Volume 230 — Illinois Reports

<p>1. Special assessments—rule as to engineer’s estimate being itemised. The statute requiring the engineer’s estimate of cost to be itemized to the satisfaction of the board of local improvements, contemplates that it shall be itemized sufficiently to give the property owners a general idea of the estimated cost of each substantial, component element.</p> <p>2. Same—when pawing estimate need not specify item for grading. A paving improvement estimate, preceded by the statement that it includes labor, material and other expenses, which divides the improvement into four component parts with the estimated cost of each, as, concrete gutter on cinders, combined curb and gutter on cinders, the paving with its various parts, and the adjustment of sewers, covers the grading necessary to put the component elements in place, and need not separately itemize estimated cost of grading.</p> <p>3. Same—rule as to power of court to change assessment roll. Under sections 47 and 52 of the Local Improvement act the county court has power to change or modify the assessment roll and may refer the roll to the superintendent for revision, but in such case the court must determine, in general, the manner in which the changes shall be made, and such determination must be incorporated in the record in order to show the action of the court, (Schemick v. City of Chicago, 151 Ill. 336, distinguished.)</p> <p>4. Same—the court cannot adopt new assessment roll made by superintendent. Where an assessment roll is referred to the superintendent of special assessments with directions to re-cast the same, on the face thereof, in red ink, but without any determination as to the manner of re-casting, if the superintendent, instead of re-casting the roll, returns a new one, the court is without power to adopt it, since the court cannot make the original assessment roll, nor can the superintendent alter a roll he has once returned except in a manner directed by the court.</p> <p>5. Same—court has no power to arbitrarily change assessment roll. After an assessment roll is prepared and returned by the superintendent of special assessments the county court may, for good cause shown at the hearing, but not arbitrarily, make such changes as are necessary to make a just and equitable assessment, or it may refer the roll to the superintendent, who may make such changes as the court directs; but such superintendent is without power, of his own motion or by direction of the court, to make • changes according to his own discretion.</p>

<p>1. Municipal corporations—power of special charter city to adopt Local Improvement act. A city governed by a special charter may, under section 97 of the Local Improvement act of 1897, through its city council, adopt the provisions of such act and the amendments thereto; but until such adoption has been made by an ordinance clear and positive in its terms, the provisions of the special charter must govern in the construction of local improvements.</p> <p>2. Same—what is not an adoption of Improvement act of 1897. A provision in a sidewalk construction ordinance that “in all the proceedings for assessing, levying and collecting special tax herein provided for, * * * and for letting the contract for said improvements and the payment for said work, * * * every proceeding shall accord with and be governed by” the Local Improvement act of 1897, is not such an adoption of the act as abrogates a provision of the special charter requiring a petition of the majority of property owners before a sidewalk can be built.</p>

Joseph E. Gary, Judge, presiding. On December 19, 1904, appellee filed in the superior court of Cook county, against Minna Hill and Charles J. Hill, her husband, a bill in aid of an execution issued upon a judgment recovered in the circuit court of that county on January 10, 1899, against the husband, for $434.30 and costs.

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

<p>Appeals and Errors—Supreme Cotcrt will affirm if no question is presented for review. Upon appeal to the Supreme Court from a judgment of the Appellate Court affirming the judgment of the trial court, entered upon an appeal from a judgment of a justice of the peace, if there was no objection to the evidence in the trial court and no propositions of law submitted, the trial being had upon agreed facts without a jury, there is no question presented for , review by the Supreme Court and the judgment will be affirmed.</p>

Charles M. Walker, Judge, presiding. This was a bill in chancery filed by the appellant in the circuit court of Cook county, against the appellees, to set aside a sale of seven thousand shares, of the par value of one dollar per share, of the capital stock of the International Copper and Gold Company, a corporation purporting to be organized under the laws of Arizona, made by the appellees to the appellant, at eighty cents per share, on the 15th day of July, 1903, and to…

O. E. Heard, Judge, presiding. It appears from the pleadings and proofs that on February 5, 1902, the appellant was the owner of a promissory note bearing date October 26, 1895, for the sum of $2500, bearing interest at six per cent per annum, payable semi-annually, signed by Mary A. Jones and Stephen B. Jones, payable to the order of themselves and by them endorsed, and that the time of payment of said note at its maturity was extended by the appellant for five years, the…

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. The New York National Exchange Bank commenced proceedings in the superior court of Cook county to revive a certain judgment for $1019.29 obtained by it against appellant in the latter part of 1903.

