Volume 232 — Illinois Reports

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. L. C. Ruth, Judge, presiding. This is an action on a life insurance policy issued by the Metropolitan Life Insurance Company on the life of Robert Kilpatrick.

<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. L. C. Ruth, Judge, presiding.</p>

<p>1. Elections—opening and counting of ballots does not preclude evidence that they were tampered with. The fact that the ballots have been opened and counted upon an election contest does not preclude the admission of evidence to show that the ballots were tampered with.</p> <p>2. Same—what does not justify throwing out the vote of a precinct. The mere fact that the city clerk, instead of the judges of the election, carried the ballots from the polling place to the city hall after they had been counted and properly sealed, does not justify throwing out the vote of the precinct in a subsequent contest.</p> <p>3. Same—sufficiency of nomination papers cannot be questioned on a contest. Jurisdiction in an election contest is limited to the question who was elected, and the sufficiency of the nomination papers, which were not objected to in the manner provided for in the statute, cannot be inquired into.</p> <p>4.. Same—the city council should fix boundaries of election districts in city elections. Eor city elections, in cities organized under the general law and located in counties under township organization, the city council, and not the county board, should establish the boundaries of the election precincts or districts as well as name the polling places and the judges and clerks.</p> <p>5. Same—petition to contest election need not specifically name certain alleged illegal voters. It is not essential that a petition to contest an election specifically name certain of the alleged illegal voters so as to permit contestant to make proof as to such voters.</p> <p>6. Same—rule as to overcoming presumption in favor of legality of votes. While one contesting an election has the burden of overcoming the presumption in favor of the innocence of an alleged illegal voter and of the regularity of the acts of the election officials, yet it' is not necessary that the evidence shall be sufficient to fully i;ebut such presumptions in order to require proof of those facts by the opposite party.</p> <p>7. Same—a witness who has examined records may state that they show nothing with reference to a certain matter. In an election contest, where it is claimed by the contestant that the city council has never established any election districts, a witness who has examined the records should be allowed to state that they show nothing with reference to the matter, if that is the fact.</p> <p>8. Same—election districts should be formed at least thirty days before election. An election district for a city election should be established by the city council at least thirty days before the election is held, in order that residence for the proper period may be acquired before the election by persons residing in the district.</p> <p>9- Same—when vote should not be rejected for want of voter’s mental capacity. While the vote of a person non compos mentis ought not to be received, yet proof of the fact that a voter was old, decrepit and extremely feeble does not justify rejecting his vote, where a judge of the election testifies the voter answered all questions in a manner indicating that his mind was not unsound.</p> <p>10. Same—what constitutes a sufficient residence. While the Election act provides that a permanent abode is necessary to constitute a residence, yet if a man is working in a city for an indefinite period and has no other residence or home to which he intends to return, such city may be regarded as his residence even though he may not intend to remain there permanently.</p> <p>11. Same—evidence of a voter’s intention is admissible but not conclusive. Upon the question of residence, in an election contest, a voter may testify as to his intention in that respect, but such testimony is not conclusive.</p> <p>12. Same—question of residence largely one of intention. One who rents a house less than thirty days before the election and moves part of his goods there but keeps part of them at his former home in another election district, intending to remain, and in fact remaining, at his former home until election, retains his old residence; but one who begins to move into a house more than thirty days before the election, with the intention of changing his residence, may vote in the district where the house is situated, although he did not sleep there until less than thirty days before election.</p> <p>13. Same—attempt to vote in certain precinct not conclusive of voter’s legal residence. If a voter was, in fact, entitled to vote in the election district to which he had recently moved, the fact that he first attempted to vote in the district in which was located the house he had formerly occupied and in which he had left some of his belongings, does not justify rejecting his vote upon the ground that his attempt to vote in the latter district showed an intention conclusively establishing his legal residence in such district.</p> <p>14. Same—rule as to college students voting. A college student, as respects the matter of residence, may vote in the place where the college is located if he is free from parental control, regards the place where the college is located as his home and has no other home to which to return; but his mere presence at the college is not sufficient, as his residence must be bona ñde, with no intention of returning to his parental home after completing his studies.</p>

<p>Writ or Error to the Circuit Court of Rock Island county; the Hon. W. H. Gest, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. The original bill in this case was filed by John Loughlin against the United States School Furniture Company, (hereafter called the United States company,) the American School Furniture Company, (hereafter called the American company,) Frederick A. Holbrook, Thomas M. Boyd, Oliver S. Garretson, George Burlcart and G. W. Perkins.

<p>Writ op Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.</p>

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

<p>1. Injunction—suit on injunction bond may be brought while appeal is pending. Upon dissolution of an injunction, a suit for the damages sustained by defendants may at once be brought upon the bond, notwithstanding an appeal is pending in the injunction suit.</p> <p>2. Parties—both parties defendant should join in suit for damages on an injunction bond. Upon dissolution of an injunction to restrain a bank and its attorney from proceeding to collect a judgment in favor of the bank, if the injunction bond is conditioned for the payment to both the defendants of the judgment and all costs and damages, the suit on the bond is properly brought in the names of both obligees for all damages sought to be recovered.</p> <p>3. Pleading—when defendant must file affidavit of merits. In a suit upon an injunction bond, if the plaintiffs file an affidavit of their claim in accordance with the statute they are entitled to recover unless the defendants file with their pleas an affidavit of merits, and if the affidavit of merits is not filed the pleas are properly stricken from the files.</p> <p>4. Same—when defendants must disclose a meritorious defense on leave to file pleainstanter. Leave to file an additional plea and affidavit of merits after defendant’s pleas to a declaration on an injunction bond have been stricken from the files for want of an affidavit of merits is properly denied where the defendants fail to show a meritorious defense, the plea merely alleging the pendency of an appeal in the injunction suit and the affidavit of merits not disclosing any other defense.</p> <p>5. Affidavits—when affidavit of plaintiff’s demand is not objectionable. An affidavit filed with a declaration in an action on an injunction bond, which recites “that there is now due from the 'defendants to the plaintiffs, after allowing them all just credits, deductions and set-offs,” etc., is not subject to the objection that it purports to allow the credits, deductions and set-offs to the plaintiffs instead of to the defendants.</p>

Appear from the Appellate Court for the Fourth District ;—-heard in that court on appeal from the. Circuit Court of St. Clair county; the Hon. R. D. W. Horder, Judge, presiding. This was an action on the case commenced in the circuit court of St. Clair county by the appellee, against the appellant, to recover damages for the death of her brother and intestate, alleged to have been caused by the negligence of the appellant.

