Volume 238 — Illinois Reports

R. S. Tuthill, Judge, presiding. This was an action on the case commenced by the appellant in the circuit court of Cook county, against the city of Chicago and others, to recover damages occasioned by the obstruction by the defendants of a public street in the city of Chicago upon which the premises of appellant abutted. The declaration contained three counts.

Writ or Error to the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.

George A. Dufuy, Judge, presiding. In 1903 the United States Circuit Court for the Northern District of Illinois appointed James H. Eckels and Marshall E. Sampsell receivers for the Chicago Union Traction Company.

<p>1. PARTiTidN—when objection that petition for partition was not verified comes too late. An objection that a petition for partition was not verified, as required by section 5 of the Partition act, is dilatory in character and must be made at the earliest possible moment, and cannot be raised after answer is filed and a decree entered.</p> <p>2. Appeals and errors—a final decree cannot be reviewed on appeal from a subsequent decree. If the first decree entered in a partition proceeding is final it cannot be reviewed on appeal from a subsequent decree although the'court refused to allow an appeal from the first decree.</p> <p>3. Same—what is not ground for reversing a partition decree. The fact that the master in chancery, in a proceeding for parti-' tion and to set aside certain tax deeds, adjourned the hearing to the office of the county clerk, where the records of that office might be more readily examined, is not ground for reversing the decree.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding.</p>

<p>1. Evidence—when evidence as to ordinary route to be taken in setting line shaft is admissible. Where a material issue in an action for death by wrongful act is whether the deceased, who was helping to set up a line shaft over the bins of an elevator building, should have used a walk around the bins instead of passing over them, a witness who assisted in the work may be asked to state what was the route that would ordinarily be taken in passing along the line shaft.</p> <p>2. Negligence—what is ordinary care depends upon the particular circumstances. While the different circumstances under which a person is placed may require the doing of different things for his personal safety and call for effort and circumspection proportionate to the known danger, yet the ca^e demanded is merely such as a person of ordinary prudence would usually exercise under the same or similar circumstances, and is only ordinary care. « 3. Instructions—method of referring jury to the declaration is not the best. While it is not reversible error to refer the jury to the declaration unless they are required to determine a question of law as to what are the material allegations, yet such method is not the best and does not conduce to a clear understanding on the part of the jury of the questions submitted to them.</p> <p>4. Same—jury are bound to receive the law from the court: The jury in a personal injury case are bound to receive the law from the court and are not authorized to' disregard the instructions and determine the law for themselves, and if their course in disregarding instructions is prejudicial to the defeated party it is ground for reversal.</p> <p>5. Same—when rights are not waived by asking instructions on the merits. A defendant is not bound to submit his case upon his instructions telling the jury to disregard certain counts of the declaration, since the court might refuse such instructions, and he does not waive his rights by asking instructions on the merits of the case.</p> <p>6. Appeals and Errors—when rule that party cannot avail of error he has induced the court to commit does not apply. The rule that a party cannot avail himself of errors he has induced the court to commit has no application where the only error so induced was to present to the court erroneous instructions which are not complained of, on appeal, by the party presenting them.</p> <p>7. Same—when jury’s disregard of instructions is not ground for reversal. A disregard by the jury of instructions given at the instance of the defendant eliminating the only remaining counts of the declaration, although other instructions authorized them to find for the plaintiff under certain conditions of the evidence, is not ground for reversal of a judgment for the plaintiff, where the instructions eliminating such counts were wrong and should not have been given.</p>

Thomas G. Windes, Judge, presiding. The bill in this case alleges that the complainant is the owner of and with her family resides upon the premises described, known as 4053 Lake avenue, city of Chicago; that her husband acquired title thereto by purchase from the Hartford Insurance Company June 21, 1906, and that on the 25th day of June, 1906, complainant became the owner in fee of said premises by conveyance from Ralph E. Ath-i erton, to whom her husband had conveyed said…

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

<p>1. Pleading—when a declaration is sufficient, after verdict, to show plaintiff was a passenger in elevator. A declaration which alleges that the defendant, in the conduct of its business, operated an elevator for passengers and that the plaintiff was rightfully in the elevator and was a passenger therein, is sufficient, after verdict, as to its showing that the relation of carrier and passenger existed.</p> <p>2. Evidence—what evidence tends to show that plaintiff was a passenger. Evidence that the plaintiff entered defendant’s store in search of employment; that he was directed to the superintendent’s office on the floor above and told to use the elevator; that upon finding the superintendent was not in he returned,to the elevator, which dropped to the basement when the operator started to lower it, tends to show that the plaintiff was a passenger, and the question of relationship is concluded by the judgment of the Appellate Court. (Walsh v. Cullen, 235 Ill. 91, distinguished.)</p> <p>3. Carriers—person operating passenger elevator is a carrier of passengers. The owner of a building in which an elevator is operated for the use of persons having business with such owner is a carrier of passengers and is bound to use a high degree of care in transporting them, and the fact that the elevator falls when passengers are being carried thereon is evidence that the elevator was mismanaged, was out of repair or of faulty construction.</p>

