Volume 231 — Illinois Reports

Writ of 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. Ben M. Smith, Judge, presiding.

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. Tuley, Judge, presiding.

Charles S. Cutting, Judge, presiding. Henry F. Wachsmuth died in November, 1900, leaving a will, which was admitted to probate, and appellants were appointed executors. With other real estate he owned two lots on Forty-seventh street, in the city of Chicago, which he devised to his son, Louis C. Wachsmuth, one of the appellants.

<p>1. Taxes—when equity will enjoin collection of tax. Where a cold storage plant erected upon leased land has been assessed for its fair value as personal property, and the lessee has paid such tax, a court of equity will enjoin the collection of another tax upon the same property as real estate, where such double tax has not resulted from the voluntary act or from any neglect or fault of the lessee. (C., B. & Q. R. R. Co. v. People, 136 Ill. 660, distinguished.)</p> <p>2. Same—general rule as to enjoining tax. A court of equity will enjoin the collection of a tax that is void or levied without authority of law, or where the property is exempt from taxation, or where there has been a fraudulent assessment at too high a rate.</p>

<p>Appeal from the Circuit Court of Clark county; the Hon. James W. Craig, Judge, presiding.</p>

<p>1. Briefs—briefs must not quote at length from record. Briefs of counsel which violate rule 15 of the court (204 Ill. 13,) by setting out in detail and at length the testimony of witnesses, giving questions and answers, will be stricken from the files.</p> <p>2. Same—remedy where insufficient abstract is tiled. Lengthy quotations, verbatim, from the testimony in the record by appellee in his brief, in violation of the rule, are not excused by the fact that the appellant imperfectly abstracted the record, as appellee’s remedy in such case is to supply the deficiency by an additional abstract and move to tax the cost to appellant.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.</p>

1. Appeals and errors—when no question is presented for review by the Supreme Court. In a suit at law tried, by agreement, without a jury, if no propositions of law are submitted to the trial court and no complaint is made as to the rulings on evidence the judgment of the Appellate Court affirming that of the trial court is final, and there is no question open to review by the Supreme Court on further appeal. 2.

L. D. Puterbaugh, Judge, presiding. Appellant, July 20, 1906, filed a bill in equity against the appellee board and its president, secretary, treasurer and finance committee, joining also as defendants the Charter Oak National Bank of Hartford and the Ætna Life Insurance Company of the same place, to enjoin the payment and collection of three orders, of $25,000 each, issued by said board.

P. A. Pearce, Judge, presiding. Howard Piper and Anna Piper were married in 1877 and lived together, except for the slight interval hereinafter mentioned, for about thirty years. During the first part of this time they were in very moderate circumstances, but about 1898 he inherited a considerable sum of money,— some $65,000,—from a relative in California.

<p>1. Replevin—Appellate Court’s judgment is ñnal as to controverted questions of fact. Whether the evidence in a-replevin suit sufficiently shows that the plaintiff is entitled to the possession of the property and to damages for its detention is a question of fact, upon which the judgment of the Appellate Court affirming the judgment below is final.</p> <p>2. Same—when refusal, of an instruction is not reversible error. Refusal, in a replevin suit, of an instruction stating that “clear and more convincing proof of good faith is required where the parties to a bill of sale are near relations than where they are strangers,” is not reversible error, where the issues of the case were simple, the jury fairly instructed as to the law and there has been a fair and impartial trial.</p>

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

T. M. Harris, Judge, presiding. This is a bill brought by the Broadwell Drainage District No. 1 against Arthur Lawrence, in the circuit court of Logan county, to restrain Lawrence from connecting certain lands belonging to him with the tile drains of the district, and to compel him to discontinue a certain tile drain heretofore put in by said Lawrence connecting the south 80 acres of his lands with the drainage tile of the district.

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Macon county; the Hon. James W. Craig, Judge, presiding.

A. W. Deselm, Judge, presiding. This is an appeal by the Kankakee and Southwestern Railroad Company from the judgment of the county court of Kankakee county against the lands of appellant for delinquent taxes for the year 1906. The defendant filed two objections to the application for judgment.

<p>1. Propositions op law—propositions of law not authorised unless parties were entitled to jury trial. The provision of the Practice act relating to propositions of law in cases tried by the court without a jury applies only to cases where parties were entitled to a jury trial and does not apply to an application for judgment and order of sale. (C., I. & W. Ry. Co. v. People, 205 Ill. 538, explained.)</p> <p>2. Appeals and errors—exception to entry of judgment must be preserved by bill of exceptions. An exception to the entry of judgment in a proceeding to sell land for taxes must be incorporated in a bill of exceptions, and it is not sufficient that the order entered in the court states that an objection was made and exception taken.</p>

<p>1. Appeals and Errors—when right to have appeal dismissed is waived. An appeal to the circuit court from an order of the probate court allowing or disallowing the probate of a will is improperly allowed if the party taking the appeal has not paid the fees required by statute; but if the other party pays such fees and takes the transcript to the circuit court, and in that court accepts a refund of such fees from the party praying the appeal, he waives his right to have the appeal dismissed because improperly allowed.</p> <p>2. Same—appeal bond in probate case should be payable to appellees. Since the act of 1897, relating to the probate of a will, the proceeding at all stages is a proceeding inter partes, and upon appeal the bond should be payable to the appellees and not to the People; but where an attempt is made to file a bond by filing one payable to the People the appellant should be ruled to file a proper bond, and the appeal should be dismissed only upon his failure to do so.</p> <p>3. Same—appeal bond to circuit court in probate matter may be approved by the judge. The statute providing that appeals to the circuit court in probate matters shall be taken in the same manner as appeals from justices of the peace, except that the appeal bond and security may be approved by the clerk of the county court, was designed to permit the clerk, as well as the judge, to approve the bond, and not to preclude its approval by the judge.</p> <p>4. Wills—question of probate of will is one for the court and not for the jury. Upon appeal to the circuit court in the matter of the probate of a will the question of the probate of the will is for the court and it is improper to submit the issue to a jury; but such irregularity does not affect the validity of the judgment as between the parties, provided the circuit court had jurisdiction.</p> <p>5- Same—circuit court does not acquire jurisdiction by appeal if probate court was without jurisdiction. If the probate court was without jurisdiction to entertain a petition to probate a will, as against an heir not made a party to the proceeding, the circuit court does not acquire such jurisdiction upon appeal from the order of the probate court.</p> <p>6. Same—probate court has exclusive original jurisdiction in matter of probate of will. The probate court has exclusive original jurisdiction in all matters concerning the probate of a will, and while the statute allows an appeal to the circuit court, such appeal is a limited one, confined to the probate of the will, and when that question is decided and the order of the circuit court is transmitted to the probate court, the latter court is again invested with jurisdiction and the jurisdiction of the circuit court ceases.</p> <p>7. Same—when a petition to set aiside probate is properly presented to probate court. Where the circuit court, on appeal from an order of the probate court denying probate of a will, orders the will to be probated, which is done, a petition by an heir over whom neither the probate nor the circuit court has acquired jurisdiction, seeking to set aside the probate of the will for fraud and want of jurisdiction, is properly entertained by the probate court, which, if the facts stated in the petition are true, may annul the probate and order a new hearing.</p>

