Volume 236 — Illinois Reports

Paul McWilliams, Judge, presiding. This was an action on the case commenced by Ludwig A. D. Gathman against the city of Chicago and James O’Connor, in the circuit court of Cook county, to recover damages for a personal injury alleged to have been sustained by him while in the employ of the city of Chicago, through the negligence o.f the defendants.

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the County-Court of Mercer county; the Hon. R. C. Rice, Judge, presiding.

xAppeal 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>1. Pleading—what is not ground for a special demurrer. The fact that a declaration in an action against a drainage district for flooding plaintiff’s lands alleges that the levee constructed by the defendant caused the water to rise much higher than formerly on the west side of the river and above the levee (which might include other lands than the plaintiff’s) is not ground for a special objection that the declaration charges that other lands than those of the plaintiff have been damaged, where there is no averment of damage except as to plaintiff’s lands.</p> <p>2. Drainage—right of drainage is governed by the law of narture. Under the rule of the civil law, which has been adopted in Illinois, the right of drainage is governed by the law of nature, and the lower proprietor cannot do anything to prevent the natural flow of surface water and cast it back upon the land above; nor in Illinois is there any distinction between surface waters and those flowing in a natural water-course.</p> <p>3. Same—a drainage district is liable in damages for ñooding upper lands. A levee drainage district organized for agricultural purposes is liable in an action of trespass on the case for damages to the lands of an upper proprietor, which are flooded by reason of the construction of the levee built by the district according to the plan of drainage adopted for the benefit of the lands within the district.</p> <p>4. Same—a drainage district is not an involuntary quasi public corporation. While a drainage district is a quasi corporation, if the statute under which it is organized does not make it a corporation, and while it is not liable for the unauthorized acts of its commissioners for which they are personally liable, yet it is not an involuntary quasi public corporation, which is a mere political or civil division of the State, and which is not liable in damages for the negligent or wrongful acts of the officers or agents. (Elmore v. Drainage Comrs. 135 Ill. 269, and Heffner v. Cass and Morgan Counties, 193 id. 439, explained and doctrine limited.)</p> <p>3. Same—liability of drainage district is to be enforced by assessment upon lands of district. The liability of lands in a levee drainage district, under section 2 of the Levee act of 1879, for damages sustained by lands lying above the district by reason of the construction of any levee, ditch or drain, is enforcible by an action of trespass on the case against the district, and if damages are recovered they are to be collected by an assessment upon lands within the district.</p> <p>6. Same—drainage district cannot take property without compensation. A levee drainage district has the power of eminent domain for the purposes of its organization, but it is prohibited by the constitution from taking or damaging lands without making compensation therefor.</p> <p>7. Same—only drainage referable to police power is for sanitary purposes. The removal of large bodies of stagnant water, which produce malaria and breed disease, is within the police power of the State; but if a drainage district is organized for the benefit of the lands within the district for agricultural or mining purposes, it cannot escape liability for the flooding of upper lands by setting up the police power of the State to provide for sanitary drainage.</p>

on. Lockwood Honoré, Judge, presiding. John Hancock, of Boston, in the State of Massachusetts, died April I, 1859, leaving a last will, dated April 1, 1857. Francis V. Balch was trustee under the will for two of the legatees, Franklin and Washington Hancock, and upon the death of Franklin filed a bill in the circuit court of Cook county for partition and for a construction of clause 7 of the will, under which the trust estate had been held for Franklin.

<p>1. Township organization—request of a supervisor to be relieved of duty of overseer of poor is not a resignation of any office. Under section 18 of the act relating to paupers a request by a town supervisor to the county board to be relieved of his duty as overseer of the poor is not a resignation of any office, and merely authorizes the board to appoint an overseer of the poor for such time as the board has authority to relieve the supervisor, which cannot extend beyond the life of the board.</p> <p>2. Same—when new board of supervisors cannot appoint overseer of the poor. When a board of supervisors, at the request of a town supervisor, appoints an overseer of the poor for a period of one year and the organization of such board ceases at the end of the year, the duties of overseer of the poor immediately devolve upon such supervisor, and the new board of supervisors cannot, without his request, appoint an overseer of the poor, notwithstanding the request of the supervisor to the old board asked relief from such duty “for his term.”</p>

<p>1. Injunction—objection of adequate remedy at law cannot be first raised on appeal. An objection that the complainant in a bill for injunction has an adequate remedy at law cannot be first insisted upon on appeal or error but must be raised in the trial court by way of demurrer or answer.</p> <p>2. Same—a bill lies to enjoin wrongful removal of coal. An exception to the rule that a court of equity will not enjoin a trespass exists with respect to continuing and repeated trespasses of a grave character, such as the wrongful removal of coal from the ground, which cause irremediable injury and the destruction of complainant’s property.</p> <p>3. Same—what is sufficient proof of complainanfs ownership of coal. The complainant’s ownership of the seams of coal which the defendant is alleged to be wrongfully removing is sufficiently proved, even though there is an inaccuracy of description in his deed to the coal underlying the land, where two recorded deeds are proved purporting to convey, by accurate description, the entire fee to complainant’s grantors, who are shown to have been in possession under such deeds.</p> <p>4. Same—mining company may be enjoined from using entries made in mining another’s coal. Where a mining company has wrongfully mined coal beyond the limits of the mine, it is proper, upon enjoining the further removal of coal and assessing the complainant’s damages for the coal removed, to restrain the company from entering and using the entries in complainant’s coal for any purpose.</p> <p>5. Damages—measure of damages where coal is mined beyond 'the limits of mine. The measure of damages for coal wrongfully mined beyond the limits of the mine is the value of the coal at the mouth of the pit, less the cost of loading and hauling the coal from the place where it was mined to the foot of the shaft and for hoisting and dumping it into the car at the top; but the general expense of operating the mine does not enter into the question.</p>

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

<p>Contracts—when a coal contract is not void as in restraint of trade. A contract for the sale of coal by a mining company to a retail coal dealer, whereby it is agreed that if the dealer will buy coal of the mining company the latter will not sell coal at whole sale prices to any other dealer in the town, is not void as contrary to public policy or in restraint of trade, even though it may incidentally restrict competition in the sale of coal in the town.</p>

Writ or Error to the Circuit Court of Macon county; the Hon. W. C. Johns, Judge, presiding.

