Volume 242 — Illinois Reports

<p>Appear from the County Court of Cook county; the Hon. Lewis Rinaker, Judge, presiding.</p>

<p>1. Municipal corporations—power of legislature to give park boards control over streets. Where private rights are not involved the legislature has power to provide that jurisdiction over a connecting street leading to a park may be transferred from the city to the board of park commissioners for the purpose of improving such street.</p> <p>2. Same—a city loses jurisdiction over street when park board takes control. Where a city, by ordinance, consents that a park board shall take jurisdiction of a street leading to a park and the park board accepts the provisions of the ordinance and proceeds to improve the street, the city loses jurisdiction over such street for the purpose of its improvement and repair.</p> <p>3. Same—what does not amount to re-assumption of jurisdiction by city. The fact that after a street leading to a park has been regularly transferred to and improved by the park board the city enters into negotiations with a railroad company whereby a viaduct is constructed and paid for partly by the city and partly by the company at a point in such street within the limits of park board’s jurisdiction, does not amount to a re-assumption by the city of control over the street at such point, such as gives it power to repair or compel the repair of sidewalks on viaduct approaches.</p> <p>4. Same—what is not a test of city’s right to repair or compel repair of sidewalks. The fact that a city, if it assumes to repair a sidewalk on a viaduct approach in a street under the jurisdiction of a park board, may, if it makes the repairs in a negligent manner, be liable to a person injured in consequence thereof, does not establish that it had the right to make such repairs or compel them to be made.</p> <p>5. Same—when a city cannot recover cost of sidewalk repairs from railroad company. Where a city which has lost control over a street under the jurisdiction of a park board assumes to repair the sidewalks of the approaches to a viaduct in such street over the tracks of a railroad company which has refused to comply with the city’s notice to make such repairs, the payment of the cost of the repairs by the city must be treated as voluntary, and it cannot recover the amount thereof from the railroad company.</p>

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

T. M. Harris, Judge, presiding. This was a bill for the partition of certain lands located in Logan county, filed to the June term, 1908, of the circuit court of said county, by Anna E. Galford, William V. Galford and Gilbert Haven Galford against Amy A. Eastman, S. Erank Eastman, James T. Galford, Annie B. Gal-ford, Thomas J. Henneberry, Honor V. Henneberry, Mary D. Brown, Henry B. Brown, and other parties not affected by this appeal.

Writ or Error to the Appellate Court for the First District;—to review a judgment of that court refusing to quash an execution issued by its cleric.

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.

<p>Writ op Error to the County Court of Cook county; the Hon. William L. Pond, Judge, presiding.</p>

<p>1. Wills—when certain heirs of testator take equal shares under codicil. Where a codicil to a will provides that certain named children of the testator shall have the use, for life, of an undivided interest owned by the testator in certain land, and that at their deaths “the remainder of the proceeds of the above described premises, if any, shall be equally divided between my other legal heirs or their descendants,” the children of the testator and the daughter of a deceased child take the fee in such undivided interest in equal shares, subject to the life estate in the children named.</p> <p>2. Trusts—cestui que trust may pursue proceeds of trust property. A cestui que trust may pursue the proceeds of trust property, and charge with the original trust, property in which the proceeds of the trust property have been invested.</p> <p>3. Same—when widow holds title in trust for heirs. Where a quarter section of land in which a testator owned an undivided one-third interest is purchased by the widow at a partition sale, the widow and her heirs giving a receipt to the master for the value of such one-third interest and the widow giving her note for the other two-thirds, the widow holds the title to such one-third interest in trust for those heirs of the testator to whom the fee therein was devised by his will.</p> <p>4. Same—when widow does not hold certain interest in trust. Where the entire tract of land in which the testator owned an undivided one-third interest is bid in by the widow, who gave her individual note and mortgage for two-thirds of the purchase price, and the note is afterwards paid and the mortgage released, it can not be presumed, in the absence of any competent evidence, that the note was paid with money derived from the sale of a farm in which the heirs of the testator owned the fee, and in such case she must be regarded as holding such two-thirds interest in her own right and not in trust for such heirs.</p> <p>5. _ Witnesses—when complainant and defendants in partition cannot testify against each other. Where the complainant in a partition suit claims an interest in an undivided two-thirds of the land as an heir of her grandmother, who held the legal title, and the defendants claim the whole of the two-thirds interest as heirs and devisees of their father, neither party can testify against the other’s interests, and the defendants cannot testify that the land was purchased by the complainant’s grandmother with money derived from the sale of the farm in which defendants owned the fee under their father’s will.</p>

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

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

<p>1. Practice—general verdict inconsistent with special findings cannot stand. Where the answers returned by the jury to controlling questions of fact submitted to them under section 79 of the Practice act are inconsistent with the general verdict of guilty, it is the duty of the court to enter judgment on the special findings.</p> <p>2. Mines—when recovery cannot be had for violation of stat■ute. In an action counting upon the defendant’s Villful violation of the provisions of the Mines and Miners act requiring flanges on the sides, of the drums of engines used for hoisting men, a special finding that the opening into which plaintiff’s intestate fell when the rope slipped off of the flangeless drum of the hoisting engine was not used for the purpose of ventilation or escapement or for the hoisting or lowering of men and material in connection with the mining of coal is inconsistent with a general verdict of guilty and precludes "a recovery. (Spring Valley Coal Co. v. Greig, 226 Ill. 511, distinguished.)</p>

