Volume 229 — Illinois Reports

Clair county; the Hon. R. D. W. Holder, Judge, presiding. Appellee was employed as a coal miner by appellant, the Superior Coal and Mining Company, which operates a coal mine south-west of Belleville. Two parallel entries were being run in the mine toward the west, and were known as the fifth west entry and the sixth west entry. The fifth west entry extended further to the west than the sixth.

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

Writ ob Error to 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. This is an action of case brought by Robert Thompson, against the Roebling Construction Company, for damages resulting from a personal injury alleged to have been caused by the negligence of the servants of the Roebling Construction Company.

Appear from the Circuit Court of Jasper county; .the Hon. Truman E. Ames, Judge, presiding. This case has been to this court before as Vanatta v. Carr, 223 Ill. 160. In the original case the trial court sustained a demurrer to the bill now before us and dismissed the suit for want of equity. On appeal to this court the decree of the lower court was reversed and the cause remanded.

Thomas G. Windes, Judge, presiding. The following statement of facts made by Mr. Justice Freeman, of the Branch Appellate Court of Cook… Held: April 30, 1898, an original examination for the position of ward superintendents, and that certain named persons passed successfully and were appointed ward superintendents; that said position is of the next lower rank to that of assistant superintendent of streets in charge of street and alley cleaning, and there is no intermediate…

L. C. Ruth, Judge, presiding. Gilbert Calkins and twenty-two other heirs of Cyrus Calkins filed a bill in chancery in the circuit court of Kane county to contest the will of Cyrus Calkins on the ground that the witnesses, had signed the will in another room and out of the range of vision of the testator. An issue at law was made up and submitted to a jury for trial and a verdict was rendered in favor of the validity of the will.

<p>1. Trial—plaintiff’s evidence must be taken as true on motion to direct a verdict. Upon motion for an instruction directing a verdict for the defendant the evidence for the plaintiff must be taken as true, and if such evidence tends to sustain the plaintiff’s cause of action the motion is properly denied.</p> <p>2. Street railways—when rule against teamsters obstructing cars has no application. The rule of law giving street cars the right of way over teams and requiring teamsters not to obstruct such cars has no application to a case where the conductor of a car thought the car could pass by a wagon in safety and signaled the motorman to go ahead without requesting the moving of the team by the driver, who was standing at their heads and who was fatally injured by the tongue of the wagon striking him when the car collided with the wagon.</p> <p>3. Same—what does not amount to a voluntary assumption of risk. The fact that a teamster stands at his horses’ heads in a position where he cannot see between the team and an approaching street car, and says “Take it easy,” as the motorman, after stopping the car in the belief he could not pass the wagon in safety, starts the car in obedience to a signal from the conductor, who was of the opposite opinion, does not, of itself, amount to a voluntary assumption by the teamster of the risk of injury from remaining in that position while the car attempted, unsuccessfully, to pass.</p> <p>4. Instructions—it is not error to refuse to repeat instructions. It is not error for the trial court to refuse instructions which are substantial repetitions of rules of law announced in other instructions which are given.</p>

<p>1. Murder—People cannot prove reputation of the deceased for peaceableness until it is attacked. In a trial for murder the general reputation of the deceased as a peaceable man is presumed to be good until the contrary is shown, and unless the defendants attack such reputation no evidence can be introduced by the People on that subject, notwithstanding self-defense is relied upon.</p> <p>2. Same—what is not an attack on reputation of deceased for peaceableness. Evidence brought out by the defendants on cross-examination, to the effect that the deceased was a large, muscular man and capable of taking care of himself, is not an attack upon his reputation for peaceableness, such as justifies the admission for the People of evidence that such reputation was good, notwithstanding the defendants attempted to show by the witness that the deceased was at one time a sparring partner for a pugilist, which the witness denied. (Davis v. People, 114 111. 86, distinguished.)</p>

Appear from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge, presiding.

Louis; the Hon. W. J. N. Moyers, Judge, presiding. This is an action on the case commenced in the city court of East St. Louis by the appellee, against the appellant, to recover damages for a personal injury alleged to have been sustained by him while in the employ of the appellant as a member of a switching crew in its yards at East St. Louis, through the negligence of the foreman of the switching crew of which he was a member, in consequence o f which he was thrown from a…

<p>1. Judicial sales—when judicial sale will be set aside. A sale of property en masse for a grossly inadequate price without first offering the property, which was composed of some ten parcels, for sale in separate tracts will be set aside.</p> <p>2. Same—when party does not occupy position of innocent purchaser. A sister who pays two small judgments against her brother in consideration for a quit-claim deed from the purchaser of the brother’s valuable undivided interest in land which was sold on execution en masse, for a grossly inadequate price, and who has full knowledge of all such facts, and of the further fact that the purchaser had agreed to make the quit-claim deed and allow the brother to redeem if the judgments were paid, does not occupy the position of an innocent purchaser and is bound to allow redemption.</p>