<p>1. Cloud on TITLE—averment that complainant was in possession must be proved. An averment in a bill to remove a cloud that complainant was in possession of the premises at the time of the filing of the bill must be proved, and such fact must appear from the certificate of evidence or from the recitals of the decree granting the relief prayed for, otherwise the decree must be reversed.</p> <p>2. Same—when decree does not show possession at time the bill was filed. A recital in a decree canceling a tax deed as a cloud, that the complainant, prior to and on a certain date, “was the owner of and was possessed” of the premises and “was the owner of said premises at the time of filing her said bill,” does not show that complainant was in possession of the premises at the time of the filing of the bill, which was subsequent to the date recited in the decree.</p>

Writ oe Error to the Circuit Court of DuPage county; the Hon. E. C. Ruth, Judge, presiding. This was a bill in chancery brought by plaintiff in error, in the circuit court of DuPage county, to restrain defendants in error from proceeding with the construction of a sewerage system in the village of Roselle and from trespassing upon and damaging his land.

<p>1. Appeals and Errors—motions and affidavits must be saved by bill of exceptions. A petition for change of venue, affidavits in support thereof and the motion for a continuance are not a part of the record unless so made by a bill of exceptions, notwithstanding they are copied in the transcript of the record.</p> <p>2. Same—when action of court in permitting improper statement by an unsworn witness cannot be reviewed. For the purpose of a preliminary examination to enable the court to determine whether a witness and her interpreter can understand each other sufficiently it is not necessary that either be sworn, and if no objection is made to the presence of the jury or to the fact that the parties were unsworn, the action of the court in permitting them to state that the defendants assaulted and raped the witness can not be reviewed, even though the question calling forth such statement was objected to.</p> <p>3. Rape—declarations of prosecutrix as to who committed the rape are incompetent. In a prosecution for rape it is proper to prove by a witness that the prosecutrix made complaint as to how she had been treated but not what she said as to who were the guilty parties, but error in permitting proof of her statements as to who were the guilty parties will not work reversal if there is competent uncontradicted evidence sufficient to sustain the verdict.</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.

<p>1. Partnership—what constitutes a partnership as to particular transactions. A partnership in the particular transactions exists where parties are interested together in the purchase and sale of real estate and the division of the profits, even though no general partnership exists.</p> <p>2. Same—contract of settlement obtained by deception of one partner is not binding. A contract of settlement obtained through concealment and deception by the partner having knowledge of transactions of which the other party was in ignorance is not binding upon the latter, and he may repudiate the agreement upon discovering the fraud and maintain a bill for accounting.</p> <p>3. Same—when interest should be allowed on accounting. In a partnership accounting, interest should be charged against the defendant from the date of a contract of settlement obtained by the fraud and deception of the defendant and subsequently repudiated by the complainant, whose right to recover the amount due him has ever since been contested.</p>

W. C. Johns, Judge, presiding. Appellant is a land owner in Drainage District No. 1 in the town of Mt. Zion, Macon county, Illinois, a drainage district organized under section 76 of the Farm Drainage act.

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

<p>Husband and wife—gift to wife cannot be impeached by person not a creditor at the time. A gift of money from husband to wife will not be set aside at the suit of the husband’s trustee in bankruptcy where it does not appear that any of the persons for whose benefit the bill was filed were creditors of the husband at the time of the transaction, or that the gift was made for the purpose of hindering and delaying the collection of debts, the creation of- which was then in contemplation of the parties.</p>

Appear from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Crawford county, the Hon. E. E. Newrin, Judge, presiding.

Writ oe Error to the Appellate Court for the Eirst District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.

Writ oe Error to the Criminal Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding. On September 7, 1907, Abraham Silbertrust, the plaintiff in error, then about nineteen years of age, was convicted in the criminal court of Cook county of larceny as bailee of a certain bill of exchange or bank draft issued by the Eirst National Bank of Chicago for the sum of $150.

<p>Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>1. Pleading—mandamus suit is governed by ordinary rules of pleading. Under the Illinois statutes mandamus is an ordinary action at law am? is governed by the same rules .of pleading applicable to other actions at law.</p> <p>2. Appeals and Errors—judgment sustaining general demurrer and awarding costs is not final. An order sustaining a general demurrer to a petition for mandamus is not a final, appealable order, though it recites that the petitioners except to the ruling of the court and abide by their petition and that the defendants recover their costs from such petitioners;</p>

Writ oE Error to the County Court of DeKalb county; the Hon. W. E. Pond, Judge, presiding. In 1906 John Clausen was a merchant in DeKalb county, owning a stock of merchandise and some other personal property. He was insolvent. He made a common law assignment to J. B. Pogue for the benefit of his creditors, and Pogue took possession of the stock of merchandise and the other property and proceeded to administer the trust. The Rock Island Plow Company was one of the creditors.

Appear from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. On September 11, 1907, Etna H. Stivers,.Mary V. Stivers, and Carl M. Stivers by Mary M. Stivers, his next friend, filed their bill in the circuit court of Moultrie county against Ora E. Stivers and others for partition of eighty-three acres of land in that county.