Appear 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>1. Criminal law—when accused is not entitled to discharge for the want of prosecution. In determining whether one indicted for murder is entitled to be discharged for failure to bring him to trial at a term of court beginning within four months of the date of his commitment, the time he has been in jail on another and different charge cannot be counted.</p> <p>2. Indictment—an indictment for homicide should charge the means whereby the life was taken, if known. In an indictment for homicide the means whereby life was taken must be averred if known, and the instrument with which the blow is shown to have been struck must not be essentially different from that alleged in the indictment.</p> <p>3. Same—allegation as to which hand instrument was held in is unnecessary. In an indictment for homicide charging that death was caused by striking with an instrument it is not necessary to allege in which hand the assailant held the instrument, nor is it necessary to prove such allegation if it is made.</p> <p>4. Trial—right of defendant to question witness giving unexpected answer. Where a witness for the defendant called to prove good reputation for peace and quietness unexpectedly answers that such reputation was bad, counsel for defendant should be allowed to ask the witness if he had not talked with counsel about the case, and upon receiving an affirmative answer should be allowed to ask the witness if he did not say that the defendant’s reputation for peace and quietness was good.</p> <p>5- Same—general rule where witness gives unexpected answer. Where a witness gives the party calling him an unexpected answer damaging to such party, the latter has the right either to refresh the memory of the witness if he was forgetful or to probe his conscience and move him to relent and speak the truth if he was erring.</p> <p>6. Evidence—what amounts to violation of rule against hearsay evidence. Where the defendant’s connection with the crime charged rests on the testimony of one witness, it is error to permit the police officer who arrested the defendant to testify that he got the description of the defendant from such witness and that the latter identified the defendant.</p> <p>y. Same—what tends to prove charge of indictment as to the means of injury. Testimony by the coroner’s surgeon who made the post mortem examination that the skull of the deceased was fractured, that the cracks in the skull were due to external violence,'—to a blow on the skull,—and that the blow was with a blunt instrument, such as a stick, butt of a gun, gas pipe, hammer or anything like that, tends to prove a charge of the indictment that the striking was with a blunt instrument..</p> <p>8. Aeibi—what does not amount to making defense of alibi. Where a witness merely denies that he participated in any way in the crime charged and contradicts the testimony of the witness who claimed to identify him, the fact that he testified that after leaving a certain saloon he went across the street to his boarding house and went to bed does not amount to making the defense of alibi, where he called no witness to prove that he was not at the scene of the crime.</p> <p>9. Same—theory of defense of alibi. The defense of an alibi does not, in theory, deny that the crime was committed, but is designed to prove that the defendant, during the whole time, was so far from the place where the crime was committed that he could not have participated in it.</p> <p>10. Instructions—if instruction is pointed out to be defective it should not be given. Instructions should be correct, and when the defects in an instruction have been pointed out by the Supreme Court it should not be given, even though it may not have been considered ground for reversal of the judgments in the cases wherein it was considered.</p> <p>11. Sam®—when instructions relating to alibi are prejudicial. In a trial for murder, instructions which together inform the jury that the defendant has made the defense of an alibi when he has not, in fact, made "such defense, and that such a defense is one tending merely to cast a reasonable doubt on the case made by the prosecution, are prejudicial to the defendant.</p> <p>12. Appeals and Errors—when admitting evidence for People after defendant has closed will not reverse. It is within the discretion of the trial court to permit the People to introduce cumulative testimony in the nature of evidence in chief after defendant •has introduced his evidence, and the court’s action will not be considered as error unless its discretion was abused.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding.</p>

<p>Writ or Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Criminal law—when verdict is tantamount to an acquittal under certain count. Where one count of an indictment for kidnapping is based on section 166 of the Criminal Code, which provides for a maximum punishment of five years in the penitentiary or a fine not exceeding $1000, or both, a general verdict of guilty in manner and form as charged in the indictment but fixing the punishment at twenty-five years in the penitentiary is tantamount to an acquittal under such count.</p> <p>2. Same—motion to quash is properly overruled if there is one good count. A general motion to quash the indictment is properly overruled if there is one good count in the indictment which will sustain the general verdict of guilty.</p> <p>3. Kidnapping—statutes provide for different offenses. Section 166 and paragraphs i66*4 and 166& of the Criminal Code provide for different offenses, the first relating to. the unlawful imprisonment or carrying away of any person, regardless of age or regardless of motive; the second to the kidnapping of children under twelve years of age, regardless of motive; and the third to the kidnapping of children in order to extort money or ransom.</p> <p>4. Same—paragraph 166b of the Criminal Code is not unconstitutional, as being an amendatory act. Paragraph 166& of the •Criminal Code, which is section 1 of the act of May xi, 1901, is not unconstitutional, upon the ground that such act is an amendment to previous statutes without complying with the provisions of the constitution relating to amendments, but the said act of 1901 is complete in itself and is a valid law, in no way affecting the previous enactments.</p> <p>5. Same—when counts sufficiently allege the names of parents. Counts of an indictment, based on paragraph 166b of the Criminal Code, which allege that the child was kidnapped by the defendant for the purpose of extorting ransom or money from “Oscar Wulff and Marie Wulff, the said parents” of such child, sufficiently allege the names of the parents, if such an allegation is necessary.</p>

W. G. Cochran, Judge presiding. Appellant filed a bill for partition in the circuit court of Moultrie county, making appellees defendants.