<p>1. Trial—when refusal of a peremptory instruction is proper. Refusal of an instruction to direct a verdict for the defendant street railway company in an action for causing the death of a boy is proper where there is evidence tending to show that the train which killed the boy was composed of three cars backing north upon a south-bound track; that the train stopped to replace the trolley; tliat as the boy was crossing the track the train started and ran over him, and that neither the motorman nor conductor was in a position to see or warn pedestrians.</p> <p>2. Same—trial judge must control conduct of counsel. It is the duty of the trial judge to control the conduct of counsel and prevent improper conduct and remarks and the use of unfair means to obtain a verdict, and unless it satisfactorily appears from the record that he has abused his discretion in that regard a court of review will not interfere.</p> <p>3. Evidence—what is not proper cross-examination. In an action against a street railway company for the killing of a boy, where the father of the deceased states, in answer to a question on cross-examination, that he had heard there were other boys on the street at the time of the accident and that he had learned the name of one, it is proper to sustain an objection to a question as to such boy’s name where no question was asked in regard to it on direct examination, the whole matter being purely hearsay.</p>

<p>1. Taxes—when board of review has no power to increase assessment. In the j'ears intervening the years of the general assessment the hoard of review has no power to increase the assessed value of real estate, except where buildings or other improvements have been placed upon the land after April 1 of the year of the general assessment.</p> <p>2. Same—board of review cannot increase assessment because of increased value of coal under land. In the years intervening the years of the general assessment the board of review has no power to increase the assessed value of real estate because of the alleged increase of the value of coal and minerals underlying the land, due to the opening of a mine upon other land in the vicinity.</p> <p>3. Same—when a tax levy ordinance is void. A tax levy ordinance passed before the appropriation ordinance has become effective by publication for the statutory period is void.</p> <p>4. Same-—when school tax for building purposes is not invalid. A school tax levied for building purposes to an amount in excess of the only bond for building purposes outstanding is not invalid as to the excess, in the absence of evidence that the bond was the only indebtedness incurred for building purposes.</p>

<p>1. Constitutional law—words of amendment are presumed-to have been used in their ordinary meaning. The General Assembly-in proposing an amendment to the constitution, and the people of the State in adopting it, are presumed to have used the words of the amendment in their natural and ordinary meaning.</p> <p>2. Same—judicial construction of provision follows the re-incorporation of such provision in new constitution. Where a constitutional provision has received a settled judicial construction, it will be presumed, where such provision is re-incorporated in a new or'revised constitution, that it was retained with knowledge of the construction placed upon it, and the courts will adhere to such construction.</p> <p>3. Same—-extent to which an amendment abrogates other provisions of the constitution. In case of an amendment of the contitution, other provisions of the constitution are only affected or modified in so far as is necessary to give effect to the amendment.</p> <p>4. Same—the amendment of 1904 did not change constitutional provision respecting changes of venue. The amendment of 1904, adding section 34 of article 4 to the constitution, did not change or modify, by implication, the provision of the constitution prohibiting the enactment of any special or local law providing for changes of venue.</p> <p>5. Same—General Assembly cannot extend jurisdiction of a municipal court beyond territorial limits of city. The General Assembly has no power to extend the jurisdiction of a city or municipal court beyond the territorial limits of the city wherein the court is located, and in so far as sections 2 and 24 of the Municipal Court act may be regarded as purporting to confer jurisdiction upon the municipal court of Chicago to try cases arising beyond the territorial limits of the city they are without constitutional authority.</p> <p>6. Courts—municipal court of Chicago is merely a city court. The municipal court of Chicago is a local court of the city, established for the purpose of administering the law within the city, and is not a part of the judicial department of the State at large, and hence has no jurisdiction to try a case transferred to it under section 24 of the Municipal Court act from the criminal court of Cook county and which is not alleged in the indictment to have arisen within the territorial limits of the city.</p> <p>7. Same—scope of jurisdiction of municipal court of Chicago. The municipal court of Chicago is a proper part of the city government for the enforcement of city ordinances, and as a part of such government it may be given jurisdiction for the purpose of enforcing all laws within the city.</p>

