Volume 233 — Illinois Reports

E. E. Newlin, Judge, presiding. The Watford Oil and Gas Company filed its bill in chancery against Nancy E. Shipman and others in the circuit court of Crawford county, praying for an injunction and for partition. A demurrer was sustained to the bill, and the complainant electing to stand by its bill, a decree dismissing the bill for want of equity was entered, from which the complainant below prosecutes this appeal.

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

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

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

<p>1. Taxes—exemption of “public schools” from taxation does not ■ apply to private schools. The provision of the tax exemption statute with respect to public school houses, as distinguished from the provision respecting institutions of learning, applies only to schools owned by the State, school districts and boards of education organized under the school laws of the State, and not to private schools.</p> <p>2. Same—what is essential to constitute an "institution of learning.” To constitute an “institution of learning,” within the meaning of the tax exemption statute, instruction in higher branches than are ordinarily taught in the public schools must be given; but the facts that the course of study includes the common branches taught in the public schools, and that the larger portion of the pupils study those branches and do not take the higher ones, do not deprive the school of its character of an institution of learning.</p> <p>3. Same—playground enclosed with buildings of institution of learning is within tax exemption. Ground in the same enclosure with the buildings of an institution of learning and used exclusively as a recreation ground for students of the institution is within the meaning of the statute exempting from taxation property of institutions of learning.</p> <p>4. Same—when property bought for institution of learning is liable for taxes. Property bought by a trust company for an institution of learning before the first day of April but not paid for by such institution or conveyed to it until after that date is liable to sale for taxes which became a lien upon the property before it was conveyed to the institution.</p>

<p>Master and servant—when rule that a promise to repair suspends assumption of risk does not apply. An employee of mature years who, when doing work he cannot reach from the ground, stands upon a board, one end of which is rested upon a support some eighteen inches from the ground, assumes the risk of injury due to the slipping of the board, and his assumption of such risk is not suspended by a promise of the master, upon the servant’s making complaint, to have a platform built to take the place of such board. (Webster Manf. Co. v. Nisbett, 205 Ill. 273, followed.)</p>

Writ or Error to the Circuit Court of Cook county; the Hon. Lockwood Honors, 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 Eton. Jesse Holdom, Judge, presiding.

<p>Appeal from the County Court of Macon county; the Hon. O. W. Smith/ Judge, presiding.</p>

<p>1. Appeals and errors—question of freehold may be waived in the Appellate Court. Where the question of a freehold is raised by the pleadings but is not insisted upon or determined in the trial court, and the case is taken to the Appellate Court upon assigned errors, joined- in by the appellees, which the Appellate Court had jurisdiction to determine and which did not include the question of freehold, such question is waived, and cannot be urged as showing a want of jurisdiction by the Appellate Court.</p> <p>2. Leases—when an oil and gas lease involves a freehold. A lease, of unlimited duration, giving the lessee the right to enter upon land occupied as a homestead for the purpose of prospecting for oil and gas, drilling and operating, and erecting the necessary buildings, pipe lines, etc., is in such respect a conveyance of an interest in the freehold estáte of homestead and is within the statute relating to the conveyance of such interests.</p> <p>3. Same—grantee of oil and gas has no title to same until it is found. Oil and gas, though classed as minerals, are incapable of absolute ownership owing to their liability to escape, and though they belong to the owner of the land as long as they remain under the land, a grant by him to another of oil and gas is a grant of such oil and gas as the grantee may find, and the grantee is not vested with any title thereto until it is actually found.</p> <p>4. Same—when an acknozvledgment of receipt of consideration cannot be contradicted. A recital of the receipt of consideration in a conveyance cannot be contradicted by parol for the purpose of invalidating the instrument or impairing its effect as a conveyance, notwithstanding the rule that a court of equity may, for the purpose of applying equitable principles and granting equitable remedies, inquire into the real consideration, although the contract is under seal and recites a consideration.</p> <p>5. Same—when lessor cannot complain that provisions of lease are harsh. In the absence of any questions of fraud or want of competency to contract, a lessor who voluntarily enters into a lease cannot-have the same set aside upon the ground that its provisions are harsh and unjust.</p> <p>6. Same—provision giving option to lessee to terminate lease is not invalid. A provision in a lease giving the lessee the option to surrender the lease for cancellation at any time upon payment of one dollar is not invalid, even though the lessor has no option to compel the surrender, and its presence in the lease does not create a tenancy at will nor justify the cancellation of the lease at the instance of the lessor.</p> <p>7. Same—what does not authorize forfeiture of lease. Where an oil and gas lease gives the right of forfeiture to the lessor if the lessee does not complete a certain test well on adjoining land within a specified time, but provides that if a well upon the lessor’s farm is not completed within one year the lessee shall pay a certain rent per acre, if the lessee completes the test well on time and elects to pay rent to the lessor instead of completing the well on his land, the lessor cannot forfeit the lease for breach of an implied agreement to reasonably develop the lessor’s farm for the production of gas and oil.</p> <p>8. Same—when a remedy is by action for breach of contract. Failure of the lessee to comply with an agreement in an oil and gas lease providing that if the first well should be found productive of oil and gas the lessee would continue with due diligence to drill wells upon other lands comprising the block of leases as long as paying wells should be found, does not give rise to a right to forfeit the lease but only to maintain an action for damages for breach of contract.</p>