<p>1. Statutes—irreconcilable repugnance operates as repeal by implication. While repeals by implication are not favored, yet when the repugnance between two statutes is so plain that they cannot be reconciled the earlier statute must be held to be repealed.</p> <p>2. Same—when a subsequent statute operates as a repeal. A statute revising the whole subject of a former one, and evidently intended as a substitute for the former one although there are no words in the subsequent statute to that effect, operates as a repeal of the former.</p> <p>3. Township organization—purpose of section 1 of article 7 of Township Organization law-. The purpose of section 1 of article 7 of the Township Organization law as it has existed since its amendment in 1901, (Hurd’s Stat. 1908, p. 2149,) is, that in towns or cities, except in Cook county and except in a town or city not included within the limits of any town, the representation on the board of supervisors shall be in proportion to population.</p> <p>4. Municipal corporations—provision of the special charter of Olney relating to election of supervisors is repealed. The provision of the special charter of the city of Olney requiring an annual election of supervisors by wards was repealed, by implication, by section 1 of the act of 1889, providing for the division of supervisors into classes and making their term of office two years, and by section 1 of article 7 of the Township Organization law, as amended in 1901, providing for the election of supervisors in proportion to population in counties under township organization.</p> <p>5. Same—when quo warranto is not an attack on incorporation of city. An information in the nature of quo warranto, brought upon the relation of the defeated candidate for supervisor against the successful candidate, charging him with holding the office of supervisor without right, is not an attack, either directly or collaterally, upon the legal incorporation of the city from which the respondent was elected, where the question involved is whether the provision of the city’s special charter relating to the method of electing supervisors has been repealed by implication.</p> <p>6. Quo warranto—quo warranto will not lie to try the title to abolished office. Quo warranto will not lie to try the title to the office of supervisor from a certain ward of a city where the provision of the city’s special charter authorizing the election of supervisors by wards has been repealed by implication, thus abolishing the office as to such wards.</p> <p>7. Appeals and Errors—jurisdiction of appeal in quo warranto. If a quo warranto proceeding is an attack upon the legal organization of a municipal corporation a franchise is involved and an appeal lies directly to the Supreme Court; but where the only question involved is whether a certain provision of a city’s special charter relating to the method of electing supervisors has been repealed by implication, the appeal lies first to the Appellate Court.</p>

<p>1. Equity—zvhen bill involving construction of will should not be dismissed. A bill praying, among other things, for the construction of a will should not be dismissed on general demurrer, even though there is no trust involved, if it appears from the bill that the complainants are entitled to an accounting for the rents and profits of land, of which one defendant has held exclusive possession, that minor children are entitled to have homestead assigned and that the adults are entitled to an accounting for the rent of the homestead.</p> <p>2. Wiles—devisees should contribute toward paying the debts charged against all the land. Where a testator devises a portion of his land to his son and the remaining portion to his daughters, without charging any particular land with the payment of his debts, all the land should be charged with such debts, and if a part of the land devised to the daughters is sold to pay such debts, the son should be required to contribute from the land received by him his proportionate share of the value of the land so sold.</p> <p>3. Homestead—when an accounting should be had for rent of homestead. Minor children of a testator are entitled to homestead in the tract of land upon which he resided at his death, and if his son takes exclusive possession of the land without accounting to the other children for rents, he may be compelled, by bill in equity, to assign homestead to the children who are still minors and to account to the adults for the rents and profits of the homestead to which they were entitled during their minority.</p> <p>4. Partition—land cannot be partitioned against provision of will. Where a will devising a tract of land to the testator’s daughters provides that the land shall not be divided or sold until the youngest daughter is sixteen years old no partition can be had until that time, but the devisees are entitled to the possession and rent of the land from the time of the testator’s death.</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. R. D. W. Holder, Judge, presiding.</p>

<p>Writ of Error to the County Court of Christian county; the Hon. J. H. Morgan, Judge, presiding.</p>