<p>1. Corporations—a corporation cannot be organized to hold real estate for investment. The general Incorporation act does not authorize the organization of a corporation- for the purpose of acquiring real estate and erecting a building thereon to rent to tenants or for primary purpose of holding real estate for investment.</p> <p>2. Same—acquiring a lease for ninety-nine years is acquiring real estate. A corporation organized for the purpose of acquiring a ninety-nine year lease of real estate for the erection of a building to be rented to tenants of the corporation must be regarded as organized for the purpose of acquiring real estate.</p> <p>3. Same—when corporate existence may be attacked collaterally. To constitute a de facto corporation there must be a law authorizing the organization of such a corporation, an attempt in good faith to organize thereunder and acts of user, in which case the legality of organization cannot ordinarily be attacked collaterally or questioned by one who has dealt with the supposed corporation as a corporation;- but if there is no law authorizing its organization there is no corporation de facto and no estoppel to deny corporate existence. (Patterson v. Northern Trust Co. 230 Ill. 341, and 231 id. 28, distinguished.)</p> <p>4. Same—when lessee is not estopped to deny lessor’s corporate existence. A lessee of a corporation is not estopped to deny the legal existence of the corporation if there is no law authorizing its organization, and may make such defense to a judgment, for rent, confessed under a power of attorney contained in the lease; but the lessee is liable in some appropriate proceeding for the use of the premises under his agreement to pay rent.</p>

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

Writ or Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Lee county; the Hon. O. E. Heard, Judge, presiding. Plaintiff in error was indicted for criminal libel in the circuit court of Lee county and upon trial was convicted and sentenced to pay a fine of $200 and costs. This conviction was affirmed by the Appellate Court and a writ of error was thereafter sued out from this court.

<p>1. Taxes—all facts necessary to exemption from taxation must be shown. The right to enjoy exemption from taxation can only be established by strict proof of the existence of all the facts necessary to authorize such exemption.</p> <p>2. Same—property of hospital corporation organised for profit is not exempt. The property of a hospital corporation organized for pecuniary profit is not exempt from taxation as the property of a charitable institution notwithstanding the property has been actually and exclusively used for charitable purposes since the organization of the hospital, since the ownership of the property by an institution organized for charitable purposes is as essential to the right of exemption from taxation as is the use of the property for charitable purposes.</p>

<p>1. .Ejectment—in Illinois ejectment will lie to recover portion of railroad right of way. In Illinois the interest'of the public in the continuous operation of a railroad is not regarded as ground for precluding an action of eje.ctment against a railroad company for a portion of its right of way used in the performance of its duties as a common carrier.</p> <p>2. Same—fact that person acquires title after railroad has possession is no defense. The fact that a person acquires title to a tract of land after a railroad company is in possession of a strip across such land for right of way is no defense to an action of ejectment against the railroad company to recover such strip.</p> <p>3. Same—when demand for possession is not necessary. The consent of a life tenant to the entry of a railroad company upon the land to build a railroad makes the original entry, lawful but does not extend the license beyond the continuance of the life estate, and upon the termination of the life estate the possession of" the railroad company becomes unlawful, and no notice or demand is necessary before the bringing of ejectment by the holder of the legal title, there being no privity between him and the company.</p> <p>4. Same—when giving judgment for entire tract is error. Giving judgment for the possession of the whole tract of land owned by the plaintiff in ejectment is error, where the'stipulation shows that the defendant is in possession only of a strip fifty feet wide, used for its right of way across such tract.</p>

<p>1. Appeals and Errors—a constitutional question must be preserved for review and argued in briefs. To justify the Supreme Court in taking jurisdiction upon the ground that a constitutional question is involved such question must be preserved for review upon the record and be argued in the brief of counsel for the ap-' pellant or plaintiff in error, otherwise the question will be deemed . to have been waived. »</p> <p>2. Same-—court cannot take jurisdiction upon mere statement that constitutional question is involved. The Supreme Court can not take jurisdiction upon the mere statement of counsel that a constitutional question is involved, as it is not the duty of the court to search the constitution to discover some basis upon which jurisdiction to entertain the proceeding can be sustained.</p>

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.

<p>1. Bailments-—when pledgee of policies is entitled to insurance money. Where insurance policies, which are the property of a partnership although standing in the name of one partner, are pledged to secure the pledgee against the loss of a note belonging to her and assigned by her to a bank as collateral security for the debts of the firm, the pledgee is entitled to the insurance money as against a person loaning money to one partner who gave a note purporting to be payable, as a first claim, out of his insurance.</p> <p>2. Partnership—what does not show that partnership was dissolved. Testimony by one partner that the partnership had been dissolved at a certain time is without force, where it appears not only from his conduct in carrying on the business without any change in the firm name, or otherwise, but also from written evidence made by himself, that there was, in fact, no dissolution.</p>

<p>1. Statute oE Frauds—contract cannot rest partly in writing and partly in parol. While parol evidence may be admitted to show the consideration for a contract and acceptance by the signer and to identify the party and property, yet the contract cannot rest partly in writing and partly in parol.</p> <p>2. Same—what is necessary to satisfy the statute affecting oral contracts relating to land. To satisfy the Statute of Frauds affecting oral contracts relating to land the writing must contain the names of the parties, the terms, price and description of the property, either by recitals on their face or by reference to other writings wherein such facts are stated.</p> <p>3. Same—what is not a sufficient written memorandum. As against a plea of the Statute of Frauds, a writing purporting to be a receipt by the signer for an abstract of title to a certain described lot “on exchange notes for deed” is not a sufficient written memorandum to authorize proof of an oral contract by the signer to accept a small sum of money and a quit-claim deed to the lot described, in exchange for purchase money notes secured by a trust deed on such lot.</p> <p>4. Witnesses-—when party to suit is not competent to testify as agent of deceased person. A party to a suit whose interest is adverse to that of the complainant, who sues as administratrix of a deceased person, is not competent, under section 2 of the Evidence act, to testify, in behalf of himself and his co-defendants, to conversations with the deceased person, for whom he testifies he was acting as agent, where he was not called upon by the administratrix to testify to any such conversations.</p>