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.</p>

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

<p>1. Briers—argument on facts is improper in Supreme Court in suit at law. An argument discussing questions of fact, the weight óf the testimony, contradiction of the witnesses, and other kindred questions, has.no place in the Supreme Court upon appeal from a judgment of the Appellate Court affirming a judgment in an action at law, such questions not being reviewable in the Supreme Court.</p> <p>2. Evidence—rule as to proof of conviction of witness in civil case. In a civil case the conviction of the witness of an infamous crime, such as rape, may be proved for the purpose of affecting his credibility, either by the record or by parol evidence; but it is essential, whichever method is adopted, that enough be proved to show the jurisdiction of the court and a conviction, unless the fact is admitted by the witness or the party for whom he testifies. (Gage v. Eddy, 167 Ill. 102, explained.)</p> <p>3. Same—identity of witness with person convicted is presumed if names are the same. In a civil case, where it is sought to discredit a witness by proving his conviction of an infamous crime by the record of such conviction, if the name of the witness is the same as that of the person convicted the record is admissible without first identifying the witness as the person convicted, since such fact will be presumed if not denied.</p> <p>4. Same—record of conviction must show elements essential to valid conviction. It is improper, in a civil case, to admit in evidence, for the purpose of impeaching a witness, a portion of the record of his conviction of an infamous crime, which shows merely the arraignment, trial, verdict, motion' for new trial, overruling of such motion and the sentence, but which fails to show the indictment or the return thereof in open court," which are matters essential to the jurisdiction of the court to pronounce judgment and must appear of record.</p> <p>5. Appears and errors—effect where evidence that a witness was convicted of crime is improperly admitted. Improper admission of evidence to show that a witness in a civil case tried by a jury had been convicted of an infamous crime will not require reversal of the judgment, where his testimony, had it been regarded by the jury as absolutely true, is such as would not have affected their verdict.</p> <p>6. Instructions—when party is not entitled to complain of refusal of instruction. If counsel presents a number of instructions embodying the same principles of law in varying language, he has no ground for complaint, on appeal, that the court refused to give the one which, in the opinion of counsel, states the law in more apt language than do the ones given.</p>

John B. Vaughn, Judge, presiding. On July 8, 1907, the county collector of Cook county made application to the county court of that county for a judgment against certain real estate located in said county, owned by the First Congregational Church of Oak Park, for unpaid taxes for the year 1906.

Writ of 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. W. M. McEwen, Judge, presiding.

<p>1. Special assessments—the rule respecting estimate of cost where new assessment is levied. Under section 57 of the Local Improvement act, where a new assessment is levied for an improvement not yet made the assessment must be based upon an estimate of probable cost, but where the work has been completed under the conditions specified in section 58 of said act no estimate of probable cost nor any recommendation of the board of local improvements is required. (City of Chicago v. Galt, 225 Ill. 368, followed.)</p> <p>2. Same—when new assessment is authorised under section 58 of Improvement act. Section 58 of the Local Improvement act authorizes a new assessment where the work has been completed in good faith under a contract duly let pursuant to an ordinance providing that the improvement shall be paid for by special assessment or special tax but such ordinance has been held insufficient for the purpose of the assessment, so that the collection of the assessment has become impossible under such ordinance.</p> <p>3. Same—original estimate of cost has nothing to do with new assessment for completed work. A new assessment for completed work, levied under section 58 of the Local Improvement act, is based upon the actual and necessary cost of the work, and no question as to the nature of the original estimate of cost, or what it included, is in any way involved.</p> <p>4. Same—effect where original assessment is annulled. Where a special assessment is annulled by the Supreme Court because the estimate of cost was not made a part of the record of the first resolution of the board of local improvements, such assessment cannot thereafter be validated or made collectible by any proceeding; but the ordinance is not void, and may be made the basis for a new ordinance levying a new assessment to pay for the improvement, which has been completed in good faith.</p> <p>5. Same—proceedings under sections 57 and 58 of the Improvement act are not to enforce original assessment. The proceedings contemplated by sections 57 and 58 of the Local Improvement act are not for the purpose of enforcing the original assessment, which has been held to be invalid for defects or insufficiencies in the proceedings, but are for the purpose of levying a new, different and independent assessment.</p> <p>6. Same—a judgment annulling original assessment is not res judicata as to new assessment. A judgment by the Supreme Court annulling a special assessment because the estimate of cost was not made a part of the record of the first resolution of the board of local improvements is res judicata as to the validity of the original assessment but not as to a new assessment to pay for the completed work levied under a new ordinance passed pursuant to the authority of section 58 of the Local Improvement act; but no part of the new assessment can be devoted to paying the costs or expenses of the original assessment.</p>

Edgar Eldredge, Judge, presiding. About January 1, 1890, Jacob Nier entered into a written contract for the sale of certain real estate in Mason’s addition to Ottawa to Heinrich Dammann for $1500, to be paid by assuming a mortgage thereon of $500 to Agatha Becker and by paying $100 in May, 1891, and $900 in five years, in monthly payments of varying amounts.

<p>1. Mortgages—when holders of trust deeds have equitable liens. Where the owner of land falsely represents to each of the purchasers of notes that the trust deeds whereby they are secured are first liens upon his property, each of such purchasers has, as against such owner, an equitable lien upon the property, though neither deed is, in fact, a valid first lien.</p> <p>2. Same—party is not charged with constructive notice of conveyances outside the chain of title. One who purchases a note secured by a trust deed is' not charged with constructive notice of any rights by the record of a trust deed made by a stranger to the title, and who had, in fact, no interest therein, purporting to cover the same property, since he is not bound to search outside of the chain of title of the person who made the trust deed so purchased.</p> <p>3. Same—what is negligence by a person buying a trust deed. Where the records show a trust deed securing a note transferable by delivery, and a subsequent conveyance by the grantor to the trustee which merges the legal and equitable titles in the trustee but shows no release of the trust deed, it is negligence for a person to purchase a note secured by another trust deed on the property 'without requiring the original note and trust deed to be released, thus leaving it in the power of the trustee to fraudulently re-sell the original note and trust, deed.</p> <p>4. Same—negligence postpones priority as between equitable lienholders. As between two purchasers of notes and trust deeds, both of whom were defrauded by the seller so that they are equitable mortgagees only, negligence of the one whose lien is prior in point of time which enabled the seller to perpetrate the fraud upon the other is sufficient to postpone his equity to that of the other.</p> <p>5. Notice—notice of a specific claim is not notice of different one. Notice to the purchaser of a note transferable by delivery and secured by a recorded trust deed, that the extension of time of payment was by a certain person as purported assignee of the maker of the note, which was uncanceled, is not notice that such person has executed a trust deed upon the property which has been recorded, where such person is a stranger to the record title, which, if examined, would have shown the original trust deed and a subsequent conveyance of the legal title to the trustee, but no conveyance by the trustee nor any release of the trust deed.</p>