<p>1. Pleading—defects in form are cured by verdict. Defects in a declaration in matters of form, only, are cured by verdict.</p> <p>2. Appeals and errors-—a constitutional question is waived by appealing to the Appellate Court. By appealing to the Appellate Court and submitting the case upon errors which that court had power to consider, the appellant waives constitutional questions.</p> <p>3. Carriers—common carrier is a bailee and may recover full value of property from wrongdoer. A common carrier is a bailee for hire, and has such an interest in the property that he may resort to any means for its protection to which the absolute owner could have recourse and may recover the full value of the property from the wrongdoer who destroys it; and this is true although the real owner may also have a right of action against the same wrongdoer for the value of the property destroyed.</p> <p>4. Same—measure of liability of carrier for goods destroyed. A common carrier for hire is bound to receive for transportation over its lines cars of other common carriers, and as to such cars it sustains the same relation as it does to ordinary freight and is held to the same m'easure and character of liability to the owners of the cars as to owners of other property received for carriage.</p> <p>5. Same—liability of carrier is that of an insurer of the safety of goods. The liability of a common carrier for hire is that of an insurer of the safety of property against all losses except such as arise from the act of God or the public enemy; and in case of cars of other carriers in its charge the liability of the carrier is absolute, and the measure of such liability is the full value of the cars destroyed.</p> <p>6. Same—the "public enemy” does not embrace mobs and riots. The “public enemy” for whose acts in destroying property a common carrier is not liable in damages to the owner means the enemy of the country and not of the carrier, and does not embrace mobs and riots.</p> <p>7. Mobs and riots—word “owner,” in Mobs and Riots act, includes a bailee for hire. The word “owner,” as used in the title and in the body of the Mobs and Riots act of 1887, giving the . owner whose property has been destroyed by a mob a right of action, is not limited to the real owner of property but includes a bailee for hire having possession of the goods when destroyed.</p> <p>8. Same—Mobs and Riots act of 1887 merely created a liability where none had previously existed. The Mobs and Riots act of 1887 merely created a liability where none had previously existed, but it did not take away from a person or corporation any existing right of action against a wrongdoer for the value of property destroyed nor in any’way affect the remedy in such action.</p> <p>9. Sa!mE—principle of Mobs and Riots act. The principle upon which the Mobs and Riots act of 1887 rests is, that it is the duty of a municipality to preserve peace and good order and protect private property, and that, having power to perform such duty, a failure or neglect to perform it, resulting in the destruction of property by mobs and riots within its borders, makes the municipality a wrongdoer.</p> <p>10. Same—bailee for hire may sue persons composing the mob which destroyed property. The Mobs and Riots act of 1887 expressly preserves the right of action to the property owner against the persons composing the mob or riot by which his property was destroyed, and as against such persons the action may be maintained by a common carrier in possession of the property as bailee when the goods were destroyed.</p> <p>11. Same—common carrier in possession as bailee may sue city for destruction of property by a mob. The Mobs and Riots act of 1887 makes the municipality liable for three-fourths of the value of property destroyed, to the same person or corporation who has a right of action against the persons composing the mob or riot, and hence authorizes an action against the municipality by a common carrier for three-fourths the value of property destroyed while in its possession as bailee for hire, including cars of other carriers.</p> <p>12. Same—a recovery by bailee is a bar to suit by real owner. Either the real owner or the bailee for hire in whose possession the property was when it was destroyed by a mob may recover from the municipality three-fourths of the value of the property destroyed, but a recovery by one is a bar to a suit by the other.</p> <p>13. Same—suit by bailee for hire is in behalf of the real owner. A suit against a municipality to recover for destruction of property by mob, though brought in the name of the common carrier having possession of the goods at the time they were destroyed, is a suit “in behalf of the real owner,” within the meaning of the Mobs and Riots act.</p> <p>14. Same—when notice is sufficient under the Mobs and Riots act. A notice to a city, signed by the second vice-president of a common carrier, who had charge of the legal department of the carrier corporation, attached to which notice is a schedule containing an itemized statement of the property destroyed, the date when and the place where destroyed and the amount of damages claimed to have been sustained by the destruction of each item of property, is a sufficient notice and demand under the Mobs and Riots act.</p> <p>15. Same—whether cars destroyed were in transit is a question of fact. Whether the cars destroyed by a mob were or were not in transit at the time is a question of fact under the evidence, and if there is evidence tending to show they were not in transit the Supreme Court cannot reverse upon the ground that the .lower court’s finding that the cars were not in transit was against the weight of the evidence.</p> <p>16. Evidence—nature of business affects question of what is the best evidence of transactions. In determining what is the best evidence the nature of the case will admit of, and what is- secondary evidence, regard must be had to some extent to the nature and character of the business to which the evidence relates and to the method of conducting such business.</p> <p>17. Same—car report record known as the “Borner record” is competent. As tending to identify the cars destroyed by a mob while they were in the yards of a common carrier, a car report known as the “Borner record,” showing the arrival and movement of cars in the yards, is admissible, though the original report slips from which the record was made are destroyed, where other slips which were duplicates of the ones destroyed, in so far as they showed the arrival of the cars, were produced and identified by the persons who made them, and where the record was identified by the clerk who made it, who testified that the entries therein were correctly made by him and that the system had been in use for thirty years.</p> <p>18. Same—"historical records" of cars are admissible. As an aid in determining the value of cars at the time of their destruction, “historical records,” technically known as “Record of car equipment,” which purport to show the time and place where the cars were built, the character of their construction and the extent to which they had since been repaired or re-built, are admissible, in connection with the testimony of competent witnesses as to depreciation in value of cars from age and use, but they ■ are t not conclusive.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. Lewis Rinaker, Judge, presiding.</p>

Writ or Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. The bill in this cause was filed February 14, 1906, in the superior court of Cook county, by defendants in error, to set aside a certain agreement made by the two plaintiffs in error, as a cloud upon the title to certain real estate.

J. R. Creighton, Judge, presiding. The appellee recovered a judgment against appellant for $500 damages to real estate. The Appellate Court affirmed the judgment, and the defendant appealed to this court, having obtained a certificate of importance. The appellee was the owner of a lot, on which she resided, in the village of St. Francisville, bounded on the north by Clark street and on the west by Eleventh street.

Julian W. Mack, Judge, presiding. This is an appeal from a decree of the circuit court of Cook county for the specific performance of a contract to convey real estate. The case was in this court at a former term upon an appeal from a decree sustaining a demurrer to the bill and dismissing it for want of equity. (Kissack v. Bourke, 224 Ill. 352.) The substance of the amended bill, to which the demurrer was sustained, will be found in the opinion then delivered.

