581,) to recover treble the…

<p>1. Real property-—rule as to constructive notice from recording of copy of will—conveyances. Under- section 33 of the act relating to conveyances, a duly authenticated and certified copy of a will admitted to probate in a foreign State operates as constructive notice only from the date of the filing of the same for record. (Bliss v. Seeley, 191 Ill. 461, followed.)</p> <p>2. Same—when conveyance by the heirs is good as against devisees. A conveyance of land in Illinois by the heirs of a non-resident owner to persons who had no actual notice that such deceased owner had left a will, his estate having been administered in the foreign State as an intestate estate, as shown by the records of the county in Illinois where the lands were situated, is good as against a subsequent conveyance by the devisees of such deceased owner under a will admitted to probate in the foreign" State after the conveyance by the heirs was made.</p> <p>3. Same—when pendency of suit to establish will does not affect rights of grantees of hairs. The fact that at the time of a conveyance of land in Illinois by the heirs of a non-resident owner, who died in a foreign State, there was pending in a court of such State a bill to establish a will of the decedent, does not affect the rights of the grantees if they had no actual knowledge of the pendency of the suit.</p>

<p>1. Appeals and Errors—chancellor’s findings will not be lightly disturbed. Findings of fact by the chancellor in a case tried without a jury, upon oral evidence, are entitled to great weight, and will not be reversed by a court of review unless clearly and palpably contrary to the weight of the evidence.</p> <p>2. Trusts—when conduct of trustee in selling land is constructively fraudulent. The conduct of a- trustee who sells the land at public sale at a grossly inadequate price, which he knew was less than he could have realized at private sale, is constructively fraudulent as to the beneficiaries, where he was not required to sell the land at that time, having power to lease it for a one-year term, and where he knew that the rumors of a threatened suit to contest the will had depreciated the market value of the land at that time.</p> <p>3. Same—rules which govern purchasers at judicial sales do not apply to a trustee’s sale. Purchasers of land at a trustee’s sale who are familiar with the land, know it is trust property and that they are buying it at a grossly inadequate price, will not be permitted by a court of equity to retain the benefit of 'their bargain upon the ground that the evidence does not show that they acted fraudulently or unfairly, as may be done in the case of judicial sales, where redemption from the sale is allowed.</p> <p>4. Same—when an order of probate court does not estop cestuis que trustent. The fact that a trustee reports his sale of land as a trustee to the probate court in his report as executor and that the court approves his report does not estop the cestuis que trustent from questioning the acts of the trustee, since the latter does not receive nor hold the money from the sale in.his capacity as executor.</p> <p>5. Laches—what is not laches by the beneficiaries in attaching trustee’s sale. The fact that the beneficiaries delay filing a bill to set aside the trustee’s sale until their suit, as heirs, to set aside the will has been determined does not constitute laches.</p> <p>6. Pleading—when special prayer for accounting not essential. Upon a bill by cestuis que trustent to set aside a trustee’s sale, the court has power, upon setting aside the sale, to require that the amount which the purchasers at the sale had realized on the land in excess of their expenditures for improvements be deducted from the amount of the purchase price to be refunded to them, where there is a general prayer for relief, even though there is no specific prayer for an accounting.</p>

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

Joseph E. Gary, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment in favor of appellee for $4000 damages for a personal injury to appellee alleged to have resulted from the negligence of the appellant, his employer.