<p>1. Wills—possibility that some sheets in will have been substituted does not justify refusing probate. The facts that a will is written upon several sheets of paper of different texture and loosely fastened together, with the attestation clause, by itself, on the last sheet, and that the subscribing witnesses are unable to identify all the sheets of the will or to remember upon what date they signed, does not justify refusing probate of the will upon the possibility that some sheets of the will may not be genuine.</p> <p>2. Same—general rule stated as to when will is entitled to probate. In the absence of proof of fraud, compulsion or other improper conduct an instrument is entitled to probate as a will, where the proof shows that the testator declared to-the subscribing witnesses that the paper was his will, that he signed it in their presence and that they together signed it as witnesses in his presence and at his request, and that they believed him to be of sound mind and memory.</p> <p>3. Same—it is not necessary that subscribing witness examine will. It is not necessary to the validity of a will that it be written upon one sheet of paper, but the entire will should be in the presence of the witnesses when attested by them; nor is it necessary that the witnesses shall examine the will with such care as to be able to say that all pages and clauses were the pages and clauses attested by them.</p>

E. E. Newlin, Judge, presiding. This is a bill to quiet title and correct decree, filed in the circuit court of Franklin county to the November term, 1905.

R. S. Farrand, Judge, presiding. This suit was brought by appellants, the city of Galena and the board of school directors of school district No. 120 of the county of JoDaviess, against the Galena Water Company, appellee, to recover damages for the loss of a high school building by fire, which, it is alleged, resulted from the negligent breach of a contract entered into between the city of Galena, in 1886, and Henry S. Raymond, predecessor of the Galena Water Company.

Clair county; the Hon. R. D. W. Holder, Judge, presiding. Appellee recovered a judgment against appellant in the circuit court of St. Clair county in an action of assumpsit on the common counts, which has been affirmed by the Appellate Court, and the defendant prosecutes a further appeal to this court. The appellant was engaged in mining coal, and the suit was for services in securing for appellant options for the purchase of coal lands, and other services and expenses.

Writ of Error to the Circuit Court of Edwards county; the Hon. J. R. Creighton, Judge, presiding. Hannah Ryan, a widow, was the owner of certain real estate situated in Edwards county, Illinois.

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

Appear from the County Court of Kankakee county; the Hon. A. W. Deselm, Judge, presiding. This is an appeal from a judgment of the county court of Kankakee county in a proceeding to condemn lands, instituted by the Claussen Park Drainage and Levee District, against Thomas Smith, Harriet Smith, Thomas Daily, and others. The proceeding was commenced by the drainage and levee district against the land owners for the purpose of acquiring certain land for ditches and drains.

B. R. Burroughs, Judge, presiding. At the March term, 1906, of the circuit court of Randolph county, Nellie Harmon, the appellee, and Grace Harmon and Lola Harmon, by their next friend, brought suit against William S. Ingraham, appellant, to recover damages occasioned by the death of Felix Harmon, the husband of appellee and the father of Grace and Lola Harmon, while he was engaged as a coal miner in appellant’s coal mine.

<p>Appeal from the County Court of Kankakee county; the Hon. A. W. Deselm, Judge, presiding.</p>

Appear from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Horder, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Fourth District affirming a judgment of the circuit court of St. Clair county for $6000, recovered by appellee in an action on the case against appellant for personal injuries.

George A. Dupuy, Judge, presiding. This is an appeal from the judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county recovered by appellee against the Chicago City Railway Company, appellant, in an action on the case for personal injuries.

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. J. E. Dunnegan, Judge, presiding.</p>

