Volume 235 — Illinois Reports

Writ op Error to the Circuit Court of Eake county; the Hon. C. H. Donnpruy, Judge, presiding. This is a writ of error sued out to bring up for review a decree of the circuit court of Lake county entered in that court upon a bill for partition and other relief.

<p>1. Appeals and errors — Supreme Court has nothing to do with weight of evidence. In determining whether the trial court erred in denying a motion to direct a verdict for the defendant, the Supreme Court has nothing to do with the question of the weight or preponderance of the evidence tending to support the plaintiff’s case.</p> <p>2. Evidence — physician may testify that-first dislocation would predispose to later ones. Where the plaintiff has proved, without dispute, that his shoulder was dislocated in the accident involved in pute, that his shoulder was dislocated in the accident involved in his suit for damages, and that it has been twice dislocated since the accident under circumstances detailed, a qualified physician may testify, in answer to an hypothetical question embracing those facts, that the first dislocation created a predisposition to others.</p> <p>3. Negeigence: — it is not negligence per se to attempt to board moving street car. It is not negligence per se to attempt to board a moving street car, and that question should be submitted to the jury as one of fact under the facts and circumstances proven.</p>

Appear from the County Court of Logan county; the Hon. Donard McCormick, Judge, presiding. This is an action in assumpsit and attachment brought by Charles J. Off & Co. against Della I. Morehead.

Appear from the Appellate Court for the Second District ; — heard in that court on appeal from the Circuit Court of Peoria county; the Hon. E. D. Puturbaugh, Judge, presiding.

Appear from the Circuit Court of Cook county; the Hon. G. A. Carprnter, Judge, presiding. This was a bill in chancery filed by Harder’s Fire Proof Storage and Van Company, a corporation, on its own behalf and on behalf of all other persons, firms and corporations similarly situated who desired to join therein and pay their proportionate share of the cost of the litigation, in the circuit court of.

<p>1. Appeals and errors — effect where testimony on second trial is materially different from ñrst. The contention that because the testimony given upon the second trial of a case at law was materially different from that given on the first trial it should not he credited cannot be considered by the Supreme Court, as such question is one for the jury, the trial court and the Appellate Court.</p> <p>2. Master and servant — proprietor of elevator is not a carrier of passengers as to his own employees. The proprietor of an elevator in a building is not a carrier of passengers as respects his own employees who use the elevator, but he is charged with all the duties which a master owes to a servant in other cases, and the employees are subject to the rules of law governing the assumption of risks and the negligence of fellow-servants.</p> <p>3. Same — hotel waitress using elevator on return from a walk uses it as an employee. A hotel waitress using the elevator to go to her room upon returning from a walk uses the same as an employee, and the duties and liabilities of the hotel proprietor, in case the waitress is injured, must be measured by the rules governing the relation of master and servant and not by those applying to the relation of carrier and passenger, which exists as between the proprietor and his guests and their visitors.</p>

Writ oE 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.

Appear from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.

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. This was an action on the case brought by Myrtle Hack-ett, a minor, by her next friend, in the superior court of Cook county, against the Chicago City Railway Company, the appellant, to recover damages for personal injuries sustained by the appellee.