<p>1. Challenges—each defendant is not entitled to three peremptory challenges. Under the statute, which is the only authority for peremptory challenges, but three peremptory challenges are allowed to each side; and the fact that the defendants are different corporations and claim to have different grounds of defense does not change the law so as to permit three of such challenges to each.</p> <p>2. Evidence—what tends to prove ownership. Proof that one of the defendants in a personal injury case was organized, under the name of “North American Restaurant and Oyster House,” to keep a restaurant at a certain named place; that its name appeared there over each entrance and headed the bills of fare; that the words “North American” and “North American Restaurant Company” appeared in different places on the premises, and that the injury occurred by the breaking of a shaft hanger in the restaurant, tends to prove ownership of the restaurant by such defendant.</p> <p>3. Negligence—duty of owner of machinery to employee of another party. A restaurant company which owns the machinery and appliances in its place of business owes to a person required to work with such machinery and appliances the duty of keeping the same in reasonably safe condition and repair, and not to imperil, by its negligence, the life or limb of such person, even though the latter is in the employ of another company which furnishes steam to the restaurant company to run its machinery and appliances.</p> <p>4. Same—when proof of promise to repair is material though the relation of master and servant does not exist. The effect of a promise to repair, with respect to the doctrine of assumed risk, applies only as between "master and servant; but when an employee of one person has to work about machinery' and appliances owned by another, and he complains to the owner of a defect, which the latter promises to repair, proof of the complaint and promise is material in an action against the owner by the employee for an injury due to the defect, as showing notice of the defect to the owner and the conditions under which the employee continued to work.</p> <p>5. Same—what does not constitute contributory negligence, as a matter of law. The fact that an engineer, in hurriedly attempting to stop an engine from racing, used the valve which was always used to shut off the steam instead of using other valves located in the boiler room some distance from the engine, does not, as a matter of law, constitute contributory negligence, even though the valve used was so located that the engineer, while closing it, was killed by the falling of a shaft hanger, which broke loose from the ceiling under the strain and jar of the engine.</p> <p>6. Instructions—when statement 'that jury are sole judges of the facts is not objectionable. While the court should not impress the jury with the idea that they may do with the facts as they please, yet an instruction which states that the jury are the sole judges of the facts is not objectionable, where the statement is merely preliminary to a correct statement of the law relating to the right of the jury to disregard the testimony of any witness who had knowingly and corruptly testified falsely to a material fact in issue.</p> <p>7. Same—a party is not entitled to have instructions repeated. Refusal of instructions to find the defendant in a personal injury case not guilty if the plaintiff was guilty of negligence is proper, where other instructions given stated that the plaintiff could not recover if he was not in the exercise of ordinary care for his own safety or if the accident was caused by the joint negligence of the plaintiff and the defendant.</p> <p>8. Witnesses—plaintiff calling the defendant as a witness may examine him so as to elicit the facts. Where the plaintiff in a personal injury case calls as a witness one of the owners of the defendant corporation he may examine the witness in such a way as to elicit the facts, even though the examination partakes of the nature of cross-examination.</p> <p>9. Trial—counsel must be allowed to draw reasonable deductions from the evidence. It is not improper for counsel for the plaintiff in a personal injury case to characterize a certain defense as a fake and fraudulent one, where such statement is not an unreasonable deduction from the evidence.</p>

T. M. Harris, Judge, presiding. Appellants, as administrators of the estate of A. J. Barr, brought an action in the circuit court of Logan county to recover damages for the death of their intestate, alleging that it was caused by the negligence and recklessness of appellee. The railroad of appellee extends from Chicago to East St. Louis, passing through McLean county in a south-westerly direction, through the city of Bloomington and town of Normal.

