of the court, had paid said amount to the registrar of the court for Glos, subject to his order. It was adjudged by the decree that appellee was the owner of the property, that no sufficient notice was given, as required by the statute, of the sale of the property for taxes and of the time when the right to redeem would expire, and that the tax deed was null and void. Glos offered no evidence, but on this his appeal to this court he contends that the decree is erroneous for three reasons-First, because the evidence fails to prove that the appellee was, at the time of filing her bill, the owner of the property; second, that there was no competent evidence that the notice was not given as required by the statute; and, third, that it was error not to refer the cause to the master on his motion to state the account of taxes, interest, and costs to be decreed to him on the cancellation of his tax deed.

There was sufficient evidence to prove that appellee had been in the open, adverse, and exclusive possession of the property for more than 20 years prior to its sale for taxes, and prior to the filing of her bill, claiming to own it, and this was sufficient to sustain her allegation that she was the owner. Glos v. Randolph, 138 Ill. 268, 27 N. E. 941.

As to the second objection, it appears that the property was not assessed in appellee's name, but, as she was in the actual possession of it, the purchaser at the tax sale, Glos, was required to serve notice in writing upon her of such purchase, and it is not pretended that any such notice was given. On the contrary, notice by publication, only, was given, based upon affidavits that no person was in possession or occupancy of the property, and that affiant made diligent search and inquiry in Cook county for the owners of, and parties interested in, said premises, and upon such diligent search and inquiry was unable to find any of said owners or parties interested. The affidavits were not a sufficient compliance with sections 216 and 217 of the revenue act. The statute does not confine within county lines the diligent inquiry required to be made. The deed issued in pursuance of such notice is void, and was properly so declared. Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196.

But counsel insist that the court erred in admitting in evidence the certified copy of such affidavits, because of the alleged insufficiency of the certificate of authentication,that is, that the certificate of the county clerk failed to state that he was the keeper of the records of which the writings certified to were certified to be a copy. We find it unnecessary to consider this objection, inasmuch as the witness, a deputy clerk, producing the same, testified that he had examined such records and said copy so offered in evidence, had compared the same, and that the said copy so offered in evidence was a true copy. Section 18 of the act re

lating to evidence provides that "any such papers, entries, records, and ordinances may be proved by copies examined and sworn to by credible witnesses." Hurd's Rev. St. 1899, p. 861. The affidavits in question were sufficiently proved by the copy examined and sworn to by the witness, whether it was properly certified to by the clerk or not.

The third point, that the court erred in not referring the cause to the master to state the account, is not well taken. The account, if it may be so called, was exceedingly simple, and rested merely in the computation of a few items fully shown by the evidence, and there was no necessity for a reference. The judgment will be affirmed. Judgment affirmed.

(193 III. 457)

CHICAGO TITLE & TRUST CO. et al. v. McGLEW.

(Supreme Court of Illinois. Dec. 18, 1901.) ADMINISTRATION-CLAIMS-PRIORITY-SERV

ANT'S WAGES-ACCOUNT STATED-CON

SIDERATION-EVIDENCE-STATUTES.

1. Under the act relating to administration (1 Starr & C. Ann. St. c. 3, § 70), including in the preferred list of the third class of claims against estates of decedents demands due common laborers or household servants, the fact that decedent and a servant to whom money was owing for wages had stated the account between them did not change the character of the claim to an "account stated," so as to deprive the servant of his right of priority.

2. Where an account between decedent and a servant contained items due for wages. the fact that there were also items for cash loaned to or left with the decedent by the servant, but not in such manner but that the court could determine the total wages earned and the balance due therefor, there was not such an intermingling of accounts as to deprive the servant of his right of priority for wages under the act relating to administration (1 Starr & C. Ann. St. c. 3, § 70), placing such claims for wages in the third class of claims against estates of decedents.

3. The rights of creditors of the estates of decedents as to the priority of their claims is fixed by the laws in force at the time of decedent's death, and it is immaterial that a claim entitled to priority by such law existed before the law was enacted.

Appeal from appellate court, First district. Proceedings by Ellen McGlew against the Chicago Title & Trust Company, administrator of the estate of John T. Chumasero, deceased, and others to establish claim against the estate. From a judgment of the appellate court (90 Ill. App. 58) in plaintiff's favor, defendants appeal. Affirmed.