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

<p>1. Jurisdiction—process is unnecessary if party appears voluntarily. A defendant who files a stipulation for the continuance of a motion for a preliminary injunction recognizes the jurisdiction of the court in a manner amounting to a general appearance, and he cannot subsequently deny jurisdiction upon the ground that no summons was issued.</p> <p>2. Partition—what is not, of itself, a sufficient description of premises. A partition bill describing part of the property merely as “966 West Lake street,” without alleging any other matters or details from which it might be possible to locate the premises, does not sufficiently describe the property.</p> <p>3. SamE—bill must definitely allege the interests of the parties. A bill for partition which fails to allege what title the deceased had to the premises or what were the interests of the parties to the suit, other than to give the names of the parties and state their relationship to the deceased, is too indefinite to authorize a decree of partition.</p> <p>4. Wills—bill to contest will cannot include prayer for specific performance and partition. A bill to contest a will invokes the statutory jurisdiction of the court, and claims for relief by way of specific performance, accounting and partition, requiring the exercise of general chancery powers, are not germane to the bill and cannot be included therein.</p>

Charles T. Moore, Judge, presiding. On April 24, 1906, Barbara Onstott, Constance Onstott and Kyle Onstott, appellants, filed their bill (which was later amended) in the circuit court of Perry county against W. F. Edel, John Yehling and William A. Kimmel, appellees, to set aside a deed from Don Onstott to W. E. Edel and a deed from Edel to the other appellees for certain property located in the city of DuQuoin, Illinois, and for partition and the assignment of dower.

<p>Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding.</p>

<p>1. Drainage—section $p of Levee act, authorizing creation of sub-districts, construed. Section 59 of the Levee act, authorizing the creation of sub-districts, is a valid act for the purposes intended, but it does not authorize the inclusion, in a sub-district, of any lands except those of the petitioners and lands over which the proposed ditches and drains will be constructed.</p> <p>2. Certiorari—when certiorari is proper remedy to have drainage proceedings reviewed. Where the county court has included in its order establishing a sub-district under section 59 of the Levee act, lands not authorized by statute to be included in the district it has exceeded its jurisdiction, and the owners of the lands so illegally included are entitled to a writ of certiorari from the circuit court to review and quash the proceedings of the county court.</p>

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

<p>1. Mortgages—what does not pass under foreclosure of a trust deed. A trust deed by a railroad company covering existing railroad property and property afterward to be acquired for the purposes of its railroad does not cover an undivided one-half interest in a tract of farm land subsequently acquired by the company, but not for railroad purposes, and no title to such interest passes upon foreclosure of the trust deed.</p> <p>2. Limitations—when statute is a bar to assertion of title by railroad. The assertion of title under a deed conveying to a railroad company an undivided one-half interest in a tract of farm land is barred, where the grantor for more than thirty years remained in the exclusive possession of the land and paid the taxes thereon under open claim of absolute ownership, which the co-tenant, the railroad company, conceded was just.</p> <p>3. Partition—when railroad company’s claim is without merit. A claim by a railroad company of a right to partition, based upon title to an undivided half interest in a tract of land alleged to have been derived through foreclosure of a mortgage given by another" railroad company, to whom the interest in the land was conveyed upon the sole consideration that the grantee would build a depot on the land, is without merit in a court of equity, regardless of the fact whether the agreement was a covenant, condition or otherwise, where the evidence shows the agreement was immediately violated by building the depot on other land for another consideration and all claim under the deed abandoned by the grantee.</p>

<p>1. Scire facias—the defenses available on scire facias to revive a judgment. The only question to be determined in a proceeding by scire facias to revive a judgment is whether the plaintiff has a right, as against the defendant, to have the judgment executed; and the defenses available are, that there is no such judgment record, or that .the judgment has been paid or released, or there has been an accord and satisfaction.</p> <p>2. Same—defendant cannot contradict the record as to jurisdiction. Under a plea of nul tiel record in a proceeding by scire facias to revive a judgment the defendant may show the judgment to be void for want of jurisdiction, if that fact appears from an inspection of the record, but he cannot collaterally attack the judgment by denying service of process as against a record showing valid service.</p> <p>3. Same—when defendant is not entitled to a jury trial. In a proceeding by scire facias to revive a judgment the defendant may plead matters in discharge of the judgment which raise an issue of fact outside of the record upon which he is entitled to a trial by jury, but he is not entitled to a-jury trial under a plea of nul tiel record which raises but the one question whether there is such record as is set out in the writ.</p> <p>4. Same—record may be admitted without proof that it is the record of the cotirt. Upon scire facias to revive a judgment the court will take judicial notice of its own records, and may admit the record of the judgment in evidence without proof that it is the record of the court.</p> <p>5. Sams—when a judgment is not in improper form. A judgment in a scire facias proceeding to revive a judgment, which provides that the original judgment be revived and stand in full force and that the plaintiff have execution against the defendant for said judgment, together with the plaintiff’s costs, is in proper form, as the material part of the judgment in such a proceeding is that the plaintiff have execution of the judgment described in the writ.</p>

<p>1. Jurisdiction—when special appearance is waived. Defendants to an application for judgment of sale for taxes, who move to set aside the order overruling their objections, enter motions for new trial and in arrest of judgment and except to the action of the court in denying the motions, waive their' special appearance, entered before the trial, for the purpose of objecting to the jurisdiction of the court.</p> <p>2. Bills op exception—when bill is properly considered as part of the record. Where, by mistake, an order for an appeal names a past year in fixing the time for filing the bill of exceptions and appeal bond but the parties consider the order as meaning the present year, as was its plain intent, and file the bond and bill of exceptions accordingly, the bill of exceptions may properly be regarded as a part of the record.</p> <p>3. Special assessments—what is not a variance between delinquent list and publication notice. That the names of the owners of property are stated in the delinquent list to be “Smith & Chew” whereas the names are given in "the publication notice as “Smyth & Chew” does not constitute a substantial variance.</p> <p>4. Same—judgment and order of sale should be spread in redemption and forfeiture record. A judgment and order of sale for a delinquent special assessment should be spread of record in the tax, judgment, sale, redemption and forfeiture record.</p> <p>5. Same—judgment- and order of sale should mention item of interest. A judgment and order of sale for a delinquent special assessment should mention interest as one of the items going to make up the amount of the judgment, and the omission of such item cannot be supplied by including it in the schedule attached to and made a part of the judgment.</p> <p>6. Same—correct practice where only error is in the judgment. Where the only error in a proceeding to sell land for taxes or special assessments occurs in the judgment itself a new trial will not be awarded but the judgment will be reversed and the cause remanded, with directions to the court to enter a proper judgment.</p>