<p>1. Master and servant—owner of an elevator in a building not liable to servant as a carrier. The rule that the owner of a passenger elevator in a building is a common carrier, and liable as such, has no application as between such owner and a servant engaged in running an elevator, particularly a freight elevator.</p> <p>2. Same—mere happening of accident raises no presumption of master’s negligence. The mere falling of a freight elevator, resulting in an injury to the servant operating it at the time, raises no presumption of negligence by the master, and in order to recover the servant must aver and prove that the appliance was defective, that the master had notice thereof or ought to have had and that the servant did not know thereof and had not equal means of knowledge with the master, and that the defect was the proximate cause of the injury.</p> <p>3. Trial—what evidence raises a question of fact for the jury. Proof that the cable of a freight elevator, being operated by the plaintiff as the defendant’s servant, broke and that the elevator fell, together with proof that the cable was defective or insufficient, raises the questions of fact for the jury as to whether the defendant was chargeable with negligence or whether the defect was so open and obvious that the plaintiff would have discovered it by the exercise of ordinary care.</p> <p>4. Evidence—rule as to use of memorandum by a witness. A writing may properly be used for the purpose of refreshing the memory of a witness where he is able, after inspecting the writing, to testify to the facts from present recollection, or where, after inspecting the writing, he still has no independent recollection of the facts stated therein, but is able to state that he correctly reduced them to writing at the time of the occurrence or within such a time afterwards that'he then had a perfect recollection of them.</p> <p>5. Same—when use of memorandum is proper—right of cross-examination. If a witness knows that the facts stated in a memorandum were recorded at a time when they were fresh in his memory, and that the memorandum would not have been made unless he knew the facts stated were true at the time, he may be allowed to use the memorandum, provided it is produced with an opportunity for cross-examination as to the same.</p> <p>6. Same—when testimony based on memorandum should be excluded. Testimony of an elevator inspector as'to the condition of an elevator, based entirely upon a memorandum, should be excluded, where he admits that even after inspecting the memorandum he has no independent or present recollection of the facts, and where he does not testify that the memorandum was true and correctly stated the facts at the time it was made; and a refusal to exclude such testimony is not justified by the fact that he testified, without the aid of the memorandum, as to his name and occupation, and that he remembered the dampness and general surroundings when he inspected the elevator.</p> <p>7. Arrest op judgment—after verdict all intendments are in favor of the declaration. After verdict the rule that averments of the declaration are construed most strongly against the pleader is reversed and all intendments are then in favor of the declaration, and if there is one count of the declaration which is sufficient after verdict it is proper to overrule a motion in arrest of judgment.</p>

<p>■ Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. C. D. MyERS, Judge, presiding.</p> <p>Appellee, Lois K. Collings, began an action of assumpsit in the circuit court of McLean county against her brother, the appellant, Orrin H. Knight, to recover the purchase price of her interest in the real estate of her deceased father, together with a balance due on a $1000 policy of insurance payable to her and collected by him. The father died about twenty-seven years ago, leaving a wife and several children. At the time of his death he was the owner of a farm of 155 acres. Appellant subsequently purchased the shares of several of the heirs. Appellee borrowed $1000 on her share and gave a mortgage to secure the same. She was unable to pay the mortgage when it became due, and her brother, the appellant, agreed to pay it for her provided she would make him a deed for her share of the property. There was an agreement entered into between the parties, but they do not agree as to its exact terms. She claims he was to pay off the mortgage and pay her the balance on the basis of what her share was worth. He subsequently gave her a horse in part payment of the amount due her, and they had certain other dealings with reference to a house and lot in the village of Colfax. She was unable to obtain a settlement with him, but finally, on April 21, 1904, the parties entered into an agreement to arbitrate their differences. The arbitrator made his award in favor of the appellee, but appellant refused to abide by it, and she thereupon brought the present suit in assumpsit.</p> <p>The declaration consists of the common counts and one special count. The pleas filed were the general issue and several special pleas. A jury was waived, and upon a trial before the court judgment was rendered in favor of appellee for $2275.35. An appeal was prosecuted to the Appellate Court, where the judgment was affirmed, and a further appeal has been prosecuted to this court..</p>

<p>1. Trusts—court will not declare trust void for some possible future contingency. A trust created by deed for the benefit of the grantor’s daughter, which is to terminate when she reaches the age of twenty-one years or before that time in certain contingencies, will not be declared void because of the contingency that if the daughter died intestate and childless before the age of twenty-one years the disposition of the legal estate was to be governed by a power of appointment lodged in certain persons.</p> <p>2. Same—when trust does not create a perpetuity. A trust created by a deed for the benefit of the grantor’s daughter, who is to take the legal estate when she is twenty-one years old, or if she dies before that age and leaves a will the property is ,to pass according to its terms, or if she leaves a child and no will the child is to take the property, but if she dies intestate and childless before the age of twenty-one then the legal estate is to vest in such persons, excluding the grantor’s husband and his relatives, as certain named persons in the deed shall select, is not invalid as creating a perpetuity, and if neither the unlimited nor limited power of appointment is exercised, the trustee will hold under a resulting trust for the grantor’s heirs-at-law.</p>

