Volume 224 — Illinois Reports

J. W. Mack, Judge, presiding. On June 5,1903, appellants, Francis W. Dunbar, Kempster B. Miller, George L. Burlingame, Joseph C. Belden, Amanda W. Belden and Anna W. Pool, minority stockholders of the Kellogg Switchboard and Supply Company, filed their bill for relief in the circuit court of Cook county against the appellees, American Telephone and Telegraph Company, Western Electric Company, Kellogg Switchboard and Supply Company, Milo G. Kellogg, Wallace E. DeWolf, and…

<p>1. Drainage—an easement or a license to drain may be extinguished by parol. An easement or license to drain land through the tile of an adjoining owner may be renounced, modified or extinguished by parol agreement of the parties.</p> <p>2. Same—what has no place in record of drainage commissioners. An agreement between a land owner and the commissioners of a drainage district, acting as individuals and as agents of another land owner, whereby the former releases a disputed right to a tile drain across the lands of the latter, has no place in the record of the drainage commissioners, and parol proof of the agreement does not vary, contradict or modify such record.</p> <p>3. Same—when drain in a public highway cannot be interfered with. A tile drain laid in the public highway by the owner of the fee with the consent, written or verbal, of the highway commissioners, cannot, under the act of 1889 to legalize drains constructed by license, be interfered with by any person as against another land owner whose land drains through the tile.</p> <p>4. Injunction—when injunction to compel re-locating tile drain will not issue. A mandatory injunction to compel a land owner to take up a certain tile drain and re-lay it in its original location with reference to the complainant’s land will not issue where the preponderance of the evidence shows that the drain in its new location affords better drainage to complainant’s land than it did in its original location.</p> <p>5. Same—injunction will not issue to remedy an inconsequential wrong. - To entitle a person to relief by injunction he must establish an actual and substantial injury, and not merely a technical or inconsequential wrong entitling him to nominal damages; and this is true whether the injury be single or continuous.</p>

<p>Motion for leave to file petition for mandamus.</p>

L. D. Puterbaugh, Judge, presiding. The appellee, the Central National Bank, filed its bill in the circuit court of Peoria county at the September term, 1902, representing that it was then the owner in fee and in possession of certain premises therein described, in Peoria, fronting on that part of the Illinois river called Peoria Lake, under a chain of title running to the United States, as well as by payment of taxes, possession and improvement for much longer than the…

Writ or. 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. M. F. TulRy, Judge, presiding.

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

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

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

<p>Appeal from the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.</p>

R. W. HilschER, Judge, presiding. This is an appeal from the circuit court of Will county to reverse a decree granting a permanent injunction restraining the village of Peotone from further exercising authority and control over the west thirty feet of the appellee company’s right of way.

<p>Appeal from the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Warren county; the Hon. Robert J. GrEEr, Judge, presiding.</p>

<p>1. Cloud on title—what essential to constitute a cloud on title. A cloud upon title exists only where a claim of title or encumbrance appears- to be valid from the face of the instrument creating it.</p> <p>2. Same—tax deed conveying one vigintillionth part of lot is not a cloud. A tax deed purporting to convey one vigintillionth part of a lot is void upon its face and does not constitute a cloud upon title, since the portion of the lot purporting to be conveyed is not susceptible of possession and has no practical existence.</p>

<p>Writ oe Error to the Circuit Court of Moultrie county; the Hon. Solon Philbricic, Judge, presiding.</p>

Writ or Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. On August 3, 1905, the plaintiff in error, Esdras B. Trubey, filed his bill in the circuit court of Cook county to contest the last will and testament of his wife, Luella B. Trubey.

John A. Gray, Judge, presiding. A petition signed by the required number of legal voters of Henderson county was filed on July 19, 1904, with the county clerk, praying an order of court authorizing an election to determine whether the county seat of that county should be removed from Oquawka to Stronghurst. Before the election was called an issue was raised as to whether Stronghurst was “nearer to the center of the county” than Oquawka.