<p>1. Elections—what does not overcome force of ballots as evidence. Ballots having a cross in the circle at the head of one ticket and a cross in the square before the name of one candidate for a certain office on another ticket are properly counted, on contest, for the latter, even though they were counted for the ticket having the cross in the circle by the judges, who did not see the cross in the square, where there is no evidence that the ballots could have been tampered with except with the connivance of the election officials, who will not be presumed to have committed a criminal offense.</p> <p>2. Same—the fact that marks on ballot may be traced from its back does not invalidate it. The fact that the marks on a ballot are made so heavily that they may be traced on the back of the ballot by the raised or embossed appearance thereof does not justify rejecting the ballot as having distinguishing marks, in the absence of any proof that the marks were made in the carrying out of some fraudulent purpose.</p> <p>3. Same—what is not evidence that votes were being bought. The mere facts that a number of ballots in the same precinct were marked in substantially the same manner and that in all of them the imprint of the pencil could be seen on the back of the ballots are not, of themselves, evidence that the votes were being bought, and that some one in the polling place was watching the appearance of the ballots to convey information thereof to the purchaser.</p> <p>4. Same—ballot is invalid where one judge endorses another’s initials thereon. A ballot endorsed by one judge with the initials of another judge cannot be counted, even though the latter had given the other judges directions to endorse the ballots with his initials in his absence. (See note below.)</p> <p>5. Same—when ballot is properly rejected as a blank. A ballot which has nothing upon it to show that it had ever been voted except a slight roughing of the surface inside one of the circles, indicating that something had been erased therefrom by a rubber, although the closest investigation fails to disclose a trace of a cross, is properly treated as a blank ballot.</p> <p>6. Same—cross in the circle or square is essential. Upon contest, a ballot which is marked with squares opposite the names of all candidates on a certain ticket except one, in whose square the mark is V-shaped and has no point of intersection within the square which can be called a cross, cannot be counted for such candidate if there is no cross in the circle at the head of the ticket.</p> <p>7. Same—what are not, in general, distinguishing marks. Marks upon a ballot which can be reasonably explained consistently with an honest purpose of the voter, and which were manifestly made through mistake or inadvertence or because the voter changed his mind as to the method of marking his ballot, are not, in general, distinguishing marks.</p> <p>8. Same—mark appearing to be a flourish of pencil is not a distinguishing mark. A mark in the form of a semi-circle, connecting three lines of the cross in the circle at the head of a ticket, apparently being a flourish of the pencil, is not a distinguishing mark; nor /is a very imperfect cross, being something in the form of the letter U with a mark across it near the bottom, apparently made by a person so nervous as to be nearly incapable of making the marks.</p> <p>9. Same—distinguishing mark must be such as would identify the ballot. The distinguishing mark which the law prohibits being placed upon a ballot is such a mark as was apparently placed there by the voter with the intention of furnishing means for identifying</p> <p>Note:—Proposition four, though appearing in the opinion of the court, has the concurrence of three judges only, namely, Justices Hand, Farmer and Vickers. Justices Cartwright, Scott and Carter dissent from that particular proposition, and Justice Dunn takes no part in the decision of the case. the ballot, in order to accomplish an evasion of the law as to secrecy ; and this question is largely one of fact, which must be determined from an inspection of the particular ballot.</p> <p>10. Same—the ground upon which ballots having distinguishing marks are rejected. There is no express provision of the Australian Ballot law that a ballot bearing a distinguishing mark shall be rejected, and the ground upon which such ballots are rejected is that they violate the secrecy of the ballot, to preserve which is the main purpose of the law.</p> <p>11. Same—what is apparently a distinguishing mark. A letter carefully made in ink at the bottom of a ballot and placed near an ink blot is properly regarded as a distinguishing mark such as warrants the rejection of the ballot.</p> <p>12. Same—what does not vitiate ballot. The facts that a cross has been placed in the square opposite the name of the prohibition candidate for sheriff but lines are drawn through such candidate’s name and the name of the republican candidate written thereunder in pencil, although his name was printed on the republican ticket, does not vitiate the ballot, either upon the ground of distinguishing marks or as in violation of the law prohibiting candidates from having their names appear upon more than one ticket, since such law deals only with the rights of candidates.</p> <p>13. Same—effect where crosses are made in more than one circle. The marking of two or more party tickets by crosses in the circles has the effect of nullifying the vote only in so far as the tickets bear the names of candidates for the same office; and if only one of the tickets so marked has candidates for county offices the vote should be counted for such county officers, though nullified as to offices for which the other marked tickets have candidates.</p> <p>14. Same—index hand drawn upon ballot is not necessarily a distinguishing mark. Where a ballot is marked as a straight ticket except that a cross is made in the square opposite the name of one candidate on another ticket, an index hand drawn in pencil with the .finger pointing to such name may be regarded as placed there by the voter with the honest purpose of calling the attention of the judges to the vote, and is not necessarily a distinguishing mark.</p> <p>15. Same—when ballot should not be rejected. A ballot marked as a straight ticket, with a six-pointed cross in the circle but with a cross in the square opposite the name of a candidate for one office on another ticket, should be counted for such candidate upon contest.</p> <p>16. Same—what ballots are invalid. A ballot picked up off the floor by the election judges after the count and marked “void” by them and not strung or counted by them; a ballot not bearing the initials of any judge of the election, and a ballot having no crosses thereon but the whole face of several of the squares blackened by pencil, are invalid and cannot be counted for any one.</p>

<p>1. Registration of titles—applicant must show title in himself. An applicant for registration of title must show title in himself, and it is essential that the conveyances under which he claims shall identify the premises so that they may be ascertained by the description.</p> <p>2. Same—there must be evidence by which premises may be located. Title to certain lots in a specified block in a named addition to a city cannot be registered, even though there is ah abstract of title in the examiner’s report showing that a plat of such addition had been filed for record, but which neither copies the plat nor gives any description by which any lot or block of the addition can he located, and the plat itself is not in the report, which contains all the evidence.</p>