Appear from the Circuit Court of Mason county; the Hon. Guy R. Wirriams, Judge, presiding..

<p>1. Triar—when a personal injury case is properly left to the jury. An action for personal injury received by a servant from the bursting of a boiler is properly left to the jury, where the evidence tends to show that the flange on the boiler was defective and that the boiler gave way at that point when the steam was turned on, after the boiler had been set in place by the plaintiff and others, under the direction of defendant’s representative.</p> <p>2. Same—what questions are properly left to jury. Whether a boiler had been properly inspected by the defendant before it was sent out and the flange of the boiler found to be sound,, or whether the flange was broken at that time or by fellow-servants of the plaintiff after the boiler hád been set in place, are questions of fact which are properly left to the jury.</p> <p>3. Appears and Errors—the question of variance cannot be first raised on appeal. The question of a variance between the declaration and the proof must be raised in the trial court, and it cannot be first raised in a court of review.</p>

Writ ob 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.

Charles M. Walker, Judge, presiding. On the 7th day of February, 1908, a petition was presented to and filed with the board of election commissioners of the city of Chicago asking for submission to the voters of said city, at the election to be held April 8 following, to be voted on by separate ballot, the question, “Shall all places where liquor is sold or given away in this city on Sunday be closed upon that day ?” The petition was signed by more than twenty-five per cent…

W. G. Cochran, Judge, presiding. This was a bill in chancery filed in the circuit court of DeWitt county by the appellees, against the appellants, for the partition of certain real estate situated in the city of Clinton, in said county.

F. E. Newlin, Judge, presiding. E. N. Gillespie, trustee, filed a bill in the circuit court of Crawford county against the Fulton Oil and Gas Company, S. ‘ C. Bowman, T. N. Rogers and Walter Hennig, praying for an injunction, an accounting, the appointment of a receiver and the cancellation of certain oil and gas leases exe-' cuted by S. C. Bowman and wife to Rogers and by him assigned to Walter Hennig.

<p>1. Wins—record of probated foreign will is more than mere notice to purchasers. Under section 9 of the Statute of Wills a foreign will, or authenticated copy thereof, proven according to the laws of the foreign State and recorded in Illinois, is “good and available in law, in like manner as wills made and executed in this State,” and it is not necessary that such will be probated in Illinois before a devisee can assert title as to lands in Illinois.</p> <p>2. Same—judgment of foreign court admitting will to probate is not open to collateral attack. A judgment of a court of a foreign State admitting a will to probate is entitled to full faith and credit in this State, to the extent, at least, of its not being open to collateral attack in a proceeding by the legal heirs of the testator to partition lands in Illinois.</p>

<p>1. Eminent domain—instruction should limit elements of damage to their effect upon market value. Instructions in a condemnation case should limit the consideration of elements of damage, such as the discharge of smoke, cinders and ashes, the danger from fire and from leaving the right of way unfenced for a certain period, to the effect such elements have upon the market value ,of the land not taken.</p> <p>2. Same—rule as to admitting evidence of recent sales. Evidence of actual recent sales of property in the vicinity of that condemned is admissible upon the question of the value of the land taken, but the question of the degree of similarity between the properties and of the nearness in point of time and distance necessary to render such evidence admissible in a particular case must be determined largely by the trial court.</p> <p>3. Appears and Errors—when error in instruction in failing to confine elements of damage to market value will not reverse. Error in an instruction in failing to confine the consideration of certain elements of damage to the effect they have upon the market value of the land not taken will not reverse, where other instructions contain such limitation, the jury viewed the premises and the verdict is well within the range of the evidence.</p>

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

Appear from the Circuit Court of Montgomery county; the Hon. S. B. Dwight, Judge, presiding. This is an appeal from a decree entered by the circuit court of Montgomery county dismissing, for want of equity, a bill filed by appellant, Mary A. Potter, against appellee, Mattie J. McDavid Barringer, for the cancellation of a deed and to quiet title to certain land in that county. Mary A. McDavid was at one time the owner of the land in question.

Writ oe Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Will county; the Hon. A. O. Marshall, Judge, presiding.

<p>1. Evidence—parol evidence not admissible to show that vacation ordinance was passed for a private benefit. Parol evidence is not admissible to show that an ordinance vacating a street was passed for the purpose of conferring a benefit upon private parties or to accommodate some private interest. (Smith v. McDowell, 148 Ill. 51, distinguished.)</p> <p>2. Municipal corporations—what does not render a vacation ordinance invalid. Where an ordinance vacating a street is passed by the city council in the exercise of honest judgment, after due consideration of the inconvenience to the public and the public benefits expected to result from the vacation of the street, the fact that a railroad company, as an incident to such action, may also derive benefits does not render the ordinance void.</p> <p>3. Ejectment—an estoppel in pais cannot be relied upon as defense to ejectment. The rule permitting matters of estoppel in pais to be considered in mandamus cases in determining what action should be taken by the court in the exercise of its sound legal discretion does not authorize the consideration of an estoppel in pais in other actions of law, such as ejectment, in which no discretion can be exercised.</p>

AppEae from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Shelby county; the Hon. SamxjEE E- Dwight, Judge, presiding.