<p>Writ or Error to the Criminal Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding.</p>

R. S. Parrand, Judge, presiding. At the February term, 1906, of the circuit court of JoDaviess county the appellant, Hannah M. Bishop, filed her bill against the appellee, Jennie R. Hilliard, in which she alleged that on March 5, 1905, Ruth G. Striclcel departed this life intestate, leaving Hannah M. Bishop and Jennie R. Hilliard, her two daughters, as her only heirs-at-law ; that at the time of her death Ruth G. .Striclcel was seized in fee simple of certain real estate…

R. S. Farr and, Judge, .presiding. Anna Mowers, appellee herein, filed her bill in the circuit court of Ogle county to the April term, 1905, praying for the partition of 120 acres of land in that county.

Appear from the Appellate Court for.the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Charres A. Bishop, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment of the superior court of Cook county against appellant, in favor of appellee, for $6000.

M. Kavanagh, Judge, presiding.. This is an appeal from the judgment of the Appellate Court for the First District affirming a decree of the superior court of… Held: and this holding has been affirmed by the Appellate Court, that the recital in the judgment that appellee’s claim was for wages due her as a servant and laborer for the livery company was conclusive on appellant, and disregarded all evidence introduced which tended to show that appellee’s claim was not for wages.

Writ oE Error to the Circuit Court of Cook county; the Hon. J. W. Magic, Judge, presiding. This suit was begun by plaintiffs in error filing their bill in chancery in the circuit court of Cook county against the Chicago and Western Indiana Railroad Company, as sole defendant. Subsequently an amended bill was filed making the city of Chicago also a party defendant.

S. C. Stougi-i, Judge, presiding. Appellant was the daughter of Mary V. Saunders, and when she was about two years old her mother became quite ill, and being in very reduced circumstances, Mary M. McArthur took appellant to her home to care for her during her mother’s illness. Mrs. McArthur cared for the child until the mother’s health was improved, when she returned her to her mother.

<p>1. Negligence—experience of child is an important element in question of contributory negligence. In an action for an injury to a child playing upon premises of the defendant, not only the age, capacity and intelligence of the child are to be considered upon the question of contributory negligence, but also her experience; and the omission of that element from an instruction, where the facts are close and previous experience is shown, is reversible error if no other instruction on the subject is given.</p> <p>2. Same—when jury must be accurately instructed. In an action against a railroad company for injuries received by a girl while playing on a turn-table on defendant’s premises it is important that the jury be correctly instructed, where it is shown that the girl was thirteen years old, active, intelligent and bright, and that she had lived a long time near the railroad yard and had previously played with the turn-table, and where, on the occasion of her injury, she had been ordered away by one of defendant’s employees and admonished by another to be careful.</p>

Writ oe Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook… Held: either under the city of Chicago or the board of education, from thence until December 9, 1904; that his appointment was duly certified to the comptroller; that on December 9, 1904, while in the employ of the board of education, charges were filed against him before said board and notice served upon him; that on December 23, 1904,…

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

Writ op Error to the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.

A. H. ChETlain, Judge, presiding. Esther Fitzpatrick, as administratrix of the estate of James T. Fitzpatrick, brought an action of case against the Illinois Central Railroad Company for wrongfully and negligently causing the death of her brother, James T. Fitzpatrick. Plaintiff below recovered a judgment for $5000 in the superior court of Cook county, which has been affirmed by the Appellate Court for the First District.

L,. C. Ruth, Judge, presiding. On the 5th day of September, 1890, the city of Aurora adopted an ordinance authorizing the Aurora Street Railway Company to construct, operate and maintain a street railway in certain streets of the city.

Writ or Error to the Circuit Court of Cook county; the Hon. CharlBS M. WalkBR, Judge, presiding.