<p>1. Appeals and errors—when case does not relate to the revenue. A mandamus suit to determine whether the board of school inspectors or the. city council has power to fix the rate of tax levy for school purposes, which question involves only the construction of the various statutes affecting the powers of the parties, does not relate to the revenue in such a manner as to give the Supreme Court jurisdiction of a direct appeal.</p> <p>2. Same—parties cannot give the Supreme Court jurisdiction by stipulation. The fact that the parties to a mandamus suit not involving any question which would authorize the Supreme Court to take jurisdiction of a direct appeal, stipulate in the record that the appeal shall be taken to the Supreme Court does not give that court jurisdiction, and the appeal will be dismissed.</p>

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

<p>Appeal from the County Court of Morgan county; the Hon. Francis E. Baldwin, Judge, presiding.</p>

Axel Chytraus, Judge, presiding. Appellant (hereafter referred to as plaintiff) sued appellee (hereafter referred to as defendant) in the superior court of Cook county for $1750, which plaintiff claimed defendant had cheated and defrauded him out of in the sale of a tract of land by defendant to plaintiff. The declaration is in assumpsit and contains three counts.

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. Mack, Judge, presiding. Appellee filed its bill in the circuit court of Cook county to foreclose two mortgages.

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. Thomas G. Windes, Judge, presiding. This is an action by Albert Giese for a personal injury, against the Chicago Union Traction Company, in which a judgment against the street car company for $2000 has been affirmed by the Appellate Court for the First District.

<p>1. Confidence game—what constitutes a fatal variance. An indictment for the confidence game which charges that the defendant feloniously obtained from a certain person “$400 of good and lawful money of the United States” is not sustained by proof that the defendant obtained a check for $300, since proof of obtaining a check is fatally variant from a charge of obtaining money.</p> <p>2. Same—what does not constitute the confidence game. A sale of mining stock in an undeveloped mine is not converted into the confidence game by the failure of the mine to prove successful, where all the representations of the vendor as to the material facts, including the location and ownership of the land and the presence of gold therein, were true, although his opinion as to the possibilities of the mine and the future value of the stock proved to be greatly exaggerated.</p>

<p>Writ or Error to the Circuit Court of Cook county; the Hon. C. G. Neely, Judge, presiding.</p>

Clair county; the Hon. R. D. W. Holder, Judge, presiding. On December 15, 1894, John Thomas, a resident of St. Clair county, departed this life testate, leaving an estate composed principally of realty. His will, dated January 2, 1881, a codicil dated March 20, 1882, and a codicil dated February 28, 1884, were on January 23, 1895, duly admitted to probate by the probate court of St. Clair county. The will consists, of twenty-one clauses.

<p>1. Murder—instruction assuming that accused was assailant is improper if evidence is conflicting. An instruction for the People, in a murder trial, which assumes, in stating the doctrine of self-defense, that the accused was the assailant, is improper, where the evidence as to whether the deceased or the accused was the assailant is conflicting or where it tends to show that the deceased was the assailant.</p> <p>2. Same—an instruction, correct in the abstract, may be improper. Giving an instruction, in a murder trial, stating that the law of self-defense does not imply the right of attack in the first instance or permit of an action done in retaliation or revenge, is improper, where there is no evidence whatever upon which to base the instruction.</p> <p>3. Same—when refusal of an instruction is error. Refusal of a correct instruction, asked by the accused, defining reasonable doubt, is error, in a murder trial, where the only other instruction on the subject is given at the request of the People and merely states what is not reasonable doubt, without covering in any way the explanation of reasonable doubt as given by the refused instruction.</p> <p>4. Same—the rule as to conviction for manslaughter where two persons are indicted for murder. Where two persons are indicted for murder it is not error to give to the jury an instruction as to the form of their verdict, stating that they may find one defendant guilty of murder and the other guilty of manslaughter, if the evidence is such as to justify the instruction.</p>

L. M. Reckhow, Judge, presiding. Knute Afdal died leaving a widow, Martha Afdal, and two minor children, Bertha and Oscar B. Afdal. At the time of his death he was the owner of and resided upon, with his family, a farm in Boone county, consisting of one hundred and seventeen acres. Elisha A. Cook was appointed' guardian for the two minor children. There was an encumbrance on this homestead of about $4000.

Joseph E. Gary, Judge, presiding. On October 13, 1853, Joseph E. Sheffield was the owner of the south-west quarter of section 32, township 40, north, range 14, east of the third principal meridian, and on that date he recorded in the recorder’s office in Cook county a plat of a subdivision, which he called Sheffield’s addition to Chicago.

<p>Writ of Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.</p>

W. N. Butler, Judge, presiding. This is an action on the case brought by John Brandon and Sarah Brandon, appellees, in the circuit court of Jackson. county, under section 9 of the Dram-shop act, against George Beckerle, appellant, and one D. P. Willis, for injury to their means of support occasioned by the death of their son, John Brandon, Jr. A plea of the general issue was filed by defendants, and the trial resulted in a verdict and judgment for plaintiffs in the sum of…

Writ of Error to the County Court of Livingston county; the Hon. C. F. H. Carrithers, Judge, presiding. This was an application to the county court of Livingston county by plaintiff in error for judgment against the property of defendant in error for delinquent school taxes for the year 1905, levied by the board of education of school district 192 of said county.