<p>1. Special assessments—what will be regarded as included in estimate. The cost of re-paving portions of streets torn up in constructing a sewer system and the cost of removing surplus earth from the streets will be regarded as included in the estimated cost of th'e proposed sewer improvement even though not specifically mentioned, where the estimate contains an itemized estimate of the substantial component parts of the improvement and the ordinance requires all necessary work and labor to be performed in a workmanlike manner.</p> <p>2. Same—approval of work by local improvement board is only tentative. A provision of an improvement ordinance that the improvement shall be constructed under the direction and supervision and to the satisfaction of the board of local improvements does not render the ordinance void, as vesting in such board arbitrary discretion to determine whether the work had been performed in a workmanlike manner, since, under the statute, the court where the assessment was confirmed must finally determine that question before the improvement can be accepted and paid for.</p> <p>3. Same—when uncertain description of drainage district does not defeat sewer ordinance. The fact that the description of one boundary of the drainage district created by a sewer ordinance is such that it might be construed either as excluding certain territory from the district or as including it does not defeat the ordinance, where it appears from other parts of the ordinance, which provide for the construction of sewers in such territory, that it was intended to be included within the district.</p> <p>4. Same—when improvement is local and not public. A system of relief sewers which is confined to a part, only, of the village, and which will convey surface water from the cellars and basements of the property located within the district covered by the system, thereby specially enhancing its value, is a local improvement, which may be made by special assessment, although the improvement may be of some benefit to all the property in the village.</p> <p>3. Same—proviso to section p¿¡. of the Local Improvement act is valid. The proviso to section 94 of the Local Improvement act, which permits cities, towns and villages having a population of less than one hundred thousand to provide, in the ordinance for a special assessment, for the levy of a sum not exceeding six percentum of the amount of the assessment to pay the costs of making and collecting the assessment, is not unconstitutional, as being based upon an arbitrary and irrational classification by population.</p> <p>6. Same—when courfs finding that ordinance is not unreasonable will be upheld. The county court’s finding, after viewing the premises; that an ordinance for a relief system of sewers was not unreasonable although the village had a sewer system, will be sustained upon appeal notwithstanding the evidence is conflicting, if there is evidence that the sewer system already constructed was inadequate in times of freshets, that at such times the basements of houses were flooded and the water and sewage ran from, instead of into, the catch-basins in the streets.</p> <p>7- Same—what does not render ordinance void for unreasonableness. The facts that proposed sewers are to be laid in paved streets instead of alleys and that they are to be laid in a circuitous route alleged to be unnecessarily long, do not, of themselves, show such an abuse of the discretion of the municipal authorities with respect to the nature, and locality of the improvement as justifies the court in holding the ordinance void for unreasonableness.</p> <p>8. Same—when jurisdiction-to construct sewers is not lost by connection of territory with sanitary district. Jurisdiction of a village to construct sewers in the territory within its corporate limits is not lost by the mere fact that the territory of which the village forms a part has been connected, by statute, with the Sanitary District of Chicago, where nothing has been done in the village by such sanitary district except to locate the route of its main channel, no work having been done or right of way acquired.</p> <p>9. Same—what objection cannot be determined upon application to confirm assessment. Upon application to confirm a special assessment for a relief system of sewers, an objection that the construction of the sewers, by reason of their being discharged into Lake Michigan, which furnishes the village water supply, may possibly contaminate such water supply and result in a breach of the contract by the village to supply water to a nearby city, cannot be properly determined but must be left to subsequent proceedings if such contingency shall occur.</p> <p>10. Same-—whether improvement is a proper one is not a question for the jury. In a special assessment proceeding the only questions for the jury are whether the property of the objectors is assessed more than it is benefited by the improvement or more than its proportionate share of the cost of the improvement, and all matters of evidence or instructions which seek to bring before the jury the question whether the improvement is a proper one to be made are properly excluded or refused.</p>

O. E. Heard, Judge, presiding. In 1879 Thompson Wilcoxon was the owner of the Wilcoxon Opera House block and the Post-office block, in the city of Freeport. These properties were of the approximate value of $50,000 and were encumbered for $25,000. On the 19th of August, 1879, he, with his .wife, Cyinde Wilcoxon, entered into articles of agreement with their children, Thomas Wilcoxon, Mitchell H. Wilcoxon, Mary D. Proctor and Martha E. Lemon.

<p>Railroads—when foreman of switching crew is not a fellow-servant of switchman—negligence. The foreman of a switching crew who knows that the track onto which he is about to shunt some cars has been recently occupied by other cars, although he knows another crew has been ordered to remove them, is not a fellow-servant of his switchman in signaling the engineer to back the cars and in ordering the switchman to cut off the cars to be shunted, and it is negligence for him to give such orders before ascertaining whether the track is clear.</p>