<p>1. Taxes—section 128 of the Revenue act construed. The last clause of section 128 of the Revenue act, providing that “in the extension of taxes the fraction of a cent shall be extended as one cent,” applies to the rate of the tax and not to a fraction of a cent in the amount of the tax as extended, and a rate of 73.5 cents on the hundred dollars is therefore properly extended as 74 cents.</p> <p>2. Same—certificate for additional road tax should state what the contingency is. In order to sustain an additional road and bridge tax, the certificate of the highway commissioners must not only state that it is levied to meet a contingency, but must also state what that contingency is.</p> <p>3. Same—when additional road and bridge tax is illegal. An additional road and bridge tax levied to meet an alleged contingency, stated in the certificate to be that the roads and bridges could not be kept in necessary repair with the regular levy, is illegal.</p> <p>■ 4. Same—what is sufficient to authorise a tax for “building purposes.” An election authorizing a school board to erect a school building and issue bonds to pay for the same is sufficient authority for a subsequent tax levy for “building purposes” to supplement the bonds and pay for the installation of a heating plant in the building. (Wabash Railroad Co. v. People, 187 Ill. 289, distinguished.)</p>

<p>1. Drainage—legality of drainage organizations cannot be questioned on application for sale. An objection going to the legality of the organization of a drainage district cannot be urged in defense of an application for judgment of sale for the drainage assessment and may be stricken from the files.</p> <p>2. Same—a right of appeal from commissioners’ classification is limited. The right to appeal to the county court from the decision of drainage commissioners in classifying lands is limited to persons appearing and urging objections, and the jurisdiction of the county court to examine the classification is limited to the lands of the parties appealing and does not extend to all the lands of the district.</p> <p>3. Same—when proceedings on appeal from drainage commissioners’ classification are a nullity. Proceedings had in the county court upon appeal from the decision of drainage commissioners in classifying lands are a nullity, where it appears from the record that none of the parties appealing were entitled to appeal, having withdrawn their objections after the commissioners had corrected the classification.</p> <p>4. Same—when classification adopted by'county court is a nullity. A modified classification of lands in a drainage district adopted by the county court upon appeal by parties shown by the record to fyave no right to appeal is a nullity, and such classification cannot be made the basis for spreading the assessment.</p> <p>5. Same—what objection may be raised upon an application for jtidgment of sale. Land owners in a drainage district who did not appeal to the county court from the decision of the drainage commissioners in classifying the lands may make objection, upon application for judgment of sale for the drainage assessment, that the modified classification roll adopted by the county court as the basis of the assessment was void because of want, of jurisdiction of the court to entertain the appeal, since such objection goes to the validity of the tax and not to the legality of the district.</p> <p>6. Same—what objections are not prevented by section ipi of Revenue act. Section igi of the Revenue act, relating to amendments and irregularities in the matter of taxes, does not prevent the defenses being made, on application for judgment of sale, that the tax itself is illegal or assessed upon exempt property or that the property has been fraudulently assessed too high.</p>

Writ op Error to the Circuit Court of Stephenson county; the Hon. Oscar E. Heard, Judge, presiding. Merrill E. Kevern, plaintiff in error, was twice indicted at the June term, 1906, of the circuit court of Stephenson county. Each indictment charged him with the crime of rape upon one Ida Nickel, a girl fifteen years of age at the time of the alleged offenses.

Writ oe Error to the Circuit Court of Champaign county; the Hon. Soron Phirbrick, Judge, presiding. This was a bill by plaintiff in error, against defendant in error, to set aside a deed executed by the former and his wife to the latter, and for an accounting. The cause was heard in the circuit court of Champaign county on the bill, answer, replication and proofs reported by the master and a decree rendered dismissing the bill for want of equity, at the complainant’s costs.

<p>Appeal from the Circuit Court of Macon county; the Hon. W. C. Johns, Judge, presiding.</p>

W. L. Pond, Judge, presiding. The county treasurer and ex officio county collector of Cook county, in the name of the People of the State of Illinois, applied to the county court of Cook county for judgment and order of sale to satisfy a delinquent special assessment against two certain lots in the city of Chicago owned by the appellee, Second Ward Savings Bank.

Joseph E. Gary, Judge, presiding. This is an action to recover for personal injuries received in 1902, appellant and the Chicago City Railway Company being made defendants. Appellee was a passenger /> in an omnibus belonging to appellant, driven by one of its employees west along Harrison street, Chicago, about seven o’clock P. M., while it was still daylight.

