Volume 243 — Illinois Reports

<p>1. Courts—power of legislature to provide a special procedure for the municipal court is limited to that court. The power of the legislature, under the constitutional amendment of 1904, to provide a special procedure for the municipal court of Chicago does not extend to the practice and procedure in other courts.</p> <p>2. Same—jurisdiction of trial court ceases when appeal bond is Med. When an appeal bond is filed the jurisdiction of the trial court ceases and that of the appellate tribunal attaches, and all subsequent proceedings are procedure in the appellate tribunal.</p> <p>3. Same—time for Ming records is within control of appellate tribunal in the absence of statute. The time within which records shall be filed in an appellate tribunal is within the control of such tribunal, and in the absence of any statute will be controlled by its rules and not by the orders and rules of the trial court.</p> <p>4. Constitutional law—provision of Municipal Court act as to time for Ming records in Appellate Court is void. Section 22 of the Municipal Court act, in so far as it purports to fix the time within which records shall be filed in the Appellate Court, is unconstitutional, as an attempted regulation of the practice in the Appellate Court, which, in that respect, is controlled by section 100 of the present Practice act.</p>

<p>1. Mines—miner has right to determine the sise of props and caps wanted. Under section 16 of the Mines and Miners act, relating to the duty of the mine manager to provide a supply of props and caps, the miner has a right to determine the length and dimensions of the props and caps necessary to support the roof of the mine, and if he demands props and caps of specified lengths and dimensions, and the demand is not unreasonable, the mine manager must furnish the specified kind.</p> <p>2. Same—effect where demand for props and caps is general. Where a miner’s demand for props and caps is general and does not specify the number, size and dimensions of the props, caps or timbers he desires, the mine manager may supply what in his best judgment will suffice for the purpose, and he is guilty of willful violation of his duty in that respect only in case he knows that those he furnishes are insufficient.</p> <p>3. Same—what evidence is incompetent as tending only to show habitual negligence. Where the demand of a miner for props and caps is merely general and is filled by the mine manager by sending about twenty-five props and only four caps, evidence showing that upon numerous other’ occasions the defendant had failed to supply a sufficient number of cap-pieces for the props furnished is incompetent, as tending only to show that the defendant was habitually negligent in supplying caps, and its admission will be a ground for reversal unless it appears that it was not prejudicial error. (Taylor Coal Co. v. Dawes, 220 Ill. 145, distinguished.)</p> <p>4. Same—what tends to show violation of duty independent of any statute. A count of a declaration charging the defendant mining company with a violation of its duty, existing independent of any statute, to provide its servant a reasonably safe place to work, is supported by uncontradicted evidence showing that the props supplied by the defendant upon the servant’s general order were mostly rotten or worm-eaten and unfit for use.</p> <p>5. Trial—witness should be required to testify in the English language if possible. Under the provision of the constitution requiring all judicial proceedings to be conducted in the English language, courts should require witnesses to testify in English if it is possible; but the action of the court in allowing an interpreter, over objection and without attempting to ascertain whether the witness could testify in English, will not work reversal if a reading of his testimony shows that no injury resulted.</p> <p>6. Appeals and Errors—when admission of incompetent evidence will not reverse. The admission of incompetent evidence will not work a reversal where the only prejudicial effect it could have had would be to enchance the damages by creating a prejudice against the defendant, but there is no claim, and nothing to show, that the damages were greater than they would have been without the incompetent evidence.</p>

<p>1. Judicial sales—when an administrator’s sale will be upheld though he was the purchaser. A sale of land to pay debts of the estate is merely voidable though the administrator is the purchaser, and such sale will not be set aside at the suit of the heirs of the decedent after a delay of more than twenty years, where they do not claim to have been ignorant of the facts and no reason is shown why the sale was not sooner attacked.</p> <p>2. Homestead—when homestead estate is abandoned by zuidow. Where the widow, who lives alone on the homestead property after her husband’s death, marries again and moves to another place before a proceeding is begun by the administrator of her first husband’s estate to sell the land to pay debts, the homestead estate is abandoned and her subsequent quit-claim deed does not convey such estate. (White v. Plummer, 96 Ill. 394, distinguished.)</p>

<p>1. Elections—who are necessary parties to proceeding to contest election for trustees of sanitary district. Each candidate for the office of sanitary district trustee, created by section 5 of the act of 1907, (Hurd’s Stat. 1908, p. 881,) is opposed to every other candidate, and where there are several tickets in the field and part of the candidates on one ticket and part of those on another are declared elected, a petition to contest the election should make all the successful candidates, as well as all other persons who were candidates, parties to the proceeding.</p> <p>2. Same—proceeding to contest election is subject to rules of chancery. Except as otherwise provided by statute, a proceeding to contest an election is to all intents and purposes a chancery proceeding and is governed by the rules of chancery practice.</p> <p>3. Same—want of necessary parties to election contest petition may be availed of by motion to dismiss. Where the want of necessary parties to a petition to contest an election appears upon the face of the proceedings, so that the court can determine, from an inspection of the petition, that necessary parties are not in court, the defect may be availed of by a motion to dismiss.</p> <p>4. Same—when a petition to contest election is insufficient. A petition to contest the election of trustees of a sanitary district is insufficient where, even admitting its allegations to be true, it does not show that the petitioner would have been elected to the office, there being nothing in the petition to show how many votes were received, by any of the candidates.</p>

AppEad from the Appellate Court for the Eirst District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding.

Writ oi? Error to the Appellate Court for the First District;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. R. W. Clippord, Judge, presiding.

<p>Deeds—zvhen zvidow’s deed to deceased husband’s heirs must be sustained. A deed made by the widow to the heirs of her deceased second husband, conveying the homestead property and all other real estate of the deceased and all interest in his estate, must be upheld, where it is shown that she was an intelligent and well-educated woman accustomed to business transactions, and that she knew what the deed was, and, after refusing to accept any part of the estate, executed the deed without any fraud, compulsion or misrepresentation being practiced upon her.</p>

<p>Appeal from the Circuit' Court of Pike county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>1. Bills and notes—the language of a note is construed most strongly against maker. A promissory note is the language of the maker, and if the meaning is doubtful or ambiguous the language is to be construed most strongly against him. (Massie v. Belford, 68 Ill. 290, followed.)</p> <p>2. Same—when time of payment is certain. A note reading, “For value received I promise to pay Elizabeth Gamble, or order, the sum of fifteen hundred dollars in twelve months after I shall become the legal bwner of one hundred and fifteen acres of land conveyed to me by my father, H. V. Davis, reserving to him, H. V. Davis, a life estate in said land, by which at his death I am to become possessed of and the owner in fee of said one hundred and fifteen acres,” describing them, refers to a conveyance already made and is a valid negotiable instrument payable at a time certain, and not upon a contingency which may never happen.</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. George A. Dupuy, Judge, presiding.</p>