<p>1. Appeals and ERRORS — lack of time to prepare a proper brief does not excuse violation of rules. Lack of time to prepare a proper brief in the Supreme Court furnishes no excuse for filing the Appellate Court brief in the Supreme Court in violation of the rules, particularly where it is largely devoted to a discussion of controverted facts, which the Supreme Court has no power to review.</p> <p>2. Same — objection that Appellate Court’s opinion does not dispose of all points urged will not be considered. An objection urged in the Supreme Court that the Appellate Court’s opinion does not dispose of all the points urged in that court by the appellant will not be considered, as it is the judgment of the Appellate Court, and not its opinion, that is to be reviewed.</p> <p>3. Same — when error in not admitting proof of ^protest fees is harmless. Error in not admitting proof of protest fees in an action by the assignee of a note is harmless where there was no recovery against the defendant, the jury having found the note void, as evidencing a grain gambling debt.</p> <p>4. Gambeing contracts — intention of both parties not to deliver grain must be shown — how proved. To render a transaction in grain illegal it must appear that neither party intended to deliver but intended to settle on differences; but such intention may be established not only by the assertions of the parties, but by all the facts and circumstances, including the nature of the transactions and the method of conducting the business.</p> <p>5. Same — evidence of similar transactions in options is admissible upon question of intention. In an action by a bank, as as-signee of a note given by defendant to a grain broker, where the broker testifies that he intended to deliver or receive grain in the transactions, the defendant may show other transactions in options or futures between the broker and third persons, occurring about the time of his own transactions, which he testifies were to be seti tied on differences, only.</p> <p>6. Same — when refusal to permit third party to testify as to his intentions is harmless. In an action by a bank, as assignee of a note given by defendant to a grain broker, if the evidence clearly shows that the transactions between defendant and the broker were illegal option deals, it is not harmful to refuse to permit a third party to testify that the broker had delivered or received grain in transactions with other persons or that the witness intended to deliver the grain in his own transactions.</p> <p>7. Same — entire promise fails if part of the consideration is illegal. If part of the consideration for a note is money lost in grain gambling contracts the entire promise fails and no recovery can be had, even though the balance of consideration was not for money lost but was intended to cover future margins.</p> <p>8. Same — when letter written by defendant should be admitted. In an action by a bank, as assignee of a note given by defendant to a grain broker, which the defendant testifies was given for money lost in a grain gambling transaction, a letter written by the defendant to a third person, stating that he had given some notes to the broker for value received and if any of them should be offered to such person he could safely accept them, is admissible, as tending to contradict the defendant’s testimony as to his intention not to deliver any grain but to deal in options.</p> <p>9. Same — words “actual delivery contemplated ” printed in order blanks, secure no legal right. The words “actual delivery contemplated,” printed in order blanks signed by parties dealing with a grain broker, are not necessary to a bona fide transaction, and must be regarded as intended for some other purpose than the securing of a legal right.</p> <p>10. Triae — irregularity in failing to formally join issue waived by verdict. The irregularity of not formally joining issue on the common counts after pleas were filed to the special counts is waived by verdict, where no question as to such irregularity was raised at any time during the trial.</p> <p>11. Same — right of defaulted party to cross-examine witnesses. A defendant who has been defaulted but who appears at the trial may cross-examine witnesses only upon the question of the amount of damages, and he cannot cross-examine as to matters in support of special pleas filed by the other defendant, who was the maker of the note in suit, upon which the defaulted party was the endorser.</p>

<p>1. Appeals and Errors — when refusal to withdraiv counts is not ground for reversal. If some of the several counts of a declaration fail to state a cause of action or are unsupported by any evidence fairly tending to prove them, it is proper practice for the trial court, when requested, to withdraw such counts from the jury; but the refusal to so withdraw them is not ground for reversal if there are other proven counts in the declaration sufficient to sustain the verdict.</p> <p>2. Same — motion to exclude evidence is not a proper method of questioning sufficiency of declaration. A defendant who desires to question the sufficiency of the declaration, or any count thereof, should demur, and abide by his demurrer, in order to preserve the sufficiency of the declaration as a question of law for review; and a motion to exclude the evidence, at the close of the trial, is not a proper method of questioning the legal sufficiency of the declaration as a pleading.</p> <p>3. Arrest oe judgment — what is not ground for sustaining motion in arrest. A motion in .arrest of judgment cannot be sustained upon the ground that some of the counts of the declaration are defective if there are other proven counts in the declaration sufficient to sustain the judgment.</p> <p>4. Master and servant — the danger from incompetent fellow-servant is not an ordinary risk. The danger arising from the incompetency of a fellow-servant is not one of the ordinary and usual hazards which a servant assumes by his contract of hiring; but if he continues in the employment, voluntarily and without protest, knowing of such incompetency, he assumes the risk.</p> <p>3. Same — when risk of dangers arising from master’s negligence is assumed. The risk of dangers due to the master’s negligence is not an ordinary and usual risk of the employment which the servant assumes by his contract of hiring, but if he knows of such dangers he may assume the risk, not because it has become an ordinary risk, but because he knows of it.</p> <p>6. Same- — when negligence of fellow-servant does not preclude recovery. If the master is guilty of negligence and a servant is injured thereby, the fact that a fellow-servant of the injured servant is guilty of negligence partly contributing to the injury does not preclude the servant from recovering damages from the master, if he is otherwise entitled thereto under the law and the facts.</p> <p>7. Instructions — party is entitled to instruction applicable to facts as he claims them to be. A party is entitled to an instructioñ stating the law applicable to the facts which he claims are established by the evidence, and if the instruction does not amount to a direction of a verdict it is not essential that all elements necessary to a right of recovery be included in the one instruction.</p>