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

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

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

L. D. Puterbaugh, Judge, presiding. This is an appeal by Arthur Keithley from a judgment of the Appellate Court for the Second District affirming a judgment of the circuit court of Peoria county for costs rendered against him in favor of John S. Stevens, Joseph A. Weil, Francis H. Tichenor, Eugene F. Baldwin, William E. Hull and the Peoria Star Company, a corporation, the appellees, in an action on the case instituted by Keithley against the appellees to recover damages for…

<p>Appeal from the County Court of Edgar county; the Hon. Walter S. Lamon, Judge, presiding.</p>

W. M. McEwen, Judge, presiding. On April 14, 1905, Angelo B. Piróla, a sub-contractor, filed his bill in the superior court of Cook county against W. J. Turnes Company, the appellee, and the county of Cook, to enforce a lien against certain moneys alleged to be due appellee on account of the construction by appellee of three cottages for insane patients at Dunning, Illinois.

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

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

Writ OB Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. The original bill in this case was filed by plaintiff in error in the circuit court of Cook county July 30, 1906, and subsequently, on May 6, 1907, an amended bill was filed.

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

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.</p>

Louis; the Hon. W. J. N. Moyers, Judge, presiding. This is an appeal by the Chicago, Peoria and St. Louis Railway Company from a judgment of the Appellate Court for the Fourth District affirming a judgment for the sum of $6500 recovered by Lucy C. Zetsche, administratrix of the estate of Hezekiah,P. Zetsche, deceased, the appellee, in the city.court of East St. Louis, for damages occasioned by the death of appellee’s intestate, alleged to have been caused through the…

Writ or Error to the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding. May 20, 1907, a bill was filed in the circuit court of LaSalle county by defendant in error and her husband for the partition of lot 5 in block 6, in Clark & Underhill’s addition to Marseilles, Illinois.

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

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

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

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

<p>1. Bills and notes—a note is negotiable though it purports to be secured by a trust deed. The fact that a note purports on its face to be secured by mortgage-or trust deed does not destroy its' negotiability, since a recital in a note, in order to destroy its negotiability, must in some respect qualify the promise or make it uncertain or conditional.</p> <p>2. Same—right to have judgment on note is independent of any lien of the mortgage. The rule that a trust deed is not assignable so as to vest the title freed from any defense existing in favor of the maker does not apply to the negotiable note secured by such trust deed, and the legal right of an innocent purchaser thereof, before maturity, to have judgment at law upon the note is independent of the lien of the trust deed.</p> <p>3. Same—person receiving note as collateral security is a purchaser for value. An endorsee of a negotiable note secured by a trust deed, who receives such note before maturity, as collateral, in the usual course of trade, is a holder for value and takes it free from latent defenses existing in favor of the maker.</p> <p>4. Equity—when court of equity may render money decree for amount due on note. Where the maker of a note and trust deed files a bill to set aside the trust deed as a cloud and to cancel the note, and an order is entered enjoining a suit at law upon the note, the court may, upon cross-bill asking such relief, render a money decree for the amount due the defendant as an innocent purchaser of the note before maturity, even though the prayer of the original bill is granted to the extent of setting aside the trust deed.</p>

<p>1. Special assessments—what questions are to be submitted to the jury. The questions to be submitted to a jury in a special assessment proceeding are whether the property is assessed more than it is benefited and whether it is assessed more than its proportionate share of the cost of the improvement.</p> <p>2. Same—how objector’s assessment compares with assessment on certain other property is not a proper inquiry. In a special assessment proceeding the proper inquiry of a witness is what proportion the assessment on the objector’s property bears to the assessment imposed on the other lots and lands assessed, and not how it compares with the assessment on any specified lot or parcel of land; and the mere fact that all the lands assessed are owned by two parties does not change the rule.</p> <p>3. Same—what is not proper proof of fact that railroad track is to be removed from street. If a city has provided, by ordinance and by arrangement with a railroad company, that a railroad track shall be removed from the street when the proposed pavement is laid, such fact should be proved by the ordinance and records, and not by the testimony of an employee of the railroad that the company is to take up the track; and if this testimony is based merely upon future and conjectural plans of the railroad company, it is too remote and conjectural to be admissible to meet the claim of an objector that the presence of the track in the street should be considered upon the question of benefits.</p> <p>4. Special taxation—all distinctions between special assessment and special taxation are not abolished. All distinctions between special assessment and special taxation under the Local Improvement act are not abolished by section 35 of such act, and if a special tax is levied according to frontage it is valid if it is within the limits of benefits conferred, even though the distribution of costs as between lots is not on a basis of proportionate shares. *</p>

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

<p>Appeal from the Circuit Court of Lake county; the Hon. C. H. Donnelly, Judge, presiding.</p>