<p>1. Appeals and errors—-the master's report does not have same force as a verdict. In a chancery case the facts are found by the court, and the master’s report, while prima facie correct, is of an advisory nature only, and does not have the force of the verdict of a jury in a suit where the trial by a jury is a matter of right.</p> <p>2. Same—facts in a chancery case are open for consideration through progress of case. The facts in a chancery case are open for consideration in th.e first instance by the trial court, and subsequently by the Appellate Court or the Supreme Court on appeal.</p> <p>3. Same—question on appeal is whether decree was proper under the law and evidence. Upon appeal to the Supreme Court in a chancery case the final question for determination is whether the decree rendered was the proper one under the law and the evidence, and if the proper result has been reached by the court below the decree will not be reversed because of alleged erroneous rulings as to particular findings of fact in the master’s report.</p> <p>4. Corporations—when a stockholder is not liable for alleged wrecking of corporation. Failure of a stockholder in a corporation to keep certain alleged agreements which it is claimed resulted in the wrecking of the corporation and the shrinkage in the value of complainant’s stock is not ground for decreeing relief against him for such shrinkage, where the breach of such agreements was not the proximate cause of the ultimate failure of the company.</p> <p>5. Same—what does not tend to show a conspiracy to wreck corporation. The fact that certain stockholders, who were heavy creditors of the corporation, acted together in foreclosing their liens in the United States Circuit Court after an illegal attempt had been made by other stockholders to tie up the corporate property by a long-time lease, does not tend to show any conspiracy upon their part to wreck the corporation, and the decree of foreclosure and sale in such proceeding, whether it is res judicata of the question or not, is at least prima facie evidence that the action was properly brought.</p>

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

<p>InEormation to disbar.</p>

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

<p>1. Variance—in tort the plaintiff may prove part of charge if averment is divisible. In tort the plaintiff may prove part of his charge if the averment is divisible, and proof of a part of the allegations, if sufficient to establish a case, will sustain a judgment.</p> <p>2. Same—proof of mere negligence is sufficient though declaration charges willfulness. If the evidence in an action for damages for negligently causing the death of the plaintiff’s intestate shows that the death was caused by the negligence of the defendant, a recovery may be had though the declaration charges that thq acts complained of were “negligently, carelessly and willfully” done.</p> <p>3. Negligence—when question of defendant’s negligence is for the jury. Whether the defendant mining company was negligent in not providing a safer method of stopping loaded cars on a sloping side-track than by the use of brakes and blocks is a question of fact for the jury, where there is evidence that while it was defendant’s custom to let the loaded cars run down the track, neither brakes nor blocks would always keep them under control.</p> <p>4. Same—what does not show contributory negligence. The fact that an employee of the defendant, after discovering he could not stop a loaded car with brakes or blocks, shouted a warning to the men ahead, including plaintiff’s intestate, who were pushing another car, does not show contributory negligence on the part of plaintiff’s intestate in not getting out of the way before the cars collided, where some of the men who were with him testified that they did not hear the warning or notice the other car approaching.</p> <p>5. Appeals and errors—when questions of negligence and contributory negligence are settled. Where the questions of the defendant’s negligence and the contributory negligence of plaintiff’s intestate were controverted questions of fact, the judgment of the Appellate Court is conclusive of such facts in the Supreme Court.</p> <p>6. Evidence—what evidence is properly refused. In an action against a mining company for negligently causing the death of a section man of a railroad company, who was repairing side-tracks at the mine,-proof that at other times when the railroad company made repairs on such tracks the work of the mining company was allowed to continue without interruption is not admissible, where it is not charged that the continued operation of the mine while the repairs were being made caused or contributed to the injury.</p> <p>7. Aliens—an action for negligent killing lies though deceased and next of kin are aliens. An action may be brought to recover damages for negligently causing death even though the deceased was an alien and the suit is brought for the benefit of his parents and brothers and sisters, who are non-resident aliens. (Kellyville Coal Co. v. Petraytis, 195 Ill. 215, followed.)</p>

Writ op Error to the Appellate Court for the Fourth District;—heard in that court on writ of error to the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding.

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. Oscar M. Torrison, Judge, presiding.

W. G. Cochran, Judge, presiding. This is an appeal from a decree of the circuit court of Moultrie county which set aside a master’s deed and certain partition proceedings, together with another deed and two mortgages, and construed the will of George M. Stivers, a former owner of the real estate here involved.

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

<p>Appeal from the Circuit Court of Will county; the Hon. A. O. Marshall, Judge, presiding.</p>

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

A. O. Marshall, Judge, presiding. This is an action on the case to recover damages for injuries which the appellee sustained September 25, 1906, at Dellwood Park, Will county, Illinois, by being thrown from a “scenic railway” operated by the appellant. On the trial before a jury in the circuit court of Will county a verdict was returned for $1600 against appellant. Appellee was required by the trial court to remit $400 and judgment was then entered for $1200.

Lockwood Honore, Judge, presiding. The bill in this case was filed by appellants in the circuit court of Cook county to contest the will of Blanche S. Clarke, deceased. Appellants are children of a deceased brother of the testatrix and her only next of kin and heirs-at-law. The will purports to have been executed August 19, 1874. At that time the testatrix was a married woman living with her husband. They never had any children bom to them.

<p>Original petition for writ of habeas corpus.</p>

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

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

Ben M. Smith, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county for $2500 in an action brought by appellee against appellant to recover damages for injuries resulting from the alleged negligence of appellant’s servants.

