Volume 222 — Illinois Reports

<p>Appeal from the Circuit Court of White county; the Hon. P. A. Pearce, Judge, presiding.</p>

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

Appear from the Circuit Court of Stephenson county; the Hon. R. S. Farrand, Judge, presiding. This is a bill in chancery, brought by the appellees to contest the will of their mother, Mary Waters, late of Stephenson county. The bill was filed in the circuit court of Stephenson county by the appellees, two of the children of Mary Waters, against the other three children and the executor of the estate, as defendants.

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. M. Kavanagh, Judge, presiding.

<p>Deeds—when deed based on consideration of marriage will not be set aside. A deed based on the consideration of marriage, which was lawfully consummated between the parties, will not be set aside because the grantee broke her alleged promise to be a kind and dutiful wife, to use the property for the benefit of both and to support the grantor in his old age. (Hursen v. Hursen, 212 111. 377, distinguished.)</p>

<p>1. Equity—equity may retain jurisdiction to grant legal remedies. A court of equity which has acquired jurisdiction over a cause requiring any equitable relief may retain jurisdiction for all purposes so as to do adequate and complete justice between the parties, even though it thereby establishes legal rights and provides legal remedies otherwise beyond the scope of its authority.</p> <p>2. Same—whether equity will retain jurisdiction is a matter of sound discretion. Whether a court of equity will retain jurisdiction of a cause to grant legal remedies is a matter for the exercise of sound discretion which is subject to review, and such discretion will ordinarily be exercised in favor of retaining the jurisdiction.</p> <p>3. Same—when court does not err in not retaining jurisdiction to assess damages. Where the only prayer respecting damages in a bill to reform a mistake of description in a lease and contract and to decree specific performance of the contract is that the court shall assess complainant’s damages in case the defendant refused to obey the decree for specific performance, it is not error for the court, upon reforming the mistake but refusing to decree specific performance, to also refuse to retain jurisdiction of the cause to assess complainant’s damages, no other ground appearing which would justify an assessment of damages.</p> <p>4. Costs—when complainant should pay costs. Complainant in a bill to reform an alleged mutual mistake of description of which both parties were ignorant should be decreed to pay the costs, where, so far as appears, the bill was filed without any necessity against the defendant, who might have been willing to correct the mistake had he known of its existence.</p>

<p>1. Special assessments—section 84 of the Improvement act deprives board of power to finally accept work. Section 84 of the Local Improvement act, providing for a hearing by the court as to the truth_ of the facts stated in the certificate of the board of local improvements as to whether the improvement conforms substantially to the ordinance, takes from the board the power, formerly exercised under section 83 of the act, to finally determine that the improvement conforms to the ordinance and to conclusively bind the city by accepting the completed work.</p> <p>2. Same—city cannot be compelled to issue improvement bonds until section 84 is complied with. A city cannot be compelled, by mandamus, to issue improvement bonds to the contractor to pay for a local improvement constructed by a special assessment payable in installments, where the petition fails to show that section 84 of the Local Improvement act has been complied with, even though it alleges the completion of the improvement in accordance with the ordinance, to the satisfaction of the improvement board, and the acceptance of such improvement by the board.</p> <p>3. Appeals and Errors—when constitutional question is waived. By taking an appeal to the Appellate Court and assigning errors only as to matters which that court had jurisdiction to hear and determine the appellant waives the question of the alleged unconstitutionality of a statute, and cannot urge the same in the Supreme Court on further appeal.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. R. S. Tuthill, 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. F. A. Smith, Judge, presiding.</p>

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

<p>1. Drainage—essentials of prescriptive right to fiood another’s land. To establish a prescriptive right to flood the lands of another it must appear that the lands have been flooded for a period of twenty years or more, and that the flooding was adverse and uninterrupted and with the knowledge and acquiescence of the land owner.</p> <p>2. Same—right of land owner to repel waters wrongfully cast upon his land. Where the waters from a natural water-course are wrongfully cast upon land by reason of barriers which divert the course of the stream, the land owner may erect barriers upon his own land to protect it from overflow, particularly where the waters are thereby turned into a natural water-course of sufficient size on his own land.</p> <p>3. EstoppEE—when party is estopped to disclaim acts of predecessors in title. One who bases his right to flood the lands of another upon acts of his predecessor in title in changing a natural water-course, adopts such acts as his own, and is estopped, when such acts are shown to be wrongful, to claim that he was not responsible therefor; and the owner of the flooded lands may show in defense of the claim that his predecessors in title did not consent to the change in such water-course made by the predecessors in title of the claimant.</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. Joseph E. Gary, Judge, presiding.</p>

Appear from the Appelláte Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. M. Kavanagh, Judge, presiding.