Appear from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding. This is an appeal from a decree of the circuit court of Christian county perpetually enjoining the collection .of a special assessment levied by appellants. Appellees are nineteen owners of lands in the district.

' Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Macon county; the Hon W. C. Johns, Judge, presiding.

Thomas G. Windps, Judge, presiding: On June 20, 1894, Paul J. Sorg filed his bill in the circuit court of Cook county against various defendants, in which he .sought to have set aside and declared null and void, as clouds upon his title, certain conveyances and claims for mechanics’ liens. Cross-bills were filed by some of the defendants, in which they sought to establish liens. Upon a hearing a decree was entered in accordance with the prayer of the original bill.

M. W. Pinckney, Judge, presiding. This is an action in assumpsit brought in the circuit court of Cook county by John D. Atchison, plaintiff, against Patterson L. McKinnie, defendant.

<p>1. Certiorari—certiorari is not a writ of right. The common law writ of certiorari is not a writ of right, and when great public detriment or inconvenience is likely to result from interfering with the proceedings of the inferior tribunal the writ should not issue, or if it has been improvidently issued should be quashed when the facts are presented to the court.</p> <p>2. Same—party should apply for certiorari within six months from time of alleged irregular order. By analogy to the statute providing that certiorari shall not issue to review a judgment of a justice of the peace more than six months after the rendition of the judgment, application for certiorari to review acts of civil service commissioners should be made within six months from the entry of the order sought to be reviewed, and if a greater time has elapsed the delay must be satisfactorily explained in the petition.</p>

Writ op Error to the Circuit Court of Fayette county; the Hon. W. M. Farmer, Judge, presiding. Plaintiff in error filed her bill July 20, 1904, in the circuit court of Fayette county.

<p>Information for disbarment.</p>

<p>1. Birrs and notes—administrator of surety’s estate is entitled to collateral upon payment of the debt. A receiver of an insolvent bank who believes that the collateral held by the bank as security for a note is worth more than the debt cannot sell the collateral to the administrator of the deceased surety’s estate for less than its value, but he is bound to deliver the collateral to the administrator upon payment of the amount due on the note, and the latter may hold the collateral to indemnify the estate.</p> <p>2. Same—when sale of collateral divests administrator of all interest. A sale, by the administrator of a deceased surety’s estate, of shares of stock which had been held by a bank as collateral security for the note and which were delivered to him upon his paying the amount due on the note, divests the interest of the administrator, whether he sells the same as owner or pledgee, and relieves the stock of any claim or lien which the administrator might have had upon it to indemnify the surety’s estate.</p> <p>3. Principal and agent—agent cannot profit by transaction to principal’s injury. A stock broker who agrees with the administratrix of the. estate of a deceased maker of a note to find a purchaser for shares of stock which had been deposited by the maker as collateral security for the note and which had come into the hands of the administrator of the deceased surety’s estate, cannot, by buying the stock in his own name, reap the benefit of the transaction and hold the stock as against his principal, who may redeem the stock from the broker upon re-imbursing him for his outlay.</p>