Writ op Error to the Circuit Court of Carroll county; the Hon. R. S. Earrand, Judge, presiding. Edward Koser and his two sons, Frank and Jesse, were indicted by the grand jury of Carroll county for the murder of Jacob Weaver. Upon the trial Edward and Frank were acquitted and Jesse was convicted of murder and his punishment fixed at a life sentence in the penitentiary.

<p>1. Murder—right of a person to arm himself against a second assault. One who has already been violently assaulted by a man stronger than himself has a right to arm himself for his protection against another possible assault by such person.</p> <p>2. Same—when instruction relating to self-defense is erroneous. In a murder trial, where it is proved defendant was not the assailant, it is error to instruct the jury that to justify acquittal on the ground of self-defense it must appear “that the person assaulted by the defendant was the assailant,-—-that is, that-the defendant had really and in good faith endeavored to decline any further struggle before such assault was made by him.”</p> <p>3. Same—when instruction is misleading. An instruction in a murder trial holding that the law of self-defense does not imply the right of attack in the first instance nor permit of an action done in retaliation or revenge, although a correct statement of the law, is .misleading where .there is.no .evidence tending to show .that ..the defendant was the attacking party or that the killing was in retaliation or revenge.</p> <p>4. Same—proof that deceased left a wife and children is not admissible. While it is not essential to a fair trial of one charged with murder that the fact of the deceased having left a wife and children be kept from the jury, yet such fact is not material nor relevant, and is not admissible in evidence for the alleged purpose of identifying the deceased.</p>

Writ op Error to the Criminal Court of Cook county; the Hon. John Gibbons, Judge, presiding. Plaintiff in error was jointly indicted with John E. Mulholland, by the grand jury of Cook county, for an assault with an intent to rob Joseph E. Dorgan. Mulholland entered a plea of guilty, and subsequently, on the trial of plaintiff in error, he was a witness and testified for the People.

<p>1. Wipes—character of devise cannot be changed zvithout concurrence of all devisees. While a devise of land which by the direction of the will is to be converted into money' and the proceeds distributed is to be treated as a devise of money, yet the devisees may elect to take the land itself, provided they all concur in such election.</p> <p>2. Same—when rule that devise is void zvhich gives■ same estate as would pass by descent does not apply. The rule that a devise which passes the same estate as would be taken by descent is void does not apply to a will devising all the property of the testator to his wife for life, the same to be sold after her death and the proceeds distributed equally among the testator’s children, who were his only heirs-at-law.</p> <p>3. Same—when interest of devisee is not subje.ct to levy and sale. Under a will devising all of the testator’s property to his wife for life and directing the same to be sold at her death and the proceeds distributed equally among his children, a child takes no vested interest at the death of the testator but only a right to money when the land is sold; and the interest of such child cannot be levied upon and sold during the widow’s lifetime, there being no election by all the children to take the land itself, instead of the money.</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 Pike county; the Hon. Harry HigbeE, Judge, presiding.</p>

<p>1. Appeals and errors—when case does not relate to revenue. A proceeding by a city to recover from the county, as a trust fund, the amounts reserved by county collectors as clerk’s fees for extending taxes levied for library purposes does not relate to the revenue, so as to authorize a direct appeal to the Supreme Court.</p> <p>2. Same—the revenue must be directly, and not incidentally, involved. To justify a direct appeal to the Supreme Court upon the ground that the case relates to the revenue, the revenue must be directly, and not incidentally, involved.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Special assessments—substantial variance between resolution and ordinance renders ordinance invalid. Where the resolution for an improvement and the estimate of the engineer provide for the improvement of the “present roadways” of certain streets, but the ordinance as to one of such streets provides for the construction of the pavement thereon six feet to one side of the present roadway and for a pavement of uniform width, whereas the present roadway is not of uniform width, there is a substantial variance, which renders the ordinance invalid.</p> <p>2. Same—city’s discretion as to extent of improvement not disturbed unless abused. The discretionary power of a city, as respects the limits of a system of street improvement, will not be interfered with by the courts unless it appears the city has abused its discretion and acted unreasonably.</p> <p>3. Same—when ordinance sufficiently describes amount of granite and gravel. A paving ordinance sufficiently describes, the amount of granite and gravel which requires the granite to be crushed so as to pass through a ring of certain diameter and spread upon the four-inch layer of limestone, then covered with best quality of fine, well-screened bank gravel sufficient to fill the interstices of the granite and thoroughly bond the same, upon which shall be spread a layer of granite screenings one-half an inch thick, the said layer of granite bank gravel and screenings to be three and one-half inches thick after being flooded with water and rolled with a steam roller of ten tons’ weight.</p> <p>4. Same—when catch-basin provision is uncertain. The provision of a paving ordinance respecting catch-basins is ambiguous and uncertain where one part of the ordinance provides for the construction of one catch-basin only, whereas another part provides for such catch-basins as are necessary.</p>