<p>Appeal from the County Court of Fayette county; the Hon. John H. Webb, Judge, presiding.</p>

Writ or Error to the Circuit Court of Bureau county; the Hon. Edgar Eldredge, Judge, presiding.

Writ oe 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. Axel Chytraus, Judge, presiding.

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

<p>Appeal from the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Menard county; the Hon. T. N. Mehan, Judge, presiding.</p>

<p>1. Taxes—when stone quarry owned by railroad is exempt from taxation. A stone quarry owned by the Illinois Central Railroad Company, though not immediately adjoining the right of way, is railroad property, and is exempt from taxation under section 22 of the company’s charter, where such quarry supplies the stone and gravel for ballasting the company’s track, whether the quarry work is done by the company or by a lessee.</p> <p>2. Same—what does not deprive quarry of its character as railroad property. The facts that a railroad company has ceased to use its stone quarry as a source of ballast for its road-bed and that the company has sold the privilege of cutting ice in the quarry in the winter do not deprive the quarry of its character as railroad property, where it does not appear the company has abandoned the quarry as a ballast supply.</p>

<p>Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>1. Appeals and errors—writ of error does not extend to matters occurring after writ was sued out. A writ of error brings nothing up for review which occurred after the writ was sued out, and the question whether there was error in subsequent proceedings cannot be raised.</p> <p>2. Same—when defendant is not entitled to an appeal or writ of error. In an application to register title to a large number of lots, if the defendant claims title to only two of such lots, a decree registering title to the lots in which defendant had no interest and continuing the case as to the other two, without adjudging costs to the defendant, does not affect the defendant, and he is not entitled to an appeal or writ of error in advance of final determination of the question of title to the two lots he claims.</p> <p>3. Registration of title—when defendant cannot complain of applicant’s proof of title. A defendant to an application to register title who sets up a claim of interest in only two of the numerous lots involved is not in a position to complain that the applicant failed to prove title, as against the world, in the lots to which the defendant set up no claim.</p>

A. H. Frost, Judge, presiding. The appellee, in an action on the case, recovered a judgment against appellant for $5000, which the Appellate Court affirmed, and a further appeal is prosecuted to this court. The appellee’s injury was caused by his being thrown from a wagon which he was driving along Twenty-eighth street, by reason of a wheel dropping into a hole in the street. The negligence alleged was permitting a large and dangerous hole to remain in the street.

George A. Dupuy, Judge, presiding. This is an appeal by the Evangelical Association, by William Horn, bishop, from the decree of the superior court of Cook county construing the last will and testament of one Elizabeth Meyer, deceased, who died on May 26, 1900.

<p>Appeal from the County Court of Saline county; the Hon. A. E. Somers, Judge, presiding.</p>

Writ oe Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Franklin B. Gottschalk, plaintiff in' error, has sued out a writ of error from this court, which has been made a supersedeas, seeking to reverse a judgment for $25 and costs rendered against him by the municipal court of Chicago for the first district in favor of Lewis A. Williams and Henry Schnoering, partners doing business as the University Publishing Society, defendants in error.

<p>1. Trial—objection that papers bear the file-mark of “county clerk” must be specific. An objection that a paper filed in an application for judgment and order of sale for a special assessment bears the file-mark of the county clerk instead of the clerk of the county court is one which may be obviated by amendment, and unless the objection is included in the other specific grounds of the motion to strike the paper from the files it will not be considered by the Supreme Court.</p> <p>2. Same—what is not ground for striking objections from files. Property owners are not required to sign objections to an application for judgment and order of sale, and the facts that they have not signed the objections, and that the attorneys appearing have attached to the objections a list of the property for which they object and the names of the owners whom they represent, are not grounds for striking the objections' from the files.</p> <p>3. Same—withdrawal of evidence after case is taken under advisement rests with the court. Whether a party shall be permitted, after a case is taken under advisement, to withdraw evidence offered and received in his behalf is a matter resting in the discretion of the court, notwithstanding the adverse party objected to its admission; and if the evidence is competent and the application to withdraw the same is unseasonable the refusal of the court to allow its withdrawal is not an abuse of its discretion, notwithstanding the adverse party changed position and opposed withdrawal.</p> <p>4. Special assessments—what is not equivalent to a finding by court that notices were given. A finding by the county court, in. confirming a special assessment, that all notices and affidavits “have been complied with” is not equivalent to finding that notice to the property owners was given, and is not sufficient to show that any notice not in the record was, in fact, given, even though there is a general finding that the court had jurisdiction of the subject matter and of the parties interested. (Young v. People, 171 Ill. 299, distinguished.)</p> <p>5. Same—notice to owners is essential to jurisdiction of court to confirm assessment. It is essential to the jurisdiction of the county court to confirm a special assessment that the property owners be given notice and afforded an opportunity to be heard before confirmation.</p>

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the County Court of Ford county; the Hon. H. H. Kerr, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.