<p>1. Trial—what evidence sufficient to go to jury on question of engineer’s knowledge of habitual violation of speed rule. Evidence that the plaintiff’s intestate had made several trips, as engineer, between certain points on the defendant’s branch line; that for several months trains had been run between such points at a speed in excess of that allowed by the company’s speed rule, and that the deceased had been in defendant’s employ as fireman and engineer two years, is sufficient to go to the jury upon the question of the deceased’s knowledge of the habitual violation of such rule.</p> <p>2. Same—what questions are settled by Appellate Court’s judgment. The condition of the track where deceased’s engine turned over; the rate of speed at which the engine was running; the proximate cause of its leaving the track, and whether the company’s speed rule had been disregarded for so long a time that the company must be -deemed to have known of it and acquiesced therein, are all questions of fact for the jury and are settled by the Appellate Court’s judgment of affirmance, where the evidence on each point is conflicting.</p> <p>3. Railroads—abrogation of a rule may be shown by proof of habitual violation. Abrogation of a speed rule of a railroad company may be shown by proof of its habitual violation by employees of the company with the knowledge of the company; and such knowledge may be actual or constructive.</p> <p>4. Evidence—effect where witness testifies differently on cross-examination. The fact that a witness testifies to a different state of facts on cross-examination from what he testifies to on direct examination affects merely the weight, and not the competency, of his testimony, and is not ground for excluding it.</p>

<p>Appear from the Circuit Court of Champaign county; the Hon. Soron Piiirbrick, Judge, presiding.</p> <p>This suit originated by Frances S. Kirby, widow of Joshua Kirby, deceased, filing a bill for the partition of certain real estate. The bill alleged Joshua Kirby died intestate, seized in fee simple of the undivided one-half of the north-west quarter of the south-east quarter and the north half of the south-west quarter of section 18, town 20, north, range 10, east of the third principal meridian, in Champaign county, Illinois. The bill alleged that complainant was the owner of the other undivided one-half, and prayed for partition and for the assignment of homestead and dower to the complainant in the undivided one-half alleged to have been owned by her deceased husband.</p> <p>Joshua Kirby had been married three times. By the first wife he had one son, who survived him; By the second wife he had a son and daughter, Ellsworth Kirby and Dora Trickle,-who survived him. By the third wife, complainant in the original bill, he had seven children, who survived him, one of whom was born after his death. All of these children were made defendants to the original bill, as were also John R. Trevett and the Mutual Benefit Life Insurance Company, as mortgagees.</p> <p>Ellsworth Kirby and Dora Trickle, .children of Joshua Kirby, deceased, by his second wife, Mary E. Kirby, filed their answer to the bill, denying that complainant in the original bill owned any interest in the lands in the said bill described, and denying also that their deceased father owned any interest in the fee of said lands, but alleged that said lands were owned in fee by their mother,.Mary E. Kirby, at the time of her death, and that said lands descended to them, the said Ellsworth Kirby and Dora Trickle, from their mother in fee simple. The answer alleged that the only interest Joshua Kirby had in said lands was as surviving husband of Mary E. Kirby, deceased; that said interest ceased at his death, and that complainant was not entitled to either homestead or dower in said premises.</p> <p>John R. Trevett answered the original bill and filed a cross-bill, alleging that Joshua Kirby and Frances S. Kirby owned the land in fee simple, and as such owners, in October, 1902, executed to complainant in the cross-bill a trust deed on said lands to secure the payment of a note for the sum of $2000, payable to Wallace P. Spalding two years after date, and prayed for the foreclosure of the trust deed.</p> <p>The Mutual Benefit Life Insurance Company filed an answer to the original bill, and set up its interest in the lands, as mortgagee, of Joshua and Frances S. Kirby, to secure the payment of a note executed by them for the sum of $6000.</p> <p>Ellsworth Kirby and Dora Trickle filed a cross-bill, in which they alleged that their mother, Mary E. Kirby, became the owner of the premises sought to be partitioned in 1876, by or from Peter Arie and wife, and that she owned the same at the time of her death, which the cross-bill alleges occurred August 15, 1879. The cross-complainants further alleged that on the first day of October, 1877, a deed was filed for record in the recorder’s office in Champaign county purporting to have been exécuted by their mother and Joshua Kirby, her husband, dated October 1, 1877, to John J. Kirby, a brother of Joshua; that said deed purported to convey to said John J. Kirby the north-west quarter of the south-east quarter and the north-east quarter of the south-west quarter of section 18, part of the premises described in the original bill; that said deed was recorded in record book 41 of the deed records of said county; that afterwards, on the 15th of February, 1882, there was filed for record in said recorder’s office a deed purporting to be executed by Mary E. Kirby and Joshua Kirby to John J. Kirby, bearing date October 1, 1877, purporting to convey to said John J. Kirby the north-west quarter of the southeast quarter and the north half of the south-west quarter of section 18, being all of the premises described in the original bill, and that this deed was also recorded in the deed records of the recorder’s office; that these matters occurred during the infancy and without the knowledge of the cross-complainants. The cross-bill alleges that no deed from Mary E. Kirby conveying any portion of said premises to John J. Kirby was ever delivered to him; that he paid no consideration therefor and had no knowledge that such deed had been made and recorded until after the death of Mary E. Kirby; that John J. Kirby never claimed any interest in said premises and never accepted the deeds therefor and had nothing to do with their recording, and that said deeds are therefore invalid and of no effect and are clouds upon the title of cross-complainants. The cross-bill further alleges that two years after the death of Mary E. Kirby John J. Kirby was informed by Joshua Kirby of the making and recording of the deed to him and requested to convey the premises to the said Joshua Kirby, which he did without any consideration whatever, and that said deed conveyed no title to Joshua Kirby and is a cloud upon the title of the cross-complainants. Said cross-complainants further allege that they were infants of tender years and had no knowledge of these things until after the death of their father. The cross-bill prays for partition of the premises between the cross-complainants, and that a decree be entered that Frances S. Kirby and her children and the son of Joshua Kirby by his first wife have no title to or interest in said premises.</p> <p>Answers were filed by the defendants to the cross-bill, and the cause was referred to the master in chancery to take the testimony upon the original and cross-bills, with directions to report his conclusions of law and fact thereon. After hearing the testimony the master reported recommending that a decree be entered according to the prayer of the original bill and the cross-bill of Ellsworth Kirby and Dora Trickle be dismissed for want of equity. Objections to the master’s report were overruled by him and were renewed as exceptions before the chancellor. Said exceptions were overruled and a decree entered in accordance with the recommendations of the master in chancery, from which appellants, Ellsworth Kirby and Dora Trickle, have prosecuted this appeal.</p>

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. A. H. ChETRain, 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. George A. Dupuy, Judge, presiding.