<p>1. Negligence—what elements are essential to a recovery. Before a recovery can be had against a railroad company for the accidental death of an employee, whether he was a foreman or a common laborer, it is essential that it be proved that the defendant was guilty of negligence and that the deceased was in the exercise of due care for his safety; and if there is an entire absence of evidence tending to prove either one of such elements the defendant is entitled to an instruction directing a verdict in its favor.</p> <p>2. Trial—when a verdict should be directed for the defendant. In an action for the accidental killing of a car repairer in the defendant’s employ, the defendant is entitled to an instruction directing a verdict in its favor, even though there is sufficient evidence to justify submitting the question of the defendant’s negligence to the jury, if there is no proof whatever that the deceased was in the exercise of due care for his safety, the evidence showing that although he was in charge of the repair gang and had knowledge of the danger of his working on the particular job with no signal out, he took no precautions for the safety of himself or his men, although one of the men suggested that a protecting signal be put out.</p>

Thomas G. Windes, Judge, presiding. ' • On May 22, 1899, and prior thereto, John Druecker was conducting a warehouse business on certain premises situated in the city of Chicago. On the above date he executed a conveyance in fee of said premises to E. A. Shedd, of Chicago, and Benjamin E. Harris, Jr., of Champaign, Illinois, for an expressed consideration of $70,000.

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, presiding. On January 2, 1889, Granville S. Ingraham was the owner of one hundred acres of land in the south part of Chicago, bounded by Seventy-ninth street on the north, Wentworth avenue on the west, Eighty-fourth street on the south and State street on the east.

R. J. Grier, Judge, presiding. This is an appeal from a decree of the circuit court of Knox county dismissing for want of equity, upon a hearing, a bill filed by appellant against John J. Barbero and Andrew C. Housh, and others, for partition, accounting and other relief.

Thomas G. Windes, Judge, presiding. This is an appeal from the judgment of the Appellate Court for the First District affirming the judgment of the circuit court of Cook county dismissing appellant’s petition for a writ of mandamus.

<p>1. Corporations—purchaser of stock of a corporation does not become owner of corporate property. One who purchases all the stock in a corporation does not become the legal owner of the corporate property in the sense that representations made to him with reference to the property, interests and easements possessed by the corporation can create an estoppel in favor of the corporation itself, which it may rely upon as ground for enjoining interference with such alleged property, interests or easements.</p> <p>2. Same—a corporation sustains same relation to its property after transfer of stock as before. If a railway corporation, before the transfer of all its stock to an individual, was drawing water supply from a pond by sufferance of another corporation, the fact that the president of the latter may have represented to the purchaser of the stock that the railway corporation had a proprietary interest in the pond does not, by way of estoppel or otherwise, enlarge such use, by sufferance, into an easement.</p> <p>3. Injunction—clear and unequivocal evidence required where complainant relies upon an estoppel. Where the complainant in a bill for injunction relies upon an estoppel as the basis of his claim, the alleged estoppel must be established by clear, precise and unequivocal evidence.</p>

Writ oe Error to the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding. This is a bill in chancery filed by Hattie Simpson and Orilla Bonham, against Charles E. Hilt and others, to establish a resulting or constructive trust in certain real estate conveyed to Charles E. Hilt by Joseph Hilt December 18, 1903.

M. Kavanagh, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming an order of the superior court of Cook county finding John Hake, Charles Anderson and Frank Sporka guilty of contempt of court and sentencing each of them to imprisonment in the county-jail for four months.

<p>Writ op Error to the Superior Court of Cook county; the Hon. W. M. MqEwEN, Judge, presiding.</p>

AppEae from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Job Evans died intestate in March, 1870, owning two hundred and fifteen acres of land in Moultrie county, including the south-east quarter of the south-west quarter of section 17 and the north-west quarter of the north-west quarter of section 20, all in township 13, range 5, upon which he resided with his family.

T. M. Harris, Judge, presiding. This is an action on the case commenced by Harry Stewart against the Illinois Central Railroad Company, in the circuit court of McLean county, to recover damages for a personal injury sustained by appellee by a fall upon a sidewalk at a crossing over the tracks of the appellant company at Main street, in the village of Heyworth.

Information to disbar. The State’s attorney of Cook county filed an information in this court for the disbarment of the respondent, Charles P. R. Macauley, who was enrolled as an attorney on June 7, Igoo. The cause was referred to a commissioner to take the evidence and report his conclusions of law and fact, and this has been done.