<p>1. Trial,—when damage case from explosion is properly left to the jury. In an action by a steel mill employee for an injury from an explosion of molten metal in a vessel just after new metal had been added to an “over-blown heat,” the fact that plaintiff’s witness, who testified that an explosion might result under such circumstances, is a chemist, whose knowledge of the matter is limited to laboratory tests, affects only his credibility and does not justify the court in directing a verdict in disregard of such testimony.</p> <p>2. Instructions—when modification of an instruction does not change its meaning. An instruction containing a direction to return a verdict for the defendant “if the evidence is evenly balanced, or if it preponderates in favor of the defendant, or if you are in doubt as to the preponderance,” is not changed in meaning by substituting for the last clause the words, “or if you are unable to determine as to its preponderance,” and such instruction as originally presented or as modified is not objectionable.</p> <p>3. Sams—when striking argument from instruction is proper. It is not error to strike out of an instruction an argumentative reference to the binding force of the juror’s answers to questions upon their examination and to their oaths as jurors, and to make the instruction read, “It is your duty, as jurors, to try this case as to the facts upon the evidence produced upon the witness stand and the law as given you in these instructions by the court.”</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. J. R. Creighton, Judge, presiding.</p> <p>On May 14, 1906, John W. Hill, conservator of William C. Holman, appellee, filed his bill in the circuit court of Franklin county against Joseph B. Fowler and his wife, appellants, to cancel a certain deed executed by Holman, conveying certain lands in Franklin county to Joseph B. Fowler in exchange for lands conveyed to Holman by Fowler, and for other relief. The bill alleges that at the time of the execution and delivery of said deed, and for a number of years prior thereto, said William C. Holman was a person of unsound mind and wholly incapable of thansacting business; that at the time said conveyance was made his condition was fully known to Joseph B. Fowler and that said deed was therefore void. An answer was filed by Fowler and his wife denying these allegations. The matter was heard before the chancellor in open court. A decree was entered granting the relief prayed by the bill. The deed from Fowler to Holman had never been recorded. It was brought into court by the conservator and was by the decree canceled and set aside. From that decree appellants have prosecuted an appeal to this court.</p> <p>Negotiations between the parties were set on foot in March, 1904. Each inspected the lands of the other. A bargain was struck, and on April 18, 1904, deeds to the lands were exchanged, the deed from Holman having been executed on that day and the deed from Eowler on April 16, 1904. At the time of the exchange Holman was a man about sixty-four years of age and in poor health. For a number of years prior to this transaction and until the time of his death, on October 16, 1906, he was afflicted with epilepsy. The last violent attack of this disease prior to April 18, 1904, occurred some time in the month of January, 1904. About six months before his death his condition became such that appellee was appointed his conservator by the county court of Franklin county.</p> <p>It is contended by the appellants that the court erred in finding that William C. Holman, at the time of the execution and delivery of the deed to Fowler, lacked the necessary mental capacity.</p>

<p>Appeal from the County Court of Crawford county; the Hon. J. C. Maxwell, Judge, presiding.</p>

<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. JESSE Holdom, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding.</p>

<p>Judgments and decrees—consent decree cannot be reviewed. A decree entered in a partition proceeding by the consent of the parties, who were all of lawful age and under no legal disability, is binding, and cannot be attacked by them upon appeal or writ of error.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Henry B. Willis, Judge, presiding.

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge presiding.

<p>1. Instructions—effect of' withdrawing instruction after jury has had it. The oral withdrawal of an instruction which has been given to the jury and been considered by them in the jury room has the effect of instructing the jury that the instruction does not state the law. (Chicago and Eastern Illinois Railroad Co. v. Zapp, 209 Ill. 339, distinguished.)</p> <p>2. Same—Practice act prohibits oral instructions. Orally withdrawing all instructions from the jury and orally directing them to find the defendant not guilty is a violation of section 73 of the Practice act of 1907, (Laws of 1907, p. 458,) but the error in so doing is not ground for reversal if the verdict and judgment were clearly right and the plaintiff could not succeed upon another trial.</p> <p>3. Boundaries—the fact that parties supposed fence was true boundary does not affect question of adverse possession. One who, for over twenty years, occupies land up to the fence between it and the adjoining land, claiming ownership to such fence, may interpose the defense of the Statute of Limitations to an action of trespass quare clausum fregit, notwithstanding he had always supposed, prior to plaintiff’s survey, that the fence was the true boundary and never intended to claim more land than was included in his deed.</p>

R. J. Grier, Judge, presiding. This is an appeal by the city of Farmington from a judgment of the Appellate Court for the Third District affirming a judgment of the circuit court of Fulton county for the sum of $iooo, rendered at the May term, 1906, against appellant, in favor of appellee, in an action on the case for personal injuries. The appeal from the Appellate Court was perfected on June 20, 1907. The declaration consists of two counts.

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, 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. R. W. Clifford, Judge, presiding.</p>

Axel Chytraus, Judge, presiding. This was a petition for a writ of mandamus filed in the superior court of Cook county in the name of the People, upon the relation of R. M. Berlizheimer, against the mayor, the city clerk and the city collector of the city of Chicago, to require them to issue to the relator a license authorizing him to sell cigarettes at his place of business in the city of Chicago.

<p>Appear from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Municipal corporations—journal of a village board must show that ordinance received concurrence of majority. No ordinance of a village is valid unless it has received the concurrence of a majority of the members of the board elected, and the existence of such fact must appear by the journal of the village board and cannot be shown by parol.</p> <p>2. Same—when territory is not legally disconnected. Territory of a village is not legally disconnected where the journal of the village board shows only that a motion was carried to grant the prayer of the petition and that the village attorney was directed to draft the ordinance, even though an ordinance afterward so prepared, signed by the president and clerk, is recorded in the book of ordinances, with the statement that it had been passed, approved and published, and though certified copies thereof are furnished the land owner.</p> <p>3. Same—when village is not estopped to deny validity of ordinance: If an ordinance purporting to disconnect territory was never voted upon by the village board, the fact that' the village board' granted the petition, as shown by its journal, caused what purported to be a duly passed, approved and published ordinance to be recorded in a book of ordinances and furnished certified copies to the owner of the land, does not estop the village, in a subsequent proceeding to collect five years’ taxes on the land, to deny the validity of the ordinance, where it does not appear the owner of the land has been prejudiced in any way by her reliance upon such acts. (People v. Maxon, 139 Ill. 306, explained.)</p>

R. W. Clifford, Judge, presiding. On May 31, 1902, appellants were co-partners carrying on a general warehouse business in the city of Chicago. On said day the Chicago Tribune Company had certain pieces of machinery stored in' the appellants’ warehouse, and sent appellee and another of their employees to the warehouse to secure the particular pieces of machinery required.