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

<p>1. Special assessments—it is presumed that officers spreading assessment did their duty. The presumption is that the city officers who.spread a special assessment did their duty, and the burden is upon an objector to establish the invalidity of the assessment.</p> <p>2. SamE'—what does not show that a sidewalk was constructed before ordinance was passed. Testimony of a witness that a cement sidewalk at certain street intersections was stamped with the name of the contractor and a date earlier than the date of the passage of the ordinance does not show that the walk was constructed at that date, where another witness, who was the chief inspector of sidewalks, testified that the dates stamped upon sidewalks were frequently incorrect.</p> <p>3. Same—when refusal to allow further time to obtain evidence is proper. Refusal of the court to allow further time to the objectors to obtain evidence that a sidewalk was constructed prior to the passage of the improvement ordinance is proper, where the objectors fail to show that they had exercised any degree of diligence to obtain such evidence.</p> <p>4. Same—when amount involved falls within maxim de minimis non curat lex. Where the objectors’ proportionate share of the cost of the portion of a sidewalk improvement to which the objections are directed does not exceed $5, whereas their total assessment is over $1200 and the total cost of the improvement exceeds the sum of $27,000, the amount objected to falls within the maxim de minimis non curat lex.</p>

Appear from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding.

<p>1. Elections—the contestant has burden of showing that ballots are in the same condition as when cast. The contestant in an election contest is the moving party, and the burden is upon him to show that the ballots are those cast at the election and that 'they are in the same condition as when cast, and it is not incumbent upon the defendant to show that the ballots offered to impeach his title have been changed.</p> <p>2. Same—when effect of ballots as evidence is destroyed. Bal7 lots are admissible in an election contest but their probative force depends upon the care with which they have been preserved, and unless their preservation has been such that there has been no reasonable opportunity for tampering with them they cannot overcome the returns.</p> <p>3. Same—what is not such carelessness of judges as discredits returns. The fact that the judges of election, in counting the ballots, counted two,—one for each candidate,—in which the mark in the square was a straight line instead of a cross, shows a mistake of judgment but not carelessness or neglect of duty such as discredits the returns.</p> <p>4. Same-—carelessness of judges after return is made does not discredit return. If there is no evidence of any carelessness, fraud or misconduct by the judges of election in counting the vote, proclaiming the result or malting the return, the return is not discredited by the fact that the judges were careless in sealing the ballots after stringing them and in putting them in paper envelopes sealed only with mucilage, instead of using canvas bags and wax.</p> <p>5. Same—when ballots are discredited. .Ballots cannot prevail over the return where the evidence shows that, though strung on wire and sealed, they were contained in a paper envelope sealed only with mucilage, and kept by the town clerk for eleven weeks at the town hall, in a wooden cupboard easily opened and easy of access; that the flap of the envelope had sprang open and was half tom oE when the clerk took the ballots from the cupboard to produce them in court, and that the ballots might easily have been re-marked with little fear of detection and without unstringing them or breaking the seal on the wire.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Franklin county; the Hon. Jacob R. Creighton, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Kankakee county; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>1. Mines—word “landing,” used in paragraph b of section 28 of Mines act, includes top and bottom, of shaft. The word “landing,” as used in paragraph b of section 28 of the Mines act, requiring a sufficient light to be maintained at landings to show the landing and the surrounding objects distinctly, includes the top and the bottom of the shaft.</p> <p>2. Same—clause “coming to the bottom” construed. The provision of paragraph b of section 28 of the Mines act requiring a sufficient light at the bottom of the shaft so that persons “coming to the bottom” may clearly discern the cage and objects in the vicinity, applies to persons descending to the bottom in the cage as well as to those coming from their working places to ascend in the cage from the bottom.</p> <p>3. Evidence—what evidence is proper in action for damages for failing to light bottom of shaft. In an action by a miner for damages for the defendant’s failure to have a sufficient light at the bottom of the shaft, proof that the plaintiff’s view was obstructed by escaping steam is proper though there is no averment to that effect in the declaration.</p> <p>4. Same—when proof of failure to maintain a light on former occasions is proper. In an action by a miner for damages for the defendant’s failure to keep a sufficient light at the bottom of the shaft, as required by the statute, proof that the defendant had failed to properly light the bottom of the shaft on former occasions is proper, as bearing upon the question whether the defendant willfully violated the statute.</p>

J. W. Mack, Judge, presiding. The Supreme Council of the Royal Arcanum, a corporation organized under the laws of the State of Massachusetts and doing business in the State of Illinois, filed its bill of interpleader in this case, in which it was alleged that Luella M: McKnight and Emma Little each claimed to be entitled to the payment of the benefits mentioned in a certificate issued to James H. Little as a member of Garden City Council, one of the subordinate bodies of the…