<p>1. Constitutional law—what is not necessary under provision of constitution concerning amendatoryl acts. ..Section 13 of article 4 of the constitution, providing that no la* shall be revived or amended by reference to its title only, but the law revived or section amended shall be inserted at length in the new act, does not require that when a new act is passed all prior acts modified by implication be re-enacted and published at length.</p> <p>2. Same—what is not within prohibition of constitution relating to amendatory acts. Any new provision of law may in some sense be said to amend and change the prior system of laws, and whenever there is an irreconcilable conflict between two acts the later act must prevail and operates as a repeal by implication to the extent qf the conflict; but if such act is not amendatory in form and is complete in itself, it is not within the prohibition of section 13 of article 4 of the constitution.</p> <p>3. Same—how amendatory character of an act is determined. The character of an act, as amendatory of a prior act or as an independent act, must be determined, not by the title alone nor by the question whether it professes to be an amendment of existing laws, but by examination and comparison of it with prior laws.</p> <p>4. Same—act which is merely an attempt to amend prior statutes without complying with constitution is void. Whatever may be the form of an act, if it is, in effect, merely an attempt to amend a law by intermingling new and different provisions with the old ones, or, by adding new provisions, to create out of the prior and new acts a complete law, the act is amendatory, and is void unless the requirements of section 13 of 'article 4 of the constitution are complied with.</p> <p>5. Same—rule where act must be held void as an amendatory act or sustained as an independent act. If an act must either be held void as an amendatory act or sustained as an independent act, it is the duty of the court, if it can consistently be done, to sustain the act as an independent act.</p> <p>6. Same—the Shot-Firers act of ipop cannot be sustained as amendatory of general act of 18pp. Because of its failure to comply with the requirements of section 13 of article 4 of the constitution the Shot-Firers act of 1907 cannot be sustained as an amendment of the general law of 1899, (Laws of 1899, p. 300,) which gives a right of action to the widow, heirs or dependents of persons killed by willful violation of such general law.</p> <p>7. Same—the Shot-Firers act is valid as an independent act— effect. The Shot-Firers act of 1907 is valid as a separate and independent act covering the whole subject with which, it purports to deal; but a violation of such act, resulting in the death of a miner, does not give to the widow of the deceased any right of action such as is given by section 33 of the general act of 1899.</p>

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. Lockwood Honors, 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. George A. Dupuy, 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. Theodore Brentano, Judge, presiding.</p>

<p>1. Special assessments—title of ordinance may be considered in determining the construction of an ordinance. The title of an ordinance may be considered in determining the construction to be given the ordinance itself.</p> <p>2. Same—all parts of ordinance should be considered. In order to determine the meaning of an ordinance the whole ordinance must be examined, and one part may be considered for the purpose of explaining another.</p> <p>3. Same—construction upholding validity of ordinance is preferred. If two constructions of an ordinance are possible, one of which will render it invalid and the other, sustain it, courts will adopt the construction which sustains it.</p> <p>4. Same—when ordinance is not misleading as respects street intersections. If the recommendation, the engineer’s estimate, the title of the ordinance and those sections of the ordinance relating to the pavement and the curb and gutter expressly except certain named street intersections from the scope of the improvement, the fact that other sections of the ordinance relating to the proposed improvement fail to except such street intersections does not render the ordinance inconsistent and misleading.</p> <p>5. Same—when objection that alleged stipulation was violated is waived. An objection that the city, in a special assessment case, violated an alleged stipulation that the question of benefits should be tried on the theory that the land was acre property and not that it was capable of subdivision is waived, where the objector, upon learning that the court did not consider that there was any binding stipulation, cross-examined the city’s witnesses fully on the subdivision theory and did not ask permission to recall her own witness to question him upon that theory.</p>

<p>1. Appeals and errors-—•when freehold is involved in highway case. Where the dispute in a road obstruction case is whether the public has a perpetual easement for. a highway over certain land a freehold is involved, and the Supreme Court has jurisdiction of a direct appeal.</p> <p>2. Injunction—equity has jurisdiction to restrain public nuisance. A court of equity has jurisdiction to restrain a public-nuisance, either at the suit of one who suffers a special injury aside from the injury to the public, or at the suit of the Attorney General, State’s attorney or other authority representing the public.</p> <p>3. Same—it is a public nuisance to obstruct or encroach upon a highway—remedy by injunction. Under paragraph 5 of section 221, division 1, of the Criminal Code, it is a public nuisance to obstruct or encroach upon a public highway; but the remedy by injunction in such cases will be exercised with great caution, and only in extreme cases will it be granted until after the right has been settled at law. (Metropolitan City Railway Co. v. City of Chicago, 96 Ill. 620, explained.)</p> <p>4. Same—if public travel will be stopped, a resort to equity is proper. If an injury of a public nature is threatened by shutting up a highway, whereby public travel will be interrupted, -a resort to equity is proper since the remedy is more effectual than the remedy at law, and an injunction will be granted at the instance of a public officer upon a clear showing that there will be an invasion of the public right.</p> <p>5. Same—mere fact that a .sidt is brought by State’s attorney does not conclusively establish jurisdiction. The mere fact that a suit to enjoin the building of a fence within the alleged limits of a highway is brought by the State’s attorney on behalf of the highway commissioners does not conclusively establish the right of the court to entertain the suit without regard to whether there is a controversy as to the existence of the public easement, which has not been determined at law.</p> <p>6. Same—when party is not deprived of substantial rights by equity assuming jurisdiction. If the facts are admitted and there is only a question of law as to the public right, or if the facts are so clearly proved that no different conclusion could be reached than that the public right exists and an injury thereto is threatened, the defendant is not deprived of any substantial right by 'a court of equity assuming jurisdiction, since such circumstances would require a court of law to direct the verdict.</p> <p>7. Same—when equity should not entertain bill to restrain the building of a fence. Where the owner of land adjoining a public highway claims the right to build a fence within the alleged limits of the highway but upon a portion thereof which is overgrown with underbrush and has never been used as a traveled road, the highway authorities have an adequate remedy at law, and equity will not interpose to enjoin the building of the fence before the rights of the parties are determined at law.</p>