<p>1. Partition—fact that certain parties are dissatisfied with division made does not require disapproval of report. If the division made by the commissioners in a partition proceeding is fair and equal, quantity and quality considered, the court should confirm the report, notwithstanding some of the parties offer to exchange tracts with the others and pay money in addition for the exchange; nor is such offer conclusive evidence that the partition is unfair.</p> <p>2. Same—when complainant’s solicitor’s fee should not be taxed as costs. It is not proper to tax the complainant’s solicitor’s fee as costs in a partition proceeding, where the parties were unable to agree upon a division of the property before the bill was filed and some of the defendants continue the contest as to the value of the property, and the division thereof, by employing attorneys and objecting to the confirmation of the commissioners’ report. (Jones v. Young, 228 Ill. 374, followed.)</p>

<p>1. Negligence—duty of owner of premises to person entering upon invitation. The owner of premises who by invitation, express or implied, induces another to enter upon the premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the premises if such condition was known to him and not to them, and it is his duty to.use ordinary care to give to persons rightfully upon the premises timely warning of hidden dangers.</p> <p>2. Same—when owner of building is liable for injury to servant of independent contractor. Where a large, plainly visible hole has been broken through the roof of a building roofed with boards covered with tar paper, the owner of the building is not required to give warning of the existence of the hole to servants of an independent contractor working upon the roof; but if the tar paper at the edge of the hole is intact, though the boards underneath are splintered and broken for some distance from the apparent edge of the hole, the owner must give notice of the hidden danger, and he is liable for an injury resulting from his failure to do so.</p> <p>3. Evidence—life tables are admissible in action for damages for accidental death. The probable duration of the life lost is an element to be considered in an action for damages for negligently causing the death of the plaintiff’s husband, and, as bearing on such question, standard life tables may properly be admitted in evidence.</p>

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

W. G. Cochran, Judge, presiding. This is a bill in chancery brought by John M. White, Jr., against Rebecca H. White for the specific performance of an oral contract for the conveyance of a farm in Piatt county. The circuit court sustained the bill and entered a decree for a conveyance. Rebecca H. White has appealed to this court from that decree.

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Charles B. Garnsey, Judge, presiding.

<p>Appeal from the County Court of Marion county; the Hon. John S. Stonecipher, Judge, presiding.</p>

Solon Philbrick, Judge, presiding. This case has been in this court twice heretofore, (Kuhn v. Eppstein, 219 Ill. 154; Eppstein v. Kuhn, 225 id. 115;) and the facts need not be here repeated.

<p>Auditor's certificate of appeal to review the decision of the Board of Review of Peoria county.</p>

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

Truman E. Ames, Judge, presiding. Appellant, by her conservator, filed her bill in the circuit court of Montgomery county October 13, 1906, for the construction of the will of James McCeig.

<p>Writ of Error to the Circuit Court of Montgomery county; the Hon. S. L. Dwight, Judge, presiding.</p>

<p>Writ of Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. On December 28, 1904, George W. Spencer filed a creditor’s bill in the superior court of Cook county against Timothy C. Clohesey and others, appellees, praying for discovery and seeking to subject certain property in the hands of Timothy C. Clohesey, of which David T. Clohesey was alleged to be the equitable owner, to the payment of the debts of the latter.

<p>1. Taxes—when additional tax cannot be levied for repairing bridges. The repair of bridges is included in the ordinary road and bridge purposes, and an additional tax cannot be levied, under section 14 of the Road and Bridge act, for “repairing bridges” unless the certificate shows such repairs have been necessitated by some contingency such as is contemplated by the statute.</p> <p>2. Same—levy of county tax for “building and incidental expenses” is invalid. A levy of a county tax for “building and incidental expenses” is not in compliance with statute and is invalid.</p>

<p>Special assessments—when discretion vested in improvement board does not invalidate ordinance. A paving ordinance providing that the layer of brick to be laid shall be “a layer of re-pressed brick, either Metropolitan block, of Canton, Ohio, or other brick equally good, to be approved by the board of local improvements, etc., specifying the dimensions of the b'rick to be used, is not invalid because of the discretion vested in the board of improvements to judge the quality of the brick.</p>

Harry Higbee, Judge, presiding. This is an appeal by Joseph Dyas and Mary A. Dyas from a judgment of the Appellate Court for the Third District affirming a decree entered in a proceeding begun by a bill of interpleader filed in the circuit court of Pike county by Mattinson, Wilson & Co., a banking firm, against appellants and Charles D. C. Dyas.

J. C. Maxwell, Judge, presiding. This is an appeal from a judgment of the county court of Crawford county in favor of appellee, against the lands of the Illinois and Indiana Railroad Company in Crawford county, for certain taxes alleged to be delinquent for the year 1906. Objections were filed by the appellant to the application for judgment.