<p>Appear from the Circuit Court of Cook county; the Hon. R. S. Tuthill, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. D. T. Smiley, Judge, presiding.</p>

<p>1. Quo warranto—office of information is not to tender an issue of fact. The office of an information in the nature of quo warranto is not to tender any issue of fact, but simply to call upon the defendant, in general terms, to show by what warrant the privilege claimed is held or exercised.</p> <p>2. Same—it is sufficient to allege, generally, that defendant is exercising privilege without lawful authority. An information in the nature of quo warranto to require the defendant to show by what authority he exercises a license, privilege or franchise which must emanate from the State may allege the usurpation in general terms, and in such case the defendant cannot traverse the information, nor is a plea of not guilty or non usiirpavit an answer thereto.</p> <p>3. Same—defendant to information charging usurpation in general terms must disclaim or justify. A defendant to an information in the nature of quo warranto which alleges usurpation in general terms must disclaim or justify, and if he justifies the plea must not only show that he once had lawful authority to exercise the privilege, but also that he still has such authority.</p> <p>4. Same—limits of rule that replication cannot traverse matters of inducement in the plea. The rule that a replication to a plea of justification to an information in the nature of quo warranto shall not traverse matters of inducement set up in the plea should not be so extended as to prevent the formation of proper issues.</p> <p>5. Same-—effect where People take issue on traverse in plea. Where an information in the nature of quo warranto alleges usurpation in general terms, and the defendant’s plea alleges facts showing its right to exercise the privilege claimed, and concludes with a traverse, under the absque hoc, of the general charge of the information, the only issuable part of such plea is the traverse under the absque hoc, and if the People desire to take issue they should join in the traverse by re-affirming the usurpation, in which case the defendant must prove the facts alleged in the plea.</p> <p>6. Same—People may set up, by replication, new matter showing invalidity of defendant’s title. An information in the nature of quo warranto charging usurpation in general terms need not anticipate any defense which may be made, and where the defendant justifies and pleads facts which show his apparent title, the People may, by replication, set up new matter showing the invalidity of such title.</p> <p>7. Same—a demurrer reaches bach to ñrst defect in pleading. Where a demurrer is filed to replications to the pleas.to an information in quo warranto, if there are substantial defects in the pleas the demurrer reaches back and attaches to them, even though the replications may be bad; but if there is one good plea the defendant is entitled to judgment, unless there is a good replication.</p> <p>8. Same—when plea to information in quo warranto is good. Where an information in the nature of quo warranto by a city in general terms charges usurpation by the defendant telephone company, a plea is good which sets up the defendant’s charter, the ordinance granting it the privilege claimed to be usurped, and alleging acceptance of the ordinance and compliance with the terms imposed thereby.</p> <p>9. Same—when plea to information in quo warranto is bad. A plea to an information in quo warranto by a city against a telephone company which alleges acceptance by the defendant of the ordinance granting to it, upon certain conditions, the privilege claimed to be usurped, but which fails to allege performance by it of such conditions, is bad.</p> <p>10. Same—what constitutes a good replication in quo warranto. Where a plea to an information in quo warranto by a city against a telephone company alleges facts which would constitute a contract between the parties permitting the defendant to occupy the streets with its poles and wires, a replication is good which sets up facts showing that the right of the defendant under the contract has terminated.</p> <p>11. Same—when quo warranto is a proper proceeding. Where a city claims the right to terminate the license of a telephone company for breach of conditions imposed by the ordinance granting the license but the ordinancé does not provide that such breach shall be ground for repealing the ordinance or terminating the license, quo warranto is the proper remedy to determine the question of law whether the breach is of a matter vital to the contract and the question of fact whether there has been a breach. (City of Belleville v. Citizens’ Horse Railway Co. 152 Ill. 171, distinguished.)</p> <p>12. Municipal corporations—what conditions are vital to telephone company’s license to use street. Where an ordinance grants to a telephone company the right to erect its poles and wires in the streets of the city upon the conditions that the poles shall be so placed and the wires so hung, attached and secured as to avoid danger to persons or property and prevent interference with the service pipes of the city and the lawful use of the streets, such conditions are vital to the contract and must be performed.</p> <p>13. Same—an ordinance granting privilege for an indefinite time is not unconstitutional. An ordinance granting to a corporation the right to occupy the streets with telephone poles and wires but reserving the right to grant like privileges to others, does not, by failing to specify the life of the grant, constitute an irrevocable grant of special privileges and immunity in violation of section 14 of article 2 of the constitution, since the life of the grant is limited to the life of the corporation.</p> <p>14. Same—when ordinance granting telephone rights cannot be repealed. An ordinance granting to a corporation the right to occupy the streets with telephone poles and wires upon compliance with certain conditions specified in the ordinance, which fails to limit the life of the grant, does not create a license at the will of the city and revocable at its pleasure, and the ordinance cannot be repealed so long as the corporation complies with such conditions.</p> <p>15. Sam-E—city cannot impose new conditions. Where a corporation accepts an ordinance granting to it the right to occupy the streets with telephone poles and wires and complies with all the conditions imposed by the ordinance, the city cannot impose upon it new conditions not contained in the ordinance and forfeit the license for failure to comply with them.</p> <p>16. Same—effect of breach of alleged implied conditions. The right of a city to eject a telephone company from the streets upon the ground that it has violated implied conditions not contained in the ordinance granting it the right to use the streets must rest upon some other ground than a breach of the contract between the corporation and the city.</p> <p>17. Same—city’s power to control telephone service must be exercised by general ordinance. Unless reserved in the ordinance granting telephone privileges to a corporation, the right of the city to regulate and control the service to the public and compel the corporation to furnish adequate and proper service must be exercised by general ordinance covering the conditions and applying equally to all telephone companies.</p> <p>18. Telephone companies—what does not release a telephone company from its obligations. A telephone company which has accepted and acted upon an ordinance granting it the right to occupy city streets upon compliance by it with conditions imposed by the ordinance will not be release^ from its obligation to comply with such conditions though a statute may be enacted subsequently under which companies of that kind may occupy the streets without the city’s consent.</p> <p>19. Same—act of 1903 does not authorize a telephone company to occupy streets without city’s consent. The act of 1903, (Laws of 1903, p. 350,) relating to telegraph and telephone companies, was designed to enlarge the powers of telephone companies by giving them the power of eminent domain and to declare the construction and maintenance of telephone lines to he a proper use of a highway, but does not authorize such companies to occupy the streets of a city without the city’s consent.</p> <p>20. Same—city has same control over telephone companies now as it had prior to the act of 1903. The control by a municipal corporation over a telephone company which is reserved by the act of 1903, “in relation to the regulation of the poles, wires, cables and other appliances,” is not limited to determining the location and size of the poles and kindred matters, but extends to the whole subject, to the same extent as such control existed prior to the passage of said act.</p>