<p>1. Trial—correct practice if there is no evidence to support particular count. If there is no evidence tending to support a particular count of the declaration, the defendant, if he wishes to be in a position to take advantage of that fact, should present to the court, at the proper time, a written instruction that there can be no recovery upon such count.</p> <p>2. Same—when a refusal to take case from jury is not error. The fact that two counts of the declaration alleged that the shooting of the insured was for the purpose of robbery while a third count alleged that it was accidental does not require the court to take the case from the jury under a written instruction to find the issues for the defendant, where there is evidence tending to show that the shooting was for the purpose of robbery and no peremptory instruction is requested by the defendant as to the issue of accidental shooting.</p> <p>3. Insurance—when question whether the insured was shot for purpose of robbery is for the jury. Where the right of the plaintiff to recover the full value of an insurance policy depends upon proof of the allegations that the insured was shot for the sole purpose of robbery, that issue is properly submitted to the jury under evidence that the shooting occurred in the evening; that the insured was stopped on the street corner by two disreputable-looking men; that as he started to run he was shot but continued running, while the two men ran in opposite directions, there being other people on the street.</p> <p>4. Same—what does not show that shooting was not for purpose of robbery. The mere fact that the insured, after the shooting, was still wearing his scarf-pin and watch chain does not show that the shooting was not for the purpose of robbery, where the insured had started to run when he was shot and continued to run for about a block, while the men who did the shooting separated and escaped, there being other people on the street at the time.</p> <p>5. Appeals and Errors—mere improbability of testimony is not a question for the Supreme Court. The Appellate Court and the trial court are required by law, when the question is properly raised, to consider the probability of the testimony; but the mere improbability of testimony cannot be considered by the Supreme Court in sui’ts at law coming through the Appellate Court. ¡</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Criminal Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.

Appear from the 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>1. Carriers—ivhen way-bill is to be regarded as part of contract of carriage. In determining whether a special contract was made between a shipper and carrier to deliver a car-load of valuable horses to a connecting carrier on a certain day so that it would be attached to the “Horse Special” on such connecting carrier’s road, which was run three days a week, the way-bill exhibited by the carrier’s billing clerk to the shipper, bearing the notation, “In care of fast horse train out of Chicago on M. C. Ry. about 3 P. M. Thursday, January 25, 1906,” must be regarded as part of the contract.</p> <p>2. Same—when question of a shippers assent to limitation of liability in contract is one of fact. Where there is evidence tending to show a special contract between a shipper and carrier for the transportation of a car-load of valuable horses, the question whether the shipper, who signed the contract without reading it, because, as he testified, he knew the carrier would not take the horses if he did not sign, assented to conditions in the contract limiting the carrier’s common law liability, is one of fact, to be finally determined by the Appellate Court in an action at law for damages for breach of the contract.</p> <p>3. Same—what agreement does not violate Inter-State Commerce act. A carrier does not violate the Inter-State Commerce act by agreeing with a shipper of horses to deliver the horses at a certain station, to connect with a specified fast train which is to take them to their destination, particularly where the evidence tends to show that other carriers were ready to accord the same service to the shipper at the same rate, and there is nothing to show that any other shipper would not have been accorded the same privilege upon request.</p> <p>4. Same—a shipper not bound to cipher out complicated tariff.' Under any reasonable view of the Inter-State Commerce act it is not necessary to the protection of the rights of a shipper that he cipher out, before putting his property into commerce, the confusing figures of the tariff sheets, in order to ascertain whether or not his shipping contract violates the' said act.</p> <p>5. Same—right of shipper to recover damages though contract violates Inter-State Commerce act. Where a shipper enters into a contract of carriage in good faith and without actual knowledge that he is being given special privileges at the ordinary tariff rate, even though such contract were construed to be in violation of the Inter-State Commerce act and the carrier be entitled to recover the proper rate, the rights of the shipper are not, in other respects, different from what they would have been had the contract been free from such alleged illegality.</p> <p>6. Same—what amounts to ratification of an agent’s contract. Where a live stock agent having authority to offer “better service and quicker connections” secures a shipment of valuable horses for his company by agreeing to deliver them to a connecting carrier so that they will go through to their destination on a certain fast train, the acts of the company’s freight agent in fixing the rate, of its billing department in billing the car and of its operating department in forwarding the car in accordance with such agreement, amount to a ratification of the agent’s agreement.</p>

Edgar Eldredge, Judge, presiding. William Patterson died intestate owning certain real estate in LaSalle county, and on October 16, 1908, his heirs executed the following writing: “This agreement, made and entered into this sixteenth day of October, A. D. 1908, by and between Sarah Trout and A. B. Trout, her husband, Elizabeth Marsh and Henry C. Marsh, her husband, T. H. Patterson and Ella Patterson, his wife, Jane Hurton and Ebenezer Hurton, her husband, Mary Gardner and…

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

Appear from the Appellate Court for the Fourth District;—heard in that court on appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.

<p>Appeal from the County Court of Vermilion county; the Hon. Lawrence T. Allen, Judge, presiding.</p>

Writ OB Error to the County Court of Champaign county; the Hon. Thomas J. Roth, Judge, presiding. Lotus Special Drainage District was composed of lands lying in Champaign, Piatt and McLean counties, and was organized under the Farm Drainage act.

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. Ben M. Smith, Judge, presiding.

<p>Auditor’s certificate of appeal from the board of review of Madison county.</p>

<p>Negligence—when question whether injury resulted from accident is for the jury. In an action for damages for the alleged fracture of a rib of a young child, who was in her mother’s arms when the latter was thrown to the floor of a street car by the force of a collision, proof that the child was in ordinary health before the accident, that thereafter her health was impaired and so continued for several months, when physicians, other than the one who had been treating her, diagnosed her condition as due to a previous fracture of a rib, is sufficient to go to the jury upon the question whether the injury resulted from the accident, though the attending physician attributed her condition to other causes.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding.</p>

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

Appear from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.

Writ oE Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.