<p>1. Continuance—when motions for continuance are properly denied. Motions to continue the hearing on the question of benefits in a special assessment case are properly denied where the affidavits in support of such motions fail to show any sufficient reason why the objectors were not ready for trial, or any degree of diligence in preparing for trial, or any reason for not having their witnesses present at the time set for the hearing.</p> <p>2. Special assessments—when court may properly direct verdict for the petitioner. Upon the hearing of the question of benefits in a special assessment case, if, after the petitioner has made the proof necessary to a prima facie case, the objectors offer no evidence, saying that they have no witnesses, it is proper for the court to direct a jury to return a verdict for the petitioner.</p> <p>3. Same—what does not render direction of verdict erroneous. Affidavits by the objectors for a continuance upon the ground of absent witnesses do not render the court’s direction of a verdict for the petitioner erroneous, upon the ground that if the petitioner admitted that the objectors’ witnesses, if present, would testify to the facts stated in the objectors’ affidavits for continuance the petitioner would not be entitled to a judgment, where neither the affidavits for a continuance nor any other evidence was offered by the objectors.</p> <p>4. Instructions—a court of review will not presume that instruction was oral. In the absence "of any showing by the record that the court instructed the jury orally, it will be presumed by a court of review that the instruction was in writing, as is required by the statute.</p> <p>3. Same—parties may waive giving of written instructions— presumption on appeal. While the statute requires the instructions of the court to be in writing, yet the parties may waive the benefit of the statute and consent that the instructions shall be oral; and such waiver will be presumed by a court of review, where the exception preserved to the instruction goes only to its substance and not to the manner in which it was given.</p>

Appear from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.

<p>1. Taxes—what is not a contingency such as is contemplated by section 14 of Road and Bridge act. A certificate of highway commissioners for an additional road tax which states the purpose to be for “paying damages and opening up new roads that are laid out in the township and building bridges,” does not show the existence of a contingency, within the meaning of section 14 of the Road and Bridge act.</p> <p>2. Same—fact that clerk cannot find petition for labor system election is not conclusive that there was no petition. One objecting to a road tax upon the ground that the election adopting the •labor system was had without a petition has the burden of proving that no petition was in fact filed, and proof that the town clerk can not find in his office any petition, or record of a petition, under which the election could have been held is not sufficient, and does not raise an inference that no petition was filed.</p>

<p>Abstract or record—appeal will be dismissed if abstract of record is not indexed. An appeal will be dismissed by the Supreme Court of its own motion where appellant has made no attempt to comply with rule 14 of the court, (204 Ill. 13,) requiring the abstract of the record to be indexed.</p>

<p>Appear from the Circuit Court of Menard county; the Hon. Guy R. Wirriams, Judge, presiding.</p>

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

<p>Attorney and client—relation must be proved before attorney can be held as trustee. One seeking the benefit of the rules that an attorney who purchases from his client the subject matter of the litigation will be regarded as a trustee for the client, and that for an attorney to acquire the subject matter of the litigation is presumptively fraudulent, must establish, by proof, that the relation of attorney and client existed with respect to the transaction.</p>

John A. Gray, Judge, presiding. On September 7, 1906, Hannah Colbert, appellant, filed her bill in the circuit court of McDonough county against Lucy J. Rings and the other legatees and devisees and the executor of the will of Thomas S. Colbert, deceased, appellees, seeking dower and homestead, widow’s award and thirds in the estate of the deceased.

<p>Writ of Error to the Circuit Court of Union county; the Hon. W. W. Duncan, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. In January, 1905, there was carried on at No. 67 Washington street, in Chicago, the business of making frames for ladies’ hats. It had been established three years before that time and from the beginning had been conducted in the name of Frederick Kropsch, who personally managed the business. The bank account was kept and contracts were made in his name and nothing appeared to indicate that he was not the exclusive owner.

George A. Dupuy, Judge, presiding. In September, 1888, Edmund M. Ferguson caused a tract of land owned by him in Cook county, lying partly in the city of Chicago and partly in the city of Lake View, to be laid off into lots and blocks, streets and alleys, surveyed and platted as Clybourn avenue addition to Lake View and Chicago. Block 6 of said addition contained twenty-six lots. Lots 1 to 18, inclusive, fronted north on Oakdale avenue.

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Piatt county; the Hon. W. G. Cochran, Judge, presiding. This is a petition for mandamus filed by defendant in error to compel plaintiffs in error to construct a bridge across the natural channel of a stream, known as the Lake Fork of the Okaw, flowing through the former’s land. The land in question is in Drainage District No. 7, Unity township, Piatt county.

<p>1. Taxes—when highway commissioners cannot levy additional tax. Commissioners of highways cannot levy an additional road and bridge tax, under section 14 of the Road and Bridge act, for road and bridge purposes and to pay outstanding orders, merely because they are of the opinion the regular maximum rate allowed by law; for such purpose will be insufficient.</p> <p>2. Same—when additional road and bridge taxes are invalid. Additional road and bridge taxes levied under section 14 of the Road and Bridge act are invalid where the purpose of the tax is to raise money for the ordinary expense of building bridges, even though such purpose is termed, in the certificate, a “contingency.”</p> <p>3. Same—levy to pay “ordinary expenses” of county is invalid. A levy of a tax to pay “ordinary expenses” of a county does not comply with the statute requiring the several purposes and amounts of a county tax to be stated separately, and as to such item the tax is invalid.</p>

N. E. Worthington, Judge, presiding. Charles H. Powell died August 12, 1902. On December 31, 1902, George W. Campbell was appointed administrator by the probate court of Peoria county and selected the March term, 1903, for the presentation of claims against the estate.

R. S. Tuthill, Judge, presiding. On January 30, 1904, Martha S. Chatterton filed her bill in the circuit court of Cook county against William A. Chatterton, appellee herein, for divorce, on the ground of desertion. At the February term, 1904, the summons having been returned “not found,” the appearance of the defendant was entered, in writing, by his solicitor, Francis W. Walker.

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

L. C. Ruth, Judge, presiding. Joseph Swiercz sued the Illinois Steel Company in an action on the case, in the circuit court of Cook county, to recover damages for personal injury. The declaration alleged that the defendant was the owner of a rolling mill in the city of Chicago and employed the plaintiff as a common laborer, and it was his duty to do everything which the defendant directed him to do.