R. D. W. Holder, Judge, presiding. This is an appeal by the Illinois Collieries Company from a judgment of the Appellate Court for the Fourth District affirming a judgment of the circuit court of Madison county against appellant, in favor of appellee, recovered in an action on the case for personal injuries.

George A. Carpenter, Judge, presiding. This is a bill filed in the circuit court of Cook county by the People of the State of Illinois, by John J. Healy, State’s attorney of that county, on the relation of the appellants, against the city of Chicago, the Grand Trunk Western Railway Company, the Chicago Junction Railway Company, and others, seeking to have certain ordinances of said city providing for the elevation of tracks of the appellee companies declared void, so far as…

<p>Writ of Error to the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>Dram-shops—ordinance making an entire block except one lot no-license territory is void. Discretion vested in a city council to determine the limits-of no-license territory is subject to judicial review, and an ordinance which, without following street lines, makes no-license territory of an entire block excepting one lot, upon which a dram-shop is being conducted, is void for discriminating in favor of such lot. (People v. Cregier, 138 Ill. 401, distinguished.)</p>

Edward A. Dicker, Judge, presiding. This was an action of assumpsit in the municipal court of Chicago by appellee, against appellants, to recover damages for personal injury.

<p>Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding.</p>

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

Writ or Error to the Circuit Court of Christian county; the Hon. Truman E. Ames, Judge, presiding. This was a bill in chancery filed in the circuit court of Christian county by the defendants in error, against plaintiffs in error, for the partition of lot 14, in block 3, in the village of Edinburg, Christian county, Illinois.

Writ oF Error to the Circuit Court of Hardin county; the Hon. E. E. Newlin, Judge, presiding. On August 6, 1906, Charlotte McConnell, plaintiff in error, filed her bill, which was later amended, in.the circuit court of Hardin county, against Rosa Lee Brown, Ceicel Gorden Brown, Sarah J. Brown, Elsie Brown, and others, for partition of 934 acres of land in that county owned by one Hugh Brown during his lifetime, and for other relief.

<p>Appeal from the County Court of Cook county; the Hon. D. T. Smiley, Judge, presiding.</p>

<p>Fraud—what is not ground for setting aside a deed to coal under farm. Representations by the agent of a coal company to the owner of a farm that the agent had bought part of the coal land adjoining the farm and intended to buy the rest, and that it would be to the owner’s interest to sell while he had a chance, as he might not be able to sell when all the surrounding coal land was bought up, are not such representations, even if they were relied upon, as justify setting aside a deed to the coal under the farm.</p>

Frank L. Hooper, Judge, presiding. May 29, 1905, E. D. Risser, R. A. McCracken and C. O. Patton entered into an option contract with Emory Cobb to purchase all of the capital stock of the Kankakee Electric Railway Company and a tract of land known as Electric Park, situated in and near the city of Kankakee, for the sum of $100,000, less a commission of $2000, of which amount $10,000 was paid in cash on that day, and it was agreed that the balance of said purchase money…

Appear from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. This was an action on the case brought by appellee in the circuit court of Moultrie county, against appellant, for damages to appellee’s crops in 1905 and 1906, caused by the appellant having removed certain tiling through which passed the water drained from the land appellee was cultivating as a tenant of Jacob Dumond. The jury found for appellee and assessed his damages at $400.

Harry Higbee, Judge, presiding. On February 12, 1907, Carrie Stambaugh and Cora Finch, the appellants, filed their bill in the circuit court of Schuyler county against Frank Hardin, Charles Hardin and others for partition of one hundred acres of land located in that county, the undivided eleven-thirtieths of eighty acres of which is here in controversy.

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

<p>1. Deeds—when deed will be deemed to have conveyed entire interest of grantor. A deed from one co-tenant to another, conveying an undivided one-third of the premises although the grantor owned only an undivided one-fifth, will be regarded as conveying the grantor’s entire interest, where such was the construction that was placed upon the deed by the parties, the grantee holding possession of the land for over twenty years without any claim being made by the grantor that he had an interest in the land.</p> <p>2. Same—when the grantor may repudiate agreement to convey. Where part of the purchase price of a co-tenant’s interest in land remains unpaid at the grantee’s death, and the deed, though intended to convey the grantor’s entire interest, does not, in fact, do so, if the heirs of the grantee refuse to accept the grantor’s offer to make a deed to them conveying his entire interest provided they will pay him the balance due, he may repudiate his agreement in so far as it is not executed and recover his interest in the land when the heirs seek partition without regard to such interest.</p>

<p>1. Labor unions—unions may accomplish their purposes by lawful means only. Laborers may organize to promote their welfare and may refuse to work for a particular employer or may obtain employment for the members of the union by solicitation and promises of support in trade or otherwise, but in accomplishing their purposes they must proceed by lawful and peaceable means.</p> <p>2. Boycotts—members of union cannot compel others to cease trading with person. Members of a labor union may cease patronizing a person when they regard it to their interests to do so, but they have no right to compel others to break off business relations with him by unlawful means and with the motive of injuring him.</p> <p>3. Same—when direct threats are not necessary to make action unlawful. The giving of notices by labor unions that a certain person is on the “unfair list,” if such notices excite the fear and reasonable apprehension of the recipients that their own business will be injured unless they break off business relations with or cease patronizing such person, is unlawful, even though no actual threats are made.</p> <p>4. Same—when putting person on “unfair list” is, in effect, establishing a boycott. The giving of notices that a certain person is on the “unfair list” is, in effect, establishing a boycott, where the understood object of such course is that if those receiving the notices keep up their business dealings with such person the labor unions will withdraw their patronage from them also.</p> <p>5. Same—breaking of contracts is not essential to make action unlawful. If the action taken by a labor union to coerce a certain person into complying with its demands results in injury to his business by the withdrawal of trade and patronage from outsiders which would have continued indefinitely but for the interference of the union the action is unlawful, even though it does not result in the breach of any existing contract. (Doremus v. Hennessy, 176 Ill. 608, explained.)</p> <p>6. Same—when injunction restraining placing of complainant’s name on “unfair list’’ is not too broad. An injunction restraining defendants from placing complainant’s name on the “unfair list” is not too broad, where the evidence shows that such action was not intended merely as a means of notifying the members of the labor union of the fact so that they might withdraw their patronage, but that its purpose and effect was to establish a boycott.</p>