<p>Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Knox county; the Hon. Harry M. Waggoner, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding.</p>

<p>Writ or Error to the Circuit Court of DuPage county; the Hon. L. C. Ruth, Judge, presiding.</p> <p>Defendant in error filed a bill for divorce from plaintiff in error in the circuit court of DuPage county. The bill charged plaintiff in error with drunkenness and extreme and repeated cruelty. The parties were married in 1887 and had four children, three of whom were minors at the time the bill was filed. The bill alleged they all resided with defendant in error, and since 1892 plaintiff in error had not contributed anything toward the support of his wife and children excepting- the raising of some vegetables on the lots that constituted their home; that the home was situated on lots 53 and 54 in Gostyn, an addition to Downers Grove, and was purchased -partly with the money of defendant in error, and that she supposed, and was so informed by her husband, that the deed was made to them as tenants in common, but it was, in fact, made to plaintiff in error as sole grantee. The bill alleges that the parties borrowed $650 from the Downers Grove Loan and Homestead Association and used the money in erecting a dwelling house upon said lots, which has since its completion been occupied by the family as a home; that the money so borrowed was payable in monthly installments and said installments were paid for one year by plaintiff in error, but thereafter they were paid, until the loan was discharged, by defendant in error from money earned by her by her own labor. The bill further alleges that the parties later purchased two other lots as tenants in common, paying therefor $50. In addition to praying for divorce the bill prajred for alimony in a lump sum; that the- household goods be decreed to defendant in error and the real estate be decreed to her as alimony.</p> <p>Plaintiff in error answered the bill denying the material allegations, and a trial was had without a jury and a decree entered in favor of defendant in error, granting the divorce on the ground of extreme and repeated cruelty and awarding her the custody of the three minor children. The decree found that the legal title to the two lots upon which the dwelling house was situated was in plaintiff in error; that they were worth $1350; that defendant in error and the children occupied the lower story of the dwelling house and plaintiff in error the upper story; that defendant in error had paid more than one-half of the cost of the property occupied as a homestead and was the owner of an undivided one-half thereof. The decree finds the other two ( lots were owned by the said parties as tenants in common; that they were vacant and unoccupied and worth about $150; that plaintiff in error was fifty-six years old, and able to earn, as a furrier and skin dresser, $350 a year; that defendant in error was forty-four years of age, and that justice requires a gross sum to be decreed to her in full satisfaction of Her claim for alimony. - It was therefore ordered that she have as her absolute property the household goods and effects, and that plaintiff in error pay to her in full of all alimony, within ninety days, the gross sum of $750 and the further sum of $100 for solicitor’s fees; “that said alimony and solicitor’s fees are hereby made a lien upon the said real estate of the said defendant; that the provision herein made for alimony shall be in bar of complainant’s right of dower and homestead in the property of the defendant.” The costs of the suit are adjudged against plaintiff in error, and the decree orders that an execution be awarded defendant in error for the collection of the alimony, solicitor’s fees and costs, said execution to issue to the sheriff as upon a judgment at law; and it is further ordered and adjudged that making the alimony and solicitor’s fees a lien upon the real estate of plaintiff in error and in awarding execution for their collection shall not deprive the court of the power to enforce their payment by contempt proceedings.</p> <p>This decree was entered on the 8th of November, 1907. Plaintiff in error failed to comply with the decree by the payment of the alimony and solicitor’s fees, and an execution was issued to the sheriff of DuPage county and by him levied on all the interest of plaintiff in error in the four lots mentioned. The premises were advertised and sold by the sheriff at public sale to defendant in error for $860. A certificate of purchase was issued .to her, and no redemption having been made within fifteen months, the sheriff made her a deed July 2, 1909. On the 14th of the same month defendant in error demanded possession of the premises but plaintiff in error refused to give possession, and on the 20th of July defendant in error filed a petition in the circuit court setting out the failure of plaintiff in error to pay the alimony and solicitor’s fees, issuing of execution, sale thereunder and sheriff’s deed. The petition prayed that plaintiff in error be ruled to show cause why he should not surrender possession and that the court would order a writ of assistance against him. The petition also prayed that plaintiff in error be ruled to show cause why he should not be dealt with for contempt of court in refusing to give possession of the property and in refusing to obey the orders and directions of the decree. An order was entered upon the filing of that petition, which will be more fully referred to hereafter. Among other things it commanded plaintiff in error to show cause July 27, 1909, why he should not surrender the premises to defendant in error immediately, and why he should not be held in contempt fot failing to pay $5 interest that had accrued upon the amount allowed for alimony before the sale and the costs of suit. A copy of this order and the petition under which it was entered was served on plaintiff in error on the day the petition was filed and the order entered. He failed to appear on the day fixed, and a decree was entered commanding him, within ten days after being served with a copy of it, to surrender and deliver up possession of the premises, and that within ten days he pay the balance of $5 due as interest on alimony and the costs of the suit. A copy of this decree was served on plaintiff in error by the sheriff of DuPage county August 5, 1909. Thereupon this writ of error was sued out.</p>

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. L. C. Ruth, Judge, presiding.

Appeal, from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.

<p>Writ of Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

Willard M. McEwen, Judge, presiding. Appellant is a corporation duly organized under the laws of the State of Illinois for the business of transmitting telegraph messages, and is authorized, in the construction and operation of its telegraph lines, when necessary, to take and damage property for that purpose.