Wells & Kelly and Tenney, McConnell, Coffeen & Harding, for appellants. S. S. Gregory, for appellee.

RICKS, J. This case comes by appeal from the appellate court for the First district, and is reported in 90 Ill. App. 58. That court, in its opinion by Mr. Justice Shepard, made the following statement of the case, which we adopt:

"This is the case of a claim originally filed in the probate court against the estate of

John T. Chumasero, deceased. The controversy is purely one of classification or preference under the statute relating to the administration of estates. Section 70 of that act, as in force at the time of the death of Mr. Chumasero, and since July 1, 1889, to the present time, includes within the preferred list of the third class 'demands due common laborers or household servants of deceased for labor.' There is no controversy as to the amount of appellee's claim. It was admitted by appellants in the court below that the claim was allowable, at the amount thereof, as of the seventh class. Nor is it at all disputed that appellee falls within the class of persons mentioned in the statute as a household servant, nor but that a part of her claim is due her for her labor, within the meaning of the statute; the contention in the circuit court, as here, being confined to the single question of classification. The appellee worked for the decedent as a domestic servant in his family from May 8, 1876, to April 15, 1896. * * Exhibits, consisting of a one-page paper and oft two memorandum books, upon and in which entries appear in the handwriting of the decedent, were received in evidence, and it is not disputed that the entries are correct, and fully establish the amount due to appellee. The entries on the one-page paper show a balance of $1,007.30 as due to appellee January 1, 1889, after crediting wages and deducting payments. In the account as there shown there is no mention of interest or of cash received of appellee. In other words, those entries relate wholly to wages earned by and cash paid to appellee. This balance of $1,007.30 | again appears on the memorandum books, and is there added to wages earned subsequent to January 1, 1889, and to sundry cash items apparently received prior thereto by the decedent from the appellee, and interest on the several sums is credited. Then appears a summary of separate accounts, called, respectively, 'cash account' and 'wages account,' in each of which interest is included, and a balance stated, as of January 1, 1896, to be due appellee, on account of cash, $735.17, and, on account of wages, $3,332.30. Then follows, in items, a list of cash payments to the appellee, amounting, with $98.70 interest charged thereon, to $891.98. And last of all is shown a recapitulation of amounts due to appellee on January 1, 1896, as follows:

It would seem from these memoranda that, though there was an inextricable mingling of interest in the accounts, the amount of cash received by decedent from appellee, and paid by him to her, was separated from the rest, and was intended so to be kept. It is clearly distinguishable. It plainly appears that the decedent received from appellee an amount of cash, which, with interest added, amounted to $735.17, and that during the same period of time he paid to her $793.79, to which $98.70 of interest thereon makes $891.98. He therefore paid to appellee an amount more than enough to wipe out all the cash received from her, with interest thereon added."

The questions now raised and insisted upon by appellants for a reversal are-First, that, the appellee and decedent having stated the account between them, it assumed a new character, that is, "account stated,"—and that the court cannot now inquire into it to ascertain the consideration for the items that entered into it; second, that, it appearing from the account itself that there were items for cash loaned to or left with the decedent by the claimant for which she was not entitled to priority, there is such intermingling of accounts that the court cannot classify this claim other than as general indebtedness of the seventh class; third, that, something like one-third of the wages claimed having been earned prior to July 1, 1889, when the act of assembly went into effect that placed claims of household servants for labor in the third class, appellee was not entitled to have that part of her claim so classed.

In support of the first contention appellants cite and rely on Silver v. Williams, 17 Serg. & R. 292, in which it was held that the right of preference was waived by the servant "taking from the intestate single bills payable at a future day, with interest." This opinion was delivered something near a half century ago, and we have been unable to find it followed or cited as authority in any other case. It is not the rule in this state. This court has held a number of times that the taking of a note bearing interest is not the discharge or waiver of a lien. Van Court v. Bushnell, 21 Ill. 624; Brady v. Anderson, 24 Ill. 111; Paddock v. Stout, 121 Ill. 571, 13 N. E. 182. All these cases were where mechanics or material men had taken the notes of the owners of the property, and we held that the lien was not waived thereby, and that the notes merely served to liquidate that is, to ascertain-the amount of the demand. Mechanics' and material men's liens are purely statutory, are strictly construed, and, we think, are analogous to the priority of classification claimed by the appellee. The general rule is that a lien is not waived by the lienholder's taking the bond or bill single of the debtor, or his negotiable promissory note, or his check, if not presented, or if unpaid, or any instrument in