<p>1. Courts—the jurisdiction of city court is confined to limits of city. The territorial limits of the jurisdiction of a city court for service of original process is confined to the city limits wherein the court is located, and the legislature has no power to pass a law extending such jurisdiction beyond the city.</p> <p>2. Same—paragraph 3 of the Practice act does not apply to city courts. Paragraph 3 of the Practice act, being section 1 of the act of 1895, (Laws of 1895, p. 292,) which provides that “courts of record of the county” where the plaintiff resides shall have jurisdiction of actions against any insurance company, domestic or foreign, and that all process in such a suit may be directed “to any county of this State for service and return,” does not include city courts, since the term “courts of record of the county” means courts having a territorial jurisdiction co-extensive with the county limits.</p> <p>3. Same—paragraph 3 of .Practice act is not the only authority for suing insurance companies. Paragraph 3 of the Practice act is not the only authority for obtaining jurisdiction of foreign insurance companies, since such companies may be sued and jurisdiction thereof obtained under the provisions of paragraph 5 of such act, relating to incorporated companies.</p> <p>4. Benefit societies—purpose of act requiring appointment of superintendent of insurance as an attorney in fact. The purpose of section 5 of the act of 1893, (Laws of 1893, p. 133,) requiring foreign benefit societies doing business in this State to appoint the Auditor of Public Accounts (afterwards changed to superintendent of insurance) as its attorney in fact for service of process, is not to make service of process upon such attorney in fact the exclusive method of obtaining jurisdiction of companies, but to secure an agent for service of process whose agency cannot be disputed, and to prevent such companies from avoiding service of process by withdrawing its other agents from the State.</p> <p>5. Same—when city court cannot obtain jurisdiction by serving process upon the superintendent of insurance. A city court cannot obtain jurisdiction of a suit against a foreign benefit society by sending its process outside of the territorial limits of the city and obtaining service of the same upon the State superintendent of insurance.</p> <p>6. Rehearings—the proper scope of a petition for rehearing. A petition for rehearing should be confined to a concise statement of the points supposed to have been overlooked by the court, with proper reference to the particular portion of the abstract and brief relied upon by the petitioner.</p> <p>7. Appearance—what is not a waiver of objection to jurisdiction.- A defendant who refuses to plead further after demurrers have been sustained to his pleas to the jurisdiction, does not waive his objection to jurisdiction of his person by subsequently objecting to the court taking jurisdiction to assess damages, excepting to the action of the court in assessing damages and in rendering judgment and moving to expunge the judgment from the record for want of jurisdiction, where, in each case, the appearance was limited and the objections were confined to the question of jurisdiction.</p> <p>8. Same—when objection to jurisdiction is waived. A defendant who appears and makes a motion or files a plea, or takes any other step in the case which the court would have no power to dispose of without jurisdiction of the defendant’s person, waives the objection to jurisdiction of his person, whether his appearance is limited or not.</p>

<p>Appeal from the Probate Court of Cook county; the Hon. C. S. Cutting, Judge, presiding.</p>

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

Writ or Error to the Circuit Court of Marshall county; the Hon. N. E. Worthington, Judge, presiding.

Appeae from the .Circuit Court of Cumberland county; the Hon. M. W. Thompson, Judge, presiding. Lewis Casstevens died in Cumberland county August i5j !895, intestate, leaving a widow, Amanda Casstevens, and their two sons, A. T. (Thomas) Casstevens and Walter Casstevens, both being adults. He was seized at the time of his death of about three hundred acres of farm lands, several town lots and some personal property.