<p>Writ of Error to the Circuit Court of Champaign county; the Hon. Soeon Phiebrick, Judge, presiding.</p> <p>The commissioners of highways of the town of Tolono and the commissioners of highways of the town of Colfax, Champaign county, Illinois, were petitioned by twenty-eight land owners of the two towns to alter or to vacate and relocate a portion of a public highway along and near the line between said towns. On January 20, 1904, the commissioners considered the petition, found they had jurisdiction, that the petition had the requisite number of signers, and they refused to grant its prayer. An appeal, seeking to reverse entirely the decision of the commissioners, was taken by three of the interested land owners to three supervisors. On February 17, 1904, said appeal came on to be heard before the supervisors, and at that time nineteen of the signers of the original petition presented to the supervisors a written request for leave to withdraw their names from the original petition, stating that they had signed it under a mistake of fact, and that in their judgment public interest did not demand the change in the road.' This request was not granted. The supervisors adjourned until February 23, when they held another meeting and determined to grant the prayer of the petition, and adjourned to a later date. At the time of the meeting of February 23 the supervisors received from the property owners who had prayed the appeal an offer of $200 as “inducements” to grant the prayer of the petition. Not being able to agree on the amount of damages with the owners of a certain part of the land necessary for a road, a jury was empaneled before a justice of the peace and the compensation and damages of the land owners fixed. Thereafter, and on March 24, 1904, to which date the consideration of the appeal had been adjourned, the supervisors met. again and made a final order altering the road. The supervisors at that time were paid by the three land owners the $200 in cash, and disbursed the whole of that sum in paying costs and expenses occasioned by the appeal and leaving a balance of such costs and expenses unpaid. In the final order the supervisors included an itemized statement showing the amount of money received by them, the persons to whom and the purposes for which they had paid it, and showing also all the costs and expenses incurred while the appeal was pending.</p> <p>Thereafter, on June 1, 1904, upon a petition filed by the highway commissioners of the two towns, the circuit court ordered a writ of certiorari to issue against the three supervisors, commanding them to send up their record. Return was made in compliance with the writ, and, after a hearing in the circuit court, on January 31, 1905, the writ was quashed and the petition dismissed at the cost of the petitioners. Later the commissioners sued out this writ of error, and contend here that the supervisors should have granted the request of those petitioners who sought to withdraw their names, and that had that request been granted the supervisors would have been without authority to proceed, for the reason that the petition would then have lacked the statutory number of signers; that the action of the supervisors in receiving and disbursing the money offered as “inducements” was illegal and cast doubt upon the validity of their final order.</p> <p>A question was also made in the brief and argument of plaintiffs in error in reference to the form of the judgment. Since that brief was filed that objection has been obviated by a correction of the transcript of the record.</p>

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

<p>1. Telephones—telephone line in highway is additional burden. A telephone line in a public highway is an additional burden upon the fee, for which the owner of the fee is entitled to compensation; and the unauthorized maintenance and user of such line, and the addition of new cross-arms, wires and insulators, constitute an additional trespass, which a court of equity has jurisdiction to prevent by injunction.</p> <p>2. Injunction—when delay in asking for injunction does not defeat relief. Mere delay by the owner of the fee in a public highway in asking for an injunction to compel the removal of telephone poles and restrain further trespasses does not defeat her right to relief, where the telephone company knew of her ownership in the fee and has not been in any way misled to its prejudice by reason of such delay, which has not been of such duration as to bar the complainant’s rights.</p> <p>3. Same—what does not defeat right to have telephone poles removed. The, facts that a telephone company must make a detour around complainant’s land if it is obliged to remove its poles from the highway, in which she owns the fee, and that the public will be inconvenienced in sending messages during the time necessary to make the change, do not defeat the complainant’s right to an injuntion, since the injunction will not prevent the telephone company from acquiring the right of way by grant from the complainant or by condemnation.</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 L. PIEaly, Judge, presiding.</p>