volving merely his personal liability. 19 Am. & Eng. Enc. Law (2d Ed.) p. 29. And the renewal of a note so taken is not a waiver of the lien. Cordova v. Hood, 17 Wall. 1, 21 L. Ed. 587. The consideration or character of the debt or demand against an estate is what determines the class to which it belongs, and we can see no reason why a household servant might not take the note of the master, and in probating it for the purpose of classification show by parol that it was given for his wages for labor. Probate courts, in passing upon claims presented against estates, exercise equitable powers, and may look beyond forms to the substance. Moore v. Rogers, 19 Ill. 347; Dixon v. Buell, 21 Ill. 202. No written pleadings are required. Wolf v. Beaird, 123 Ill. 585, 15 N. E. 161, 5 Am. St. Rep. 565; Thorp v. Goewey, 85 Ill. 611. If a physician should file a claim against an estate, including items previous to the last sickness for which he has no priority, and also items for the last sickness, could not the court, in passing on the claim, look into the items, and classify according to their rights under the statute? If this whole account had originally been for wages only, but had been stated in the manner it was between the parties, and showed upon its face it was for labor of a servant, it does not seem to us there could be a question but that the claimant could call the attention of the court to the character of the debt or demand for the purpose of classification, and that the court would not be precluded, on the theory of account stated, from looking beyond the mere balance of account; and yet such is the logic of appellants' first contention.

We cannot accede to appellants' second contention. The statement of the account, conceded to be in the handwriting of decedent, begins with the following: "Ellen McGlew commenced May 8, 1876. Wages from this date to July 1, 1880, were $12 per mo.; from July, 1880, was raised to $4 per week until October, 1886, then $5 per week." And following this is a computation of her wages for the three periods at the rates named. And upon a later statement we find the items: "Wages, Jan. 1/89, to Jan. 1/96, 7 yrs., $1,820." We see no difficulty in determining, from an inspection of the account, the total wages earned, or from the whole account, applying the credits by well-known rules, the balance due for wages.

the latter no longer controlled. The power of the general assembly to thus regulate the passing and distribution of estates can hardly, at this age, be questioned. It may take away the right of curtesy at any time before it is consummated by the death of the wife. Henson v. Moore, 104 Ill. 403. It may restrict and limit the power to devise already acquired real estate (Sturgis v. Ewing, 18 Ill. 176), and enable illegitimates to become the proper medium through which to transmit estates (Bales v. Elder, 118 Ill. 436, 11 N. E. 421). It may, as it did in Paschall v. Hailman, supra, convert a judgment already entered and in full force, and which at the time of its entry was, by the common law, second only to the cost of administration, to a claim of the seventh class; and no sufficient reason has been suggested, and we know of none, why it could not declare that any claim for wages of a servant that was entitled to be allowed against an estate at any time thereafter should be placed in the third class, without regard to whether the services were rendered before or after the act.

We think, upon the whole case, the judg. ment of the appellate court is right, and it is affirmed. Judgment affirmed.

(193 III. 226)

TOWN OF CICERO v. HILL et al. (Supreme Court of Illinois. Dec. 18, 1901.)

MUNICIPAL CORPORATIONS-STREET IMPROVEMENTS-SPECIAL ASSESSMENTS-CARRYING PROCEEDINGS ΤΟ A FINALITY — SUPPLEMENTAL ASSESSMENT.

Where a special assessment for street improvements in a town, part of which was subsequently annexed to an adjacent city, had been levied and collected in full, the proceedings had been "carried to a finality," within Hurd's Rev. St. 1899, p. 302, c. 24, providing that, when part of a town is annexed to a city, street improvement proceedings instituted prior to such annexation may be carried to a finality; and the annexed portion of the town was not liable to a supplemental assessment, levied after the annexation, to pay a deficiency in the prior assessment.

Appeal from Cook county court; W. T. Hodson, Judge.

Proceedings by the town of Cicero against F. A. Hill and others to collect a supplemental assessment for street improvements. From a judgment dismissing the petition, petitioner appeals. Affirmed.