E. C. Graves, Judge, presiding. The circuit court of Rock Island county rendered a judgment for $5000 in favor of appellee, against appellant, for negligently causing the death of plaintiff’s intestate, and that judgment has been affirmed by the Appellate Court. The action was brought to the January term, 1904, of said circuit court against this appellant, the Chicago, Rock Island and Pacific Railway Company and the Rock Island Improvement Company.

Thomas G. Winces, Judge, presiding. This is a bill for partition filed in the circuit court of Cook county by Henry J. Peet, who claims to be the owner of an undivided half of the premises sought to be partitioned. The other half interest was owned by William Creighton Peet, who died at his home in the city of New York July 23, 1906.

W. L. Pond, Judge, presiding. On May 28, 1906, the city council of the city of Chicago passed an ordinance providing that Elston avenue, from the north-easterly line of Milwaukee avenue to a line parallel with and 215 feet south-east of the south line of West Division street, (except the roadway of Elston avenue from a line parallel with and 60 feet south of the south line of Augusta street produced east to the north line of Cornell street produced west,) be improved by…

<p>Appeals and Errors—a writ of error to review ejectment judgment should be dismissed where new trial is taken. Where the defendant to an action of ejectment sues out a writ of error to review a judgment against him but afterwards pays the costs and takes a new trial under the statute, the judgment is vacated and the writ of error to review the same should be dismissed.</p>

<p>Appeal from the County Court of Rock Island county; the Hon. E. E. Parmenter, Judge, presiding.</p>

<p>1. Larceny—effect of recent possession of stolen property. Recent possession of stolen property by one charged with the larceny thereof is prima facie evidence of guilt, and will justify a conviction unless attending circumstances or other evidence raises a reasonable doubt of the guilt of the accused; but the burden is not upon the accused to satisfactorily explain such recent possession, and if, from all the evidence, there is a reasonable doubt of the guilt of the accused, he should be acquitted.</p> <p>2. Same—when instruction as to effect of recent possession is misleading. An instruction, in a prosecution for burglary and larceny of a buggy, which states that “possession of such buggy by the defendant recently after the commission of the offense, unsatisfactorily accounted for, is prima facie evidence that the defendant committed such larceny and burglary, and such evidence, if any, is sufficient to warrant a conviction of the defendant, unless there appears, from the facts and circumstances in evidence, a reasonable doubt of his guilt/’ is misleading, and it is reversible error to give it.</p> <p>3. Same—whether a defendant has satisfactorily accounted for possession of property is for the jury to decide. Whether the testimony by a defendant as to his recent possession of stolen property satisfactorily explains such possession is a question for the jury and riot for the court, and an instruction should not be given which leaves an inference that the court considers such explanation unsatisfactory.</p> <p>4. Same—what is competent to be proved in a larceny case. In a prosecution for larceny of a buggy, where circumstantial evidence is relied upon, it is not error to allow a witness to testify that on the night the buggy was taken from a store in a certain town he met a team drawing two carriages, going from the town in the direction of the defendant’s home, although he could not recognize anyone or tell how many persons were in the carriage.</p> <p>5. Criminal law-—when refusal of instruction as to proof of good character is not error. Refusal of an instruction in a criminal case, to the effect that in cases depending upon circumstantial evidence alone “previous good character on the part of the accused, if proved, is entitled to great weight in favor of his innocence,” is properly refused, where there are other instructions telling the jury that previous good character is proper to be considered by them with all the other evidence.</p> <p>6. Same—when instruction as to credit of witnesses testifying in hope of reward is properly refused. An instruction in a larceny case calling attention to the fact of a reward, and stating that if the jury believe that any witness for the People has testified in the hope of such reward they should consider such fact in determining the credit to be given to his testimony, is properly refused, where another instruction has been given for the accused covering, generally, all the points touching upon the. interests and motives of witnesses that he was entitled to have given.</p>

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

E. E. Newlin, Judge, presiding. On the nth day of November, 1905, appellee’s intestate, Mrs. Mary E. Mullens, having discovered fire among the dry grass and weeds on her premises adjoining appellant’s right of way, in order to stop its progress began raking the leaves between the fire' and her house toward the fire, and while doing so her clothing caught fire and she was so badly burned that she died.

Thomas G. Windes, Judge, presiding. February 3, 1903, appellee filed a bill in the circuit court of Cook county seeking the annulment and cancellation of a certain contract as a cloud upon his title to certain real estate.

Clair county; the Hon. B. R. Burroughs, Judge, presiding. The National Live Stock Bank of Chicago, the beneficial appellee, brought suit in attachment in the circuit court of St. Clair county against H. B. Spaulding and summoned the Evans-Montague Commission Company, the appellant, as garnishee. Written interrogatories filed by the plaintiff were answered by the garnishee, and to the truthfulness of its answers plaintiff filed its denial.