<p>1. Municipal corporations—a petition to disconnect territory must be presented by owner of land. A petition to disconnect territory from a village must be presented by the owner of the land, and a petition presented by a tenant not shown to be authorized to act for the owner is not sufficient.</p> <p>2. Same—when village is not estopped to attack validity of ordinance disconnecting territory. A petition to disconnect territory, signed by the lessee of the owner of the land, is, in the absence of any authority to the lessee to act for the owner, no petition at all; and the fact that the village passes an ordinance purporting to disconnect the territory does not preclude it from attacking the validity of the ordinance upon an application for judgment of sale for subsequent taxes on the land.</p> <p>3. Collateral attack—what is essential to preclude collateral attack upon a petition. The rule that defects and informalities in a petition are cured, as respects collateral attack, by the action of an inferior body, whose limited jurisdiction is called into exercise by the petition, in determining the sufficiency of such petition, is limited to cases where the petition is presented by some one authorized to present it by the law giving such body jurisdiction to act upon it.</p>

<p>1. Appeals and Errors—Appellate Court may differ from trial court in conclusions of fact though the evidence is uncontradicted. The fact that the evidence is uncontradicted does not conclude the Appellate Court from reaching a different conclusion from that of the trial court as to the ultimate fact.</p> <p>2. Same—finding of an ultimate fact may require application of legal principles. The finding of an ultimate fact is a statement of a conclusion, but it is a conclusion of fact from the various subsidiary or evidentiary facts, and the application of legal principles may be required in reaching such conclusion, thereby making the question a mixed one of law and fact</p> <p>3. Same—what is a finding of an ultimate fact. A finding by the Appellate Court, from uncontradicted testimony, that what was done by the commissioner of public works with respect to certain working drawings amounted to a writtén approval of such drawings and a written order to do the work shown thereon, is a finding of an ultimate fact, notwithstanding the trial court found from the same testimony that what was done did not amount to such written approval or order.</p> <p>4. Municipal corporations—method prescribed for binding a city by contract must be followed. If there is a statute or ordinance prescribing the method by which an officer or agent can bind a municipal corporation by contract such method must be followed, and there is no implied contract or liability of such municipal corporation.</p> <p>5. Same—mere fact that work is beneficial does not create liability. The performance of work or furnishing of material to a city and the acceptance of resulting benefits by the city does not render it liable to pay if the work was not authorized.</p> <p>6. Same—when work is not “extra work.” Where, after a contract is let, new plans and working drawings are made by the city engineer, the additional labor and expense thereby occasioned is not “extra work” within the provision of an ordinance embodied, in the contract, that “no payment shall be made on any work or job done by contract for any extra work not specified in the contract, unless such work shall have been done by the written order of the commissioner of public works, to be annexed to such contract, stating that such work is not included in the contract.”</p>

Emery C. Graves, Judge, presiding. This case comes to this court on a certificate of importance from the Appellate Court for the Second District. It is an appeal from the judgment of the circuit court of Mercer county overruling exceptions to the report of the executors of the last will of Jacob Busch, deceased. The exceptions were filed by the legatees under the will and relate to certain items of credit in the fifth report.

R. D. W. Holder, Judge, presiding. The appellant Green Parker was town collector of the town of Alton for the year 1904 and the other appellants were the sureties on his official bond. He retained $2545.52 in settling with the county collector as his compensation, being two per cent of the amount of taxes collected by him.

<p>' 1. Special assessments—engineer’s estimate need not go into minute details. While the engineer’s estimate of cost must be something more than the gross sum in one item, yet it is not essential that all the minute details which go into the improvement be set out in separate items.</p> <p>2. Same—“Y” junctions are included in an item for sewer pipe connections. An item in the engineer’s estimate stating the estimated cost of a specified number of iron catch-basins, “including nine-inch sewer pipe connections,” must be regarded as embracing “Y” junctions specified in the ordinance and without which the connections would be incomplete.</p>

A. H. Frost, Judge, presiding. Henry Hollenbeck, on September 16, 1902, was the owner of lots 1 and 2, in block 27, in Robertson’s addition to the town, of Winnebago, in Winnebago county, which constituted his homestead, upon which he resided with his wife, Eva Hollenbeck, and also of a farm of one hundred and twenty acres in the same county. On that date he executed a deed of the homestead to his wife, who did not join in its execution.

<p>1. Taxes—levy for “building and incidental expenses” is bad. A levy of taxes by a county, expressed to be for “building and incidental expenses,” cannot be sustained for the reasons given in People v. Kankakee and Southwestern Railroad Co. ante, p. 109.</p> <p>2. Same—need of new bridges is not necessarily a contingency. The need of building bridges is not a contingency within the meaning of section 14 of the Roads and Bridges act, relating to an additional road tax, where it is not shown in the certificate of the highway commissioners that the necessity for building bridges arose from any condition other than the usual and ordinary ones that may arise in any township needing to build bridges. (C., C., C. & St. L. Ry. Co. v. People, 223 Ill. 17, not followed.)</p>

<p>1. Executors and administrators—a judgment allowing claim imports verity. A judgment of the county court allowing a claim against an estate imports verity, and it cannot, in the absence of fraud or collusion, be impeached by the administrator or the heirs, so far as it affects personal property, although payment or part payment, since its rendition, may be shown.</p> <p>2. Guaranty—the guarantor’s liability is fixed by the terms of the guaranty. Where a promissory note is guaranteed, in severalty, by a number of persons, each of whom agrees to pay a fixed amount, the liability of the guarantors must be determined by the terms of the guaranty; and the fact that the written guaranty on other notes delivered at the same time contains a provision 'for pro rata indemnity to the guarantors which is not in the guaranty in question in a suit at law does not authorize the court to incorporate such provision.</p> <p>3. Same—guarantor’s liability exists until note is paid in full. Where the guarantors of a promissory note agree, in severalty, to pay a fixed sum in case of the maker’s default, the liability of the guarantors to pay such sums exists until the note is paid in full, and in a proceeding against the estate of one of the guarantors to allow a claim based upon such guaranty the question of contribution as between the several guarantors cannot be raised.</p>