<p>1. Jurisdiction—when equity cannot grant relief although defendant has submitted to jurisdiction. If the subject matter of a bill of complaint is wholly foreign to the jurisdiction of a court of chancery the court is incompetent to grant the relief sought for, and it will be denied although the defendant has submitted himself to the jurisdiction of the court.</p> <p>2. Same—if subject matter is not foreign to equity, objection to jurisdiction must come early. If the subject matter of a bill of complaint belongs to that. class of which a court of equity will take jurisdiction when the facts create some equitable right or the relation of the parties renders the exercise of such jurisdiction proper, an objection that there is an adequate remedy at law should be taken at the earliest opportunity. -</p> <p>3. Same—objection of an adequate remedy at law—how made. An objection of adequate remedy at law may be taken by a general demurrer for want of equity and the objection may be called to the attention of the court upon argument of the demurrer, or if not made by demurrer defendant may specifically point out such objection in his answer; but if the court is competent to grant the relief sought, the objection comes too late when made after an answer is filed not pointing out such obj ection.</p> <p>4. Same—when objection that the complainant had an adequate remedy at law will not be considered. Where a bill seeks an accounting of the profits from a land deal and seeks -to compel defendant to account for and pay over commissions on another sale in which the defendant acted as complainant’s agent, an objection that the complainant had an adequate remedy at law will be regarded as waived and will not be considered, where it is not made until after the filing of an answer not specifically pointing out the objection but claiming the same advantage as though the defendant had demurred to the bill.</p> <p>5. Accounting—proper adjustment of accounts where the parties are to share profits. Where the complainant and the defendant in a proceeding for accounting were to share equally in the profits of a purchase and sale of land, the defendant is not entitled to hold out his entire share of the commissions and fees paid to his firm for conducting the transactions, but he should account to the complainant for one-half of the share so received by him.</p> <p>6. Same—when the defendant is not entitled to credit for note paid by him. In determining the complainant’s share of the profits from the purchase and sale of a tract of land, the defendant is not entitled to credit for loss on a note given by him for a ninety-day option on the land in order to induce a second sale thereof, where the evidence shows such option was a personal scheme of the defendant, of which the complainant had no knowledge and of the benefits of which he was given no opportunity to avail himself.</p> <p>7. Principal and agent—an agent cannot ordinarily represent both seller and purchaser. Ordinarily an agent to sell land owes to his principal the exercise of his best efforts and skill to obtain as large a price as he can, and he cannot, without his principal’s consent, also represent the purchaser, and if he puts himself in such inconsistent position he cannot recover for services rendered.</p> <p>8. Same—when the principal has no right to money received by agent. Where an owner of land fixes his own price therefor and employs an agent, not to secure as large a price as he can but to secure an acceptance of the proposition, if the sale is made as proposed and the seller receives all that he agreed to take, the fact that the agent for the purchaser agreed to, and did, divide his commission with the seller’s agent gives the seller no claim on such money, whether the sale was made with or without commission to the seller’s agent.</p>

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding.</p>

<p>1. Limitations—title cannot be acquired under section 6 without payment of legal taxes. To establish a title by limitation, under section 6 of the Limitation act, there must not only be color of title acquired in good faith and possession for the requisite period of seven successive years, but there must also be payment, during such time, of “all taxes legally assessed” upon the property.</p> <p>2. Same—payment of taxes based on void assessments is up-availing. The payment of taxes based upon void assessments by the local assessor cannot be relied upon to establish a title by limitation, under section 6 of the Statute of Limitations.</p> <p>3. Taxes—when assessment by local assessor is void. The fact that an entire lot, a portion of which is occupied by railroad tracks, is returned by the railroad company as “railroad track” and assessed by the State Board of Equalization does not preclude the local assessor from assessing that part of the lot which is not, in fact, ‘‘railroad track,” but in making the assessment he must describe the part assessed by him, so that it can be identified, and if he assesses the entire lot, including the portion which is “railroad track,” the assessment is void and no valid tax can rest upon it.</p>

<p>Appeal from the County Court of Ford county; the Hon. H. H. Kerr, Judge, presiding.</p>

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

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Will county; the Hon. A. O. Marshall, Judge, presiding.</p>

<p>1. Equity—equity cannot refuse to enforce clear contract because a forfeiture will result. Where an oil lease clearly provides that non-compliance with the terms of the lease by the lessee shall be ground for forfeiting the lease, a court of equity cannot refuse to declare a forfeiture under the rule that a forfeiture will not be declared if compensation in damages can be made for the breach.</p> <p>2. Same—it is equitable that party holding an oil lease should promptly develop oil. It is equitable that a party operating under an oil lease should be required to promptly develop the oil in the land which he controls, especially where he also controls adjoining lands, from which he is taking oil.</p> <p>3. Leases—when court does not err in declaring forfeiture of oil lease. Where an oil lease expressly provides that failure of the lessee to keep his agreement shall be ground for forfeiting the lease, a court of equity does not err in declaring a forfeiture upon proof that the lessee has failed to keep his agreement to drill a certain number of wells on the land and to put them down at such points as will protect the oil from being drained through wells on adjoining lands.</p> <p>4. Same—it is not error to refuse to allow lessee to remove casings of wells upon forfeiting lease. A decree forfeiting an oil lease for breach of the lessee’s agreement and allowing the lessee to remove the personal property which had been placed upon the land in the development of oil is not erroneous in refusing to allow the casings of the wells to be removed.</p>

Writ or Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.

D. T. Smiley, Judge, presiding. On May 13, 1908, the city of Chicago filed a petition in the county court of Cook county for a special assessment for the construction of a cinder sidewalk along a portion of West Addison street, in that city. To the petition Laura Louise Bassett and Marshall S. Marsh, the appellees, filed objections, certain of which were sustained and as to appellees the petition was dismissed. To review that judgment the city has prosecuted this appeal.