Original petition for mandamus. The relator filed his petition in this court at the last term for a writ of mandamus against Peter B. Olsen, county clerk of Cook county, to which the board of county commissioners was made a party defendant on the motion of said Olsen, commanding said Olsen, as county clerk, to draw an order on the county treasury of Cook county in favor of relator for the sum of $541.66, alleged to be a balance due him for salary as one of the judges of the…

<p>1. Deeds—when deed is properly set aside. A deed is properly set aside, whether it was the result of fraud by the grantee in procuring the description inserted or whether there was a mere error in description, where the grantee sought to retain the benefit of the fraud or mistake by refusing to cancel the deed.</p> <p>2. Same—when defendant should Me cross-bill for reformation of deed. Defendant to a bill to cancel a deed for fraud, who answers alleging that he got what he purchased without fraud, and who fails to file a cross-bill asking for a reformation of the deed upon the ground that the description was the result of a mutual mistake, cannot complain that the decree canceled the deed instead of reforming it.</p>

<p>1. Rules of court—rule 27 of Appellate Court practice rules construed. Rule 27 of the Appellate Court practice rules, requiring a petition for rehearing to be filed within ten days after a decision is entered of record, refers to a decision finally determining the cause, and not to prior rulings upon motions made in the case.</p> <p>2. Same—when second motion does not amount to an application for rehearing. Where a motion in the Appellate Court to strike a bill of exceptions from the transcript is denied and subsequently a final judgment is entered, upon which a rehearing is granted, a second motion, after the rehearing is allowed, to strike the bill of exceptions from the transcript does not amount to an application for a rehearing on the first motion, within the meaning of rule 27 of the Appellate Court practice rules.</p> <p>3. Biees of exceptions—rule as to extending time for presenting bill of exceptions. After the term at which final judgment was entered has expired an extension of time to present the bill of exceptions cannot be granted, unless the application for extension is made before the expiration of the period last fixed by the court for presenting the bill. (Hill v. Chicago, 218 Ill. 178, followed; Plotke v. Chicago Title and Trust Co. 175 id. 234, distinguished.)</p> <p>4. Same—when motion to strike bill of exceptions from transcript may be. first made on appeal. A motion to strike a bill of exceptions from the transcript may be made for the first time in the Appellate Court, where it appears from the transcript'that the bill was not presented to the trial court for signature and seal within the time which, under the law, it should have been presented.</p>

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

Elbridge Hanecy, Judge, presiding. The People, on the relation of Henry Raben, filed a petition in the superior court of Cook county against the appellants, as mayor, city clerk and city collector of the city of Chicago, for a writ of mandamus to compel them to issue to the relator a license to keep a dram-shop at 345 East Division street, in said city. The respondents answered the petition, and upon a hearing the court awarded the writ as prayed.

<p>1. Criminal i,aw—when method of cross-examination is improper. Where a witness for the accused in a murder trial has testified that the deceased was advancing on the accused, who warned the deceased not to follow him, it is improper to ask him, on cross-examination, whether he had said anything to that effect in his testimony at the coroner’s inquest, without first showing that he had been specially interrogated as to- the matter at the inquest, or been directed or given an opportunity to state all that .was said and done at the time of the affray.</p> <p>2. Same—when refusal of instruction is reversible error. In the absence of any given instruction of like import it is reversible error, in a murder trial, to refuse an instruction stating that if the jury “can reconcile the evidence in this case upon any other reasonable theory or hypothesis than that of the defendant’s guilt, it is your duty to do so and acquit the defendant.”</p>

Writ of Error to the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, presiding.

E. O. Brown, Judge, presiding. This is a suit in garnishment, brought in the circuit court of Cook county by Commerce Vault Company for the use of Benjamin McWilliams, the appellant, against Thomas E. Barrett, sheriff of Cook county, the appellee. Written interrogatories were filed, which the garnishee answered. Exceptions were taken to the answer and were overruled by the court. The garnishee was discharged and judgment was rendered against the appellant for costs.