<p>Appeals and Errors—Supreme Court cannot review facts in suits at lavo. The Supreme Court is without power to review the findings of fact incorporated in the judgment of the Appellate Court reversing the judgment of the lower court in an action at law without awarding a new trial because it finds the ultimate facts different from those found by the lower court. (Hecker v. I. C. R. R. Co. 231 Ill. 574, and Jones v. C., R. I. & P. R. R. Co. id. 302, followed.)</p>

R, S. TuThill, Judge, presiding. Appellant obtained judgment by default in an attachment proceeding against George T. Cline, since deceased, March 24, 1898, for $3340. He then sued out execution on said judgment and on May 31', 1898, was paid by the sheriff the sum of $3392.38 from the proceeds of the sale, by the sheriff, of lands located in Cook county, owned by Cline.

G. A. Carpenter, Judge, presiding. This is an appeal by Wesley Hospital from a judgment of the Appellate Court for the First District reversing a decree obtained by it in the circuit court of Cook county against appellee and remanding the cause, with directions to dismiss the bill.

M. W. Pinckney, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming the judgment of the circuit court of Cook county in an action in assumpsit brought by appellant to recover from appellee a balance of $7500 alleged to be due upon an insurance policy for $10,000, issued November 17, 1897, upon the life of her husband, William S. Jackson.

M. Kavanagh, Judge, presiding. This is an appeal from the Appellate Court affirming the judgment of the superior court entered June 2, 1906, against appellant, in favor of appellee, for $1000. The action was begun September 9, 1904, against appellant and the Atlas Brewing Company to recover damages for personal injuries alleged to have been received May 15, 1903, while appellee was a passenger on a car of appellant on South Halsted street, in Chicago.

<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. J. W. Mack, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>1. Special assessments—notice of application for confirmation need not describe property. The statute does not require that a notice of application for judgment of confirmation of a special assessment shall contain a description of the property, and courts are not authorized to read such requirement into the statute.</p> <p>2. Sam:E—when practice followed by city is without significance. The fact that it has been the practice of a particular city to insert in the notice of application for judgment of confirmation of a special assessment a description of the property assessed, in no way affects the requirements of the statute nor the proper construction to be placed thereon, since the statute is applicable to all cities.</p>

Oscar E. Heard, Judge, presiding. This is a bill filed by Francis Beidler & Co. against Charlotte A. Hutchinson, as the owner of premises known as No. 196 South Desplaines street, Chicago, for the purpose of establishing a lien against said premises, under the Mechanic’s Lien act, for lumber furnished by complainant, on the order of the contractor, for an addition to a factory building located on said premises. Mrs. Hutchinson and Julien, the contractor, answered the bill.

Writ op Error to the Criminal Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Held: the stomach and liver removed and examined and found to contain not less than two grains of arsenic.

<p>Appear from the Circuit Court of Champaign county; the Hon. Soron Phirbrick, Judge, presiding.</p>

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

W. C. Johns, Judge, presiding. On May 3, 1906, W. Frank Godwin, appellee, filed his bill in the circuit court of Macon county against Titus T. Springer, Nancy J. Springer, the Decatur Brick Company, (a corporation,) appellants, and Josiah M. Clokey, for specific performance of a parol contract and for other relief.

Auditor's, certificate of appeal to review a decision of the board of review of Cook county. This is an appeal by the Provident Hospital and Training School Association 1 from the decision of the board of review of Cook county assessing for taxation for the year 1907 certain real property in the city of Chicago used by appellant for hospital purposes at the sum of $4412. The case has been presented to this court by the Auditor of Public Accounts.