Writ of Error to the Circuit Court of Union county; the Hon. W. N. Butler, Judge, presiding. Plaintiffs in error filed their bill against defendants in error, in the circuit court of Union county, to set aside certain deeds executed by James M. Abernathie, now deceased, to lands now in possession of certain of the defendants in error, and for other relief.

Writ of Error to the Circuit Court of Kane county; the Hon. H. B. Willis, Judge, presiding. This is a bill in chancery to set aside the will of Jeremiah Shults. The only ground that contestant sets up in the bill in support of which any evidence was offered on the hearing is the want of mental capacity in the testator.

O. P. Thompson, Judge, presiding. This is a petition filed by the People ex rel. the county of Alexander, the city of Cairo and the board of education of the city of Cairo, against the State Board of Equalization of the State of Illinois, in the circuit court of Sangamon county, for mandamus to compel the said board and its officers to value and assess for taxation the property known as the “Illinois Central bridge approach of the Chicago, St. Louis and New Orleans Railroad…

Writ of Error to 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.

Clair county; the Hon. R. D. W. Holder, Judge, presiding. The appellee filed in the circuit court of St. Clair county his petition for a writ of mandamus commanding the appellant, who was county superintendent of schools, to approve petitioner’s bond as township treasurer, and to deliver to petitioner a written statement of such approval and that petitioner is entitled to the care and custody, on demand, of all moneys, bonds, mortgages, notes and securities, and all books,…

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. L. C. Ruth, Judge, presiding. This was an action on the case in the circuit court of Cook county by appellee, David Roberts, against appellants, the Chicago Union Traction Company, West Chicago Street Railroad Company and Chicago West Division Railway Company, to recover for personal injuries.

<p>-Appear from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

J. W. Mack, Judge, presiding. This is an appeal from the judgment of the Appellate Court affirming a decree of the circuit court in sustaining a demurrer to and dismissing the appellant’s bill for want of equity.

Appear from the Circuit Court of Mercer county; the Hon. Emery C. Graves, Judge, presiding. The appellants, by their bill filed in the circuit court of Mercer county, sought to enjoin the appellees from obstructing certain alleged streets and alleys. A demurrer having been sustained to their amended bill, it was dismissed for want of equity, and they appeal from the decree.

Robert B. Shirley, Judge, presiding. An information in the nature of a quo warranto was filed, on leave of court, by the State’s attorney of Sangamon county on behalf of the People, upon the relation of John B. Sweet, at the May term, 1906, of the Sangamon county circuit court, requiring appellants to show by what authority they acted as drainage commissioners of Drainage District No. 1 of the town of Divernon, in said county.

<p>Appear from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Franklin county; the, Hon. E. E. Newlin, Judge, presiding.</p>

<p>1. Wills—rule of evidence in matter of probate. Upon application to probate a will in the county court the proponents are limited to the testimony of the subscribing witnesses, and the rule is the same in the circuit court upon appeal, if the will was admitted to probate in the county court; but if the will was refused probate in the county court, the proponents, upon appeal to the circuit court, may resort to any legitimate evidence which may be resorted to to establish a will in chancery.</p> <p>2. Same—a formal attestation clause is not essential. It is not essential to the validity of a will that a formal attestation clause reciting all the facts necessary to a correct execution of the will be added to the instrument.</p> <p>3. Same—when will may be probated though there is no,attestation clause and the witnesses do not remember the facts. A will in the handwriting of the testator and found among his papers, duly signed by him and attested by witnesses who wrote the word “witness” after their names, is entitled to probate on appeal from an order of the county court refusing probate, even though there is no formal attestation clause, and the witnesses, although they remember signing the will, do not recollect whether they signed the will at the testator’s request and in his presence and the presence of each other or what was said at the time of the transaction, where other evidence clearly establishes the genuineness of the will and signatures and that the testator was of sound mind and memory.</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. C. A. Bishop, Judge, presiding.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, presiding.</p>

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

Appeal, from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. This is an action on the case brought by appellant in the circuit court of Peoria county for injuries received by him while driving along one of appellee’s streets on March 28, 1906. The suit was filed April 30, 1906, and appellee was served with summons on the 3d day of May, 1906.

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

Louis; the Hon. B. R. Burroughs, Judge, presiding. On July 6, 1905, appellants, who are heirs-at-law of Adam Bauchens, deceased, filed their bill in the city court of East St. Louis against Mrs. Lillie D. Davis and Ralph Duncan, administrator, appellees, to set aside an instrument which had been admitted to probate in the county court of St. Clair county as the last will and testament of the deceased.