Writ oí Error to the Circuit Court of Will county; the Hon. R. W. Hilschír, Judge, presiding. This was a bill in chancery filed by the Sanitary District of Chicago in the circuit court of Will county on October 9, 1895, to enjoin Jacob Glos from applying for, and the county clerk from issuing, a tax deed upon a certificate for the sale of certain premises in Will county for the general taxes for the year 1894.

<p>1. Statutes—when maxim that “the expression of one thing is .the exclusion of another■” does not apply. The maxim “the expression of one thing is the exclusion of another” will not be applied in construing a statute where the plain purpose of the statute is thereby defeated.</p> <p>2. Same—statutes in pari materia should be construed together. In arriving at the proper construction to be given a statute other statutes relating to the same subject should be considered.</p> <p>3. Ferries—act of 1897 does not exclude a city from acquiring ferry site by condemnation. The provision of section 1 of the act of 1897, (Laws of 1897, p. 92,) that it shall be lawful for any city or village to build or acquire, by purchase, lease or gift, and to maintain, ferries and bridges and the approaches thereto, does not exclude the acquiring of a ferry site by a city by the exercise of the power of eminent domain.</p> <p>4. Same—city may acquire ferry site beyond its limits by condemnation. Section 23 of the Ferries act, authorizing the condemnation of sites for landings, ferry-houses and approaches, while it is part of an act which relates to the licensing and government of ferries by private persons, does not exclude municipal corporations from its operation, and, since fhe legislature has subsequently authorized municipal corporations to construct and operate ferries, such corporations may acquire, by condemnation, ferry sites beyond their corporate limits. ¡</p> <p>5. Same—what sufficiently shows that ferry is for a public purpose. A petition by a city to condemn land for a ferry, the establishment of which is authorized by an ordinance which is made a part of the petition, which recites that the business interests of the city demand greater ferry facilities than are afforded by the one ferry which is in operation, shows with reasonable sufficiency that the ferry is not for private purposes.</p> <p>6. Same—effect where one landing of ferry is in another State. On appeal by a land owner from a condemnation judgment by which a city acquires land in Illinois for a ferry, one landing of which will be in another State, only so much of the proceeding will be considered as relates to territory within this State, since, if the city is unable to use the land condemned because of its inability to acquire land in the other State, the title to the land condemned will revert to the original owner.</p> <p>7. Eminent domain—land to be taken must be sufficiently described. A judgment in condemnation cannot be sustained where the land proposed to be taken is not sufficiently described in the petition .and no description whatever is contained in the verdict and j'udgment, which do not even refer to the petition.</p>

<p>SpEciae assessments—what constitutes a compliance with section 84 of Improvement act in case of fiat assessment. If an assessment is payable in one payment, and not in installments, the certificate of the board of local improvements made under section 84 of the Local Improvement act need not state that the completed improvement substantially conforms to the ordinance, nor is any public hearing required; and if the certificate shows the actual cost is less than the total amount assessed, the court should enter a rebate order, and no notice to property owners is necessary.</p>

Thomas G. Windes, Judge, presiding. This is a petition for a mandamus, filed by the relators, William R. Stirling and others, in the circuit court of Cook county, against the Chicago Cold Storage Warehouse Company, the city of Chicago, Frederick W. Blocki, commissioner of public works, and Michael J. Doherty, superintendent of streets and alleys of said city.