<p>Appeal from the Circuit Court of DuPage county; the Hon. Arthur H. Frost, Judge, presiding.</p>

Charles M. Walker, Judge, presiding. The Appellate Court for the First District affirmed the judgment of the circuit court of Cook county, which was in favor of appellee, in a suit in assumpsit brought in the latter court by appellant against appellee. A certificate of importance having been obtained, the cause is brought here by further appeal.

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

Arthur H. Frost, Judge, presiding. This is an appeal from a judgment of the Branch Appellate Court for the First District affirming a judgment of the superior court of Cook county for the sum of $6000, in a suit brought by appellee, a servant, to recover from appellant, his master, for personal injuries.

<p>Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.</p>

<p>1. Parties—when wife of mortgagor is bound by the decree. A mortgagor’s wife, who is a party to the foreclosure suit and who subsequently acquires the interest which her husband had in the land, is bound by the decree.</p> <p>2. Res judicata—only parties concluded by a decree are adversary parties. The only parties concluded by a decree are adversary parties, and the matter determined- must.be in issue between them.</p> <p>3. Same—when surplus is essential to an adjudication between co-defendants in foreclosure. Parties defendant to a foreclosure suit who claim liens may set up their claims by answer and make proof of the facts .upon which they claim their liens, but unless there is a surplus after satisfying the mortgage debt there is nothing to litigate, and consequently no adjudication as between co-defendants who, claim nothing except a right to share in the surplus.</p> <p>4. Same—when decree is not res judicata as to validity of judgment liens. A decree in foreclosure finding the judgment liens of certain persons made defendants with the mortgagor, to be valid, and directing that in case there was any surplus after sale it should be held subject to the order of the court, is not res judicata, as between the mortgagor and the judgment creditors, as to the validity of such liens, where there was no issue between them and no surplus distributed under the order of the court.</p>

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

B. R. Burroughs, Judge, presiding. This is a petition for a writ of mandamus presented in the name of the People of the State of Illinois, upon the relation of William P. Eaton, a citizen and tax-payer of Madison county, praying that a writ of mandamus be issued and directed to the Litchfield and Madison Railway Company and Chicago, Peoria and St. Louis Railway Company of Illinois, companies organized under the general Railroad Incorporation act, commanding them, and each of…

Joseph E. Gary, Judge, presiding. Appellant, Lilly Hintz, filed her bill for divorce in the superior court of Cook county against her husband, the appellee, Adolph G. Hintz, on the ground of extreme and repeated cruelty.

M. F. TulEy, Judge, presiding. This s an appeal from a judgment of the Branch Appellate Court for the First District reversing a decree of the circuit court of Cook county upon a bill filed in that court by the appellees, against the appellant and others, and remanding the cause, with directions to the circuit court to enter a decree in conformity with the opinion of said Branch Appellate Court.

Theodore Brentano, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a decree of the superior court of Cook county finding appellee to be the owner of and entitled to the possession of eight hundred and forty-five shares of the National Hollow Brake-Beam Company, which are in the possession and name of appellant.

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, presiding.

<p>Appeal from the Circuit Court of Clay county; the Hon. S. L. Dwight, 'Judge, presiding.</p>

Writ or Error to the Criminal Court of Cook county; the Hon. W. M. McEwen, Judge, presiding. The plaintiff in error, with James Woods and Thomas Light, was indicted by the grand jury of Cook county for the crime of larceny. The indictment contained three counts. The first count charged the larceny of illuminating and natural gas from the People’s Gas Light and Coke Company.

<p>1. Criminal law—when instruction relating to self-defense is misleading. An instruction holding that the defendant is not entitled to acquittal under his plea of self-defense unless he had “endeavored to decline any further struggle,” is misleading as applied to a case where no struggle had taken place between the parties.</p> <p>2. Same—presumption of innocence exists until jury agree. A defendant in a criminal case is entitled to the benefit of the presumption of innocence through all the steps of the trial and during the consideration of the evidence by the jury, after they have been instructed by the court and until they agree upon their verdict.</p> <p>3. Instructions—when instruction as to presumption of innocence is erroneous. An instruction is erroneous which merely requires the jury to give the accused the benefit of the presumption of innocence “throughout the trial until evidence shall have been introduced which to the minds of the jury is sufficient to establish the guilt of the defendant beyond all reasonable doubt, and if such evidence be not introduced then defendant should have the benefit of such presumption through all stages of the trial.”</p> <p>4. Appeals and Errors—when improper remarks cannot be justified as in response to others. An attorney who has made improper remarks in his argument will not be permitted to justify his course by saying that they were made in response to improper statements by opposing counsel, unless such statements are preserved in the record and abstracted.</p>