<p>Evidence — when records are destroyed by fire their contents may be proven by best evidence obtainable. Where the records of a proceeding by an administrator for an order to sell land to pay debts have been destroyed by fire, the fact that such a proceeding was had and that the court had jurisdiction to, and did, enter a decree directing such sale to be made, may be proven by the best evidence obtainable, and if there is no written*=evidence in existence parol proof may be'resorted to.</p>

Writ of Error to the Municipal Court of Chicago; the Hon. Stephen A. Eos'ter, Judge, presiding. Section 18 of the Motor Vehicle law of 1907 is unconstitutional and void, for the reason that it contravenes the provisions of section 13 of article 4 of the constitution of the State of Illinois.

<p>Writ oE Error to the Circuit Court of Tazewell county; the H011. T. N. Green, Judge, presiding.,</p>

<p>1. Deeds — when deed to church creates a determinable fee. A deed conveying- land to a church organization, which provides that said tract of land shall “revert to the party of the first part whenever it ceases to be used or occupied for a meeting house or church,” creates a determinable fee, which continues so long as the land is devoted to the purposes of a meeting house or church.</p> <p>2. Same — possibility of reverter) in case of a determinable fee, does not pass under quit-claim deed. The possibility of reverter, where land has been conveyed by a deed which provides that the property shall revert to the grantor in case it ceases to be used for the purposes for which it was granted, is not such an estate as the grantor can convey or assign, and does not pass under a quit-claim deed made before the reverter takes place.</p> <p>3. Same — possibility of reverter descends to grantor’s heirs who were in existence at his death. Where a grantor of a determinable fee dies before the happening of the event which is to terminate the fee and effect a reversion to the grantor, the possibility of reverter descends to the heirs of the grantor who were in existence at the time of his death, and not merely to those who were in existence when the event happened which terminated the fee.</p> <p>4. Descent — word “estate” refers to all interests in property. The word “estate,” as used in the Illinois statutes controlling the devise and descent of property, refers to all interests in property to which deceased shall be entitled, without reference to actual seizin.</p> <p>5. Ejectment — defendant may set up title acquired after commencement of suit. In ejectment the burden of proof is upon the plaintiff, and if the defendant acquires title to a half interest in the property subsequent to the commencement of the suit, he may set up such title and to that exent defeat the plaintiff’s recovery.</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. R. W. Wright, Judge, • presiding.

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

<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. Homer Abbott, Judge, presiding.</p>

<p>1. SpECIae assessments — when question of a conflict between ordinances is not saved for review. The question of a conflict between the improvement ordinance and a prior track elevation ordinance should be raised at the hearing of the legal objections, and as the objection is one arising from evidence outside the record, such evidence, and exceptions to the rulings, should be preserved by a bill of exceptions taken at the term the legal objections were overruled or within the time extended at that term, and the question is not preserved by a motion for new trial at some subsequent term.</p> <p>2. Same — when question will be presumed to have been determined on hearing of legal objections. Where an objection which is raised on the hearing as to benefits is one which should have been made at the hearing of the legal objections, it will be presumed, in the absence of a bill of exceptions covering the trial of the legal objections, that it was so made and determined, and in such case it cannot be again raised at the hearing of the question of benefits.</p>

Appear from the Circuit Court of Stark county; the Hon. Iv. D. Puterbaugh, Judge, presiding.

C. H. Donnelly, Judge, presiding. This was a petition for a common law writ of certio-rari, filed by Jacob B. Schlosser in the circuit court of Lake county, to review the action of the commissioners of highways of the towns of Newport and Warren, in said county, and the action of three supervisor's of said county, upon appeal from the action of the commissioners of highways of said towns, relative to vacating a certain highway in said county and laying out a new highway…

<p>x. Certiorari — classes of cases in which the circuit court may award writ. The circuit court may award the common law writ of certiorari to review the record of an inferior tribunal where such tribunal has exceeded its jurisdiction, or where it has proceeded illegally and no method is provided for a direct review of the proceeding by appeal, writ of error or otherwise.</p> <p>2. Same — in condemnation cases the county court is not inferior to circuit court. In proceedings under the Eminent Domain act to ascertain the compensation to be made for private property taken for public use, the county and circuit courts, and the judges thereof, have concurrent jurisdiction, and as the county court.is not inferior to the circuit court in such a case, the circuit court cannot award certiorari to review condemnation proceedings in the county court, there being no appellate jurisdiction to be protected.</p>

AppSae from the Circuit Court of DeWitt county; the Hon. W. G. Cochranj Judge, presiding.