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

<p>1. Appeaes and errors—when a freehold is involved. Where a bill for injunction prays for ‘a decree setting aside a deed as incidental to the main relief and the decree sets aside the deed, thereby canceling the title of the. defendant, who claimed title through the deed in his answer to the bill, a freehold is involved, regardless of whether the claim of the defendant under the deed was well founded or not.</p> <p>2. Same—the granting of a preliminary injunction cannot be assigned for error on appeal from final decree. Upon appeal from a final decree making a preliminary injunction perpetual the granting of the preliminary injunction cannot be assigned for error, since in reviewing the final decree it 'is immaterial whether a preliminary injunction was granted or not, or, if so, whether it was granted rightfully or wrongfully.</p> <p>3. Same—matters happening after appeal is taken are not open for review. The action of the court upon motions made after the final decree has been entered and an appeal has been prayed therefrom are not open for review, since an appeal from a final decree brings up nothing happening after- the taking of the appeal.</p> <p>4. Contracts—an assignment of right to use a secret formula need not be in writing. An assignment of the right to use a secret formula need not be in writing, and a verbal transfer thereof by the owner for valuable consideration, under which there has been a long continued use under claim of ownership acquiesced in by the original owner, is sufficient to transfer the owner’s right.</p> <p>5. Injunction—when use of knowledge of secret formula will be enjoined. One who acquires his knowledge of a secret formula by reason of his being in partnership with the discoverer of the formula, and who is bound by agreement not to divulge it, has no right to make use of the formula after selling his interest in the business, and the use of such knowledge by himself and third persons for the purpose of engaging in a competitive business will be enjoined.</p> <p>6. Same—what is not stick fraud by complainant as 'precludes relief. The fact that a corporation having the exclusive right to use a secret compound continues, after the death of its president, who was the discoverer of the remedy, to use labels having a fac simile of his signature, which was intended to identify the compound as the genuine product of the corporation, is not fraud which will preclude the corporation from coming into a court of equity to enjoin the use of the secret compound by third persons.</p> <p>7. Laches—when partner is barred by delay from attacking his transfer of interest. One who has acquiesced, without objection, for a period of eighteen years, in the dissolution of a partnership and the transfer of his interest to the other partners will not be permitted to urge that he was forced out of the business in ignorance of his rights under the partnership agreement, where it does not appear that he was denied the right to examine the agreement •or that his opportunity for knowing its contents was less than that of the other parties.</p> <p>8. Masters in chancery—the master’s findings must be based upon his own impartial investigation. The findings of the master must be based upon his own impartial investigation of the evidence and the law rather than upon sets of findings submitted to him by counsel for the respective parties; but if the action of the master in permitting counsel to submit suggestions of the findings which they think should be made is taken at their suggestion, they cannot complain of such action on appeal. (Fitchburg Steam Engine Co. v. Potter, 211 Ill. 138, distinguished.)</p>

<p>1. Wills—creditors in Illinois must be paid before creditors in foreign State. Where a foreign will disposing of real estate in Illinois is probated in Illinois and letters testamentary -are issued to an executor who is a resident of Illinois, only the residue of the Illinois property remaining after the payment of creditors in Illinois can be removed to the foreign State for the purpose of paying creditors residing there.</p> <p>2. Same-—provisions of will construed as to payment of debts and expenses of administration. Where a will made in a foreign State and disposing of property in that State and in Illinois provides that the executors shall pay “all my debts and the expenses of administration,” a subsequent provision devising the remainder of the undisposed property in Illinois “after the payment and discharge of all my debts and obligations and the expenses of administration in that jurisdiction,” charges the property in Illinois with the payment of the expenses of administration in Illinois but does not limit the debts and obligations to Illinois debts.</p> <p>3. Same—will construed as not appropriating proceeds of Illinois property to the payment of foreign debts, alone. Where the first paragraph of a foreign will directs the executors, among other things, to pay all the testator’s debts, a subsequent paragraph directing the sale of the testator’s interest in a certain building in Illinois for the purpose of complying with the first paragraph and in liquidating the testator’s indebtedness on property in the foreign State refers to all indebtedness of the testator, and the proceeds of the sale should be first applied to payment of Illinois debts and the residue, if any, to the payment of foreign indebtedness.</p>

<p>Appeae from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. -</p>

Appear from the Superior Court of Cook county; the Hon. Farrin Q. Barr, Judge, presiding.