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

Charles M. Walker, Judge, presiding. On September 21, 1896, H. F. Jeroloman, C. J. Corse, Charles Ratzel and C. S. Wheeler, co-partners doing business as the Granitoid Construction Company, began an action of assumpsit in the circuit court of Cook county against A. Bauer & Co., a corporation, and Alexander Bauer, the appellant here, to recover for materials furnished and labor performed in the construction of cement work at the building of defendants at the south-east corner…

<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. J. W. Mack, Judge, presiding.</p>

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

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding.</p>

J. A. Creighton, Judge, presiding. This was an action on the case commenced by the appellee, by his next friend, in the circuit court of Sangamon county, against the appellant, to recover damages for an injury to his person alleged to have been sustained by him while in the employ of the appellant.

<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. Arthur H. Frost, Judge, presiding.</p>

<p>1. Deeds—intention to postpone vesting of title in grantee must be clear. The vesting of title in the grantee in a quit-claim deed will not be held to depend.upon the making of a certain payment of money by the grantee, provided for in a simultaneously executed contract, in the absence of language clearly showing an intention on the part of the grantors to make such payment a condition precedent to the vesting of such title.</p> <p>2. Same—what is not a condition precedent to vesting of title. Where a contract, entered into by husband and wife and a daughter of the husband by a former marriage, simultaneously with the giving of a straight quit-claim deed of certain land by the husband and wife to the daughter,—the whole transaction being in settlement of a lawsuit involving, among other things, title to the land conveyed,— the daughter’s title derived through such deed will not be defeated by a clause in the contract to the effect that upon payment of $400 by the daughter to her stepmother within sixty days after the death of her father “all right, interest, title or claim” of said stepmother in said property should cease, such words not being suEcient to constitute a condition precedent to the vesting of title.</p> <p>3. Tender—when tender is not conclusive admission of liability. A tender made before trial but which is not relied upon in the plead- - ings of the party who made it nor the money brought into court is not a conclusive admission of liability, and the party is not precluded from explaining the reasons for the tender or showing that it was made under the mistaken belief that the sum was due.</p>

<p>1. Special assessments—ordinance must be for same improvement recommended by board. The board of trustees of a town can pass an ordinance only for the same improvement recommended by the local improvement board, and a substantial variance between the improvement recommended and the one described in the ordinance is ground for an objection to confirmation of the assessment.</p> <p>2. Same—zvhat is not a variance in description of improvement. The fact that the ordinance for a “curb” on certain specified streets excepts the roadways of intersecting streets and alleys, whereas such roadways were not excepted from the improvement as described in the proceedings of the local improvement board, does not constitute a variance.</p> <p>3. Same—resolution for improvement should fix time and place for public hearing. A resolution of the improvement board fixing a day for the public hearing but which fails to specify the hour and place does not comply with the statute, and it cannot be presumed that the clerk fixed an hour and place in the notices mailed by him as he is not authorized by law to do so, and any attempt by him to supply the omission would be ineffectual.</p> <p>4. Same—statute must be complied with irrespective of question of injury to property owners. Where a municipality attempts to fasten a charge upon the property of an individual the law authorizing the creation of such charge must be followed, irrespective of the question of injury or inconvenience to the property owner resulting from a failure to comply with the law.</p> <p>5. Same—when the estimate of cost is not sufficiently itemised. Where an ordinance provides for a concrete curb of certain dimensions, and for a sub-foundation, made by excavating and laying in a bed of cinders, which must be flooded and tamped, an estimate showing the cost of the concrete work per lineal foot and the cost of the proceedings is not sufficiently itemized, where there is nothing to show that the cost of the sub-foundation was included in the estimate. (Hulbert v. Chicago, 213 Ill. 452, distinguished; Peoria v. Ohl, 209 id. 52, followed.)</p>

Lockwood Honors, Judge, presiding. This is an appeal from a judgment, rendered in the circuit court of Cook county on June 17, 1905, confirming a special assessment levied on land adjacent to Marshall boulevard, by authority of the West Chicago Park Commissioners, for the purpose of improving said boulevard according to the scheme or plan of the commissioners, set forth in their ordinance.