<p>1. Deeds—partial impairment of grantor’s mental faculties does not vitiate deed. To justify setting aside a deed upon the ground that the grantor was weak-minded, the proof must show that he was so mentally unsound as to be incapable of understanding the nature and effect of the transaction and of protecting his own interests; and it is not sufficient to show that he was not a good judge of land values nor capable of making discreet trades.</p> <p>2. Same—rule as to capacity to make deed is broader than that applicable to wills. While mental capacity to make a deed is not established by mere proof that the grantor possessed sufficient mental capacity to know and understand the transaction in which he was engaged,—that is, the execution of the deed,—yet it is not essential to the validity of his deed that he have sufficient capacity to make discreet trades in the matter of sale or exchange of lands.</p> <p>3. Evidence—complainant must establish bill by preponderance of evidence. One seeking to set aside his deed upon the ground of false representations and undue influence by the grantee has the burden of proving the allegations of his bill by a preponderance of the evidence, and if the testimony is conflicting and heard in open court the chancellor’s findings as to the facts must be upheld, on appeal, unless clearly wrong.</p>

<p>1. Appeals and Errors—errors not urged in Appellate Court cannot be raised in Supreme Court. In cases coming to the Supreme Court through the Appellate Court, alleged errors not urged in the latter court cannot be raised for the first time in the Supreme Court.</p> <p>2. Same—when point that counsel made improper remarks is not saved for review. The point that counsel for appellee made improper remarks in the presence of the jury is not preserved for review on appeal, where it is not embraced in the grounds set out in the motion for new trial and in the assignments of error.</p> <p>3. Instructions—instruction repeating statute on which suit is based is not improper. An instruction repeating verbatim the language of the statute upon which a civil suit is based is not in violation of the rule prohibiting the reading of authorities to the jury, since all proper instructions state the law, and it is not error to lay down the law in the words of the law itself.</p> <p>4. Same-—when instruction is not improperly modified. In an action on a dram-shop keeper’s bond for damages for the death of plaintiff’s husband from wounds inflicted by an intoxicated person, an instruction authorizing a verdict for the defendants even though the jury believe such person was intoxicated, if they further believe that plaintiff’s husband assaulted him and that the wounds were inflicted in repelling the assault, is not improperly modified by inserting the words “first wrongfully” before “assaulted.”</p> <p>5. Same—the instructions complained of should be identified by number or letter. One who complains of instructions on appeal should identify the instructions in the abstract or the record by number or letter, so that the court of review may readily understand to what particular instruction an objection pertains.</p> <p>6. Evidence—when allusion to former criminal prosecution is not erroneous. In a civil action on a dram-shop keeper’s bond for damages for the death of plaintiff’s husband from wounds inflicted by an intoxicated person, the fact that a criminal prosecution of such person for the killing is alluded to in seeking to lay a foundation for impeaching a witness upon the ground that he testified differently in the criminal trial is not error, where the outcome of such trial is not mentioned nor disclosed to the jury.</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. Joseph E. Gary, Judge, presiding. Appellant filed a bill in chancery in the superior court of Cook'county to compel the issue to himself of two hundred thousand shares of the capital stock of the National Gold and Silver Mining Company, one of the appellees.

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

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

<p>1. Criminal law—release for want of speedy trial does not bar prosecutions for other offenses growing out of same transaction. The fact that a person indicted for murder is set at liberty for want of trial within the statutory period does not bar further prosecution for the crimes of robbery or burglary with intent to murder, growing out of the same transaction but of which he was not in peril of conviction under the indictment for murder.</p> <p>2. Same—when former acquittal cannot be pleaded in bar. Former acquittal on the charge of robbery cannot be pleaded in bar of an indictment 'for burglary with intent to murder, although the same transaction is the basis for both indictments; nor are the People estopped by such former acquittal to prove any of the facts connected with the crime charged in the indictment, although the evidence has all been introduced on the former trial.</p> <p>3. Same—when personal presence of prisoner is not necessary. Personal presence of a prisoner is not necessary in a proceeding connected with the case subsequent to his trial and sentence, where 'such proceeding relates only to the correction of the record.</p> <p>4. Same—when defect in record is waived. Failure of the record of criminal case tried upon a change of venue to show that an indictment was returned by a grand jury in the county where the trial took place, is waived by a statement of the prisoner’s counsel in his brief admitting that the indictment was properly returned in the county from which the change of venue was taken arid that objection was made on that point in the trial court.</p> <p>5. Same—when action of trial court will be presumed to have been correct. The action of the trial court in permitting the record of a criminal case to be amended will be presumed, on writ of error, to have been correct, where there is no bill of exceptions showing the alleged facts that the term of court at which the trial took place had passed and that there were no minutes of the judge by which the amendment could have been properly made.</p> <p>6. Burglary—describing structure as a “houseboat” is proper though it is drawn up on land. An indictment for burglary with intent to commit murder properly describes the structure «where the crime took place as a “houseboat” instead of “dwelling house,” even though it was temporarily drawn up on an island, upon which the occupant was engaged in raising chickens and garden stuff during the summer.-</p>