Thomas G. Windes, Judge, presiding. On February 21, 1906, the Northwestern Elevated Railroad Company, the appellee, filed its petition in the circuit court of Cook county against the Peabody Coal Company and the Meacham & Wright Company, the appellants, the John E. Burns Lumber Company and Sarah C. Turner, trustee of Mary E. Turner, to condemn a strip of land twenty-five feet in width for right of way through a tract of land containing about eight acres, owned by the said…

<p>1. Wiles—a devise construed as passing a base or determinable fee. A devise to the three sons of the testatrix, of a certain lot, and in case of the death of either of them “without child or children him surviving” then to the other sons in equal undivided parts, passes a base or determinable fee, and upon the death of one of such sons, at any time, without leaving child or children, his fee terminates and the devise over takes effect. (Fifer v. Allen, 228 Ill. 507, followed.)</p> <p>2. Same—what shows that testatrix did not contemplate death of devisee during her lifetime. The fact that the testatrix bequeaths certain property to one of her sons absolutely, without making any provision for its disposition in case he died before her own death, shows that she contemplated that the son would outlive her, and negatives any supposition that she intended, by another devise to him, with a devise over in case he died without child or children, to provide against the contingency of his death occurring before her own.</p>

George A. Dtjpuy, Judge, presiding. This was an action of assumpsit brought in the superior court of Cook county by Thomas Hinsley, now deceased, against the appellants, co-partners doing business under the name of Close Bros. & Co., of Chicago, to recover for services claimed to have been rendered by Hinsley, under a contract, in effecting the sale of 96,099 acres of land in the western part of the State of Kansas.

Truman E. Ames, Judge, presiding. This is an appeal from a decree of the Shelby county circuit court dismissing, for want of equity, a bill for partition filed by Elzina Deadman against Cordelia Yantis and others. Mary J. Dixon, who was a defendant in the original bill, was by amendment made complainant.

Appear from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. James Gardner, appellee herein, claiming to be the owner in fee and in possession of the east half of the north-east quarter of section 20, township 16, north, range 7, west, in Sangamon county, Illinois, filed a bill in chancery to remove as a cloud upon his title certain alleged claims of appellants based on the last will and testament of Joseph Berry, deceased.

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

R. W. Clifford, Judge, presiding. On May 15, 1906, the relator, Edwin O. Raster, filed in the circuit court of Cook county a petition for mandamus against John J. Healy, State’s attorney of that county, praying for a writ commanding him to sign a petition for leave to file an information in the nature of a quo warranto against one Horace R. Brand, charged with having usurped the office of treasurer of the Illinois Publishing Company.

Appear from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. M. Kavasagh, Judge, presiding. The appellant and appellees are lawyers, and prior to March i, 1902, were partners, practicing their profession in Chicago, under the name of Charles A. Brown, Cragg & Belfield.

W. M. McEwEN, Judge, presiding. ' Appellants, who are residents and property owners in the village of West Hammond, appeal from the decree of the superior court of Cook county dismissing for want of equity their bill filed therein against appellees for injunction and for other relief.

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

<p>1. Wills—how question of jurisdiction of court to admit will to probate may be properly raised. The question of the jurisdiction of the probate or county court to admit to probate an alleged will may be properly raised in such court by a motion to set aside the probate of the will.</p> <p>2. Sams—section 10 of Statute of Wills applies to foreign wills and section 11 to domestic wills. Section 10 of the Statute of Wills, relating to probate, refers to foreign wills while section 11 of such statute contemplates domestic wills only.</p> <p>3. Sams—will of non-resident having no land in Illinois cannot be probated here. The will of a resident of a foreign State can be admitted to probate in Illinois only when the testator died “seized of lands or other real estate” situated in this State; and it is not sufficient that the estate in Illinois consists of bonds in the hands of a resident agent, since the situs of such property, in contemplation of law, is the domicile of the testator.</p>

Appear from the Appellate Court for the First District;— heard in that court on writ of error to the Circuit Court of Cook county; the Hon. M. F. TurEy, Judge, presiding.