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

<p>Schools—school directors may grant the use of rooms for lodge meetings. Under clause 10 of section 147 of the School law, school directors may grant the use of the school building, or such part thereof as is not occupied by the school, for any meetings the board may deem proper, and they may rent the assembly room of the school for lodge meetings if the meetings do not disturb the school or injure the property and the rent is received by the district.</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. Joseph E. Gary, Judge, presiding. This is an appeal from a judgment of the Appellate Court reversing a decree of the superior court in a proceeding begun in the circuit court by plaintiffs in error for an injunction and other relief against defendant in error. There is no controversy as to the facts.

<p>1. Garnishment—a garnishee is not concerned with irregularities not fatal to judgment. A garnishee is, theoretically, a disinterested person and is not concerned with irregularities which the defendant has waived or failed to take advantage of, and it is only such grave departures from the course of proceedings prescribed by statute as are fatal to the judgment that concern the garnishee, since he will not be protected by paying a void judgment.</p> <p>2. Same—publication notice, in attachment, need not give the name of garnishee. Section 22 of the Attachment act, providing for service by publication where an affidavit of non-residence of the defendant in the attachment proceeding has been filed, does not require that the notice published shall state the name of the person served as garnishee.</p> <p>3. Same—judgment may be for amount stated in affidavit for attachment, with interest, if defendant defaults. In an attachment case, where service on the debtor is had by publication and a default is taken against him, judgment may be rendered for the amount specified in the affidavit for the attachment, together with accrued interest.</p> <p>4. AppEaes and Errors—when finding is presumed to have been warranted by the evidence. In the absence of a bill of exceptions a finding by the trial court in its judgment that the defendant was duly notified of the pendency of the suit by publication and by mailing a copy of the notice pursuant to the statute will be presumed to have been warranted by the evidence, and such presumption will aid a defective certificate of publication or defective certificate of mailing.</p>

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

<p>Writ or Error to the Circuit Court of Lawrence county; the Hon. E. E. Newlin, Judge, presiding.</p>

<p>1. -Wills—alleged spirit directions must not only be made but yielded to. Before the will of a spiritualist can be set aside upon the ground that it was made by alleged spirit directions, it must be shown not only that the testator believed the alleged directions were given to him, but also that he yielded to such directions, so that the will was not the result of his deliberate judgment.</p> <p>2. Same—will cannot be destroyed by declarations of the testator. A will executed in accordance with the provisions of the statute cannot be destroyed by proof of the declarations of the testator before or after the making of the will, except in so far as such declarations bear upon the question of testamentary capacity.</p> <p>3. Same—a will should not be set aside because testator’s religious belief is considered to be irrational. The fact that the testator’s implicit belief in spiritualism may be considered by the jury to be unreasonable and ifrational is not ground for setting aside the will against evidence clearly establishing that the testator possessed the requisite testamentary capacity; and if there is no evidence to support the issue of undue influence and none to support the claim of insane delusion which cannot be reasonably accounted for in the testator’s religious belief, the court should direct a verdict for the proponents.</p> <p>4. Same—when letters found after the testator’s death are not admissible. Letters found, after the testator’s death, in an envelope on which “Spirit communications” is marked in handwriting claimed to be the testator’s, are not admissible in a proceeding to contest his will, where there is no evidence that the testator ever acted in any way upon their contents or approved thereof and. where there is nothing in them having any reference to the will.</p> <p>5. Appeals and Errors—when Supreme Court may reverse decree setting aside will, without remanding. The Supreme Court may, without remanding the cause, reverse a decree setting aside a will where there have been two trials, in both of which the verdict of the jury against the r^ill was without evidence to support it, and where it is apparent that all the evidence which can be obtained has been produced and that in the event of another trial a verdict against the will would have to be set aside.</p>

<p>1. Pleading—denial of ownership of tracks and control of cars is a special defense. A plea of the general issue in an action for damages by a passenger against a railroad company does not put in issue the ownership of the tracks and control of the cars, but the denial of such ownership and control is a good defense, and may be presented, under section 46 of the Practice act, by notice thereof in writing, with the general issue.</p> <p>2. Appeals and errors—when error in striking notice of special defense from hies is harmless. Error in striking from the files a notice of a special defense denying the defendant’s ownership of the railroad tracks and the control of the cars at the time of the plaintiff’s injury is harmless, where the evidence is conclusive and uncontradicted that the cars were owned by the defendant and managed by its servants, for whose negligence it was responsible, and that the contract of carriage was with the defendant, as in such case the ownership of the tracks is immaterial.</p> <p>3. Evidence—what does not sustain defense denying defend-control of cars. A special defense denying the defendant's control of the cars at the time when plaintiff’s injury occurred is not sustained by a contract whereby the alleged control of such cars at the time and place of the injury was not only merely verbal, but was in violation of the law.</p> <p>4. Railroads—what is not a fulfillment of company’s duty to passengers. It is the duty of a railroad company to exercise the highest degree of care, consistent with the character and mode of conveyance and the practical operation of its business, to prevent an accident to a passenger riding upon a car, and it is not a fulfillment of that duty to operate its cars so near to fixed objects or passing cars as to be dangerous to passengers using ordinary care.</p> <p>5. Same—when question of passenger’s contributory negligence is one of fact. The question of a passenger’s contributory negligence is one of fact under evidence that he was sitting sidewise on a seat intended for passengers facing the center of the car, with his arm and hand extending very slightly outside of the car through an open, unguarded window, where his hand was caught and injured by a passing car, of the close proximity of which he had no notice or warning.</p> <p>6. Same—passenger not bound to presume that cars will pass so close as to barely miss each other. Where no warning is given and there are no barriers at the windows of the car, a passenger is not bound, as a matter of law, to know or presume that other cars will pass so close as to barely miss the one in which he is riding, and the question whether, in such case, it is negligence for the railroad company not to give a warning is a question of fact.</p> <p>7. Same—when question whether windows of car should be provided with barriers is for the jury. If a railroad company operates its cars on double tracks so close together as to be dangerous to passengers, it is a fair question for the jury, and not an engineering question, whether the windows of the cars should be provided with barriers to prevent passengers from being injured.</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>