<p>1. Partition—relationship of parties may prevent application of general rule relating to improvements. While it is a general rule that the court may, for equitable reasons, assign to the co-tenant making improvements on the common property the portion improved, without considering its increased value, or in case a division cannot be made may allow him the increased value of the premises caused by the improvements, yet the relationship of the parties may render such rule inapplicable as between them.</p> <p>2. Same—when presumption exists that improvements were intended as a gift. If an improvement is constructed by a husband upon property of the wife, or if a parent improves the property of a child, the law raises the presumption that the improvements are intended as gifts, the same as where a husband or parent purchases property and takes the title in-the name of the wife or child.</p>

<p>1. Evidence—what evidence in ejectment is properly stricken out as hearsay. In ejectment, where a boundary line is in dispute, testimony of a witness that the defendant’s building was partly on plaintiff’s lot is properly stricken out, where it appears that such testimony is based entirely upon what surveyors who ran the line told the witness.</p> <p>2. Same—when refusal to allow a witness to state what a deceased surveyor had told him is harmless. In ejectment, involving a disputed boundary line between lots in a certain addition, alleged error in refusing to allow a witness to state what a certain deceased surveyor had told him with reference to a corner of the addition not directly involved in the suit is harmless, where the witness was allowed to testify, without objection, where such surveyor had located the corner.</p> <p>3. Same—when admission of copies of deeds without preliminary proof being made is not harmful. In ejectment, involving a disputed boundary, the admission of copies of deeds without preliminary proof being made is harmless, where the exact location of the lots described in the deeds has already been testified to by witnesses, so that the deeds furnished no additional information to that already in the record.</p> <p>4. Appeals and errors—copies of exhibits should be made a part of the abstract of record. Alleged error in admitting in evidence, in ejectment, certain exhibits, which appear to have been plats, cannot be considered on appeal, where copies of such plats are not made a part of the abstract of record.</p> <p>5. Ejectment—when refusal of an instruction as to effect of deeds and title papers is proper. In ejectment, where the orily question in dispute is the boundary line between the lots of the plaintiff and defendant, an instruction stating that the deeds and papers introduced by the plaintiff were sufficient to vest the .legal title to the whole of the premises' described in the declaration and to authorize the plaintiff to take possession of the entire lot is properly refused, as having a misleading tendency.</p> <p>6. Dedication—boundary line fixed by deed cannot be changed by making street improvements. The boundary lines of a street as fixed by the deed of dedication cannot be changed by a city, for the making of street improvements or otherwise.</p>

<p>Appeal from the County Court of Piatt county; the Hon. E. J. Hawbaker, Judge, presiding.</p>

<p>Appeal from the County Court of Henry county; the Hon. Albert E. Bergland, Judge, presiding.</p>

Charles M. Walker, Judge, presiding. Appellant, Walter Foster, trustee in bankruptcy of Hip Lung, filed a bill December 7, 1907, in the circuit court of Cook county, charging that Moy Tong Hoy and Moy Tong Yee, prior to and at the time of the bankruptcy of Hip Lung, were co-partners with him, conducting a Chinese grocery at 323 South Clark street, Chicago; that by reason of the bankruptcy of said Hip Lung the co-partner-' • ship was dissolved, and that the other partners had…

<p>1. Constitutional law—the legislature may authorise cities to regulate sale and weight of bread. The provision of section 1 of article- 5 of the Cities and Villages act authorizing municipal corporations to regulate the sale of bread and to prescribe the weight and quality of bread in the loaf is a valid exercise of the police power.</p> <p>2. Same—Chicago bread ordinance does not deprive bakers of property without due process of law. The Chicago bread ordinance, which limits the weight of a loaf of bread to one pound and provides that bread shall not be made for sale in any way but in one-half, three-quarters or one pound loaves or in two, three, four, five or six pound loaves, is not unconstitutional, as depriving bakers of property without due process of law.</p> <p>3. Same—Chicago bread ordinance is not special legislation. The Chicago bread ordinance is general in its terms and applies to all persons in the city of Chicago engaged in the business of making and selling bread by the loaf, and hence is not, in a constitutional sense, special legislation.</p> <p>4. Municipal corporations—provision of the bread ordinance limiting weight of loaf is not unreasonable. The provision of the Chicago bread ordinance making one pound the standard weight for a loaf of bread and limiting the making and sale of bread to the various weights specified in the ordinance is not so unreasonable as to be void.</p> <p>5. Same—the Chicago bread ordinance is not void as denying the right of private contract. The provision of the Chicago bread ordinance fixing the standard weight of a loaf of bread and prohibiting the making and sale of bread except in accordance with the weights specified in the ordinance is not void, as amounting to a denial of the right of a baker to specially contract for bread in other weights to supply existing demands.</p> <p>6. Same—the fact that price of elements composing bread may ñuctuate does not render ordinance unreasonable. The fact that the price of the elements entering into the composition of bread may fluctuate and thereby necessitate a change in the price of the loaf does not render the Chicago bread ordinance unreasonable, as there is no attempt by such ordinance to regulate the price of bread.</p> <p>7. Sáme—label provision of Chicago bread ordinance is valid. The provision of the Chicago bread ordinance requiring a label to be pasted on each loaf of bread, showing the weight of the loaf and the name of the manufacturer, is not unreasonable and void. (City of Chicago v. Bowman Dairy Co. 234 Ill. 294, followed.)</p>

<p>Appeal from the County Court of Lake county; the Hon. DeWitt L- Jones, Judge, presiding.</p>

<p>1. Trial—when question whether mule driver kneiv of dangerous condition of roof is for the jury. The question whether a mule driver in a coal mine knew of the dangerous condition of the entryway roof which caused his injury is properly left to the jury, where there is evidence that he had never been in the entryway until the afternoon of his injury, which occurred on his third trip; that his only light was his miner’s lamp, which had to.be turned ahead, and that the roof was mostly so low that he had to bend forward, thus giving him scant opportunity to examine the roof.</p> <p>2. Instructions—what evidence justifies instruction as to damages for medical services. A clause in an instruction permitting the jury to consider as damages any necessary expenses the plaintiff may have been put to in and about caring for himself has a basis in the evidence, where the attending physician, after testifying to the services rendered, stated what the usual charge was for such services, though he did not state that he had made such charge to the plaintiff and that the plaintiff had agreed to pay it.</p> <p>3. New trial—when a new trial for alleged reading of newspaper article should not be granted. A new trial should not be granted upon the ground that the jurors may have read an alleged damaging article concerning the case, appearing in a newspaper published at the county seat the day before the trial was completed, where there is no competent proof that any. of the jurors read the article, although it is shown that one of the jurors was a resident subscriber and ten of them non-resident subscribers to the paper.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

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

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

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

Writ of Error to the Criminal Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. At the March term, 1909, the grand jury of Cook county returned into the criminal court of Cook county against the plaintiff in error an indictment containing two counts.