<p>1. Guardian and ward—provisions of Official Bonds act, for release of sureties, do not apply to guardians’ bonds. The provisions of the act of 1874, as amended in 1879, relating to official bonds, in so far as they provide for the release of sureties upon official bonds, do not apply to guardians’ bonds.</p> <p>2. Same—new bond taken under section 35 of the Guardian and Ward act does not release the sureties. A new bond taken by the county court under section 35 of the Guardian and Ward act (Rev. Stat. 1874, p. 562,) does not have the effect to release the- sureties on the former bond, but is merely additional security, and both bonds remain in force for the protection of the minor.</p> <p>3. Same—act of 1877 is only authority for release of surety on guardian’s bond. The act of 1877 (Laws of 1877, p. 142,) is the only authority under which the county court may release a surety on a guardian’s bond, and to effect such release there must be a petition by the surety for discharge, notice to the guardian, a settlement of the guardian’s accounts, the filing and approval of a new bond and an order of the court discharging the surety from liability on the old bond.</p> <p>4. Same—when bond is not counter-security. A new bond required by the county court of a guardian, which is substantially in the form prescribed by section 34 of the Administration act, running to the People and conditioned upon the guardian’s having kept and performed the conditions of the old bond and upon his continuing to keep and perform such conditions and to perform his duties according to law, is an additional security and not a counter-security which should run to the sureties upon the former bond.</p> <p>5. Same—an agreement between a resigning guardian and new guardian does not release the sureties. No contract or arrangement made between a retiring guardian and the new guardian with respect to the assets in the hands of the retiring guardian at the time he resigned can operate as a release of the sureties upon the bond of the retiring guardian.</p> <p>6. Same—what matters do not affect release of the sureties on former guardian’s bond. The facts that the county court approved the action of the new guardian in receiving from the former guardian certain property which was to be sold and the proceeds applied upon the former guardian’s indebtedness to the ward, and that the ward, after attaining majority, received and retained the amount realized from the sale of such property in part settlement of the indebtedness, do not release the sureties upon the bond of such former guardian.</p> <p>7. Practice—when a dismissal as to a joint defendant does not work a discontinuance of suit. Dismissal, before final judgment, of a suit upon a guardian’s bond as to the principal and one of the sureties does not effect a discontinuance of the suit as to the other surety, since the latter might have been sued alone upon the bond in the first instance; nor does it alter the case that the judgment was rendered upon questions of law and not upon a verdict.</p>

Appear from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. John Manternach, one of appellants, began this suit by filing a bill in the superior court of Cook county for the partition of a certain lot described in the bill.

W. M. McEwEN, Judge, presiding. Appellant filed his bill in the superior court of Cook county for the annulment of his marriage with appellee, alleging that on September 18, 1903, at Richford, Tioga county, New York, he agreed to marry her on June 15, 1904; that he had known _ her for sixteen years prior to their engagement of marriage and about fifteen years before had learned that she was subject to attacks of epilepsy; that at the time of their engagement, with the…

M. F. TulEy, Judge, presiding. With this case have been consolidated in this court cases bearing titles and general numbers as follows, to-wit: No. 5339, Weaver v. Chicago Title and Trust Co., Receiver of Columbian Celebration Co. et al.; 5370, Weaver v. Same; 5383, Stuart v. Same; 5384, Bodman v. Same; 5385, Brewster v. Same; 5386, DeCamp v. Same; 5387, Hinkley et al. v. Same; 5388, Lobdell v. Same; 5389, Maxwell v. Same; 5390, Merchants’ Loan and Trust Co. v. Same; 5391,…

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

<p>Appeal from the Appellate Court for the First District;— heard'in that court on appeal from the Superior Court of Cook county; the FI011. W. M. McEwEN, Judge, presiding.</p>

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

Lockwood Honors, Judge, presiding. In its original form this was a bill for divorce and for partition of lot 12 and the east two and one-half feet of lot 13, in block 2, in Demarest & Kamerling’s Columbian subdivision of the west half of the south-east quarter of section 1, in township 39, north, range 13, east of the third principal meridian. The grounds alleged upon which Minna Brixel predicated her right to a divorce was extreme and repeated cruelty.

O. E. Heard, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming that of the circuit court of Cook county in an action of debt brought by appellees against appellants. The declaration contained a count based on section 2 of chapter 8o, (Hurd’s Stat. of 1905, p. 1296,) which gives double rent against a party willfully holding over after the expiration of the term and the service of a written demand for possession.

Joseph E. Gary, Judge, presiding. This was an action on the case commenced by Charles Muttschall against the West Chicago Street Railroad Company and James H. Eckels and two others, as receivers of the Chicago Union Traction Company, in the superior court of Cook county, to recover damages for a personal injury alleged to have been sustained by plaintiff in consequence of his being thrown to the pavement from a one-horse, two-seated open surrey in which he was riding upon…

Albert M. Rose, Judge, presiding. This was a bill brought by the Peabody Coal Company against William B. Adams, Marcella Adams, executrix of Gavin R. Adams, and others, in the circuit court of Christian county, for the specific performance of a written option, under seal, entered into between Francis S. Peabody and Gavin R. Adams December 29, 1904, the option providing, among other things, that in consideration of one dollar and other valuable consideration in hand paid,…

A. W. Lewis, Judge, presiding. This was a bill in chancery filed by appellants, Harry C. Teel and Nona Teel, (formerly Nona Stocks,) and Elmo Stocks, by his guardian, John Stocks, against the appellees, to partition certain farm lands situated in Williamson county between Nona Teel and Elmo Stocks, who were alleged to be the owners in fee simple thereof, and to impeach and set aside as a cloud upon the title of said Nona Teel and Elmo Stocks a certain decree entered by the…

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. This was a bill to enjoin the collection of a judgment for $650, recovered in the superior court of Cook county, by appellees against appellants.