Writ or Error to 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, presidng.

<p>1. Bigamy — belief that wife had obtained divorce is no defense to charge of bigamy. Proof that the defendant in a prosecution for bigamy entered into the second marriage in the honest but mistaken belief that his former wife had obtained a divorce is no defense to the charge, nor is it admissible for the purpose of showing lack of criminal intent.</p> <p>2. Sam® — divorce must be valid to constitute a defense to bigamy charge. A defendant in a bigamy prosecution who relies upon a divorce as a defense to the charge must prove not only that the divorce was obtained but that it was granted by lawful authority.</p> <p>3. Idem sonans — names “Staunton” and “Stanton” are idem so-nans. There is no material variance between an indictment for bigamy which charges the name of the defendant’s wife to be “Sarah Staunton” and proof showing the name to be “Sarah Stanton.”</p> <p>Vickers, J., dissenting.</p>

Charles T. Moore, Judge, presiding. Charles Hilt and Henry Hilt, appellees, each filed a separate bill of complaint against appellant and the sheriff of Madison county, Illinois, asking that they be enjoined from collecting two judgments for $1500 each, entered by default in the circuit court of said county at its May term, 1906, and praying that upon final hearing said judgments be either permanently vacated or set aside and appellees allowed to plead and defend said suits…

Writ or Error to the 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.

W. M. McEwbn, Judge, presiding. The appellant filed his bill in the superior court of Cook county against appellees for the specific performance of an alleged contract for the sale of certain real estate. The ap-pellee Emmett Brooks is the son, and appellant’s wife, Gertrude Cumberledge, and Cora Brooks, are the daughters of William C. Brooks.

<p>1. Notice — after defendant is served with process both parties are bound to fake notice of motions not requiring special notice. Due process of law requires notice to the defendant that a suit has been brought against him, but after he is served with process both parties are bound to be in court, and are charged with knowledge that any proper order or motion may be made at any time, in the absence of a rule excusing attendance unless notice is given.</p> <p>2. Same — statute does not require notice of a motion to advance cause on docket. The statute does not require notice to the plaintiff of a motion by the defendant to advance the cause on the docket for trial, and, in the absence of a rule of court to the contrary, the court may grant such motion, upon a proper showing, without special notice to the plaintiff being given.</p> <p>3. Same — sending notice by registered letter is a proper method. The sending of a notice by registered letter is a proper method to be adopted by the defendant to give notice to the plaintiff of a motion to advance the cause on the docket for trial, and if the plaintiff refuses to receive the registered letters containing notice of the motion and of the order granting the same, the court may, in its discretion, dismiss the case for want of prosecution if the plaintiff fails to appear when the case is called.</p>

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

Lockwood Honoré, Judge, presiding. The substance of the pleadings and decree necessary to a decision of this case is as follows: Sarah… Held: with moneys furnished by complainant and appellant; that said stock was taken, in the name of appellant; that complainant’s interest in it was one-half and that appellant was to hold the said one-half in trust for her, and that, relying upon the representations of appellant, complainant assigned to appellant all the stock she owned…

<p>1. Pleading — what is not a variance as respects place of injury. An averment in the declaration, in a suit against a street railway company, that the accident occurred while plaintiff was driving in a certain street “at or near the track of defendant’s said railway,” authorizes proof that he was driving longitudinally upon the track.</p> <p>2. Instructions — when instruction has no basis in the evidence. In an action for injuries caused by defendant’s street car having struck plaintiff’s wagon from the rear, testimony by the conductor, who did not see the wagon until he stepped from the rear of the car after the crash, that he saw the wagon about fifty feet from him, “going kind of across the street like, towards the north side of the street,” affords no basis for an instruction framed upon the hypothesis that plaintiff drove in front of the car suddenly.</p> <p>■ 3. Evidence — when evidence as to speed of car is not erroneously admitted. Testimony by a witness that he got on the street car some five blocks from the place where.it struck the plaintiff’s wagon; that the car started fast; that it stopped two or three blocks farther on and then started again and continued at fast speed until the collision occurred, is not erroneously admitted, although it shows an intervening stop, as it also shows that the fast speed continued up to the time of the accident.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Dorrance Dibell, Judge, presiding.</p>

AppEae from the Appellate Court for the Second District; — heard in that court on appeal from-the Circuit Court of Livingston county; the-Hon. T. M. Harris, Judge, presiding. - ;