<p>1. Labor unions—time to raise question of legal capacity is in original suit for injunction. The question whether a labor organization may be made a defendant to an injunction suit should be raised in such suit, and if not raised, and the organization demurs to the bill, appeals from the decree and gives bond as an organization having a legal existence, the facts that it might not be regarded as a legal entity at law and that the injunction decree is erroneous cannot, upon appeal in a subsequent contempt proceeding for violating the injunction, be urged as justification for the contempt.</p> <p>2. Injunction—appeal from a decree granting injunction does not affect the injunction. An appeal from a decree enjoining a defendant from doing an act does not suspend the operation of the injunction, and the doing of the act enjoined may be punished as a contempt notwithstanding the appeal, and the contempt is a contempt of the court which granted the injunction.</p> <p>3. .Same—power to punish for contempt is in the court whose order is disobeyed. The power to punish a contempt is in the court whose order is disobeyed and whose dignity and authority are defied; and this is true whether the contempt proceeding is in the name of the People for the purpose of maintaining the dignity and authority of the court, or whether it is a civil proceeding to enforce the authority of the court in the administration of justice between litigants.</p> <p>4. Same—when court cannot punish for contempt while appeal is pending. If an injunction is mandatory and requires the doing of some act to carry it into effect, or if, though negative in form, it is in reality affirmative in its nature, the talcing of an appeal, which operates as a supersedeas, precludes the trial court from entering any further orders in execution of the decree until. the appeal is disposed of, and hence, pending the appeal, precludes punishment for contempt for refusing to do the act required.</p> <p>5. Same—court may punish for contempt, pending appeal, if an injunction is merely prohibitory. An injunction decree which is merely prohibitory in form and in fact, is sélf-executing, and the fact that an appeal is taken, even though it operates to prevent further affirmative orders in execution of the decree, does not stay the power of the court to compel obedience to the self-executing decree by punishing the doing of the prohibited acts as a contempt.</p> <p>6. Same—court cannot appropriate fine for contempt to the use of injunction complainants. In imposing a fine in a contempt proceeding for violating a prohibitory injunction the court has power to order the fine to be paid to the clerk of the court or in default thereof that an execution be issued, but it has no power to appropriate the fine to the use of the complainants in the injunction suit, by directing the execution to issue in the name of the People, for the use of the complainants..</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. R. W. Clifford, Judge, presiding.

<p>Criminal law—court has power to fix time of solitary confinement of one convicted of murder. Paragraph 444 of the Criminal Code, authorizing the court, in sentencing one convicted of murder, to designate what portion of the time fixed in the jury’s verdict shall be solitary confinement and what portion shall be devoted to hard labor, was not repealed' by section 6 of the act of 1893, providing that wardens of penitentiaries shall cause all prisoners physically able to work at useful labor, not exceeding eight hours a day, other than Sundays and holidays.</p>

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

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

<p>Interest—when sheriff is not liable for interest on Money held by him. A sheriff is not liable for interest upon redemption money-deposited with him while he holds the same in his official capacity as sheriff; nor, if he retains the money after his term of office has expired, can he be charged with any interest, provided he was at all times ready to pay it over on demand; nor can he be charged with interest after the date when he actually paid the principal sum to the proper persons. (Mathewson v. Davis, 191 Ill. 391, followed.)</p>

<p>1. Railroads—duty to fence right of way is not optional, but absolute. The duty of a railroad company to erect and maintain fences suitable and sufficient to keep stock off the track, as required by section 1 of the act relating to the fencing and operation of railroads, is not one which the company may disregard if it elects, instead, to assume liability for stock killed, but is absolute, since employees and passengers are entitled to protection against stock being on the track.</p> <p>2. Same—company is not required to build fences such as will keep small children off the track. Section 1 of the act relating to the fencing and operation of railroads, which requires a railroad company to erect and maintain fences on both sides of its road suitable and sufficient to prevent stock from getting on the track, does not require it to build and maintain fences which will prevent children of such tender years that negligence is not imputable to them from going upon the track.</p> <p>3. Same—company’s liability for death of a small child cannot rest upon non-compliance with statutory duty to build stock fences. The liability of a railroad company for the death of a small child who strayed upon the company’s tracks from a parallel highway, which was not fenced off from the tracks, cannot rest upon a failure to compty with section 1 of the act relating to the fencing and operation of railroads, requiring fences to be erected and maintained suitable to keep stock off the track.</p>

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

Writ OB Error to the Appellate Court for the First District;—heard in -that court on appeal from the Superior Court of Cook county; the Hon. W. M. McEwen, Judge, presiding.

Solon Philbrick, Judge, presiding. This is a bill in equity filed in the circuit court of Champaign county by certain devisees under the will of Charles H. Willard, against Ruth A., Ora A. and Grover Cleveland Willard, for the purpose of setting aside two deeds made on May 8, 1905. Three grounds are alleged in the bill as a basis for setting aside the deeds: First—Want of mental capacity in the grantor, Charles H. Willard.

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Bureau county; the Hon. R. M. Skinner, Judge, presiding.</p> <p>This is an action on the case in the circuit court of Bureau county to recover damages for personal injury sustained in the appellant’s coal mine. The negligence charged in the first and second counts of the declaration is, that appellant permitted the entry where the injury occurred to be and remain in an unsafe and dangerous condition and negligently permitted the roof thereof to become cracked and broken and in danger of falling, by reason of which, while appellee was in the entry in the discharge of his duty and in the exercise of ordinary care for his own safety, a mass of rock, stone and dirt comprising part of the roof fell upon and injured him. The third count charged appellant with negligently failing to prop, timber or support the roof. A trial resulted in a verdict and judgment against appellant for $10,000, which the Appellate Court, after requiring a ■remittitur of $2000, has affirmed. To review the judgment of affirmance this appeal is prosecuted.</p>