<p>1. Taxes—zvhat items of county tax are too general. Items of a county tax levy for “election and jurors account,” “public buildings account,” “jail and prisoners account” and “county jail fund account” are not sufficiently specific to comply with the requirement of section 121 of the Revenue act.</p> <p>2. Same—each item of county tax levy must be definite. Each item of a county tax levy should state the purpose with such particularity that the tax-payer may know what expenditure that item was intended to cover, so that he may prevent the collection of a tax for an illegal purpose, or compel the tax, when collected, to be applied to the purpose for which it was levied.</p> <p>3. Same—when judgment sustaining school tax levy will be upheld on appeal. A judgment of the county court upholding a levy for district school tax will not be reversed on appeal, where the objection is that the rate is excessive but there is no evidence shown by the abstract of record except the equalized value of the district, there being no certificate of levy shown nor anything to indicate the amount levied or the rate extended.</p> <p>4. Same—general appearance waives objection to notice. One who appears and files objections going to the merits of the collector's application for judgment and order of sale for «taxes waives an objection that the certificate of publication was defective.</p> <p>5. Same—a judgment for taxes cannot be reversed for reasons not urged in county court. A judgment in favor of the collector, on application for judgment and order of sale for taxes, cannot be reversed for reasons not urged in the county court.</p> <p>6. Same—clerk of the county court may identify the county board’s resolution. While the offices of clerk of the county court and county clerk are distinct offices yet there is but one incumbent, and that individual is a competent witness to identify any record in his custody, either as clerk of the county court of as county clerk, and a resolution of the county board levying a tax is properly identified by him, although he testifies that he is the clerk of the county court.</p>

<p>1. Taxes—question not included in objections in county court cannot be raised on appeal. Questions not included in the objections filed in the county court in a proceeding by the county collector for judgment and order of sale for delinquent taxes cannot be raised on appeal.</p> <p>2. Same—what makes a prima facie case entitling collector to judgment. In a proceeding for judgment and order of sale for delinquent taxes, proof of the sworn report of the list of delinquent lands, together with proof of the publication thereof and notice of the application, makes a prima facie case authorizing a judgment against the property without further proof.</p> <p>3. Same—exception to final judgment must be preserved by a bill of exceptions. It is not sufficient that the judgment order appealed from recites that the land owner objected and excepted to the entering of the judgment, but such exception must appear in a bill of exceptions or the entry of judgment cannot be questioned on appeal.</p> <p>4. The holding in People v. Cairo, Vincennes and Chicago Railway Co. (ante, p. 217,) governs certain of the questions raised in this case.</p>

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

<p>1. Fiduciary relations—rule where parties occupy a ñduciary relation. A person is said to stand in a fiduciary relation to another when he has rights and duties which he is bound to exercise and perform for such other’s benefit, and in such a- case he is not allowed to derive any profit or advantage from the relation between them except upon proof of full knowledge and consent of the other person.</p> <p>2. Same—rule embraces both technical and informal relations. A fiduciary relation exists in all cases where a special confidence is reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the rights of the person reposing such confidence; and the rule embraces both technical and informal relations, without regard to the origin of the confidence reposed.</p> <p>3. Parent and child—right of an adult son to purchase note against father. An adult son living apart from his father and in business for himself has the same right as a stranger to purchase outstanding notes and mortgages against his father, and while a fiduciary relation might be established in such case by less evidence than where the parties are strangers, yet there must be some evidence, outside of the mere fact of the blood relationship, to justify a court of equity in impressing a trust upon the transaction.</p> <p>4. Same—when mental condition of parent is not involved in a proceeding to declare constructive trust. Where there is no question of any fraud, undue influence or breach of confidence involved in the purchase by a son of a note and mortgage against his father, the question of the father’s mental condition has no bearing upon the inquiry whether the transaction shall be declared to be a constructive trust.</p>

<p>1. Commons of Kaskaskia—State may maintain suit to compel trustees of commons to honestly administer trust. The State of Illinois has such an interest in the commons of Kaskaskia that it may, through its Attorney General, file an information in the nature of a bill in chancery to compel the president and trustees of the commons of Kaskaskia to honestly administer the trust imposed upon them by the statute.</p> <p>2. Same—legal title is vested in inhabitants of parish in trust and not absolutely. The legal title to the commons of Kaskaskia is vested in the parish of the Immaculate Conception of Kaskaskia in trust' for the inhabitants of the parish and not in the inhabitants of the village of Kaskaskia in trust for the inhabitants of such village; but such title is not absolutely vested in the in- . habitants of the parish as individuals. (Hebert v. Lavalle, 27 Ill. 448, distinguished.)</p> <p>3. Same—word “town," used in constitutions of 1818 and 1848 and in act of 1851, means “parish.” The word “town,” used in the constitutions of 1818 and 1848 and in the act of 1851, is synonymous with the word “parish,” as used in the French patent of 1743, and its use did not have the effect to in any way limit the title to the commons of Kaskaskia nor to divest the inhabitants , of the parish of the Immaculate Conception of Kaskaskia of their title to such commons.</p> <p>4. Same—title of inhabitants of parish cannot be limited to and vested in inhabitants of village. The title of the inhabitants of the parish of the Immaculate Conception of Kaskaskia to the commons of .Kaskaskia has not been and cannot lawfully be limited to and vested in the inhabitants of the village of Kaskaskia; but the title of the inhabitants of the parish of the Immaculate Conception of Kaskaskia is not such a one as gives them a right to lease, convey or otherwise dispose of the lands.</p> <p>5. Same—title to commons is held by artificial body in which it was placed by French grant. Until the State of Illinois shall provide for the sale of the commons of Kaskaskia the title to such commons must be held to be in the inhabitants of the parish of the Immaculate Conception of Kaskaskia, as the artificial body in which such title was placed by the original French grant.</p> <p>6. Same—State cannot vest title to commons in inhabitants of village of Kaskaskia. While the legislature, or the people by constitutional enactment, may authorize the segregation or diversion of the commons of Kaskaskia, neither the legislature nor the people have the power to divest the title of the inhabitants of the parish to such commons and invest the same in the inhabitants of the village of Kaskaskia.</p> <p>7. Same—legal voters residing on the island of Kaskaskia may vote at elections of trustees. At all elections held for the purpose of electing trustees for the commons of Kaskaskia all legal voters residing upon the island of Kaskaskia are entitled to vote.</p> <p>8. Same—trustees of commons are not entitled to compensation for services. Since no provision is made in the act of 1851 for compensation for the services of trustees of the commons of Kaskaskia elected under that act such trustees are not entitled to compensation for their services.</p> <p>9. Same—the act of 1851 is sole source of trustees’ duties and powers. The act of 1851 (Private Laws of 1851, p. 5,) clearly defines the duties of the trustees of the commons of Kaskaskia, and is the only instrument to which the trustees, the beneficiaries of the trust and the courts must look to determine the powers and duties of such trustees.</p> <p>10. Same—a court .of chancery may remove trustees illegally elected. The trust in the commons of Kaskaskia created by the" act of 1851 is in the nature of a charitable trust for educational and religious purposes, and hence a court of chancery, upon proper proof, may remove trustees of such commons who are illegally elected and provide for the holding of a new election by some officer appointed by the court.</p> <p>11. Same—court of chancery has the power to compel honest administration of trust. It is within the power of a court of chancery having jurisdiction, to set aside leases fraudulently and illegally made by the trustees of the commons of Kaskaskia, and to compel old trustees, who are parties to the suit, to account for moneys coming into their hands which they have wrongfully paid out or misappropriated.</p> <p>12. Same—funds derive<i from leasing commons may be used for religious purposes. Section 3 of article 8 of the constitution of 1870 is only intended to prohibit the use, for sectarian or religious purposes, of funds which form a part of the public revenues of the State, and does not preclude the use, for religious purposes, of funds derived from leasing the commons of Kaskaskia, and such funds may be so used if the manner of appropriating the same is in compliance with the act of 1851.</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. John Gibbons, Judge, presiding.</p>