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

<p>1. Equity — proof without allegations is unavailing in equity. The allegations of a bill in equity, the proof and the decree must correspond, and a complainant is not entitled to relief, although the evidence may establish a clear case, unless there are averments in the bill to support the case made by the evidence.</p> <p>2. Tax deeds — when a tax deed cannot be set aside for alleged misdescription of premises. A tax deed cannot be set aside for alleged misdescription of the premises where the court can legally infer that the description in the tax deed conveys the identical property described in the bill.</p> <p>3. Costs — tender imist be unconditional in order to fasten costs on holder of tax deed. A tender to the holder of a tax deed for the amount paid by him for the tax certificate, with costs and interest, is not sufficient to fasten upon him the costs of a proceeding to se.t aside the deed, where the tender was not unconditional but was accompanied by a demand that he execute a quit-claim deed to the property.</p>

<p>Municipal corporations — Chicago “wheel tax” ordinance applies to pleasure vehicles. A buggy, carriage or automobile, when in use upon the public streets of a city, whether used for pleasure or for hire, if persons are carried therein, is in use for carrying a load, within the meaning of clause 96 of section 1 of article 5 of the City and Village act, as amended in 1907, and is within the terms of the Chicago “wheel tax” ordinance requiring vehicles carrying persons or property to be licensed by the city.</p> <p>Cartwright, C. J., dissenting.</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. R. S. Tuthirr, Judge, presiding.

Appear from the Appellate Court for the Second District ; — heard in that court on appeal from the Circuit Court .of Peoria county; the Hon. N. E. Worthington, Judge, presiding.

<p>Bonds — surety on appeal bond is not liable for the debt — effect of discharge in bankruptcy. The liability of a surety upon an appeal bond is not for the debt but is contingent upon the recovery of the judgment against the principal, and hence, on appeal from a judgment of a justice of the peace, if the principal subsequently obtains a discharge in bankruptcy which bars the action in the circuit court, the surety on the appeal bond is released.</p>

S. D. Dwight, Judge, presiding. This is an appeal by the New Amsterdam Casualty Company from a judgment of the Appellate Court for the Fourth District affirming a judgment for the sum of $2500 obtained by the Sandoval Zinc Company, appellee, against appellant, in the circuit court of Marion county, in a suit on a policy of insurance, called an employer’s liability policy.

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. Lockwood HonorF, Judge, presiding.

Appear from the Appellate Court for the Eourth District ; — heard in that court on appeal from the Circuit Court of Massac county; the Hon. W. W. Duncan, Judge, presiding. This was an action brought by appellee to recover damages for personal injuries received by him while in the employ of appellant. The declaration contained three counts.

<p>Appeal from the Branch Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. R.S. Tut hill, Judge, presiding.</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>Appeal from the- Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.</p>

AppEae frorri the Branch Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, .presiding.

John E. HillsicoTTER, Judge, presiding. This is an appeal from a judgment of the county court of Madison county confirming an assessment roll for the paving of Madison avenue, in the village of Madison, by special assessment.

<p>Appeal from the County Coutt of Cook county; the Hon. Mazzini SlussER, Judge, presiding.</p>

Writ oe Error to the Superior Court of Cook county; the Hon. Farrin Q. Barr, Judge, presiding.

Appeal .from the Circuit Court of Cook county; the Hon. G. A. Carpenter, Judge, presiding. This is a bill in chancery filed in the circuit court of Cook county by George D. McLaughlin, against Frederick McLaughlin, for partition of certain lands situated in Cook county, Illinois.

Lockwood Honors, Judge, presiding. This suit was begun by appellant, the city of Chicago, filing a petition praying a writ of mandamus against appel-lee, the Illinois Central Railroad Company, ordering and directing said railroad company to re-construct the pavement and repair the sidewalks at the sub-way crossing of said railroad and Sixty-third street, in the city of Chicago.

Appear from the 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.

Appear from the Appellate Court for the Second District ; — heard in that court on appeal from the Circuit Court of Lake county; the Hon. A. H. Frost, Judge, presiding.

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. CharrES M. WarkER, Judge, presiding.