<p>1. Mortgages—trustee named in deed of trust has power to release lien. A trustee named in a deed of trust securing a note endorsed in blank has power, as to third persons, to release the lien, although the note is not due and the legal holder has not consented to such release, which is in violation of the trustee’s obligation; but in equity the release has no effect as between the original parties or purchasers with notice.</p> <p>2. Same—when purchaser will be protected by trustee’s release of deed. Where a trust deed securing a note endorsed in blank is left with the trustee by the legal holder of the note without anything being of record to show her ownership, if a prospective purchaser of the property finds in the trustee’s hands a note substantially corresponding to the one described in the deed and which is represented by the trustee to be the original note now owned by him, such purchaser is justified in paying the note to the trustee upon his releasing the trust deed, even though she had heard that the note was owned by a person other than the trustee, which information was not substantiated by the record or abstract of title.</p> <p>3. Same—what does not charge purchaser of property with notice. Where the trustee named in a deed of trust securing a note payable to the makers’ order and endorsed in blank, obtains from the makers a duplicate note upon his false representation that the original note had been destroyed, the facts that the duplicate note is signed by the wives of two of the makers, which was not the case with the original note, and that some of the interest notes are mis-dated, are not notice to a prospective purchaser that the note is not the original one, as was represented by the trustee.</p>

Oscar E. Heard, Judge, presiding. This suit was begun by Fred Hills in the circuit court of Cook county by a bill in- chancery to enforce the specific performance of a contract. The bill was answered by the defendants, and one of them, Albert H. Weber, filed a cross-bill. After issue joined, the cause was heard in open court.

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

<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. M. W. Pinckney, Judge, presiding.</p>

<p>1. Trial—case should go to jury where plaintiff’s evidence, if true, would authorise a verdict. The issue in an action at law should be submitted to the jury where the evidence in favor of the plaintiff, standing alone and uncontradicted, is sufficient to authorize a verdict in his favor.</p> <p>2. Brokers—contract to pay commissions for introducing buyer is not illegal. An agreement by persons in control of land to pay a certain commission per acre to a broker if the latter should introduce any person to whom the persons in control should be able to make a sale is not illegal nor against public policy, and does not amount to an undertaking by the broker to sell the property or to furnish a purchaser.</p> <p>3. Same—when instructions stating the general rule relating to brokers are properly refused. Instructions stating the general rule that a real estate broker employed to sell lands or procure a purchaser cannot recover commissions unless he brings about a sale or produces a purchaser ready, willing and able to buy, should not be given without the qualification that the jury believe that such was the contract, where the evidence upon that point is conflicting.</p>

<p>1. Highways—party is entitled to know what part of highway he is claimed to be obstructing. One who is charged with obstructing a highway is entitled to understand from the notice what place he is obstructing, so that he may ascertain his rights at that place.</p> <p>2. Same—proof must show that obstruction exists as claimed in declaration and notice. Where the notice to remove an obstruction and the declaration in an action of debt to recover a penalty for failure to remove the obstruction charge that the defendant is obstructing the highway along the entire frontage of the land owned by him in a certain section, a recovery cannot be had upon proof that he is obstructing only a small part or strip of the road.</p> <p>3. Samproof of donor’s intention in dedicating is admissible, though not conclusive. The intention of the donor in dedicating lands for a public highway cannot prevail over his inconsistent acts and conduct, but he should be allowed to testify as to such intention, and his testimony may be' considered with all the other facts and .circumstances in the case.</p> <p>4. Same—when order of highway commissioners is not admissible to show statutory road. Where the statute in force requires all public highways laid out by order of the highway commissioners to be not less than four rods wide, an order of highway commissioners laying out a road forty feet wide is not admissible, in a road obstruction case, to show a statutory road legally established.</p> <p>5. Appeals and errors—when error in not admitting a plat of survey cannot be availed of. Error in not admitting a properly identified plat of a survey in evidence in a road obstruction case cannot be taken advantage of on appeal, where the plat is not preserved in the bill of exceptions.</p>

<p>Officers—act of 1907, increasing fees of State’s attorneys, does not apply to those then in oMce. The act of 1907, relating to fees of State’s attorneys, (Laws of 1907, p. 329,) does not apply to State’s attorneys serving unexpired terms when the act took effect, since the State’s attorney is a county officer, whose compensation during his term of office cannot, under section 10 of article 10 of the constitution, be increased or diminished.</p>

<p>1. Riparian rights—when upper proprietor is liable to lower. An upper proprietor who constructs a dam and deposits in the reservoir so made large quantities of coal mine refuse, which, owing to the breaking of the dam, is deposited upon lands of the lower proprietor in such quantity as to destroy the value of the land for farming purposes, is liable to the lower proprietor for the damage.</p> <p>2. Same—the rights of riparian proprietors are relatively equal. The right of each riparian proprietor to use the stream is subject to a like right in the other proprietors, and each must submit to a reasonable use by the other as long as no substantial injury is inflicted; but the right of each depends upon the reasonableness of the use and the extent of detriment to the other proprietors.</p> <p>3. Same—when instruction respecting riparian rights nee'd not contain qualifications. An instruction stating the general rule that “every owner of land through which a stream of water flows is entitled to the use and enjoyment of the water and to have the same flow in its natural state, without, interruption,” need not contain qualifications with respect to the extent of the interruption and the degree of injury sustained, where the evidence clearly shows an unreasonable use by the upper owner and serious injury to the other.</p>

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

<p>Specific performance—party having option on land for speculative purposes must act promptly. Parties having an option to buy land “upon the completion” of an oil well being sunk by them on adjacent land, and who accept the option as soon as the test well has begun to flow freely, must complete their contract within the time fixed therein, or within such additional time as is extended by the land owner, and they cannot delay until oil has been found upon such land by other parties and then enforce the contract, upon the theory that the test well was not “completed,” so as to require them to act on the option, until it was connected with a tank and pipe line.</p>

<p>Appeal from the County Court of Cook county; the Hon. D. T. Smiley, Judge, presiding.</p>

W. I. Slemmons, Judge, presiding. At the june term, 1906, the county collector of Peoria county made application to the county court of that county for judgment and order of sale against the lands of the Peoria and Pekin Union Railway Company, appellant, for alleged delinquent road and bridge taxes for the year 1905, levied for the township of Peoria, in that county.