<p>Taxes—property of German Hospital of Chicago is exempt as property of a public charity. The German Hospital of Chicago is a public charity, and property owned by it and devoted exclusively. to such charity is exempt from taxation under clause 7 of section 2 of the Revenue act. (Sisters of St. Francis v. Board of Review, 231 Ill. 317, followed.)</p>

<p>Appeal from the Circuit .Court of Douglas county; the Hon. Solon Philbrick, Judge, presiding.</p>

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

<p>Auditor's certificate of appeal to review a decision of the board of review of Cook county.</p>

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

<p>1. Special assessments—confirmation of a new assessment is conclusive that there is an unpaid balance. A judgment confirming a new assessment is res judicata of the fact that prior to the confirmation there was an unpaid balance, and such fact cannot be questioned upon application for judgment of sale, although the objector may show that since the judgment of confirmation the assessment has been paid in whole or in part.</p> <p>2. Same—when fact that city has collected sufficient money for improvement is immaterial. Where a new assessment is confirmed against property not assessed in the original proceeding, the alleged fact that the city has collected sufficient money under the original assessment to pay for the improvement is no defense to the application for judgment of sale, since if the property is benefited and was not assessed in the original proceeding, it is immaterial whether the new assessment is to pay a balance due the contractor or to pay a rebate to property owners who paid more than their just share of the original assessment. (People v. McWethy, 165 Ill. 222, and 177 id. 334, distinguished.)</p>

Charles A. Bishop, Judge, presiding. This is an action in assumpsit brought by appellee in the circuit court of Cook county, against appellant, to recover for work and labor performed and materials furnished in and about the construction of certain expanded metal and concrete floors and roofs in a paper mill of appellant at Marseilles, Illinois, in 1902, and for the use and hire of a certain engine and mixer.

Axel Chytraus, Judge, presiding. On July 6, 1904, the State’s attorney of Cook county, by leave, filed an information in the nature of quo warranto -in the superior court of Cook county against appellee, an Illinois coi'poration, challenging the validity of a dram-shop license issued to said company by the mayor of. Chicago. Five pleas were filed to this information, the third of which was stricken from the files on motion and demurrers to the other four were sustained.

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. M. Kavanagh, Judge, presiding.

Dorrance Dibell, Judge, presiding. This is an action on the case for damages, brought against the Illinois Steel Company for negligently causing the death of Michael Jankovich. The administrator recovered a judgment in the circuit court of Will county for $4000, and that judgment has been affirmed by the Appellate Court for the Second District. The Illinois Steel Company by its further appeal brings the record to this court for review.

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

Dorrance DibEll, Judge, presiding. The appellant, Illinois Steel Company, operated a plant at Joliet, in this State. In the course of its business it converts iron into steel and has what is termed a “mixer mill,” one of the departments of the converter. The iron is brought from the blast furnaces into this mixer mill and combined with other iron and mixed and then converted into steel.

G. A. Carpenter, Judge, presiding. This is an appeal by William H. Clinton from a judgment of the Appellate Court for the First District which affirmed the decree of the circuit court of Cook county requiring appellant to pay to Netta J. Winnard (one of the appellees, who will be herein designated as appellee,) the sum of $593.35, the amount found to be due her upon a hearing in that court on her bill for dissolution of a partnership between herself and appellant and for an…

Appear from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding.

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

<p>1. Obiter dictum—expression of opinion on a point deliberately passed upon i's not obiter dictum. An expression of opinion by the Supreme Court in its decision upon a point deliberately passed upon by the court in determining the real issue in the case is binding as law, and is not a mere dictum.</p> <p>2. Schools—a high school tax cannot be levied in addition to full amount of general school tax. Where the territory of a high school district is co-extensive with the territory of a common school district, the taxes levied by the high school board of education and the common school board must not, together, exceed two and one-half per cent upon the taxable property of the district in any one year. (Russell v. High School Board of Education, 212 Ill. 327, followed.)</p>

Appear from the Appellate Court for the First District ;—heard in that court on appeal from the County Court of Cook county; the Hon. Rorrand A. Russerr, Judge, presiding.