A. O. Marshall, Judge, presiding. This is a mandamus proceeding filed in the circuit court of Will county by appellee to compel appellants to levy a tax to pay four installments of a special assessment against the town of Joliet for benefits accruing to the highways within said drainage district. After issues were joined, the circuit court, on a trial without the intervention of a jury, entered a judgment in accordance with the prayer of the petition.

Edgar Eldredge, Judge, presiding. At the June term, 1907, of the circuit court of LaSalle county, appellee, Mary C. Merrifield, obtained a judgment by default in an action of assumpsit against the Western Cottage Piano and Organ Company, L. W. Merrifield and T. W. Burrows for $20,084.49. June 29, eight days after the judgment was entered, the defendant T. W. Burrows entered a motion to set aside the default and open up the judgment and for leave to plead.

Writ of Error to the Circuit Court of Sangamon county; the Hon. Owfn P. Thompson, Judge, presiding.

<p>1. Contracts—zvhen a contract creates no interest in patent. A contract whereby the owner of a patent gives to another person an option to sell the patent within thirty days for $15,000 and agrees to pay such person $5000 for his services in case of sale, does not give such person the right to buy the patent himself nor create any ownership thereof in him which he can lawfully exchange for stock in a corporation organized to buy the patent.</p> <p>2. Corporations—when a stock subscription is not fully paid. Where a person having an option to sell a patent for $15,000 organizes a corporation to purchase the patent and advances $5000 of the-purchase money, the balance of which is paid by the corporation, an arrangement whereby such person receives stock of the face value of $50,000 in return for the $5000 and the giving of the benefit of the alleged option to the corporation amounts merely to an issue of stock at one-tenth its value, and such person is liable to creditors of the corporation for the amount unpaid.</p> <p>3. Same—when owner of stock may be held for unpaid subscription. A creditor of a corporation who receives in payment of his claim stock of the corporation of a face value ten times greater than his claim, with full knowledge that the stock was not paid for, the understanding being that he was to come into the corporation on an equal footing with the original subscribers as to stock holdings and cost thereof, is liable for the unpaid subscription to creditors of the corporation, and cannot insist that the liability of the original subscribers shall be exhausted before he is called upon to pay.</p> <p>4. Same—stockholders are liable for unpaid subscription so long as creditors remain unpaid. Stockholders in a corporation cannot escape their liability to pay the full amount due upon stock held by them so long as any creditor of the corporation remains unpaid.</p> <p>5. Same—corporation cannot release stockholder from liability. As to existing creditors of a corporation the corporation has no power to release a stockholder from liability to such creditors for his unpaid subscription by attempting to rescind the transaction-whereby such stock was acquired and to restore the stockholder to his original status of a creditor of the corporation.</p> <p>6. Same—when rescission of contract is not binding upon corporation. The rescission of a contract between a stockholder and the corporation is not binding upon the corporation, where such rescission was effected by a resolution adopted by the vote of the stockholder himself and two other members of the board of directors who were under his domination and influence.</p> <p>7. Same—assignee of judgment may enforce stock liability. A judgment against a corporation is assignable in equity, and the assignee may enforce the collection of the judgment by any appropriate legal or equitable remedy which might have been employed by the judgment creditor, including a bill to enforce the liability of stockholders for unpaid subscriptions.</p> <p>8. Same—what does not defeat complainant’s right to enforce stock liability. The fact that the title to a judgment recovered by a receiver against a corporation stands in the name of the purchaser at the receiver’s sale instead of in the name of the person claiming to own the judgment does not defeat the latter’s right to collect the judgment by a bill to enforce stock liability, where it is shown that the purchase was made with his money, at his request and for his benefit, and that he has ever since been the equitable owner of the judgment.</p>

<p>1. Special assessments—unauthorised vouchers abating assessment should be deducted from cost of an improvement. In determining whether a deficiency exists justifying a supplemental assessment, unauthorized vouchers for abatement of the special assessment as to certain property against which the assessment was regularly confirmed should be deducted from the cost of the improvement.</p> <p>2. Same—when interest ceases on vouchers issued to contractors. The interest upon vouchers issued to contractors against a special assessment ceases when money legally applicable to the payment of such vouchers is collected by the city.</p>

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

<p>1. Appeals and errors—voluntary acceptance of benefits of decree operates as a release of errors. A party against whom an error has been committed may release such error, and if he voluntarily accepts benefits conferred upon him by a decree, such acceptance operates as a release of errors and may be pleaded in bar to his assignment of errors.</p> <p>2. Same—acceptance of benefits must be voluntary to operate as a release of errors. Acceptance of the benefits of a decree, in order to operate as a release of errors, must be voluntary, in the sense that the party is not required by the decree to do the act relied upon as a release of errors.</p> <p>3. Same—when the receipt of taxes is not a release of errors. Where a decree enjoins the collection of the disputed portion of the complainant’s taxes but provides that nothing contained therein shall prevent the collection of the portion not in dispute and admitted to be due, the receipt, by the collector, of such undisputed taxes does not operate as a release of errors such as may be pleaded in bar of his assignment of error that the court erred in enjoining the collection of the disputed taxes.</p> <p>4. Same—party may join in error if plea of release of errors is held bad. Under section 109 of the Practice act of 1907 the fact that a plea of release of errors is not sustained or is held bad does not deprive defendant in error of right to join in error.</p>