<p>1. Contracts—rule of construction. The object in construing a contract is to arrive at the intention of the parties, and the subject matter of the contract, the nature of the instrument, the intention and purpose of the parties and the object they had in view will be taken into consideration and the intention carried into effect so far as the rules of language and the rules of law will permit.</p> <p>2. Municipal corporations—a city has right to change grade of streets for track elevation. A city has the right to change the grade of streets and require the elevation of railroad tracks and agree with the railroad companies upon the kind, extent and manner of the work to be done.</p> <p>3. Same—a city not liable to abutting owner for temporary interference with access to property. Temporary interference with access to abutting property during the time a street is obstructed for the purpose of constructing a public improvement is not a damaging or taking of property within the meaning of the constitution, and the city is not liable to the owner of such property for loss occasioned thereby.</p> <p>4. Same—provision of Chicago track elevation ordinance that city shall pay damages gives no new rights. The provision of the Chicago track elevation ordinance by which the city agrees to pay all direct, incidental or consequential damages, if any there be, to adjacent property or business caused by the enforcement of the ordinance, was intended only to determine whether the city or the railroad companies should pay damages legally recoverable on account of the work, and not to give the property owners any new rights. (St. L., V. & T. H. R. R. Co. v. Capps, 67 Ill. 607, and 72 id. 188, distinguished.)</p>

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

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

<p>1. Special assessments—when objections to collector’s application for sale are limited to jurisdictional ones. After judgments confirming a special assessment and approving the acceptance of the improvement by the board of local improvements have been entered, the only objections available to the land owner, upon application by the county collector for judgment and order of sale, are those going to the jurisdiction of the court to enter the judgments of confirmation and approval, and such lack of jurisdiction must appear upon the face of the record itself.</p> <p>2. Same—what recital in a sewer ordinance does not render it void. The fact that one section of a sewer ordinance recites that “all property that may be damaged by the construction of the proposed sewer system has been paid for by the city,” there being no description of such property in the ordinance nor any reference to the manner in which the city acquired it, does not justify holding the ordinance void, on the presumption that the city acquired the property in some illegal manner.</p> <p>3. Same—judgment of approval under section 84 is conclusive. Under section 84 of the Local Improvement act the certificate of the board of local improvements that the improvement has been completed in compliance with the ordinance and accepted is prima facie evidence of the truth of its recitals, and while such presumption may be rebutted upon the hearing, yet if a judgment of approval is entered it is conclusive upon the parties, and no appeal or writ of error to reverse the judgment is allowed.</p> <p>4. Same—section 84 of the Local Improvement act is constitutional. Section 84 of the Local Improvement act, relating to the power of the county court to approve the acceptance of an improvement by the board of local improvements, is constitutional.</p>

<p>1. Negligence—dangerous attractions on unguarded premises— liability of the owner for injury to children. Unguarded premises supplied with dangerous attractions are regarded as holding out an implied invitation to children, which will render the owner liable for injuries to them even though they be technically trespassers; and the question whether such premises are attractive to children is one for the jury.</p> <p>2. Same—exercise of due care need not be proved by direct evidence. While the plaintiff in an action for the negligent killing of his intestate has the burden of proving the exercise by the deceased of due care to avoid the injury, yet such fact need not be proved by direct evidence, and if there were no eye-witnesses to the accident, care on the part of the deceased may be proven by the highest proof of which the case is capable, including his habits and other pertinent circumstances.</p> <p>3. Same—what tends to show that death was caused by an exposed coal,conveyor. Proof that the plaintiff’s intestate, a boy of ten years, was last seen alive standing near an idle coal conveyor, which thereafter started up; that the frozen'body of the boy was found two days later, with his arm and clothing caught in the conveyor and one side of his face, next to the exposed sprocket wheel, worn off, tends to show that death was caused by such conveyor.</p> <p>4. Evidence—coroner’s verdict admissible though his-name follows those of jurymen. The fact that the name and seal of the coroner are attached to the verdict under the names of the jurymen does not render the verdict inadmissible.</p>

Edward A. Dicker, Judge, presiding. This is, an appeal from a judgment of the Appellate Court affirming a judgment of the municipal court of Chicago against appellant for costs. Appellant, plaintiff below, sued the appellee in an action of assumpsit on three promissory notes. One of the notes was dated April 19, 1902, for $gooo; payable four years after date.