<p>1. Parks-—powers of the board of South Park Commissioners considered. The provision of section 13 of the act of 1869 under which the board of South Park Commissioners was organized, which confers upon the board the “power and authority now by law conferred upon or possessed by the common council of Chicago in respect to the public squares and places in said city,” does not limit the power of the board, in making improvements, to the same methods, instruments and agencies to which the council was limited by the charter of the city then in force.</p> <p>2. Same—South Park Commissioners may let contract without advertisement if four commissioners so vote. The provision of section 56 of the municipal -code of the South Park Commissioners of Chicago which authorizes a contract for a public improvement ■costing more than $500 to be let without advertisement if four of the five members of the board so vote is not invalid, as not conforming to the regulations governing such matters found in the provisions of the then existing charter of the city of Chicago.</p> <p>3. Same—South Park Commissioners are not required to pass annual appropriation ordinance. The provisions of the charter of the city of Chicago in force in 1869, at the time of the passage of the special act under which the board of South Park Commissioners was organized, which require the passage by the common council of an annual appropriation ordinance in the first quarter of the fiscal year, do not apply to the board of South Park Commissioners.</p>

R. B. Shirley, Judge, presiding. The bill in this qase was filed by appellants against the heirs and executors of James Ranson, deceased, for the specific performance of an alleged oral agreement made by James Ranson, in his lifetime, to convey to the appellant George B. Ranson, his son, one hundred and sixty acres of land described in the bill.

Lockwood Honors, Judge, presiding. This is an information in the nature of a bill in equity filed by the People of the State of Illinois, by the State’s attorney of Cook county, on the relation of the Chicago Board of Trade, to enjoin the Illinois Central Railroad Company, the Central Elevator Company, and certain individuals who have the control and management of certain public grain elevators, from discontinuing the operation of such grain elevators as public warehouses of…

<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. Joseph E.. Gary, Judge, presiding.</p>

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

Appbai, from the Superior Court of Cook county; the Hon. Farun Q. BaWv, Judge, presiding. This is a bill filed by Gustav 'Manowsky, the appellee, in the superior court of Cook county, against August Stephan and Henrietta Stephan, appellants, and others, to enforce a mechanic’s lien for $300 against certain property owned by appellants, based on a contract between the appellee and appellants for the erection of a building on said premises.

Appear from the County Court of Kane county; the Hon. D. R Sherwood, Judge, presiding. This is an appeal by the commissioners of Union Drain- ' age District No. 1, Kane and Kendall counties, from the judgment of the county court of Kane county refusing confirmation of an assessment made by said commissioners against the lands of appellees’ in said district.

<p>Application for leave to file a second petition for rehearing.</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. A. H. ChETrain, Judge, presiding.

<p>Writ or Error to the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.</p>

Joseph E. Gary, Judge, presiding. This is a bill for the specific performance of a contract, filed in the superior court of Cook county by Metha Oswald against certain persons who had succeeded to the possession and claimed some interest in the proceeds of certain real estate which had formerly belonged to Ludwig J. Nehls.

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

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. Earlin Q. Ball, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Christian county; the Hon. S. D. Dwight, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Pirst District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. W. M. McEwFN, Judge, presiding. This is a writ of error sued out of this court to review a judgment of the Appellate Court affirming the decree of the superior court of Cook county sustaining a demurrer to the bill and dismissing it for want of equity.

G. A'. Carpenter, Judge, presiding. This is a proceeding in chancery brought by the United States Fidelity and Guaranty Company (hereinafter called the company) against the First National Bank of Dundee (which we will hereinafter call the bank) for the purpose of procuring the cancellation of two certificates renewing and extending the term of a fidelity bond issued by the company February 4, 1901, guaranteeing the bank against any loss it might sustain between January 25,…

Writ oe Error to the Appellate Court for the Eirst District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. O. E. Heard, Judge, presiding.