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

<p>Appear from the Circuit Court of Kane county; the Hon. Charles A. Bishop, Judge, presiding.</p>

Thomas G. Windes, Judge, presiding. On September 12, 1906, the People of the State of Illinois, on the relation of James S. McCullough, Auditor of Public Accounts of the State of Illinois, filed a bill in the circuit court of Cook county against the Milwaukee Avenue State Bank and others for the appointment of a receiver, for the purpose of the dissolution of said bank and the winding up of its affairs, and for injunction.

<p>Wills—when a devise creates a determinable fee. A devise to , the testator’s son, but in case of his death without issue then to others, creates a base or determinable fee, and the devise over will take effect if the son dies at any time without issue, whether such death precedes or follows that of the testator, there being nothing in the will indicating a contrary intention. (Fifer v. Allen, 228 Ill. 507, followed.)</p>

<p>1. Jurisdiction—rule as to parties conferring jurisdiction by consent. The parties to an action at law, such as slander or trespass, over which a court of equity has no jurisdiction whatever, cannot, by consent or stipulation, confer jurisdiction upon such a court; but in an action at law arising out of a contract, where some equitable element, only, is lacking to give a court of equity jurisdiction, the parties may, by their acts or conduct, estop themselves to question such jurisdiction.</p> <p>2. Sams—when equity may take jurisdiction under stipulation. Where the parties to an action of assumpsit growing out of a former partnership transaction between them and involving an inquiry •into such partnership relation agree to transfer the case to the chancery side of the court, amend the pleadings and proceed under a bill for accounting and relief, they are bound by their stipulation and are estopped to raise the question of jurisdiction.</p>

<p>1. Pleading—when form of declaration cannot be questioned after judgment by default. After judgment by default, where no plea was filed, the declaration can only be questioned for matters of substance, and defects of form must be regarded as cured by section 6 of the Statute of Amendments and Jeofails.</p> <p>2. Same—when declaration states good cause of action for fraud and deceit. A declaration averring, in substance, that the defendant, for valuable consideration, bought a promissory note and trust deed from the defendant upon his representation that the deed conveyed certain real estate as security for the note; that the note was fraudulent and of no value and that the party who made the trust deed had no title to the land conveyed, and that the defendant had knowledge of such facts, whereby the plaintiff was deceived and damaged, contains the essential elements of an action on the case for fraud and deceit, and is good after judgment by default.</p> <p>3. Same—when failure to aver price paid for note is not fatal. Failure of a declaration, in an action for fraud and deceit in deceiving the plaintiff into purchasing a worthless note and trust deed, to aver the price paid by the plaintiff for the note, is not fatal after judgment by default, where the declaration shows that a valuable consideration was given by the plaintiff.</p> <p>4. Actions and defenses—the essential elements of action for fraud and deceit. The essential elements of an action on the case for fraud and deceit are representation, falsity, scienter, deception and injury.</p>

Frank L. HoopER, Judge, presiding. This is an action of trespass on the case brought by appellee, against appellant, in the circuit court of Will county. On the trial in that court a judgment for $1500 was recovered, which, on appeal to the Appellate Court, was sustained. The cause has been brought here on appeal for review.

Appear from the Circuit Court of Crawford county; the Hon. E. E. Newein, Judge, presiding.

R. S. Tuthill, Judge, presiding. This suit was brought in the circuit court of Cook county by Maurice T. Lane against P. L. McKinnie to recover the sum of $1700, which the former claimed to be due him as a balance on the purchase price of certain paintings sold to McKinnie.