<p>1. Taxes—property actually in transit through Illinois cannot be taxed here. Property actually in transit through Illinois from one State to another is exempt from local taxation, but if such property, during its transit, is stored in Illinois for an indefinite period for other than natural causes or lack of facilities for immediate transportation, it acquires a situs in Illinois for taxation.</p> <p>2. Same—when grain in elevator may be taxed. Grain in a Chicago elevator on April 1 and belonging to a resident of Illinois may be taxed in Illinois though it was shipped from foreign States to points of destination in other States, and was placed in the Chicago elevator, in pursuance of the terms of the shipping contracts, for the sole purpose of inspecting, weighing, cleaning, drying, sacking, grading, mixing and re-shipment to the points of destination and not for use or disposal in Illinois.</p> <p>3. Same—the distinction between "imports” and goods shipped from other States. As distinguished from “imports” from foreign countries, property which is shipped into one State from other States may be taxed by' the former State if it is held there for sale or for any other purpose giving to the property a situs within such State.</p> <p>4. Same—when status of being in transit is lost. Grain which is removed from the cars and placed in an elevator for an indefinite time for the purpose of inspection, cleaning, weighing, mix- ' ing, etc., loses its status of being in transit, even though the owner intends, but is not obliged, to re-load the grain and forward it under the original shipping contracts to the points of destination.</p>

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Wiuuiam N. CotTrflu, Judge, presiding. This suit was commenced by the plaintiff in error as an action of the fourth class, in the municipal court of Chicago.

<p>1. Trial—a party must urge at the trial all objections to evidence which may be obviated. A party cannot sit by and permit evidence to be introduced without objection and on appeal urge an objection that might have been obviated if made at the trial.</p> <p>2. Eminent domain—-under act of 1852 compensation was for entire title. Under the act of 1852 the assessment of damages in a condemnation proceeding was held to be in satisfaction of all the title to the property, including the fee simple and all lesser estates, and in case there was a life estate the fund was subject to the control of a court of equity, which might provide for the security of the principal to the remainder-men and the payment of interest to the life tenant.</p> <p>3. Same—rights of minor remainder-men not barred by payment of compensation to life tenant. Under the act of 1852 the fact that the widow had a life estate in the land condemned, the remainder in which was in the minor children, did not authorize the petitioner to pay the entire compensation to the widow without securing the payment of the principal to the remainder-men at her death, and payment of such compensation to the widow did not bar the rights of the remainder-men.</p> <p>4. Limitations—when rights of remainder-men are not barred by railroad company’s possession. Where land in which the widow had a life estate, with remainder to her minor children, was con- ■ demned under the act of 1852 for railroad right of way, payment of the compensation to the widow entitled the petitioner to possession of the right of way during the widow’s lifetime, and the Statute of Limitations did not begin to run against the remainder-men until the widow’s death.</p> <p>5. Pleading—effect where an admission is stricken from unsworn bill. Where an admission contained in an unsworn original bill is stricken out it is not conclusive against the complainant after the amendment is made, but it remains as evidence against the complainant, to tie considered with all the other evidence.</p>

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

Writ or Error to the Circuit Court of Madison county; the Hon. Charles T. MqorE, Judge, presiding. This was a bill in .chancery filed in the circuit court of Madison county by F. Louis Hill and nineteen other persons owning real estate abutting upon Hillsboro avenue, in the city of Edwardsville, against the St. Louis and Northeastern Railway Company, for an injunction to restrain the defendant from hauling freight in car-load lots upon Hillsboro avenue, in said city.

<p>Master and servant—telephone lineman assumes risk of fall- t ing of rotten pole. A telephone lineman assumes the risk of injury from the falling of a decayed pole which he had climbed in order to detach wires preparatory to taking down the pole, where he has worked as a lineman for several years and knows that he is required, under the company’s rules, to make his own inspection of poles before climbing them and that no other inspection is made.</p>

Writ of Error to 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. The complainants filed a bill in chancery in the circuit court of LaSalle county against the defendants for the appointment of a receiver of the Western Cottage Piano and Organ Company, a corporation, and for other relief.

Writ or Error to the Circuit Court of Bureau county; the Hon. Richard M. Skinner, Judge, presiding.

<p>1. Negligence—when the court must submit case to jury. If there is evidence tending to show that the defendant’s servant suddenly and without warning backed the auto truck he was driving into the street car on which the plaintiff was conductor, thereby injuring him as he stood on the running-board of the car, collecting fares, it is the duty of the court to submit the case to the jury.</p> <p>2. Same—when street car conductor is not, as a matter of law, guilty of contributory negligence. A street car conductor is not, as a matter of law, guilty of contributory negligence in stepping upon the running-board of the car to collect fares without anticipating that an auto truck standing several feet away would suddenly back into the car and injure him, but such question is one of fact for the jury.</p> <p>3. Same—when a joint liability need not be proved. The fact that a declaration in a suit for damages charges that both defendants were guilty of negligence does not require proof of a joint liability in order to authorize a recovery, and if the guilt of one of such defendants of the negligence charged in the declaration is proven and is shown to be the cause of the injury a recovery against such defendant is authorized.</p> <p>4. Instructions—when exercise of due care is not limited to moment of injury. An instruction explaining that the meaning of' the requirements of other instructions that the plaintiff must have exercised ordinary care for his safety was “that he was required to exercise that degree of care which an ordinarily prudent person situated as plaintiff was before and at the time of the accident would have exercised for his own safety,” does not ignore the plaintiff’s conduct in getting in the position he was when injured.</p> <p>5. Same—instruction that plaintiff need not prove case beyond a reasonable doubt is proper. An instruction in a personal injury case stating that “the plaintiff is not bound to' prove his case beyond a reasonable doubt but is merely bound to prove it by a preponderance of the evidence” is proper.</p> <p>6. Same—when refusal of a specific instruction is proper. An instruction requiring the jury to find for the defendant if they believe, from the evidence, that the direct and immediate cause of the collision which injured the plaintiff was due to the condition of the street and not to any negligence of the defendant, is properly refused, where other instructions are given stating, in substance, that the plaintiff could not recover against such defendant unless the plaintiff proved that his injury was the proximate result of such defendant’s negligence, as alleged in the declaration.</p>

<p>1. Special assessments—an ordinance need not specify every detail of work. An ordinance which prescribes the place where curbs are to be located, their height and width, the place where the curb is to start and end, the amount of new curbing to be used and the amount of old curbing to be re-set, and provides that the work shall be done in a workmanlike manner under the superintendence of the improvement board, need not particularly specify what old curb-stones shall be used nor at what points in the curb line they shall be re-set.</p> <p>2. Same—when an improvement board is not vested with improper discretion. The fact that the board of local improvements has discretion, under the ordinance, to say what old curb-stones shall be used and where they shall be re-set in the curb line does not render the ordinance void, since if they select stones which are unfit for use their acceptance of the improvement can be annulled by the county court and the contractor be compelled to replace worthless curb-stones in such manner as the court may direct.</p>