<p>1. Evidehce — statements in sworn answer are evidence, though not conclusive. The statement of facts in a sworn answer to a bill which has not waived answer tinder oath, is, so far as responsive to the bill, evidence in favor of the defendant, and must be taken as true unless disproved by evidence equal in the probative to the testimony of two witnesses; but it may he impeached by its own improbability or the inconsistent conduct or declarations of the person swearing to it.</p> <p>2. Fiduciary relations — when equity will not permit party to accept a conveyance. Equity will not permit a party occupying a confidential relation to an aged and infirm person of enfeebled mind to accept a conveyance of valuable property unless grantee clearly shows the transaction was entirely fair and free from any improper influence, particularly where the grantor was paralyzed, so as to be unable .to sign the deeds, which .the grantee signed in her name.</p> <p>3. Same — proof of confidential relation raises presumption of influence. Proof of the existence of a confidential relation between parties to a transaction of benefit to the dominant party raises a presumption of influence, which the latter -will be required to overcome by proof that the parties dealt at arm’s length, that no unfairness was used, and that the facts within his knowledge with reference to the transaction were communicated to the other.</p> <p>4. Same — what facts are inconsistent with the claim of absolute ownership. The facts that the confidential agent of an aged paralytic of enfeebled mind kept in a secret safé for several months deeds signed by him in her name conveying to him the bulk of her property, thereafter recording them singly, in separate years; that after the deeds were made he wrote to her other heirs speaking of some of the land as being still owned by her, and that after her death he communicated with the heirs with reference to their interest in the land, are inconsistent with his claim, in his sworn answer to bill for accounting, that he owned the property absolutely.</p> <p>5. Same — what fact is inconsistent with claim that party owned house and contents. An endorsement by the confidential agent of a deceased person, stating that the bill endorsed, which was presented by a servant against the estate of the deceased person for services as housemaid to such person between certain dates, was correct, is an admission by him. that the servant, whom he had employed, was employed for the deceased person, and is inconsistent with his claim that he was at that time the owner of the house and its contents.</p> <p>6. Costs — when costs of additional abstract will not be taxed to appellant. The costs of an additional abstract furnished by the appellee can be taxed to the appellant only when such additional abstract is in accordance with the rules of the court, and if a large part of the matter contained therein is improper, the court will not assume the labor of separating the proper from the improper matter but will refuse to tax any costs against the appellant.</p>

Appeai, from the Branch Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. B. C. Ruth, Judge, presiding.

M. W. Thompson, Judge, presiding. j) This is an appeal from the circuit court of Coles county in a partition proceeding in which the complainants claim an interest in the real estate in question as grandchildren and heirs of Moses Golladay. The real estate involved was owned in fee simple by George Golladay at the time of his death, which occurred on the 13th of January, 1854.

G. W. 'Thompson, Judge, presiding. This is a bill filed March I, 1905, in the circuit court of Fulton county, by appellant, Robert Zempel, against appel-lee Julius E. Hughes, for the specific performance of a contract, the substantial portions of which, so far as affects this proceeding, are as follows: “Received of Robert Zempel the sum of $500 as part payment towards the purchase of the following described real estate, (describing the two hundred-acre farm,) which is…

M. Kavanagh, Judge, presiding. This litigation concerns the funds, property and records of Freundschaft Lodge No. 72 and Humboldt Lodge No. 84, Deutscher Orden der Harugari, (German Order of Harugari,) generally known as D. O. H. The suit in the Freundschaft Lodge case originated by Fredericka Beyer filing a bill of interpleader in September, 1904.