<p>1. Taxes—what is not a compliance with statute requiring purposes of county tax to be stated separately. Section 121 of the Revenue act, providing that where county taxes are to be raised for several purposes the various purposes and amounts 'Shall be stated separately, is not complied with by the levy of one sum to be distributed, when collected, among different classes of expenses, as the authorities may desire or determine.</p> <p>2. Same—levy of county tax for “unpaid claims” is too indefinite. A county tax levy of a lump sum for “unpaid claims” is not equivalent to a levy for such claims as have been allowed and for which warrants have been drawn but is broad enough to include claims of every kind presented to the county, and is not sufficiently specific to comply with section 121 of the Revenue act.</p> <p>3. Same—levies made for “coal, light and water,” “judiciary and boarding prisoners” and “contingent expenses”*are too broad. Section 121 of the Revenue act is not complied with by a county board by specifying a lump sum in the tax levy for “coal, light and water,” another sum for “judiciary and boarding prisoners” and another for “contingent expenses.”</p>

<p>1. Drainage—drainage records are the only lawful evidence of acts required to be recorded. Where the law requires records of proceedings to be kept by drainage commissioners, such records are the only lawful evidence of the proceedings to which they refer, and cannot be contradicted, added to or supplemented by parol.</p> <p>2. Same—what essential to legality of special assessment under Farm Drainage act. To make a legal special assessment under section 26 of the Farm Drainage act, there must not only be a legal meeting of the drainage commissioners held but the record thereof -must be kept by the clerk in his book of records, although it is not essential that he write out the proceedings in his own hand.</p> <p>3. Same-—a meeting of drainage commissioners must be within district—notice. A meeting of drainage commissioners to levy a special assessment under section 26 of the Farm Drainage act must be held within the boundaries of such district, and due notice must be given to all the commissioners and the clerk to give them an opportunity to attend, but after such notice a majority of the commissioners may hold a legal meeting.</p> <p>4. Same—when drainage assessment must be held void. Since the amendment of the Farm Drainage act of 1901 by striking out the provision for an appeal to the county court from an assessment levied under section 26 of that act, the first opportunity which a property owner has to be heard is upon application for judgment and order of sale, and hence, in the absence of affirmative proof showing strict compliance with the statute, the assessment will be held void.</p> <p>5. Same—the Revenue law does not authorise court to levy tax. The provisions of the Revenue act allowing irregularities, informalities or omissions not affecting the substantial justice of a tax to be corrected or supplied upon application for judgment and order of sale are liberal, but they do not authorize the court to levy a tax where none has been levied by the proper officers.</p>

<p>1. Wills—specific legacies must abate, unless charged upon real estate, if personal property is insufficient. Personal property is the primary fund out of which specific legacies must be paid, and if such legacies are not made a charge upon the real estate and there is a deficit of personal property they must abate.</p> <p>2. Same—testator’s intention to charge real estate with specific legacies may be implied. Specific legacies will be held to be a charge upon real estate if such appears to be the.clear intention of the testator as manifested in express terms or by necessary implication from the language used.</p> <p>3. Same—the general rule as to when residuary real estate is charged with legacies. Where pecuniary legacies are given generally, and there is a gift of the residue of the estate, the whole residue being blended in one mass, the legacies are a charge upon the entire residue, including residuary real estate.</p> <p>4. Same—when specific legacies are a charge upon real estate. A residuary devise of “all the rest and residue of my estate that shall remain after the satisfaction of the above legacies,” charges the real estate with the payment of such legacies in the event of a deficit of the personal property, where such residuary devise is the only one in the will applicable to real estate.</p>

<p>1. Taxes—when a labor system election is prima facie invalid. An election to adopt the labor system for paying road taxes is prima facie invalid where a certain petition under which the election might have been held is introduced in evidence and is not in compliance with the statute and no other petition under which the election could have been held can be found among the files of the town clerk’s office, since such facts authorize the presumption, in the absence of contrary proof, that the election was held Under the defective petition. (Toledo, St. Louis and Western Railroad Co. v. People, 225 Ill. 425, distinguished.)</p> <p>2. Same—what is not sufficient to overcome presumption that tax was legally levied. The fact that the original petition under which a labor system election was held cannot be found among the files of the town clerk’s office more than twenty years after the election, during which period the town has been levying taxes under the labor system, is not, of itself, sufficient to show that the election was held without a petition or to overcome the presumption that the tax was legally levied.</p> <p>3. Same—a tax for repairs, grading and tiling around school house should be levied for educational purposes. A tax for the purpose of making repairs, grading and tiling around a school house should be levied for school purposes and not for building purposes.</p> <p>4. Evidence—when record of petition for election is not admissible. Testimony of a town clerk that he could not find in his office the original of any petition under which a certain labor system election could have been held is not sufficient preliminary proof to justify admitting in evidence what purports to be the record of such a petition.</p>

W. H. Hinebaugh, Judge, presiding. This is an appeal from a judgment of the county court of LaSalle county on an application for judgment of sale against certain lands in district No. 1 of the town of Earl, of that county. The record shows that a special assessment, divided into two installments, was levied and most of it collected previous to the levying of the additional assessment as to which these lands were returned delinquent at the May term, 1907, of that court.

Joseph F. Gary, Judge, presiding. On February 9, 1895, Josef Pisa became a member of one of the subordinate lodges of the Bohemian Slavonian Knights and Ladies, a fraternal benefit society organized under the laws of Illinois, and took out a benefit certificate payable at his death to his wife, appellee Josefina Pisa.