<p>1. Contracts—by what law governed—conflict of laws. The law of the place where a contract is made governs the performance of its terms and conditions, except where it is the express intention of the parties that the contract is to be performed at a different place and under a different jurisdiction from the place where the contract is made, in which case the law of the place of performance governs.</p> <p>2. Same—when compensation for services is determined by law of place where contract is made. Where a contract employing a person to find a purchaser for certain property is made in a foreign State, where the property is located, and there is no agreement as to what the compensation shall be, the usual charge for such services in such State determines the amount of the compensation, though the agent secured the buyer in Illinois and brought the matter to his attention here. •</p> <p>3. Same—sale of all the stock of a corporation is a sale of its assets. A contract employing a person to sell a saw-mill, railroad and real estate owned by two corporations is complied with by making a sale of all the capital stock of such corporations, as a sale of all the stock of a corporation is, in legal effect, a sale of all of its assets.</p> <p>4. Depositions—what testimony should not be stricken out'as hearsay. In an action to recover commissions for the sale of property, testimony in the deposition of an employee of the buyer to the effect that the buyer stated to him that the property was for sale and asked him to look it up should not be stricken out as hearsay, where the question at issue is not whether the buyer’s statement was true, but whether he had at that time received notice from the plaintiff, who was the vendor’s agent, that such property was for sale.</p> <p>5. Sam%—objections to form of questions should be taken before trial by motion to suppress. Objections to the form of the questions in a deposition should be taken before the trial by a motion to suppress and not when the depositions are read on the hearing; but error in sustaining such objections on the hearing is not harmful where the questions concerned a subject fully proved by other uncontradicted evidence.</p> <p>6. Evidence—when proffered evidence is properly rejected. Evidence offered for the purpose of impeaching a witness upon the ground that he had made statements out of court contradicting his testimony is properly rejected, where it relates to matters wholly immaterial to the issues being tried.</p>

Julian W. Mack, Judge, presiding. This was an application filed by Jennie L. Brooke under the act concerning land titles, in the circuit court of Cook county, to register title to the west half of lot 19, in block 3, in Johnson’s subdivision of the north-west quarter of the south-west quarter of section 19, township 39, north, range 14, east of the third principal meridian, Cook county, Illinois.

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 Erdredge, Judge, presiding. This was an action on the case brought by appellee, Joseph Kenny, in the circuit court of LaSalle county, against appellant, the Marquette Cement Manufacturing Company, to recover damages alleged to have been sustained by reason of the negligence of said company.

<p>1. Specific performance—when oral contract to convey should be'specifically enforced. An oral agreement to convey a house and lot to the complainant should be enforced after the promisor’s death, where the evidence sufficiently establishes the agreement, shows possession and full performance by the complainant and presents a state Of facts under which a great wrong would be done the complainant if the relief were denied.</p> <p>2. Same—what tends to show possession by the complainant as owner. Proof that the complainant in a specific performance case had paid rent for the premises as a boarding house up to the time they were purchased by one of her boarders, and that thereafter she paid for what improvements were made but paid no rent to the purchaser, who frequently spoke of the property as belonging ' to her, tends to show her possession as owner and not as a tenant, though the purchaser mortgaged the property and took tax receipts in his own name.</p>

Appear from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding. '

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

1 AppEae from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.

<p>1. Master and servant—ordinary dangers incident to service are assumed by contract of employment. One who enters into an employment which is necessarily in some degree dangerous is held to take the usual and ordinary dangers into consideration in making his contract to work, and for an injury received from such dangers he cannot recover from the master.</p> <p>2. Same—a servant may assume unusual danger by remaining in service with notice. Dangers not ordinarily incident to the employment are assumed by the servant, where, with knowledge of such dangers, he elects to continue in the employment without any promise by the master to remove them.</p> <p>3. Same—burden is upon the plaintiff to show servant did not have knowledge of danger. In an action to recover damages for the death of a night foreman of a switch crew, due to the absence of a front headlight from the switch engine with which he had been and was then working, the burden is upon the plaintiff to show that the deceased did not have knowledge of such condition of the engine; and this is true whether the character of proof is • direct or circumstantial.</p> <p>4. Railroads—when switchman must be held to have knowledge of a dangerous condition. A night foreman of a switching crew who worked for ■ a whole night with a switch engine which he then knew had nothing but a switchman’s lantern for a front headlight, and who saw the engine, which was in the same condition, when he came to work the next night, must be held to have had knowledge of such unchanged condition, in the absence of any proof whatever that he did not have such knowledge.</p> <p>5. Same—when no recovery can be had for death of a switch foreman. No recovery can be had for the death of a night foreman of a switching crew, due to the absence of a front headlight from the switch engine with which he was working, where he had worked the whole night before his death with knowledge of such condition and without making complaint or exacting a promise to repair, and continued to work on the next night until the time of the accident knowing that such condition was unchanged.</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. F. D. Ramsay, 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. R. S. Tuthill, Judge, presiding.</p>

Writ oe 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>Original petition for habeas corpus.</p>

<p>Petition for writ of certiorari.</p>

<p>Appear from the Circuit Court of Montgomery county; the Hon. T. E. Ames, Judge, presiding.</p>

<p>Appeal 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>

<p>Writ oe Error to the Circuit Court of Woodford county; the Hon. John H. Moeeett, Judge, presiding.</p>

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

<p>•Appeal from the Circuit Court of Cass county; the Hon. Guy R. Williams, Judge, presiding.</p>

<p>1. Deeds—when decree dismissing bill to cancel deed will be upheld on appeal. A decree dismissing a bill to set aside a deed by complainant and for partition, based upon the oral testimony of witnesses heard in open court, will be upheld, on appeal, unless the findings of the chancellor are palpably erroneous.</p> <p>2. The court reviews the evidence in this case, and holds that it fails to establish a fiduciary relation between the grantor and grantee in the deed sought to be set aside or that there was fraud in the transaction.</p>

<p>Writ op Error to the County Court of Grundy county; the Hon. G. W. Huston, Judge, presiding.</p>

<p>1. Deeds—when grantee becomes personally liable to pay encumbrances. Where a grantee, as part of the consideration for the conveyance, “assumes all encumbrances,” the word “assumes” has the meaning of “assumes and agrees to pay,” and the grantee becomes personally liable to pay the encumbrance, and, as between herself and the grantor, becomes the principal debtor.</p> <p>2. Mortgages—when a mortgagee may establish claim against grantee’s estate. Where a deed provides, as part of the consideration, that the grantee assumes a mortgage, and the mortgage is not paid when the property, under the terms of the deed, reverts to the grantor at the grantee’s death, the mortgagee is entitled to establish a claim against the grantee’s estate for the amount due on the mortgage, "but until payment of the judgment the mortgagee is entitled to foreclose the mortgage. ,</p> <p>3. Same—what transaction does not extinguish a judgment for the mortgage debt. Where a mortgagee has recovered a judgment for the mortgage debt against the estate of a grantee who had assumed the mortgage, a subsequent purchaser of the property may, to prevent foreclosure, purchase the judgment in her own name or by an agent and arrange with the mortgagee to cancel and release the mortgage, and such transaction does not operate as a merger of interests or an extinguishment of the judgment, such as relieves the estate from liability to the purchaser or her assignee. •</p> <p>4. Assignment—when assignment of judgment to the person liable for debt does not extinguish it. The assignment of a judgment will not satisfy or extinguish it where the assignee, although liable for the debt evidenced by the judgment, is not a party to the judgment or occupies the position of a surety, only.</p>