<p>This case is controlled by the decision in People ex rel. v. Gage, (ante, p. 447.)</p>

<p>1. Triai,—motion to direct a verdict raises only a question of law. A motion to direct a verdict raises only a question of law as to the legal sufficiency of the evidence to sustain a verdict against the party making the motion, and in case of an adverse ruling on the motion an exception preserves the question of law for review by an appellate tribunal, even though questions of fact are submitted to the jury.</p> <p>2. Same—effect where both parties ask for a directed verdict. Under the practice in Illinois, the fact that each party moves to have a verdict directed in his favor does not amount to a waiver of trial by jury nor to a submission of both law and facts to the court, and if the court denies one motion and grants the other, the party whose motion is denied is not bound to accept the court’s judgment as to controverted questions of fact, even though he made no request to have such facts submitted to the jury.</p> <p>3. Same—when court may direct verdict for amount of check but not for interest. In an action to recover the proceeds of a check claimed by plaintiff to be a loan and by the defendant to be the consideration for a contract which the plaintiff subsequently refused to perform, if the evidence shows that the contract was not a binding one, the court may, on motion, direct a verdict for the amount of the check; but it has no power to decide the controverted question of fact as to the character of the transaction and allow interest from the date of the transaction, upon the ground that it was a loan.</p> <p>4. Contracts-—force of an agreement to buy proposed increase of capital stock. An agreement to take a certain portion of a proposed increase of capital stock in advance of any actual increase of stock by the stockholders at a meeting called for that purpose is not binding upon either party, although it may be carried out after the stockholders have voted the increase, if both parties see fit.</p>

Axel Chytraus, Judge, presiding. The Chicago and Northwestern Railway Company filed a petition in the superior court of Cook county to condemn… Held: that the leases to Miller and Scheldein were void and that they took no interest in said premises, and that the total value of said premises to be fixed by the jury in the condemnation proceeding should go to and be paid to Mrs. Clark, from which order and judgment Miller and Scheldein have prosecuted an appeal to this court.

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

Appear from the Appellate Court for the Third District —heard in that court on appeal from the Circuit. Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.

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

<p>Appeal from the Probate Court of St. Clair county; the Hon. Frank Perrin, 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. Axel Chytraus, Judge, presiding.</p>

<p>1. Courts—tew does not require Supreme Court to refer issues of fact to jury in original mandamtis. The law doe's not require the Supreme Court to refer to a jury the issues of fact in an original proceeding in the Supreme Court for mandamus, but such a course has usually been, followed in order' to make the practice conform, as nearly as possible, to similar cases in trial courts.</p> <p>2. Same—constitutional right of trial by jury does not extend to original proceeding in Supreme Court. The constitutional provision that “the right of trial by jury as heretofore enjoyed shall remain inviolate,” does not confer such right in any class of cases where it had not formerly existed, nor in courts, such as the Supreme Court, which have never been provided with a jury and in which a trial by jury is an impossibility.</p> <p>3. Same—when verdict of jury is not entitled to weight. The fact that the same verdict has been returned by several juries upon the trial of the issues of fact in an original mandamus proceeding begun in the Supreme Court does not justify the Supreme Court in approving the verdict, where it is clearly against the evidence and is manifestly due to prejudice or passion upon the part of the jury.</p> <p>4. Same—Supreme Court may ascertain the facts in an original proceeding by any satisfactory method. In an original proceeding for mandamus the Supreme Court may, in its discretion, refer the issues of fact to a jury or to a commissioner, or may ascertain the facts by any satisfactory method, but a party has no right to demand a trial by jury.</p> <p>5. Mandamus—when Supreme Court may award a writ. In an original mandamus proceeding, if the efforts of the Supreme Court to secure to the petitioner a fair trial of the issues of fact in the court to which they were referred, have been futile, and the trial judges and the juries have repeatedly held and found against the petitioner although the evidence clearly established his case and showed no valid defense, the Supreme Court may set aside the latest verdict, find the facts alleged in the petition to be proved and award a writ of mandamus as therein prayed.</p>