AppEae 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>1. Arrest oE judgment^—when motion in arrest should be sustained. In an action of tort against several defendants, if the declaration does not state a cause of action against all of the defendants against whom the verdict is returned, the court should sustain a motion in arrest of judgment made by any defendant against whom a cause of action is not stated.</p> <p>2. Same—when insufficiency of a declaration may be taken advantage of by a motion in arrest. If a declaration is so defective that it will not sustain a judgment its insufficiency may be taken advantage of by motion in arrest of judgment, and as such motion is based upon the record proper, the court will not look into the evidence in considering it.</p> <p>3. Same—effect where a motion in arrest is verbal. Where a motion in arrest of judgment is verbal and the reasons are not specified, if the trial court does not make any requirements that the motion be put in writing or the specific grounds therefor stated, it will be presumed, on appeal, that every proper reason for arresting judgment was presented to the court.</p> <p>4. Receivers—lessor street railway company not liable for negligence of lessee’s receivers. While the corporation owning a street railway and franchise, which it leases to another corporation, is liable for the negligence of the lessee corporation or its servants in operating the road, yet it is not liable for an injury due to the negligence of the receivers of the lessee company while they were in possession of the road.</p> <p>5. Same—a corporation and its receivers cannot both be in possession of street railway. An averment that a street railway corporation was possessed, by its receivers, of a street railroad and operating the same, charges a legal impossibility,' since after the appointment of receivers the corporation has no possession or control of the property nor any voice in the selection of the servants or power to direct their acts.</p> <p>6. Waiver—when right to question sufficiency of declaration is not waived. The fact that at the close of the evidence in an action of tort the attorney for the defendants makes an admission of matters of fact which might have been proved does not waive the right to question the sufficiency of the declaration by motion in arrest of judgment. (Eckels v. Muttschall, 230 Ill. 462, distinguished.)</p>

<p>Appeal from 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. Thomas G. Windes, Judge, presiding.</p>

■ Appear 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>1. Larceny—what ownership of goods is sufficient to support indictment for larceny. One whose property has been seized under an execution against other persons has such a general ownership in the property as will support an indictment for larceny against anyone who feloniously steals it while it is in the custody of the law under the execution.</p> <p>2. Same—when attorney is guilty of larceny. An attorney who feloniously removes goods from a warehouse, where they were held on execution, and converts them to his own use with full knowledge that the judgments under which the goods were seized have been satisfied, is guilty of larceny.</p> <p>3. Same—conviction may be based upon uncorroborated testimony of an accomplice. A person indicted for larceny may be convicted upon the uncorroborated testimony of an accomplice, provided the jury believe the testimony of such accomplice is true and worthy of belief.</p>

<p>1. Wills—will must be attested within the range of testator’s vision. The attestation of a will, to be in the “presence” of the testator within the meaning of the statute, must take place within the uninterrupted range of the testator’s vision, whethér the latter is in the same room with attesting witnesses or in another room.</p> <p>2. Same—effect where attestation clause does not show that testatrix was present. Where the attestation clause does not recite that the testatrix was present there is no presumption that she was present, and in' order to justify admitting the will to probate the evidence must show she was present when will was attested.</p> <p>3. Same—when a will should not be probated. A will should not be admitted to probate where both attesting witnesses testify that the testatrix was in another room and could not see them when they signed, even though the attorney who drew the will testifies to the contrary, if the testimony of the attesting witnesses, in view of all the facts and circumstances, is more worthy of belief than is the testimony of the attorney.</p> <p>4. Appeals and Errors—propositions of law hme no place in matter of probate of will. In the matter of probating a will the parties are not entitled to a trial by jury, and the provision of the Practice act concerning the presenting of propositions of law has no application.</p> <p>5. Same—motion for new trial is unnecessary if there was no jury trial. To preserve the question of the sufficiency of the evidence for review a motion for new trial is necessary only when there has been a trial by jury, and is not necessary, in the matter of probating a will, where an exception to the final judgment is properly preserved.</p>

<p>1. Local option—no appeal lies from the judgment of county court on contest of local option election. Under section 19 of the Local Option act of 1907, providing for the contest of a local option election and providing that “the county court shall have final jurisdiction to hear and determine the merits of such cases,” no appeal lies from the judgment of the county court in such cases.</p> <p>2. Constitutional law—section ip of the Local Option act, making jurisdiction of county court final, is valid. Section 19 of the Local Option act of 1907, in so far as it makes the jurisdiction of the county court final in a proceeding to contest a local option election, is not a denial of any right or privilege guaranteed by the Federal constitution, nor is it in violation of section 22 of article 4 of the Illinois constitution, prohibiting special legislation.</p>

A. H. Frost, Judge, presiding. This is an action brought by appellee, against appellant, in the circuit court of Cook county, for personal injuries sustained by him July 28, 1902, by falling into a pit at appellant’s mill, in Muskegon, Michigan. The jury returned a verdict in favor of appellee for $2700, upon which judgment was entered. The Appellate Court, on appeal, affirmed the judgment of the lower court, and the case was thereupon brought to this court for review.

<p>1. Insurance—distinction between warranty and a representation. A warranty enters into and is a part of the contract of insurance and must be literally true in order to entitle a party to recover upon the policy, while a representation is not a part of the contract but is an inducement thereto and need only be substantially true.</p> <p>2. Same—application not a part of policy unless policy clearly makes it so. An application for insurance is not a part of the policy so as to render the statements therein warranties, unless the language of the policy itself so clearly makes the application a part of the policy as to preclude any other reasonable construction.</p> <p>3. Same—mere reference to application does not make it a part of policy. If the reference in the policy to the application is for some special purpose other than to make it a part of the policy, or if no purpose to make it a part of the policy is expressed, the application will not be treated as a part of the policy to the extent of making the statements in the application warranties.</p> <p>4. Same—when application is not made a part of the policy. A recital in an insurance policy that “in consideration of the warranties and agreements in the application for this policy and of $25,” etc., is no more than a recital of consideration, which may be contradicted by parol, and does not make the application a part of the policy.</p> <p>5. Same—an application cannot be considered in determining whether it is part of policy. The preliminary question whether an application for insurance is a part of the policy must be determined from the policy itself, in which that fact must affirmatively appear.</p> <p>6. Same—statements in application not a part of policy are not warranties. If an application for insurance is not made a part of the policy, the statements therein, even though designated as warranties, are mere representations, the materiality and truth or falsity of which are questions of fact.</p>