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

<p>1. Special assessments—rebate must be apportioned in accordance with judgment of confirmation. The rebate provided for in section 84 of the Local Improvement act in case more money than is needed for the improvement is collected must be apportioned pro rata, in accordance with the terms of the confirmation judgment, among those whose original assessments were reduced upon objection as well as those whose assessments were confirmed as spread without objection, and the court cannot enter into another inquiry as to benefits.</p> <p>2. Same—appeal may be taken from court’s action in distributing rebate. The provision of section 84 of the Local Improvement act relating to the finality of the county court’s order refers to its order with reference to whether the improvement, as completed, conforms substantially to the ordinance, and does not include the matter of dividing a rebate so as to preclude an appeal from the court’s decision in that respect.</p>

<p>Appeal from the County Court of Cook county; the Hon. D. T. Smiley, Judge, presiding.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. D. T. Smiley, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. D. T. Smiley, Judge, presiding.</p>

J. W. Craig, Judge, presiding. This is an appeal from the circuit court of Edgar county to bring in review certain questions which arose in a chancery proceeding for partition. The facts are as follows: Benjamin Dickson died, leaving Sarah J. Dickson, his widow, six children and two grandchildren. Benjamin Dickson had been married twice and had children by both marriages.

<p>Railroads—a railroad may acquire fee by deed to land desired for right of way—right of company to sell. A railroad company in good faith attempting to secure a right of way by condemnation may purchase from the defendant the strip of land desired, and if the latter conveys by warranty deed, without restriction or reservation, the company acquires a fee simple title, which it may convey to a third person when the land is no longer needed for railroad purposes.</p>

<p>Special assessments—section 7 of Sidewalk act of 1905, requiring contract to be let to lowest bidder, is mandatory. Section 7 of the Sidewalk act, as amended in 1905, (Laws of 1905, p. 93,) requiring sidewalk contracts to be let to the lowest responsible bidder where the expense shall exceed $500, is mandatory, and cannot be evaded by dividing up the amount of walk to be constructed in front of contiguous lots and making separate contracts as to each lot. (Pierson v. People, 204 Ill. 456, distinguished.)</p>

<p>1. Deeds—re-entry clause is important in determining whether provision is a covenant or a condition subsequent. In determining whether a provision in a deed is a condition subsequent or a covenant, the absence or presence of a clause authorizing re-entry by the grantor in case of a breach of the provision is important; but if the intention, as shown by the language employed, is doubtful, the provision will be construed as a covenant.</p> <p>2. Same—what provision of deed is not a condition subsequent. A provision in a deed by heirs conveying property “upon condition that the grantee assumes and pay all debts, claims and obligations owing by” the ancestor of the grantors is not a condition subsequent but a covenant; but such provision creates a trust for the benefit of the creditors of the estate, and the grantee takes the title impressed with such trust.</p> <p>3. Abstracts of title—when an objection to abstract of title is not waived. A defendant to a bill for specific performance who specifically objects to a certain clause of a deed shown therein, which is relied upon as showing a failure by complainant to furnish a merchantable abstract, does not waive his objection by not giving the right reason why his objection to such clause is valid.</p> <p>4. Same—what objection to abstract of title is valid. An item in an abstract of title which shows in the chain of title a deed to the property upon a trust for the payment of all debts of the ancestor of the grantors is subject to valid objection, where there is no showing that the debts have been paid, other than that the estate has been settled and the administratrix discharged, or that the rights of unpaid creditors, if any exist, are barred by the Statute of Limitations.</p> <p>5. Same—a tax deed, without precept or judgment appearing, shows color of title, merely. An item of an abstract of title showing a tax deed in the chain of title cannot be relied upon as establishing more than mere color of title, where the abstract does not show any judgment, precept or affidavit upon which the tax deed is based.</p> <p>6. Same—when defect in abstract of title is not aided by rule relating to ancient documents. A defect, in an abstract of title, consisting of a failure to show that lands conveyed by the commissioners of the Illinois and Michigan canal were part of the lands selected and designated by the State of Illinois under the grant of the United States, is not cured by the fact that the deed, which is more than thirty years old, recites that the lands conveyed are part of the lands granted by the United States to the State of Illinois “by act of 21st of March, 1827,” to aid said State in opening the canal.</p> <p>7. Evidence—purpose of the rule relating to ancient documents. The rule relating to ancient documents, which, under some circumstances, will dispense with proof of the execution of a document which appears to be at least thirty years old, cannot be invoked for any purpose other than to relieve a party from the burden, otherwise imposed, of proving the due execution of the instrument.</p> <p>8. Specific performance—equity will not enforce unconscionable contract. A court of equity will hot lend its aid to enforce a contract for the exchange of properties, even though the contract may possess all technical requirements of a valid contract, where the evidence shows the contract is so one-sided that the complainant will gain a farm worth approximately $25,000 in exchange for land worth but little, if anything, more than the encumbrance upon it, which the defendant will be required to pay.</p>

G. A. Carpenter, Judge, presiding. On October 10, 1905, appellant filed her bill in the circuit court of Cook county, Illinois, to clear title to certain lands, and for other relief. Demurrer was sustained to the bill as amended, and, upon appellant electing to stand by said bill, the same was dismissed for want of equity, and an appeal was taken to this court.

Writ of Error to the 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.

<p>Appeal from the County Court of Cook county; the Hon. D. T. Smiley, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Fourth District;—heard in that court on writ of error to the County-Court of Gallatin county; the Hon. Marsh Wiseheart, Judge, presiding. Plaintiff in error filed his petition in the county court of Gallatin county praying an order for the sale of real estate for the payment of debts of Charles Kopf, deceased.

<p>Appeal from the County Court of Cook county; the Hon. D. T. Smiley, Judge, presiding.</p>

<p>1. Trial—when case should go to jury. In an action against the master for damages for alleged negligence resulting in a servant’s death, if there is evidence tending to establish the negligence alleged in the declaration and that the deceased was in the exercise of due care for his safety, the question whether such evidence is overcome by the defendant’s evidence is for the jury, and it is the duty of the court to refuse to direct a verdict upon such issues.</p> <p>2. Same—what facts tend to show negligence. Evidence tending to show that the sudden dropping of the load being carried by the defendant’s derrick was due to the slipping of a pinion on the power shaft, so that it failed to mesh with the cog-wheel operating the cable drums; that the slipping was due to the looseness of the key by which the pinion was fastened to the shaft, and that such condition had existed for a long time, making it necessary to frequently drive the pinion back to its proper place on the shaft, tends to show negligence on the part of the defendant.</p> <p>3. Same—what tends to show that deceased was exercising due care. Evidence that the deceased, who was in charge of the handling of heavy loads by a derrick and who was killed by the sudden dropping of the boom as the load was being lowered, was standing, as was his custom, in a place where he could reach the load as it descended and steady it to place, tends to show that he was exercising due care for his safety.</p>