<p>Appear from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>1. Offices — police patrolman suing for salary must show legal existence of office. A party suing a city for salary as a police patrolman must prove the legal existence of the office and his [egal right to hold it, as such an office was unknown to the common law and wherever it exists it is the creation of a statute or ordinance.</p> <p>2. Same — incorporation of city under general law abolishes office of police patrolman. Organization by a city under the general law abolishes, eo instanti, all offices existing under the city’s former special charter except offices within the saving clause of the general law, which are those of mayor, city council, city clerk, city attorney and city treasurer.</p> <p>3. Same — the'office of police patrolman must be created by ordinance. Where the office of police patrolman, existing under a city’s special charter, is abolished by the city’s act of organizing under the general law, there is no such office until it is again established by ordinance, and an ordinance which merely provides that the police force shall consist, among other officers, of “police patrolmen now in the employ of the city,” does not create the office.</p> <p>4. Same- — resolutions and appropriation ordinances not admissible to establish existence of ordinance. A resolution of the city council in the form of an order authorizing the superintendent of police to .increase the number of police patrolmen, and appropriation ordinances showing appropriations for certain years for the salaries of the police patrolmen, are not admissible to establish the existence of the office of police patrolman.</p> <p>5. Same — when ordinance does not create office of police patrolman. An ordinance providing that the police department shall embrace as many patrolmen “as has been or may be prescribed by ordinance,” cannot be regarded as creating the office of patrolman.</p> <p>6. Same — earnings or opportunities to earn cannot be shown to reduce damages in action for salary. Salary is incident to the title to the office and not to its occupation, and if one having a legal right to an office is wrongfully prevented by a city from performing the duties of the office he may recover his salary for the period he was so prevented, where it has not been paid to anyone performing the duties of the office; and his earnings or opportunities to earn cannot be shown by the city in reduction of damages.</p> <p>7. Same — when city is not estopped to deny that plaintiff is a de jure officer. Where the office of police patrolman has never been created by ordinance, the facts that the office has been placed in the classified service, that the name of a person has been carried on the pay-rolls as police patrolman, that the pay-rolls were certified by the civil service commission, that .charges were preferred against him as police patrolman and hearing had resulting in his discharge, do not estop the city to deny that he was a de jure officer in his suit to recover salary after his re-instatement.</p> <p>8. Same — when a suit for salary is not premature. Where the proceedings under which an officer in the classified service was discharged have been quashed on certiorari, and the party, after being re-instated in office, brings suit to recover back-salary for the period for which he was discharged, the fact that the city files new charges after the suit is brought, including the same charges on which his former discharge was based, does not authorize a dismissal of the suit as premature nor require a continuance until after a hearing of the charges.</p>

G. W. Patton, Judge, presiding. This is an appeal from a judgment of the Appellate' Court for the Second District affirming a judgment in the sum of $3251.81, recovered by appellee against appellant in the circuit court of Livingston county.

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

Appejae 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. Holder, Judge, presiding.

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. Lockwood Honors, Judge, presiding.

Writ oe Error to the Circuit Court of Clinton county; the Hon. S. L. Dwight, Judge, presiding. This is a bill filed November 13, 1906, in the circuit court of Clinton county, to set aside the will of Ernestine Becker, deceased. The bill was filed by plaintiffs in error, Henry Freund, Emil Freund and Anna C. Schmidt, who are children of Caroline Freund, a deceased daughter of testatrix, .against defendant in error, Louis Becker, a son of testatrix.

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.'John L. Heary, Judge, presiding; Michael Franey recovered a judgment in the circuit court of Cook county against the Union Stock Yard and Transit Company for $17,500 for personal, in juries charged to have resulted from the negligence of the 'defendant, and that- judgment has been affirmed by the Branch Appellate Court for the First…

<p>1. Bills AND notes — note is admissible •without proof of execution, in absence of verified plea. A note is admissible in evidence, in an action thereon, without proof of its execution, unless there is a verified plea filed denying such execution.</p> <p>2. Same — when variance does not preclude admission of note in evidence. In an action on a note, where there are special counts and the consolidated common counts, a variance between the note and the description thereof in the special counts does not preclude its admission in evidence under the common counts.</p> <p>3. Same — same presumption arises where note is admitted under common counts as under special count. The presumption that the plaintiff purchased the note in suit before maturity, for value, in due course of business, and that he was an innocent holder, arises where the note is properly admitted under the common counts the same as though it had been introduced under a special count declaring on the note.</p> <p>4. Same — when plaintiff is entitled to recover on note. Want of consideration for a note may be shown without specially pleading the defense where the note is introduced in evidence under the common counts; but the prima facie case made by introducing the note in evidence is not overcome by showing want of consideration, where the proof does not show that the plaintiff had notice thereof or that he purchased the note after maturity.</p>

<p>1. Mortgages — the mortgagor is entitled to such credits as he may establish. In a proceeding by an administratrix to foreclose a mortgage the mortgagor is entitled to have deducted from amount of the loan any credits he may be able to establish, by competent evidence, in the way of payments, advances of money or by performance of services, which by mutual agreement were to be credited upon the note; and he is not required to pay the note and probate his claims against the estate with other creditors and share pro rata in the assets.</p> <p>2. Same — mortgagor is entitled to credit for items endorsed on duplicate note. In a proceeding to foreclose a mortgage, where the original note has been found and the duplicate note, which was executed upon the assumption that the original note was lost, has been lost, the mortgagor is entitled to have credit for the items which were endorsed as credits upon the duplicate, although the original note bears no endorsements.</p> <p>3. Equity — equity has jurisdiction in- matters of equitable set-off. Equity has jurisdiction in matters of equitable set-off independently of the statute authorizing sét-offs in actions at law, and a counter-claim should be allowed in equity where there has been a mutual credit given by each party upon the footing of the debt of the other, so that a just presumption arises that the one is understood by the parties to go in liquidation or set-off of the other; and this rule applies though the suit is brought by the administrator of one party.</p>