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>Taxes—when judgment of the county court will be affirmed. A judgment of the county court in a proceeding for judgment and order of sale for taxes will be affirmed on appeal, where the bill of exceptions fails to show that any objections were made or exceptions preserved to the finding or judgment of the court.</p>

Jesse Holdom, Judge, presiding. This was an action of debt commenced by the appellants, as executors of James H. Pearson, deceased, against the appellees, as executors of Duncan S. McBean, deceased, in the superior court of Cook county, on the sixth day of Oc~tober, 1902, to recover the sum of $5000, and interest, which had been paid by Pearson to McBean on the 18th day of May, 1897, in consideration of the assignment by McBean to Pearson of a judgment in favor of Ida E.…

Thomas G. Windes, Judge, presiding. On December 31, 1906, Frederick L. Meckel, appellant, filed his bill in the circuit court of Cook county against Sara L. Johnson, sole surviving executrix of the last will and testament and codicil of Servetus Fisher Johnson, deceased, Edith Chisholm, a minor, and others deemed to have an interest in the subject matter of the suit under said will and codicil, for specific performance of a contract for the sale of real estate located in…

<p>1. Appeals and Errors—effect of exception to denial of motion to direct verdict. An exception to the denial of a motion to direct a verdict for the defendant does not raise in the Supreme Court the question whether the verdict is against the weight of the evidence, but it preserves for review the question whether there is any evidence fairly tending to support the plaintiff’s case, and the Supreme Court will determine that question.</p> <p>2. Master and servant—when question whether a servant assumed risk is a question of fact. Whether a youthful and inexperienced servant, by continuing to work with a machine one or two days beyond the time for the repair of its defective starting device fixed by the master in his promise to make repairs, assumed the risk of injury is a question of fact for the jury, where the causes which combined to create the danger were not obvious to a man of ordinary observation and it is not shown that the servant knew the repairs had not been made. (Gunning System v. LaPointe, 212 Ill. 274, distinguished.)</p> <p>3. Same—when a servant is not, as a "matter of law, guilty of contributory negligence. A servant who puts his arm under a planer bed to get a gear-wheel from a box where it was kept by the master’s direction, is not, as a matter of law, guilty of contributory negligence, where the planer was idle at the time the servant put his arm in, and where such action would have been safe had not the defective mechanism of the controlling device suddenly started the planer, which crushed the servant’s arm.</p>

Appeai, from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. In February, 1902, the appellant obtained a decree of divorce from appellee on the ground of extreme and repeated cruelty. The particulars of that case do not appear in the record here.

<p>Writ of Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding.</p>

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

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

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of DuPage county; the Hon. L. C. Ruth, Judge, presiding. ' This is a writ of error to review the judgment of the Appellate Court for the Second District, reversing, without remanding, a judgment for $5000 rendered in favor of the plaintiff in error, against the defendant in error, in an action on the case for a personal injury.

<p>1. Practice—correct practice where evidence does not support particular counts. If the evidence does not tend to support particular counts of the declaration the correct practice is to submit a written instruction to the court presenting that proposition, and it is not correct practice to move the court to dismiss the counts.</p> <p>2. Same—court is not authorized to dismiss count. A court is not authorized to dismiss certain counts of the declaration, and can only dismiss the suit itself for want of jurisdiction, want of prosecution, disobedience of rules or orders, or for some other recognized cause.</p> <p>3. Railroads—when an engineer's negligence does not relieve company from liability. That the negligence of an engineer in backing cars upon a switch track at too great a rate of speed, combined with the negligence of the company with respect to its track, in producing the death of the conductor of the train, does not relieve the company from liability nor preclude the finding that the negligence of the company in the matter of its track was the proximate cause of the injury.</p> <p>4. Same—when error in instruction as to constructive notice is harmless. Error in an instruction respecting constructive notice in failing to state that the defendant railroad company is entitled to a reasonable time in which to cause a repair to be made after it has had a reasonable time in which to discover the defect is harmless, where the company had actual notice of the defect and ample time thereafter to have made the repairs before the injury.</p> <p>5. Same—what is not necessarily negligence on part of a conductor. A conductor on a railroad train has a right to suppose that the engineer will obey his signals, and the fact that the conductor must place himself in positions where his safety depends upon the care and discretion of the engineer does not necessarily amount to a failure to exercise ordinary care.</p> <p>6. Same—the duty of a conductor does not include inspection of tracks. The duty of a conductor of a railroad train does not include inspection of the tracks, and the fact that he knew, several days before his injury, that the bumping-post on a certain switch track was. leaning over, and had asked the station agent when he was going to fix it, does not show that he knew of an opening in the rails of such track which caused the derailment resulting in his death.</p> <p>7. Instructions—when rule that one cannot complain of instructions like his own does not apply. An instruction directing a verdict for the plaintiff if the jury find the facts therein stated to be proven must not omit any element essential to a recovery; and the fact that such element is not mentioned in instructions' for the defendant which state that the plaintiff cannot recover unless certain material facts have been proven, but which do not undertake to include all the necessary facts, does not cure the omission in the plaintiff’s instruction nor preclude the defendant from assigning error thereon.</p>

<p>1. Special assessments—parties cannot, by agreement, confer power upon court to set aside judgment. In the absence of any question of fraud or want of jurisdiction the county court has no power to set aside a judgment of confirmation of a special assessment after the expiration of the term at which it was entered; nor can such power be conferred by an agreement of the parties that when the improvement is completed the judgment of confirmation shall be set aside and a new judgment for the actual cost of the improvement be entered.</p> <p>2. Same—stipulation withdrawing warrant is void if statutory conditions do not exist. If the statutory conditions for withdrawing a warrant for the collection of a valid special assessment do not exist, a stipulation, entered of record, between the property owner and the attorney for the city, withdrawing such warrant after the county collector has applied for judgment thereon, is void, whether treated as an agreement of the parties or an order of the court. (Noonan v. People, 221 Ill. 567, adhered to.)</p> <p>3. Specific performance—equity will not enforce a contract which is in violation of law. A court of equity will not specifically enforce a contract between a property owner and a city to have a judgment of confirmation vacated after the term at which it was rendered has expired, where there is no question of fraud or want of jurisdiction involved; nor will it enforce a stipulation or agreement which is in conflict with a statute and void.</p>

Joseph E. Gary, Judge, presiding. This was a bill filed by appellant Henry P. Klein against the Independent Brewing Association, a corporation, and certain persons as stockholders and officers of said corporation.

O. P. Thompson, Judge, presiding. On August 22, 1902, appellant, as the administrator of the estate of Edward Bradley, deceased, commenced an action on the case against appellee, in the circuit court of Sangamon county, for damages on account of the death of his intestate, which occurred on July 25, 1902, from injuries received some nine days before in a mine operated by appellee.

<p>Appeal from the Superior- Court - of Cook county; the Hon. Axel Chytraus, Judge, presiding.</p>