<p>1. Ceoud on T1T1E—bill must be dismissed in absence of proof of ownership by complainant. A bill to quiet title to unoccupied premises should be dismissed where the only evidence introduced to establish complainant’s ownership is a master’s deed executed pursuant to a decree of sale and mesne conveyances to the complainant, there being no proof of title in, or possession by, any of the grantors or any of the parties to the decree of sale.</p> <p>2. Same—costs should not be decreed against a defendant to whom no tender was made. In decreeing the cancellation of a tax deed and conveyances by the holder - of such deed as clouds upon the complainant’s title, it is error to decree a portion of the costs against a defendant to whom no tender was made, before the filing of the bill, of the amount equitably due such party.</p>

James A. Creighton, Judge, presiding. This is a bill in chancery filed by the R. Haas Electric and Manufacturing Company (which will hereinafter be designated as the electric company,) against the Springfield Amusement Park Company, (which for convenience is hereinafter called the park company,) the Peter Vredenburgh Dumber Company, (hereinafter called the lumber company,) Thomas D. Hogan, F. Reisch & Bros., and certain other parties, defendants, to enforce a mechanic’s lien.

R. D. W. Holder, Judge, presiding. Appellee is a brick-mason, and at the time of his injury, as hereinafter mentioned, together with his partner, Edward Dawes, was engaged in taking contracts for the construction of brick work. In December, 1903, appellee and his partner were employed, under a written contract, by appellant, to lay the brick in the wall's of a building then being constructed by appellant.

<p>1. Telegraph companies—a telegraph company has power to engage in “ticker” business. A telegraph and a “ticker” company are both engaged in the business of transmitting intelligence between different points by electricity, and there is not such a difference in the character of the business as renders a lease by the former of the business of the latter ultra vires and void.</p> <p>2. Same—the statute requiring foreign corporations to appoint representatives in Illinois excludes telegraph companies. The statute requiring foreign corporations, before doing business in Illinois, to appoint some representative in Illinois upon whom process can be served, excludes foreign telegraph companies, and hence the failure of a foreign telegraph company to appoint such representative does not avoid a lease of its business nor relieve from liability a corporation guaranteeing the payment of rent.</p> <p>3. Corporations—when guaranty of lease by corporation is not ultra vires. While a corporation has, generally, no power to guarantee the payment of the debts of its stockholders and directors, yet where such stockholders and directors lease a business not foreign to the business of the corporation and which redounds greatly to its benefit, a guaranty by the corporation of the payment of rent under the lease is not ultra vires and void. '</p> <p>4. Teases—when assignment of a lease does not release lessee from liability for rent. Where a lease provides that it may be assigned to a corporation to be thereafter organized but does not provide that such assignment shall release the original lessee from, liability for rent, the latter will remain liable for the rent notwithstanding the assignment is made as contemplated.</p> <p>5. Equity—when a court of equity may allow a legal claim. Where the circuit court has acquired jurisdiction of the parties and of the assets of a corporation in a receivership proceeding, it may allow a claim against the corporation for rent due under a lease guaranteed by the corporation and may order the same paid out of the assets.</p>

A. H. Frost, Judge, presiding. Appellee recovered a judgment of $7500 in the superior court of Cook county for personal injuries alleged to have been sustained by her while a passenger in appellant’s elevator, October 9, 1902. This judgment, on appeal, was affirmed by the Appellate Court, and the case is now appealed to this court. Appellee was employed as a stenographer on- the twelfth floor of the Manhattan building, in Chicago, owned by appellant.

<p>1. Appeals and errors—appeal from interlocutory order must be specially authorised by statute. An appeal is allowed by the statute only for the purpose of reviewing final judgments, orders or decrees, and no appeal can be taken from an interlocutory order, decree or judgment entered in the progress of a cause unless an appeal is specially authorized by statute.</p> <p>2. Same—order denying motion to dismiss condemnation petition is interlocutory. An order denying a motion to dismiss a condemnation petition for alleged want of power in the petitioner to condemn is interlocutory, only, and no appeal will lie therefrom, but if the defendant preserves an exception to the order and is compelled to proceed to trial he may assign error on the denial of his motion upon appealing from the final judgment; but the appeal must be from the final judgment, and not merely from the order denying the motion.</p>

Albert C. Barnes, Judge, presiding. This was a bill in chancery filed by the appellees, in the superior court of Cook county, against D. Arnold, Jacob Glos, trustee, and others, to set aside as a cloud upon their title (which was alleged to be a fee) to the west eighteen feet of lot 8 and the east twenty-two feet of lot g, in block 8, in Clough & Barney’s subdivision of lots 34 and 35, in school trustees’ subdivision of section 16, township 38, north, range 14, east of the…

Appear 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.

E. R. E. Kimbrough, Judge, presiding. This was an action on the case commenced in the circuit court of Vermilion county by the appellee, against the appellant, to recover damages for a personal injury sustained by the appellee while engaged in the mine of the appellant as a mule driver. The case was tried upon a declaration containing three counts.

AppEae from the Branch Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. W. N. Gemmiee, Judge, presiding.

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

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

Appear 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.

Thomas G. VVindes, Judge, presiding. The Chicago Title and Trust Company, in its capacity of a tax-payer of Cook county, filed a bill against Jerome J. Danforth, the Abstract Construction Company, the Real Estate Title and Trust Company, Abel Davis, as recorder of Cook county, and the county of Cook, to enjoin the three first named defendants from copying the abstract books or tract indices belonging to Cook county, and to enjoin the last named two defendants from permitting…

AppEae from the Branch Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Theodore BrEn-Tano, Judge, presiding.

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. M. F. TueEy, Judge, presiding.