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.</p>

Charles B. McCrory, Judge, presiding. This is a proceeding brought by appellee, as executor of the last will and testament of Mary G. Williams, deceased, to sell certain real estate in Adams county.

William N. Butler, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Fourth District affirming a decree of the circuit court of Massac county.

N. E. Worthington, Judge, presiding. This cause was brought to this court by appeal from the Appellate Court for the Second District to reverse the judgment of that court affirming the decree of the lower court.

Dwight C. Haven, Judge, presiding. This is a statutory proceeding, begun by the filing of a petition on January 17, 1903, in the county court of Will county for the purpose of forming a drainage district, to be known as the “Spring Creek Drainage District,” under “An act to provide for the construction, reparation and protection of drains, ditches and levees across the lands of others for agricultural, sanitary and mining purposes, and- to provide for the organization of…

Appral from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Stephenson county; the Hon. R. S. Farrand, Judge, presiding.

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

. Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Jackson county; the Hon. W. W. Duncan, Judge, presiding.

<p>1. Drainage—when assessment should be confirmed unless the objectors offer testimony. Upon application by a drainage district for confirmation of an additional special assessment for deepening and widening the principal drain, if the petition, plans, profile and other proceedings are regular on their face the filing of legal objections does not compel the petitioner to introduce testimony on the hearing, and unless the objectors offer testimony the court should confirm the assessment.</p> <p>2. Same—when objection that right of way has not been obtained cannot be urged. Objectors to the confirmation of an additional special assessment by a drainage district for enlarging and extending the principal ditch cannot urge that the petitioner has failed to show that a right of way for the proposed enlargement and extension had been obtained unless they show that some of the objectors’ property was actually taken or damaged.</p> <p>3. Same—the objectors are entitled to have plans and profiles clearly show proposed work. Upon application for confirmation of an additional assessment for the purpose of enlarging and extending the principal ditch of the petitioning drainage district, land owners in the district objecting to the confirmation are entitled to have the petition, plans and profiles show with definiteness the location of the enlargement and extension of the ditch, so that they can see how it will affect their lands.</p> <p>4. Same—when order dismissing petition for assessment is final. An order of the county court holding a petition for an additional drainage assessment to be insufficient with respect to its showing the location of the proposed enlargement and extension of the principal ditch, is, in effect, a dismissal of the proceedings, which necessitates the beginning of a new one and is final and appealable.</p>

H. B. Willis, Judge, presiding. This is an action in trover, brought by appellee in the circuit court of Cook county against Patrick J. Sexton, (who died pending the trial and whose executor was substituted as defendant,) to recover certain bonds of the face value of $29,000 and a promissory note for the sum of $5000, payable to the order of Thaddeus J. Butler and made by John Ireland. Defendant pleaded general issue.

<p>1. Triai,—court’s opinion as to weight of evidence is -not the test for directing a verdict. If there is evidence fairly tending to prove the plaintiff’s case, its weight and sufficiency are questions to be determined by the jury, even though the court may be of the opinion the weight of evidence is on the side of the defendant.</p> <p>2. Instructions—instruction construed as to use of words “as alleged in plaintiff’s declaration.” In an instruction defining the duty of a carrier to its passenger, and stating that if the jury believe the defendant “failed to use such care and diligence, and that by reason thereof the plaintiff was injured, as alleged in the plaintiff’s declaration,” etc., the words “as alleged in the plaintiff’s declaration” refer to the use of diligence by the defendant as well as to the injury to the plaintiff.</p>

<p>1. Municipal corporations—concurrence of majority of council is essential to passage of ordinances. Section 13 of article 3 of the City and Village act requires that the yeas and nays shall be taken upon the passage of all ordinances, and the concurrence of a majority of the whole body, and not simply a majority of a quorum, is necessary to their passage; and this rule applies to an ordinance for a local improvement.</p> <p>2. Same—vacancy in council does not decrease number of votes required for a majority. Under section 13 of article 3 of the City and Village act, requiring the concurrence of a majority of.all the members elected in a city council for the passage of an ordinance, a vacancy in the council does not decrease the number of votes required for a majority.</p> <p>3. Same—the mayor is not entitled to vote except in case of tie. The mayor cannot be counted to make a quorum, nor is he entitled to vote except in case of a tie; and the fact that he approves an ordinance receiving seven affirmative votes and five negative votes in a council of fourteen aldermen, there being one vacancy, does not render the ordinance valid.</p>

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

Appear from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. L.… Held: and at an adjourned meeting July 20, 1903, certain changes were made in the boundaries of the district taking out certain lands and including certain others not mentioned originally, among which were those of William Graham and Robert Parker. It is claimed that the record does not affirmatively show notice to Parker and Graham.