<p>1. Special assessments—when the court is without authority to confirm assessment. The county court is without authority to confirm a special assessment for an improvement estimated to cost more than $100,000, unless the ordinance has been published in accordance with section 11 of the Local Improvement act.</p> <p>2. Same—what is not sufficient publication of ordinance. Section n of the Local Improvement act, requiring an ordinance for an improvement, estimated to cost more than $100,000 to be published “in the proceedings of the council or board of trustees in the usual way, in full, with the recommendations and estimates,” is not complied with by publishing in a paper not containing the council proceedings, a copy of the ordinance, recommendations and estimates, without anything to show that the ordinance had ever been presented to the council or when it would be acted upon.</p> <p>3. Same—purpose of section 11 of the Local Improvement act. The purpose of section 11 of the Local Improvement act, relating to the publication of ordinances for improvements estimated to cost more than $100,000, is to give the property owners and the public full information as to the proposed improvement and the terms of the ordinance before its passage, and enable them to oppose the ordinance if they so desire.</p> <p>4. Same—fact that city has not acquired land for pumping station is a matter of defense. Since a city may legally construct, by special assessment, a sewage pumping station upon land already owned by it where such station is part of the sewer improvement proposed to be constructed, one who objects to the assessment upon the ground that the city has not acquired title to the land has the burden of proving that fact as against the prima facie effect of the recommendation of the improvement board.</p> <p>5. Same—when estimate of cost is sufficient. An estimate of cost is sufficient, with respect to the item of the pumping station, if it is described as a one-story, slate roof, brick building, of certain dimensions, set on concrete foundations, and “equipped with five drainage and two sewage-pumping, vertical, single-acting gas engines, direct connected to horizontal shaft centrifugal pumps, $159,500;” nor is it necessary that different items of expense of making and collecting the assessment be stated separately.</p> <p>6. Same—when estimate of cost is properly signed by city engineer. An estimate of cost signed by the city engineer, who is a member of the board of local improvements, is in compliance with section 10 of the Local Improvement act, requiring the estimate to be signed by the engineer of the board, if there be one.</p> <p>7. Same—when description is not uncertain. A provision of a sewer ordinance which requires the cost of the improvement to be paid by special assessment upon land lying within the boundaries of the special drainage district, as described in “section 2” of the ordinance, is not rendered uncertain because there is no section 2 in the ordinance, where the district is particularly described in another part of the ordinance, so that the description is sufficient after striking out the reference to section 2.</p> <p>8. Same—when method of making assessment is not improper. The classifying of lands in a special sewer district into different classes and the applying of a different rate of assessment to each class is not an improper method to be adopted, in the first instance, by the commissioner in making the assessment.</p>

<p>Writ OE Error to the Criminal Court of Cook county; ' the Hon. Theodore Brentano, Judge, presiding.</p>

<p>1. Railroads—a person is not required to approach crossing at right angle. A teamster has a right to cross a railroad at a street crossing in any direction he sees fit, provided he uses ordinary care in doing so; and in such case his right to recover for ah injury received from his wagon wheel dropping into a chuck hole does not depend upon whether he approached the crossing at a right angle or otherwise.</p> <p>2. Same—necessary width of a crossing depends upon circumstances. The question of what width a street crossing over a railroad shall be made depends upon the reasonable demands of the traveling public, the extent to which the crossing is used, and other circumstances', but it must be such as to make the crossing suitable and sufficient for the purpose for which it is intended.</p> <p>3. Evidence—when evidence that hole was filled after accident is admissible. Where the defendant railroad company introduces in evidence a photograph of a railroad crossing which it is claimed shows the condition of the crossing at the time of the accident, the plaintiff is entitled to prove the fact that the hole which caused the accident had been filled up.</p> <p>4. Appeals and Errors—general objection that court erred in giving and refusing instructions is not sufficient. A general objection that the court erred in giving and refusing instructions does not require the consideration of a court of review, where no attempt is made to point out the errors or imperfections in the instructions given or to show the applicability to the evidence of the instructions refused.</p> <p>5. Same—question of variance cannot be first raised on appeal. The question of variance between the allegations and proof cannot be raised on appeal where it was not raised on the trial nor mentioned in the written motion for a new trial.</p>