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

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

Writ op Error to the Criminal Court of Cook county; the Hon. William H. McSurely, Judge, presiding. The plaintiff in error and Oscar Nelson, Herman Wilson and Charles Howard were indicted for murder at the March term, 1909, of the criminal court of Cook county. The indictment charged that the defendants assaulted one William Winters on March 15, 1909, and inflicted injuries from which he died on March 18, 1909.

<p>1. Eminent domain—fact that the land not taken will be unfenced six' months may be an element of damage. In a proceeding to condemn land for a railroad right of way, an instruction authorizing the jury, in estimating damages, to consider the depreciation, if any there was, to land not taken, by reason of the same remaining open, exposed and unfenced for six months, is proper, and is not open to the construction that it authorizes an allowance of damages for injuries to stock, for which the railroad company would be liable in another action.</p> <p>2. Instructions—an instruction authorizing jury to substitute their judgment for that of witnesses is improper. An instruction telling the jury that if they believed they had arrived at a more' accurate judgment as to the value of the land to be taken, and the amount of damages, by their personal examination of the premises than was shown by the evidence in court they might rightly fix such value and damages at the amount approved by their judgment so formed, even though it might differ from the amount testified to and from the weight of the evidence given by witnesses, is properly refused.</p> <p>3. Same—correct instruction not applicable to case may be refused. An instruction in a condemnation case stating that if land not taken is enhanced in value by reason of the improvement and such enhanced value equals or exceeds the injuries sustained, then, in law, there was no damage and none should be allowed for land not taken, states the law correctly; but its refusal is proper where it would have been impossible for the jury, even under the evidence for the petitioner itself, to have found there was no damage to the land not taken.</p> <p>4. Same—when an instruction as to disregarding testimony of witnesses is erroneous. An instruction advising the jury in a condemnation case that if they believed any witness had under-estimated the value of the land taken or the damages to land not taken, on account of interest, prejudice, want of knowledge or experience or truthfulness, they had a right to disregard the evidence of such witness in so far as the value of the land or amount of damages was unjustly under-estimated, is erroneous, not only in authorizing the jury to disregard the testimony of witnesses, but as applying only to the witnesses for the petitioner.</p> <p>5. Same—instruction as to weighing testimony should apply to witnesses for both parties. The interest, prejudice, want of knowledge or experience or truthfulness of any witness for either party is proper for the consideration of the jury in weighing his testimony, but the court, in advising the jury on that subject by an instruction, should apply the rule to witnesses for both parties; and unless the testimony of a witness is willfully false as to a material matter and is without corroboration it cannot be disregarded by the jury but must be weighed and considered.</p> <p>6. Appeals and Errors—when error in giving instruction will not reverse condemnation judgment. Error in giving an instruction relating to the disregarding of the testimony of the petitioner’s witnesses will not work a reversal of a condemnation judgment where there is no claim that the amount allowed for the land taken was too high and the amount allowed as damages, when considered from every standpoint, including the petitioner’s stipulations and the testimony of its witnesses, is as favorable to the petitioner as could be expected.</p>

<p>Writ or Error to the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding.</p>

<p>1. Trial—court cannot weigh evidence in passing on a motion to direct verdict. In passing upon a motion to direct a verdict for the defendant in a personal injury case the court cannot weigh the evidence, but is required to view it in the light most favorable to the plaintiff and to resolve all controverted questions of fact in his favor.</p> <p>2. Negligence—zvhen judgment of Appellate Court is final. In reviewing the action of the trial court in refusing to direct a verdict for the defendant in a personal injury case, the Supreme Court has only to consider whether the facts which the evidence tends to prove have any reasonable tendency to show that the defendant was negligent and that the plaintiff was injured by such negligence and was himself in the exercise of ordinary care, and if they have such tendency the judgment of the Appellate Court as to their weight is final.</p> <p>3. Same—act of a switchman in stepping upon brake-beam of an approaching car is not negligence per se. There is no rule of law that the act of a switchman in attempting to step upon the brake-beam of an approaching car is of itself such negligence as will defeat a recovery for injuries, and it is for the jury to say, under the circumstances shown by the evidence, whether he was negligent in so doing.</p> <p>4. Same—it is for the jury to say whether switchman was negligent in not choosing safer method. If there is evidence tending to show that the method chosen by a switchman for doing certain work was a customary method and was considered safe, it is for the jury to say whether he was negligent in choosing that method in preference to one which would have been safer, at the cost of some inconvenience and delay.</p> <p>5. Same—proof of a customary method of doing work is some evidence as to whether it is negligent. While negligent acts do not cease to be negligent because they are freqtient, yet proof of a customary method of doing work by persons who are frequently and habitually required to perform it is some evidence as to whether the method is or is not' negligent.</p> <p>. 6. Railroads—proper use of grab-iron on car is not limited to very act of coupling cars. If it is necessary for a switchman to adjust the knuckle of a car in order to make a coupling, such act is as much a part of the coupling when the cars are several hundred feet apart as when they are close together; and his use of ,the grab-iron in attempting to board the car and adjust the knuckle 'when the cars are some distance apart is not such an unwarranted use as relieves the company from liability for an injury due to the defective condition of the grab-iron.</p> <p>7. Master and servant—care required of servants is to be exercised in view of master’s duty. The liability of the master to use reasonable care to furnish his servant ordinarily safe instrumentalities with which to work is imposed by law, and the ordinary care required of a servant is to be exercised in view of this duty of the master.</p> <p>8. Same—master cannot contract to relieve -himself from liability for his negligence. A servant does not assume a risk arising from the failure of the master,"' without the knowledge of the servant, to perform his duty with respect to instrumentalities furnished for the servant’s work, and public policy will not permit a master to contract with a servant to relieve himself from liability for injuries occasioned by his own negligence or failure to perform duties imposed upon him by law.</p>

<p>Writ or Error to the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.</p>