<p>1. Appeals and errors—objection that no recovery can be had under declaration cannot be first raised on appeal. An objection that no recovery can be had under the declaration filed cannot be raised on appeal, where the point was not made in the trial court by demurrer, motion in arrest of judgment or otherwise.</p> <p>2. Taxes—when assessment for taxes is void. An assessment of property for taxation by the description of a lot of an assessor’s subdivision of a certain block is void, where there is no plat in existence in the county, of record, showing such lot; and in such case an application for judgment and order of sale for the tax should be refused.</p> <p>3. Same—when Appellaté Court’s judgment is conclusive that property taxed was misdescribed. In a suit to recover taxes paid under an alleged misdescription which rendered the tax void the judgment of the Appellate Court is conclusive of the question that such a misdescription existed, where there is evidence tending to show that the plat of the assessor’s subdivision, in which the property was placed by the description under which it was assessed, was never made, or, if made, was never executed and recorded according to law.</p> <p>4. Same—right of party paying taxes to recover from the owner where tax sale was void. Under sections 213 and 214 of the Revenue act, wherever real estate sold for taxes is so imperfectly described as to render the sale void, the purchaser, or those claiming under him, who have paid subsequent taxes upon the property, which have not been paid by the owner, may recover of such owner the amount of the subsequent taxes so paid, with ten per cent interest, as money paid for the owner’s use, if such right is not barred by the five year Statute of Limitations.</p> <p>5. Same—fact that party who paid taxes has received tax deed does not defeat his right to a recovery. The fact that the party who has paid subsequent taxes upon property sold for taxes has received a tax deed, does not, under the rule of caveat emptor, preclude his right to recover from the owner, in case, for any of the reasons specified in section 2x3 of the Revenue act, the tax for which the property was sold was void.</p> <p>6. Same—clerk’s entry in record is not the only evidence that tax sale was erroneously made. The entry required by section 213 of the Revenue act to be made by the county clerk in the sale and redemption record opposite the tract of land sold for taxes, that such sale was erroneously made, whenever it shall be made to appear to his satisfaction that one of the conditions specified in the statute exists which renders the tax void, is not the only competent evidence of fact, especially in a suit against the owner of the property by one who has paid subsequent taxes thereon.</p>

<p>1. Trial—when a personal injury case is properly left to jury. An action by a servant against a farm implement manufacturing company for personal injury is properly left to the jury under evidence that the plaintiff had been in defendant’s employ but a short time and was inexperienced; that defendant’s foreman, knowing plaintiff’s inexperience, put him to work with a wood-working machine set on a slippery hard-maple floor covered with sawdust and shavings, which concealed its character from plaintiff, who slipped thereon and fell, thrusting his hand on the knives of the machine, which cut off his fingers.</p> <p>2. Evidence—the fact that certain kind of floor grows slippery from use may be proved. In an action by a servant against the master for an injury sustained by slipping on a hard-maple' floor in the wood-working machine room, causing him to fall and thrust his hand on the revolving knives of a machine, it is competént to prove by persons familiar with the effect of wear upon such floors that they would become smooth and slippery from constant use.</p> <p>3. Appeals and errors—objection not urged in Appellate Court brief is waived. An objection to an instruction which is not made in the Appellate Court brief cannot be urged in the Supreme Court on further appeal. ,</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. Lockwood Honors, Judge, presiding. Appellee was a passenger on the Ashland avenue line of appellant on March 3, 1902. She paid her fare and secured a transfer entitling her to ride upon a north-bound South-port avenue car, in Chicago.

Appeal, from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. This is a bill in equity filed by appellant in the superior court of Cook county to set aside a deed made by J. Lafayette Curtis, dated August 27, 1902, purporting to convey to appellee Margaret C. Vaughan the premises known as 377 Dearborn street, Chicago.

O. E. Heard, Judge, presiding. This is an appeal from the circuit court of Carroll county from a judgment denying probate of an instrument alleged to be a will of John Noble. The instrument offered for probate is in the form of a statutory warranty deed, and purports to convey, in consideration of natural love and affection, 503J2 acres of land in Carroll county to Thomas Noble, son of John Noble.

G. A. Carpenter, Judge presiding. This is a bill filed to obtain a construction of the last will of Andrew Peterson. Only legal questions are involved. The will disposed of both real estate and personal property, hence the appeal is to this court. The testator died January 19, 1899, and his will, which was dated August 4, 1898, was admitted to probate February 23, 1899. The testator left neither widow nor lineal descendants.

<p>1. Actions and defenses—action in case will lie for breach of contract accompanied by fraud. The usual action for recovering damages for breach of a contract not under seal is assumpsit, but an action on the case will lie where, at the time of the breach of the written contract, a fraud was committed by the party violating the contract upon the other party thereto.</p> <p>2. Same—one electing to sue in case waives right to sue in assumpsit. One electing to sue in case for the wrong committed by the defendant in fraudulently assigning certain patents in alleged violation of defendant’s written contract with the plaintiff waives his right to sue in assumpsit, and the action is not based upon the written contract but upon the fraudulent acts of the defendant. *</p> <p>3. Limitations—actions on the case for fraud and deceit are barred in ñve years. As there is no specific provision in the Limitation act concerning actions on the Case for fraud and deceit, such actions are governed by section 15 of the act and are barred in five years, notwithstanding the fraud and deceit complained of consist of a violation of a written contract.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.</p>