<p>Appeal from the County Court of Union county; the Hon. A. D. Webb, Judge, presiding.</p>

<p>1. Contracts—proof must be clear to authorise enforcing a will as a contract. To justify a court of equity in setting aside the probate of a will and in enforcing an earlier will upon the ground that the earlier will was executed in pursuance to an agreement between the testatrix and her husband that they should make mutual and reciprocal wills, the proof must clearly establish the existence' of the agreement and that it was based upon sufficient consideration.</p> <p>2. Appeals and errors—weight to be given the testimony is a question for the chancellor. The weight to be given the oral testimony of the witnesses in a chancery proceeding is a question for the chancellor, and his findings therefrom will not be reversed by the Supreme Court unless from all the evidence it is made to appear there is palpable error.</p>

Writ ob Error to the Appellate Court for the Eirst District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. This was an action for damages, commenced on March 4, 1908, in the municipal court of Chicago, by defendants in error, against plaintiffs in error, under the provisions of section 9 of the Dram-shop act.

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

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

<p>1. Appeals and Errors—exhibits to a bill should be abstracted. The Supreme Court cannot determine whether a certain decree which was attached as an exhibit to a bill in equity was a consent decree, even though that fact must appear on the face of the decree itself, where the exhibits to the bill were not abstracted by counsel in the abstract of record.</p> <p>2. Pleading—when bill is multifarious. A bill in equity which seeks not only to establish a right to an accounting from a trust company and to have a new trustee appointed, but also to have the charter of another corporation annulled and its affairs wound up, and to hold the trust company liable for its failure to file reports with the Auditor of Public Accounts and to compel such company to comply with the statute in that respect, is multifarious.</p> <p>3. RES judicata—when determination against cross-bill is conclusive against a right to relief by original bill. A determination by the Supreme Court that a demurrer was properly sustained to a cross-bill on the ground that it showed no equity on its face is conclusive against a right to relief when the same facts are subsequently presented by original bill.</p> <p>4. The decisions in Patterson v. Northern Trust Co. 230 Ill. 334, and 231 id. 22, are conclusive of the other questions here involved.</p>

Thomas G. Windes, Judge, presiding. This is an appeal by Edwin J. Zimmer from a judgment of the Appellate Court for the First District affirming a decree of the circuit court of Cook county committing him to the county jail of that county for contempt of court.

<p>1. Separate maintenance—section 3 of Chancery act controls where the defendant is a non-resident. Section 2 of the Separate Maintenance act, as amended in 1891, (Laws of 1891, p. 164,) merely determines the county where a separate maintenance suit shall be brought if the husband is a resident of Illinois, but as to cases where the husband is a non-resident, section 3 of the Chancery act, providing that suit may be brought in any county if the defendant is a non-resident, controls.</p> <p>2. Same—a wife may bring suit in any county of the State if husband leaves the State. Where a husband deserts his wife while they reside in Illinois and takes up his residence in another State, the wife, if she continues to reside in Illinois, may bring a separate maintenance suit in any county of the State.</p> <p>3. Jurisdiction—when question of jurisdiction is waived. The question of jurisdiction of the person is waived, so far as the application for temporary alimony and solicitor’s fees in a separate maintenance proceeding is concerned, even though the answer to the rule to show cause states that it is made under a limited and special appearance theretofore entered denying jurisdiction of the person, where affidavits are filed in support of the answer for the purpose of having the allowance fixed at a lower figure than might otherwise be determined.</p> <p>4. Contempt—when order of commitment is not “indefinite, incomplete and insufficient.” The fact that an order of commitment for contempt providing for the discharge of the defendant upon making payment to the complainant, her solicitor of record or the clerk of the court, fails to provide for such discharge upon payment to the jailer or sheriff, does not render the order “indefinite, incomplete and insufficient.”</p> <p>5. Same—when fact that defendant was induced to come into State is no defense to contempt proceeding. The fact that the defendant to a separate.maintenance proceeding was induced by the complainant and her solicitor to come into Illinois to negotiate with a view to ending the litigation is no defense to a contempt proceeding begun while he was in Illinois on such errand, where it does not appear that the complainant or her solicitor had any thought, before he came into the State, of proceeding against him for contempt or that they induced him to come into the State by fraud or artifice.</p>

George A. Dupuy, Judge, presiding. This is an appeal by DeWitt Clinton Prescott from a judgment of the Appellate Court for the First District affirming a judgment for the sum of $2x37 recovered by the Santa Clara Valley Mill-and Lumber Company, the appellee, against appellant, in an action of debt in the superior court of Cook county.

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

A. C. Barnes, Judge, presiding. This is an action of debt commenced in the superior court of Cook county on two bonds, one for the sum of $500, dated April 29, 1905, and the other for $2000, dated June 5, 1905. The declaration contains but one count, and the bonds are not set out in hose verba but are attached to the declaration as copies of instruments sued on.