<p>Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.</p>

<p>1. Benefit societies—mies are liberally construed so as not to defeat purpose of indemnity.- The rules and by-laws of a fraternal insurance society are to be construed liberally so as not to defeat the purpose of the indemnity offered to members, and in construing such rules equivocal expressions are to be interpreted most strongly against the society.</p> <p>2. Same-—by-law relating to total disability construed. A bylaw providing for payment of the full amount of the insurance certificate to a member in case of total disability, which states that certain specified injuries, including total blindness, shall be considered total disability, and that the full amount shall be paid for “any physicial disability that may permanently disqualify a member from performing the duties of a switchman,” means, only, that where the injury is one of those specified no proof of total disability is required but such proof is necessary in case of other injuries.'</p> <p>3. Same—when member is entitled to full payment of certificate for loss of one eye. Under a by-law providing for payment of the full amount of an insurance certificate for “any physical disability that may permanently disqualify a member from performing the duties of a switchman,” a member who loses one eye is entitled to full payment if he proves that such injury permanently disqualifies him from performing his duties as a switchman, even though a preceding clause of the by-law states that “total” blindness shall be considered total disability.</p> <p>4. Same—member must have notice of rejection of claim—limitations. Before a benefit society can plead in bar a provision of a by-law requiring suit to be brought within six months from the rejection of a member’s claim by the grand lodge, it must be alleged that the member had notice of such rejection for that length of time before bringing suit. '</p>

G. A. Carpenter, Judge, presiding. This is an appeal from a judgment of the circuit court of Cook' county awarding a writ of mandamus directed to Lawrence E. McGann, comptroller of the city of Chicago, and the city of Chicago, commanding the said comptroller to deliver to the relator a warrant drawn upon the city treasurer for the salary of the relator for the month of December, 1906,. as deputy clerk of the municipal court of Chicago, then in his hands, and the city of…

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Theodore Brent ano, Judge, presiding.

<p>1. Pleading—when exceptions to insufficient answer are not necessary. By obtaining leave to file a sworn answer after a motion has been made to strike his unsworn answer from the files, the defendant, in effect, confesses the motion, and cannot urge on appeal that exceptions should have been filed to the unsworn answer.</p> <p>2. Same-—when court may strike answer from files without exceptions. Where a motion is made to strike an unsworn answer from the files and the defendant obtains leave to file a sworn answer instanter, to which exceptions are made and sustained, if the defendant again files an unsworn answer the court may strike it from the files upon motion, without exceptions being made.</p> <p>3. Same-—answer filed without leave after rule has expired may be stricken from files. An answer filed without leave after the time allowed by the court for filing a sufficient answer has expired may be stricken from the files.</p> <p>4. Same—defendant cannot be required to pay solicitor’s fee to complainant before filing answer. Under section 22 of the Chancery act, if the defendant has filed two insufficient answers he may be required, as a condition precedent to filing a third answer, to pay all costs attending the same, and If such answer is insufficient he may be proceeded against for contempt, but he cannot be compelled, as a condition precedent to filing an answer, to pay the complainant a reasonable solicitor’s fee.</p>

William N. Butler, Judge, presiding. This is an action on the case brought by appellee, against appellant, in the circuit court of Saline county, to recover damages said to have been sustained by appellee through the alleged willful failure of appellant to comply with section 28 of the Mines and Miners act. (Hurd’s Stat. 1905, P- I392-) The section of the act alleged to have been willfully violated by appellant is as follows: “Sec. 28.

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

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. A. O. Marshall, Judge, presiding.</p>

George W. Patton, Judge, presiding. This is a bill by appellee, Garthwait, for a mechanic’s lien, under the statute of 1895, against the appellant, owner, and Marshall K. Howe, mortgagee, based on a written contract dated October 17, 1901, between appellant, owner, and Garthwait, contractor, providing, among other things, that the contractor should deliver the work “to the owner a complete and finished job * * * on or before the first day of August, 1902;” that in case the…

<p>1. ' Appeals and Errors—section po, authorizing appeals from judgment of Appellate Court, construed. Section go of the Practice act, allowing an appeal “if the judgment, order or decree of the Appellate Court be such that no further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court,” has reference only to cases wherein the Appellate Court determines the questions at issue between the parties.</p> <p>2. Same—when Appellate Court’s judgment is not final—opinion may be consulted. A judgment of the Appellate Court reversing a judgment dismissing a bill to contest and set aside a will and remanding the cause “for further proceedings not inconsistent with the opinion of the court” is not a final, appealable judgment, where it appears from a reference to the opinion that the validity of the will was not determined, but only that the proof did not make out a prima facie case in favor of its validity.</p>