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

<p>1. Powers—when power must be exercised by joint action of trustees. A power of sale conferred upon two daughters of the testator as executrices and trustees must be presumed to have been conferred by reason of the trust and confidence reposed in them by the testator, and can be executed only by their joint action unless other provision is made in the will.</p> <p>2. Same—power of one executor to sell where others fail to qualify. If a power of sale is given to two or more persons as executors and only one qualifies, the power cannot be exercised by that one unless it is shown that the others not only failed to qualify but that they refused to do so.</p> <p>3. Same—when the power of trustee to act alone terminates. Where a will appoints two of the testator’s daughters as executrices and trustees, without bond and with power to. sell land, and provides that if one dies the survivor may act alone until a third daughter attains her majority, “who shall qualify after she reaches her majority,” the power of the survivor to act alone terminates when the third daughter attains her majority, as she at once becomes a co-trustee whether she qualifies as executrix or not.</p> <p>4. Same—executrix cannot delegate a power of sale to agent. An executrix-trustee vested with a power of sale by the terms of the will may employ an agent to find a purchaser for the property, but the sale and contract therefor can be made only by the executrix-trustee, as the power of sale is a personal trust, which cannot be delegated.</p> <p>5. Principal and agent—when qualification of additional executrix terminates agent’s authority. Even though an executrix-trustee may, at the time of authorizing an agent to sell certain property, have had the power to make a contract of sale, yet if no contract of sale is made until another person has qualified as co-executrix, with equal powers under the terms of the will, the agent’s authority is terminated.</p> <p>6. Same—a knowledge of the facts is essential to ratification. The fact that a former agent for the trustees of an estate turns over to their new agent, among other funds, a sum of money which the former agent had receipted for in the name of one of the trustees as a payment on the purchase price of certain land, does not bind the trustees to carry out the contract of sale on the theory of ratification, where there is no evidence that they knew the former agent had any money from that source or that he had executed the receipt.</p> <p>7. Equity—when a court of equity may decree accounting for rent. Where a bill for partition charges that certain defendants are in possession of the land claiming ownership under a certain contract of sale made by a third person and refuse to surrender possession, and the bill prays for an accounting as incident to the other relief, the court may, upon granting partition, decree an accounting for rent against such defendants.</p>

<p>Appeals from and writ of error to the Circuit Court of Cook county; the Hon. J. W. Mack, Judge, presiding.</p>

<p>1. Assumpsit—each party is entitled to have his testimony submitted to jury on correct instructions. In assumpsit, where the only evidence of the contract is the testimony of the plaintiff and of the defendant and the decision of the issue depends upon their credibility, each has a right to have such testimony submitted to the jury for their consideration, on correct instructions as to the law.</p> <p>2. Instructions—when instruction directing verdict is erroneous. Where the plaintiff in assumpsit testifies that the defendant agreed to pay him the customary fee to secure a patent and a contingent fee for all additional services, while the defendant testifies that the only agreement was to pay a sum to secure the patent, which has been paid, an instruction directing the jury to find for the defendant if they believe, from the evidence, the plaintiff was employed to secure a patent for a certain fee, which had been paid, without requiring them to also find there was no agreement for the additional services and contingent fee, is erroneous.</p>

<p>1. Criminal law—venue in forgery need not be proved beyond a reasonable doubt. The venue in a forgery case is a jurisdictional fact which the People are required to prove but is not an element of the crime to be proved beyond a reasonable doubt, and ' it is sufficiently proved if there is evidence from which it can reasonably be inferred that the crime was committed within the jurisdiction where the prosecution is had.</p> <p>2. Forgery—when place of delivery of forged note may be inferred to be the place of forgery. The delivery of a forged note justifies an inference that it was forged at the place of delivery, if there is no evidence tending to show it was forged elsewhere.</p> <p>3. Same—what tends to show that note was forged where trial is had. In a prosecution for forging a promissory note, proof that the defendant had an office in the county where the prosecution is had, where he wrote notes and mortgages, and that he received and receipted for his client’s money at such office, tends to show that the note, which he subsequently delivered to his client at the latter’s residence in another county and which purported to be signed by a person residing in the county where the prosecution is had, was forged in the latter county and not in the county where the note was delivered.</p> <p>4. Instructions—giving an instruction in language of statute will not ordinarily reverse. In a prosecution for forging a promissory note, an instruction in the language of section 105 of the Criminal Code, defining forgery, is not to be commended in so far as it includes those portions of the section having no reference to the forging of promissory notes, but it will not be ground for reversal if there is nothing calculated to mislead the jury in the application of the law to the particular case.</p>

<p>1. Appeals and errors—when question of competency of evidence is waived. An administratrix de bonis non who petitions the court to sell real estate to pay a claim in which she has an interest as legatee of the deceased claimant may waive the question of the competency of a defendant’s testimony in derogation of the claim, and if no objection was made to his testimony when he was examined, the question is waived and cannot be raised on appeal.</p> <p>2. Biles and notes—when note is without consideration—gifts. Upon petition to sell real estate to pay a claim allowed on a note for $10,000 made by the deceased to one of her sons, proof that the payee, at the time the note was made, was a minor living with his parents, having no property of his own and working for his father for $75 a month, shows that the note was without consideration and justifies dismissing the petition.</p> <p>3. Evidence—what evidence is incompetent to show source of gift. In a proceeding to sell land to pay a claim allowed on a note made by the deceased to one of her sons, testimony by the defendants, who are interested in the claim as legatees of the deceased payee, that the payee had said that the gift was from his father, is incompetent.</p>

Charles H. Donnelly, Judge,' presiding. This was a petition filed in the circuit court of Lake county by Luella Heinroth and Fred C. Tiedt against Elvin J. Griffin, as sheriff of said county, for a writ of mandamus to coerce him, as such sheriff, to sell certain real estate situated in his county upon an alias execution in his hands, issued August 24, 1903, upon a judgment in favor of the Illinois Brick Company and against the Winthrop Harbor and Dock Company, under which…

<p>Writ or Error to the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.</p>

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

<p>Writ op Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>