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

<p>1. Accounting—when employee may maintain bill for accounting. An employee of a partnership whose compensation is to be paid, in part, by a share of the net .profits of the department in which he is employed, may maintain a bill for an accounting and adjustment of the partnership affairs of such department in order to ascertain the profits.</p> <p>2. Partnership—partners are presumed to render services without salary. In the absence of any agreement between partners allowing a salary to one or more of them, it is presumed that each is to render his services for the promotion of the interests of the firm without salary.</p> <p>3. Same—when a partners salary cannot be deducted from employee’s share of profits. Salary of a partner cannot be deducted from the profits of a department in ascertaining the share of an employee in such profits under a contract employing him at a stated salary, expenses and one-half of the net profits of the department, where he had no notice of any salary agreement between the partners, or of their custom, in ascertaining net profits, to charge a proportionate amount of such salary to the department to which the partners devoted their attention.</p> <p>4. Pleading—what is not a material or substantial variance. Where the original bill for accounting against a partnership alleges that the complainant is entitled to one-half the “net profits” of a certain department and the proof corresponds with such allegation, the fact that the amended bill, amended to conform to other matters after the proof was taken, alleges that the complainant is entitled to one-half the “profits,” does not constitute a material or substantial variance.</p> <p>5. Appeals and Errors-—when assignment of cross-error is necessary. Upon appeal to the Supreme Court from a judgment of the Appellate Court affirming the decree of the trial court, an objection by the appellee that the trial court erred in not allowing him interest upon the amount recovered cannot be considered, where the Appellate Court’s judgment is not questioned by an assignment of cross-error.</p>

<p>1. Negligence—failure to look and listen at railroad crossing is not negligence per se. Failure of a person driving upon a highway to look and listen when approaching a railroad crossing is not, of itself, and under all circumstances, negligence as a matter of law, since there may be circumstances excusing such failure.</p> <p>2. Trial—what remark by court is not improper. Where a witness for the defendant in a personal injury case has made a statement in which he has confused the order of events, a remark by the court, after asking the witness if he was certain about it, that it did not seem credible, is harmless, where the witness, upon reflection, found he was mistaken and corrected his statement.</p> <p>3. Same—the proper method of proving statements made out of court. Where the attention- of a witness for the plaintiff in a personal injury case is called to a conversation with a third person after the'accident, and he is asked by the defendant if he did not make certain statements to such person, the defendant may call such third person as a witness and ask him if the other witness made such' statements to him, but it is not proper to ask him to repeat what the latter said to him.</p> <p>4. Evidence—when all testimony of a physician should not be stricken out. Where a physician has testified that the injuries to the plaintiff in a personal injury case are permanent and are liable to lead to tuberculosis, but it appears, on cross-examination, that his opinion is based, in part, upon his knowledge of the fact that brothers and sisters of the plaintiff had died of tuberculosis, it is proper to strike out the testimony as to the injury being liable to lead to tuberculosis, but the testimony as to permanency of the injuries is properly allowed to stand.</p> <p>5- Railroads—persons in charge of train must use reasonable care in approaching a road crossing. Persons handling trains approaching highway crossings are required to use reasonable care, aside from the statutory requirements; but what is such degree of care is a question of fact, depending upon local conditions, one of which is the extent to which the crossing is used.</p> <p>6. Same—when instruction as to duty of railroad company at crossings should be refused. An instruction stating that “railway trains approaching a public crossing in a thickly settled district are required to use a higher degree of care than they are required to observe, in approaching public highways in a sparsely settled district” should be refused as being abstract in form, and as authorizing the jury to compare the defendant’s duties at the particular crossing with its duties at some other crossing.</p> <p>7. Instructions—when omission of element of number of witnesses from instruction concerning preponderance is not fatal. The element of the number of witnesses testifying should be considered by the jury, with other elements, in determining the preponderance of the evidence, but an instruction which does not tell the jury to disregard the element of numbers but which merely omits that element from the others recited in the instruction, after stating that the preponderance is not to be determined by the number of witnesses alone, is not ground for reversal in a case where the element of numbers is not important or where the omission is supplied by other instructions. (Meyer v. Mead, 83 Ill. 19, Chicago and Alton Railroad Co. v. Fisher, 141 id. 614, and West Chicago Street Railroad Co. v. Lieserowitz, 197 id. 607, explained.)</p> <p>8. Same—enumeration of things the law does not require is of doubtful propriety. The fact that an instruction for the plaintiff in a personal injury case correctly stating the law as to the degree of care required by him is prefaced by the statement that the law did not require him to exercise an extraordinary degree of care is not ground for reversal, although the practice of stating in an instruction what the law does not require is of doubtful propriety.</p>

Writ of Error to the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding. Edward Clefford, plaintiff in error, was indicted by the grand jury of Peoria county for the murder of Isaac Clef-ford, and on that charge was tried at the January term, 1907, of the circuit court of that county. He was found guilty by a jury and his punishment fixed at death.