<p>Appeal from the Appellate Court for the Fourth District ; — heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Charles T. MoorE, Judge, presiding.</p>

<p>1. Wills — what amounts to a devise of real estate to executor. A provision in a will authorizing and directing the executor to convert into cash all the property, both real and personal, and to sell the same at public or private sale and distribute the proceeds as directed by the will, amounts to a devise of the real estate to the executor.</p> <p>2. Same — when duty'as executor ends and duty as trustee begins. Where the same person is executor and trustee the relations are distinct and he does not take a fund as trustee until it is separated from the general funds in his hands as executor, but when his duties concernihg a fund as executor are completed his duties as trustee begin, and no formal order of transfer from the executor to the trustee is necessary to enable the cestui que trust to claim and enforce his rights.</p> <p>3. Same — what does not postpone right to income for ñve years. A provision in a will directing that the executor, who was also trustee, complete all collections, sales and distributions within five years from the date of letters testamentary, (moneys in. trust not included,) does not postpone the settlement of the estate for five years nor authorize the executor to take that time unless necessary, and does.not indicate an intention that beneficiaries of bequests for life, in trust, shall receive no income from the funds until the end of such five years. 1</p>

<p>1. Wills — parol evidence is admissible to identify subjects and objects of testator’s bounty. In determining the testator’s intention, parol evidence, though not admissible to change the language of the will, may be received when necessary to identify the subjects or objects of the testator’s bounty.</p> <p>2. Same — when errors of description do not avoid the devise. While a‘court of equity cannot correct a mistake in a will by reforming the instrument, yet all the circumstances surrounding the testator and the state and description of his property may be shown for the purpose of applying the language used to the conditions existing, and errors of description, either of the devisees or the devise, will not avoid the devise, if enough remains, after rejecting the errors, to show with certainty what was intended when considered from the testator’s position.</p> <p>3. Same — when false word of description may be stricken out. Where a will devises the “west half” of a certain quarter section, “containing about seventy-six (76) acres,” but the evidence shows that, the only land owned, by’the testator in such section or county was seventy-six acres in the-north half of said quarter section,.the word “west” may be stricken out and the devise be given effect as a devise of “the half” of said quarter section which the testator owned, even though there is a residuary clause in the will.</p>

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

Arpear from the Branch Appellate Court for the First District; — heard in that court on appeal from the Superior Court of Cook county; the Hon. A. C. Barnes, Judge, presiding.

<p>Appeal from the Appellate Court for the Second District ; — heard in that court on appeal from the Circuit Court of Kane county; the Hon. L. C. Ruth, Judge, presiding.</p>

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

<p>Appeal from 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.</p>

<p>. Bond's — sureties on a township treasurer’s bond are concluded by his official reports. Sureties on the bond of a defaulting township treasurer, who has been his own successor for many terms, are concluded by his official reports, and'they caniiot maintain a bill in equity to correct such reports for certain years for the pur-^ pose of showing that the defalcation occurred prior to the term for which they became his sureties. (Morley v. Town of Meta-mora, 78 Ill. 394, and Fogarty v. Ream, roo id. 366, followed.)</p>

Albert E. Bergland, Judge, presiding. John McWhirter died at Iowa Falls, Hardin county, Iowa, where he resided, about January 21, 1908, intestate. He left a widow, three sons and a daughter, all of whom are adults and none of whom are residents of the State of Illinois. His only property in Illinois consists- of a claim for money in the hands of the circuit clerk of Henry county, amounting to about $4000.

Appear from the Appellate Court. for the Third District ; — heard in that court on -appeal from the Circuit Court of Morgan county; the Hon. O. P. Thompson, Judge, presiding.

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

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

Writ oe Error to the Appellate Court for the Third District; — heard in that court on writ of error to 'the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.

<p>INSURANCE — whether insured acted with ordinary care is question for the jury. In an action on an accident policy insuring a person who met his death by drowning when attempting to cross a river on. a cable ferry, the question whether he was exercising due diligence for his safety is one of fact for the jury, where the facts and circumstances in evidence are not such that all reasonable minds would necessarily agree that an ordinarily prudent man would not at that time have tried to cross.</p>