This is a proceeding instituted by the appellant, the town of Cicero, for the levying of a supplemental assessment to provide means for completing the payments for the improvement of Washington boulevard from Robinson avenue to Harlem avenue. The petition was filed in the county court of Cook county on May 22, 1900. The ordinance pro

passed by the board of trustees of said town on the 31st day of March, 1900. On May 23, 1900, commissioners were duly appointed by the court to make the assessment. The as

act of April 25, 1889, providing for the annexation of cities, incorporated towns, etc. Section 10 of that act provides: "When a part of a city, village or incorporated town is annexed to another city, village or incorporated town under the provisions of this act, and prior to such annexation proceedings had been instituted for the purpose of improving any streets within such detached portion by special assessment or special taxation, then in such case such proceedings

ing it was agreed between the objectors and the petitioner, by its attorney, 'that a portion (the east one mile) of the territory upon which it is sought to levy this supplemental assessment is now within the city of Chicago, by reason of the annexation to the city of Chicago of that portion of the town of Cicero formerly known as "Austin"; that the annexation took place April 8, 1899, previous to the passage of the ordinance providing for this supplemental assessment; that the confirmation of the original assessment proceedings was had on February 3, 1890; that the original assessment was confirmed, the amounts collected, and there was no appeal, writ of error, or annulment of any part or portion thereof; that the contract for the improvement was let and the work done some time in the year 1890, but that the character of the work done became a matter of dispute between the contractor and the town of Cicero, resulting in litigation, and therefore not finally determined for some years afterward. It was also agreed that the objections cover property in the annexed portion of Cicero, and also property in the town of Cicero not annexed. The county court sustained said objection and dismissed the petition, and the town of Cicero now brings the record before this court on appeal for review.

George W. Woodbury, for appellant. Gage & Deming, for appellees F. A. Hill and others. Louis M. Greeley, Mason & Noyes, Harvey M. Harper, Leigh H. Jackson, Errick Winter, Robert R. Jampolis, and Craft & Stevens, for certain appellees.

CARTER, J. (after stating the facts). Appellees have assigned cross errors, but, from the views we entertain of the case, it will not be necessary to consider them. The only question necessary to consider is whether the town of Cicero had the power to institute this proceeding for a supplemental assessment to pay a deficiency in a prior assessment levied to make the improvement in question. The prior assessment, and the improvement for which it was levied, were made and completed in 1890. Afterward, in 1899, that part of the town formerly known as "Austin," containing a part of said improvement, and the territory assessed therefor, that is, the east one mile of the same,― was annexed to the city of Chicago under the

whole improvement be within the detached portion or not. * * If only a part of such improvement is to be made within the detached territory, then the city, village or incorporated town from which such territory is detached may proceed with the same as though such annexation had not taken place." Hurd's Rev. St. 1899, p. 302, c. 24. Not only had the original proceedings for the improvement of Washington boulevard been instituted before the annexation of Austin to Chicago, but such proceedings had been "carried to a finality" and the assessment had been collected nine years before such annexation; and this supplemental proceeding was instituted by passing the ordinance and filing the petition a year after such annexation, and more than 10 years after the original assessment and the improve ment had been made.

Without considering the questions of limitation raised by the cross errors, we are satisfied the county court decided correctly in holding that the town of Cicero had no power to institute this supplemental proceeding. It had lost jurisdiction over the portion of the territory mentioned by the annexation of that territory to the city of Chicago, and such jurisdiction is not within the saving provision of said section 10. The "proceedings" "instituted," mentioned in that section, were not the commencing of the improvement itself, but, as the law then stood, were either the passing of the ordinance or the filing of the petition in court; and, for the purposes of this case, we regard it as unnecessary to determine whether the proceedings for the improvement of the street were "instituted" by the passing of the ordinance or by the filing of the petition in court. Whichever of these constructions is given to the statute, the proceedings instituted in 1890 were "carried to a finality" before the annexation, whether the improvement had been wholly paid for or not. Nothing more could have been done under those proceedings. In order to institute a supplemental proceeding, it was necessary to pass a new ordinance and to file a new petition, to appoint new commissioners, and to go through with all the formalities of spreading the assessment, hearing objections, confirming assessments, etc., provided by the statute. Without provision of the statute for

that purpose, a supplemental proceeding could not be instituted, but it would hardly

be contended that the original proceedings could not be "carried to a finality" without special provision of the statute authorizing it. If the legislature had intended to continue the jurisdiction of the town or village over the detached territory until the improvement had been paid for, and until all the necessary or proper proceedings to provide for such payment had been taken and completed, it would not have been difficult to so provide. To sustain this proceeding would, in our opinion, not only violate the statute, but would open the door to serious abuses. Had it appeared to be necessary to institute this supplemental proceeding, no reason is shown why it could not have been instituted before the annexation. There was ample time, and full knowledge of all questions affecting the necessity for it.