<p>1. Sales—-estate in expectancy may be sold. An estate in expectancy may be the subject of a contract of sale, and such a sale, when fairly made and based upon a valuable consideration, will be enforced by a court of equity.</p> <p>2. Appeals and errors—chancellor’s findings of fact will generally be upheld. The Supreme Court will not reverse a decree upon questions of fact, where the findings of the chancellor are based upon conflicting oral testimony, unless it is apparent such findings are against the weight of the evidence.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. A. Akers, Judge, presiding.</p>

<p>Criminal law—when an indeterminate sentence is proper. An indeterminate sentence for the crime of rape is proper where the crime was committed and the conviction had while the amendment of 1899 to the Parole law was in force, which applied the parole system to all crimes except treason and murder, and before the amendment of 1901 took effect, which exempted the additional crimes of kidnaping and rape from the parole system.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Morgan county; the Hon. James A. Creighton, Judge, presiding.

<p>Writ of Error to the Circuit Court of Jasper county; the Hon. S. L. Dwight, Judge, presiding.</p>

<p>Limitations—occupancy must be under claim of ownership. To enable one to acquire title under the twenty year Statute of Limitations it is essential that the occupancy of the land shall be under claim of title or ownership; and no such title is acquired where the occupancy is had by permission or sufferance of the real owner.</p>

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

<p>1. Constitutional law—provision relating to fees of officers construed. Section 12 of article 10 of the constitution, providing that the legislature shall by general law, uniform in its operation, provide for and regulate the fees of State, county and township officers so as to reduce the same to a reasonable compensation for services actually rendered, contemplates that the fees of probate clerks shall be based upon the amount and character of services performed, and not upon the value of the estates probated.</p> <p>2. Same—act fixing graduated docket fee for probate clerks is unconstitutional. The provision of the act of 1879, (Laws of 1879, p. 164,) entitling probate clerks in counties of the third class to a graduated docket fee, based upon the value of the estate upon which application is made for letters testamentary or of administration, guardianship or conservatorship, is unconstitutional, as being an attempt to impose a burden upon estates, in the nature of a tax, for the purpose of raising revenue for public purposes. (People v. Hinrichsen, 161 Ill. 223, distinguished.)</p> <p>3. Same—act fixing graduated docket fee for probate clerks can not be sustained as an inheritance tax. The provision of the act of 1879 fixing a graduated docket fee for probate clerks, based upon the value of the estate, cannot be sustained as an inheritance tax, since the act, by its terms, includes estates of minors, insane persons, drunkards and spendthrifts, as well as estates of deceased persons, and charges the burden upon the estate itself, and not upon the right of inheritance.</p> <p>4. Assumpsit—vuhen money paid under protest may be recovered. Money paid by executors to the probate clerk under protest, to obtain letters testamentary which he refused to issue until the sum was paid to him as his fees, may be recovered in an action of assumpsit, where the clerk had no legal right to the fee demanded and where the exigencies of the estate required immediate attention by the executors, acting under authority of the letters.</p>

<p>Writ of Error to the County Court of Lake county; the Hon. D. L. Jones, 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. J. W. Mack, 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. J. A. Creighton, Judge, presiding.</p>

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

T. N. Mehan, Judge, presiding. On March 10, 1893, Reuben G. Coon, being then the owner in fee simple of certain real estate in Mason City, Illinois, executed and delivered to his wife, Velarie Coon, a warranty deed purporting to convey said premises to her for the expressed consideration of $1000. At the time of the execution and delivery of said deed Reuben G. Coon and his wife were occupying the real estate described in said deed as a homestead.

<p>Appeal from the Circuit Court of Carroll county; the Hon. Oscar E. Heard, Judge, presiding.</p>