<p>1. Wires—intention to be sought is that expressed in the will. The intention to be sought in construing a will is not that which by inference may be presumed to have existed in the mind of the testator, but that which he has expressed in the will.</p> <p>2. Same—devise by implication can be given effect only in case of clear necessity. A devise by implication can only be given effect in a case of such clear necessity that from the will itself no reasonable doubt of the intention can exist; and the implication must be so strong that an intention contrary thereto cannot be supposed to have existed in the mind of the testator, nor can it be inferred from silence on the subject.</p> <p>3. Same—presumption against an intention to die intestate does not justify inserting words in will. While it is presumed that the testator intended to dispose of all his property by the will, and it is the rule that any reasonable construction consistent with the will will be adopted which will dispose of the entire estate, yet this presumption and rule do not authorize the insertion of words in the will to accomplish such result.</p> <p>4. Same—when devise by implication does not exist. A provision of a will giving a life estate to the son of the testatrix, but should he die without children the estate to go to the nearest relatives of the testatrix, does not raise a devise by implication to the children of the life tenant in case they survive him. (Orr v. Yates, 209 Ill. 222, and Stisser v. Stisser, 235 id. 207, explained.)</p> <p>5. Same—effect where the life tenant is the nearest relative. Where there is a gift to the son of the testatrix for life with remainder to the next of kin of the testatrix in case the son dies without children, if the son is the sole next of kin of the testatrix at her death the remainder will be considered as given to the persons answering the description “next of kin” at the termination of the life estate.</p> <p>6. Same—when remainder is contingent. Where there is a devise to the only child of the testatrix for life, with remainder to the nearest relatives of the testatrix if the life tenant died without children, the remainder is contingent, and the reversion in the fee descends to the life tenant, as sole heir of the testatrix, pending the happening of the event upon which the contingent remainder is to take effect.</p> <p>7. Same—when contingent remainder is defeated by merger of life estate and reversion. Where the only child of the testatrix has a life estate under the will and holds the reversion in fee, subject to the happening of the event upon which the contingent remainder to the nearest relatives of the testatrix is to take effect, if such child conveys the life estate and the reversion to a third person the life estate merges in the reversion and the contingent repiainder is destroyed, leaving the fee simple title in the grantee. (Frazer v. Supervisors, 74 Ill. 282, explained.)</p> <p>8. Same—contingent remainder is defeated if particular estate ends before contingency occurs. Where the particular estate supporting a contingent remainder comes to.an end before the happening of the event upon which such remainder is to take effect the remainder is defeated, whether the particular estate reaches its natural termination or is otherwise brought to a premature end.</p>

<p>1. Statutes—statutes will ordinarily be given prospective effect, only. A statute should be given prospective effect, only, and will not be construed to have a retroactive operation Unless the language is so clear that it will admit of no other construction.</p> <p>2. Civie service—head of department created after adoption of civil service is not within the classified service. Section n of the Civil Service act, providing that the heads of each principal department of city government shall not be included in the classified service, includes the heads of principal departments created by ordinance after a city has adopted the provisions of the Civil Service act as well as to those which were in existence when the act went into effect in the city.</p>

<p>1. Constitutional law—section 8 of article 2 of constitution construed. Section 8 of article 2 of the constitution, providing that “no person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment otherwise than in the penitentiary,” etc., means except in cases where the punishment is by fine or jail sentence, or both.</p> <p>2. Municipal courts—when municipal courts may try offenses on information. The municipal court of Chicago has jurisdiction to try, on information, all violations of criminal laws punishable by fine or by imprisonment otherwise than in the penitentiary, or by both fine and such imprisonment; but if the offense is punishable either by fine or by imprisonment in the penitentiary, or both by fine and imprisonment in the penitentiary, it can only be prosecuted under an indictment.</p>

Appear from the Branch Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.

<p>Appear from the Circuit Court of LaSalle county; the Hon. Edgar Erdredge, Judge, presiding.</p>

<p>1. Special assessments—when objection that the cojvrt erred in re-referring roll cannot be raised. The county court, at the time set for the hearing on a special assessment roll and upon motion of the village and the commissioner, may, without losing jurisdiction, re-refer the roll to the commissioner with the privilege of spreading a new assessment in accordance with the original order, and if no objection is made when the new roll is filed, or to its remaining on file, the question whether the court erred in so doing cannot be raised on appeal. (Chicago and Western Indiana Railroad Co. v. City of Chicago, 230 Ill. 9, distinguished.)</p> <p>2. Same—estimate need not be a complete inventory of every article to be used in improvement. The estimate of cost in a special assessment proceeding need not contain a complete inventory of every article that is to enter into the construction of the improvement, and it is sufficient if it contains the substantial, component elements of the improvement, so that an experienced contractor, from the data furnished, may readily determine the cost of the items claimed to be omitted.</p> <p>3. Same—what item of an estimate includes calking for joints and material for hydrant foundations. An item for estimated cost of “labor and material necessary to properly lay, connect and place in position the water-main pipes, hydrants, etc.,” is sufficient to include the twine and lead used in calking the joints of the water mains and the stone and brick for the hydrant foundations.</p> <p>4. Same—rule where ordinance is susceptible of two constructions. Where an ordinance is susceptible of two constructions, one of which will defeat and the other support the ordinance, the one which supports the ordinance will be adopted.</p>

S. C. Slough, Judge, presiding. This is an appeal from a decree of the circuit court in favor of complainant, who is appellee here. Said decree found that appellee was the owner of the premises described in the bill and that he derived title thereto by virtue of the will of his deceased father, James T. Morrall. Said James T. Morrall was in his lifetime the owner of certain real estate in the city of Morris, Grundy county, Illinois.