The judgment of the county court is right, and it will be affirmed. Judgment affirmed.

(193 III. 619)

BOARD OF DIRECTORS OF CHICAGO THEOLOGICAL SEMINARY v. PEOPLE ex rel. RAYMOND, County Treasurer. (Supreme Court of Illinois. Dec. 18, 1901.) TAXATION-SCHOOL PROPERTY NOT USED FOR SCHOOL PURPOSES-CHARTER

EXEMPTIONS.

A provision of the charter of a theological seminary exempting from taxation "the property, of whatever kind or description, belonging or appertaining to said seminary," refers only to the property used in immediate connection with the seminary, and does not include vacant and improved lands yielding rents used for the support of the school.

Appeal from Cook county court; R. S. Farrand, Judge.

Action by the people, on the relation of Samuel B. Raymond, county treasurer, against the board of directors of the Chicago Theological Seminary. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

David Fales (J. J. Herrick, of counsel), for appellant. Edwin W. Sims, Co. Atty., Frank L. Shepard and William F. Struckmann, Asst. Co. Attys., for appellee.

CARTER, J. This is an appeal from à judgment ordering the sale of lands of appellant returned as delinquent for the nonpayment of taxes for the year 1900. It was claimed by appellant that its said lands were exempt from taxation by the act incorporating it. These lands were not used in connection with appellant's seminary, as a part of the seminary grounds, but were in part vacant and in part improved, yielding rents for its support. In People v. Chicago Theological Seminary, 174 Ill. 177, 51 N. E. 198, and in Chicago Theological Seminary v. People, 189 Ill. 439, 59 N. E. 977, the precise question here involved, and between the same parties, was decided adversely to appellant. In those cases we held that the provision in appellant's charter that "the property, of

whatever kind or description, belonging or appertaining to said seminary, shall be forever free and exempt from all taxation for all purposes whatsoever," refers only to property used in immediate connection with the seminary, and does not include other property which may be owned, held, or rented by the corporation as an investment, even though the income derived therefrom is used for the support of appellant's school. Those cases are decisive of this, and the judgment of the county court will be affirmed. Judgment affirmed.

(193 III. 165)

WEINBERG v. NOONAN et al. (Supreme Court of Illinois. Dec. 18, 1901.) ELECTIONS-CONTESTS-PRACTICE-INTERVENTION-PETITION-STRIK

ING FROM FILES.

1. In petitions to contest elections, the proceeding is in the nature of a chancery suit, and the rules of chancery practice apply.

2. The court in which an election contest is pending has full power during the term at which a decree is entered to revise, correct, amend, or vacate such decree, or to open the decree and hold it in abeyance until issues under an intervening petition could be formed and determined.

3. Where, in an election contest, immediately after decree had been entered on the petition and defendant's answer, disclaiming all right to the office, an order is entered by consent of both parties granting leave to an intervener to file his petition, it is error for the court of its own motion to strike his petition from the files.

Error to circuit court, Cook county; E Hanecey, Judge.

Proceeding by John Noonan to contest the election of John A. Mozis to the office of constable of South Chicago, in which Mark Weinberg intervened. From an order refusing to vacate the decree entered on the original petition and answer thereto, and striking the intervening petition from the files, the intervener brings error. Reversed.

James R. Ward, for plaintiff in error. Wheelock & Shattuck (F. J. Newey, of counsel), for defendant in error John A. Noonan.

BOGGS, J. The defendant in error John Noonan filed a petition in the circuit court of Cook county to contest the election of the defendant in error Mozis to the office of constable in and for the town of South Chicago, in said county. The petition alleged the election occurred on the 2d day of April, 1901; that the petitioner, Noonan, was the regular Republican nominee for said office, and that the defendant in error Mozis was the regular Democratic nominee for said office; that on the face of the returns Mozis received a plurality of the votes cast for the office, and was declared duly elected, and received a certificate of election; and the petitioner charged that Mozis did not receive a majority of the votes cast at said election over the petitioner; that a recount of the votes would show the petitioner received