<p>1. Appeals and errors—findings of decree are presumed to be warranted by the evidence if the evidence is not preserved. The findings of a decree overruling objections to the report of partition commissioners and confirming the report will be presumed to have been warranted by the evidence heard, where there is no bill of exceptions or certificate of evidence preserving all the evidence heard by the chancellor.</p> <p>2. Solicitors'’ PEES—when solicitors’ fees are properly allowed in partition. Where the original bill in a partition proceeding correctly sets out the interests of the parties and the defendant fails to present any substantial defense, it is not error to allow a reasonable fee for complainant’s solicitors as costs.</p>

G. A. Carpenter, Judge, presiding. This was a petition for a writ of mandamus, filed on March 7, 1906, in the circuit court of Cook county, in the name of the People,.upon the relation of Moritz Friend and Roesy Friend, against William A. Wieboldt, Carl Hansen, the city of Chicago and certain of its officers.

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

Writ.oe Error to the Appellate Court for the Third District ;■—heard in that court on appeal from the Circuit Court of McLean county; the Hon. C. D. MyERS, Judge, presiding. This is a consolidation of two appeals from and a writ of error to the Appellate Court' for the Third District.

<p>Writ of Error to the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>1. Wills—what evidence is competent in rebuttal. In a will contest case, where the alleged fact of the testator’s belief in the infidelity of his wife is first brought out by the contestant’s evidence and is made one of the main premises of an hypothetical question on the subject of the testator’s sanity, it is proper to admit, in rebuttal, proof of the fact that the testator had stated to the witnesses that after an investigation of the reports of his wife’s infidelity he believed.them untrue.</p> <p>2. Same—prior declarations of testator as to different disposition of his property are not admissible. Prior declarations of the testator, or prior wills, cannot be received in evidence for the purpose of varying or controlling the operation of the contested will.</p> <p>3. Sam®—evidence tending only to mislead jury should be rejected. In a will contest case it is the duty of the court to see whether particular evidence is relevant or tends to prove the point at issue, and if the question involved is the testamentary capacity of the'testator, all evidence not tending to throw any light upon that question and which can only mislead the jury should be rejected.</p> <p>4. Sam®—what evidence is properly rejected as hearing upon too remote a transaction. In a will contest case, where the issue is testamentary capacity, evidence relating to the testator’s having-revoked an order for his first wife’s tombstone is properly rejected, where the transaction took place some seven years before the will in contest was executed.</p> <p>5. Instructions—what is not a singling out of particular evidence. Where evidence is admitted for a restricted purpose, an instruction to the jury as to the limits within which such evidence may be considered by them is not subject to the objection that it singles out and gives undue prominence to such evidence.</p>

T. N. Green, Judge, presiding. This is an action of assumpsit brought by the administrator of Alexander McCoy, deceased, against Archie L. and Lida Robison, in the circuit court of Tazewell county, to recover the amount claimed to be due on two promissory notes, of $1000 each, bearing date June 29, 1898.

Appear from the Circuit Court of Christian county; the Hon. Truman E. Ames, Judge, presiding;—also appeal from the Circuit Court of Christian comity; the Hon. A. M. Rose, Judge, presiding.

. ■ Writ op Error to the Appellate Court for the Second District;—heard in that court on writ of error to the County .Court of Warren county; the Hon. J. W.. ClUndunin, Judge, presiding. An information containing thirty counts was filed by the State’s attorney of Warren county in the county court of said county against John W. Gaul, charging him with selling intoxicating liquors in violation of sections 2, 6 and 7 of the Dram-shop act.

Writ oE Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the pión. AxEL Chy-Traus, Judge, presiding.

A. C. Barnes, Judge, presiding. This was an action of assumpsit commenced by the appellee, as trustee in bankruptcy of the Moody-King Company, against the appellant, in the superior Court of - Cook county, to recover the value of certain assets transferred to the appellant by the Moody-King Company on January 12, 1903.