<p>1. Special assessments—general description of improvement in resolution is sufficient. The object of the Local Improvement act in requiring the resolution of the improvement board to describe the improvement is attained if the description is such as to give the property owners a general understanding of what is proposed to be done and the estimated cost thereof.</p> <p>2. Same—roadway of street to be paved is presumed to be deft- ' nite. Where the resolution for paving the roadway of a street, the width of which is fixed and certain, fails to specify the width of the roadway, it will be presumed, until the contrary is shown by evidence, that there is a definite roadway to be paved.</p> <p>3. Same—when there is no patent ambiguity in the description. When the description of an improvement refers to an object or a thing as fixed and existing which has locality, width and dimensions, the presumption is that it can be found, and located, and there is no patent ambiguity in the description.</p> <p>4. Same—the thickness of asphalt zvearing surface need not be stated in resolution. Failure of the resolution for an improvement, which includes paving a street with asphalt on six inches of Portland cement concrete swept with natural hydraulic cement, to specify the thickness of the asphalt wearing surface is not fatal to the assessment.</p> <p>5. Same—a resolution need not contain reference to the grades. Failure of a resolution for a grading and paving improvement to contain a reference to the grades is not fatal, where the estimate of cost contains an item for a certain number of cubic yards of grading and the estimated cost thereof, which demonstrates that there is to be no material change in existing grade of street. (Whaples v. City of Waukegan, 179 Ill. 310, explained.)</p> <p>6. Same—when a resolution sufficiently identifies improvement.' A resolution adopted at the public hearing, that “the following local improvements be made and adhered to pursuant to prior resolutions heretofore adopted for the same,” which is followed by a list of improvements, including the paving of a certain street, need not include in the identifying description the adjustment of sewers and other things provided for in the first resolution.</p> <p>7. Same—when grade is presumed to he a line drawn from the grades at intersections. If an ordinance for paving a street in a city where the streets are known to be practically on a level, establishes the grade at the intersections of such street with cross-streets, but does not specifically state what the grade shall be except at such intersections, it will be presumed the grade at intermediate points will be a line drawn from one fixed intersection grade to another.</p>

Appear from the Appellate Court for the First heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. TurEy, Judge, presiding.

<p>1. Mortgages—by redeeming from foreclosure sale a judgment creditor acquires only the interest of his debtor. Where a wife joins in a mortgage upon her lands and dies, and the mortgage is subsequently foreclosed against her husband and the minor children, if a judgment debtor of the husband makes redemption he must redeem en masse; but he acquires only such title as the judgment debtor had in the lands, and the effect of such redemption is to relieve the interests of other parties from all rights acquired under the foreclosure sale.</p> <p>2. Same—mortgagor does not absolutely lose title by failure to redeem. A mortgagor, by failing to redeem, does not absolutely lose his title, Snd if there is no redemption and the certificate of purchase becomes void for any reason, the mortgagor is the absolute owner of the premises by the title which he formerly held.</p> <p>3_- Limitations—statute does not run against remainder-men before right of entry accrues. The Statute of Limitations does not begin to run against remainder-men until the intervening estate is extinguished and a right of entry thereby accrues to them.</p> <p>4. Contribution—when party is not entitled to contribution. A judgment creditor of the husband who redeems from the foreclosure of a mortgage upon the wife’s lands given to secure the individual debt of the husband is not entitled, as against the heirs of the wife, to have contribution from such lands toward the amount of redemption money advanced by him before he can be deprived of possession.</p> <p>5. Same—right to contribution is barred in five years. To entitle a party who has redeemed en masse from a foreclosure sale to have contribution toward the redemption money from parties whose interest in the lands he has not acquired, the equities of parties must be equal and the right must be enforced within five years.</p>

<p>1. Trial—when rate of speed of street car is a question of fact. Whether the street car upon which plaintiff was riding was being run at a high rate of speed is a question of fact for the jury, where the collision causing the plaintiff’s injury occurred at a street intersection, and one witness testified the car was running ten miles an hour, another that it was going “very fast” and another “at a rapid speed.”</p> <p>2. Same—whether collision was caused by failure of the brake to work is a question of fact. If the plaintiff in an action for injuries received in a street car collision makes a prima facie case by showing that the car on which she was riding was run at a rapid speed over the intersection with another street car line without stopping, the question whether such case is overcome by proof that the collision resulted from a failure of the brakes to work is a question of fact for the jury.</p> <p>3. Pleading—what allegation of negligence is sufficient in colli~ sion case. An allegation in a declaration in an action for injuries . to plaintiff in a street car collision, that the motorman and conductor wrongfully, carelessly and improperly caused the car to go and be brought into contact with a certain other car, so that the front eñd of the latter came into contact with and collided with the car on which plaintiff was riding, is sufficient.</p> <p>4. Instructions—when omission of word “reasonably” is not error. An instruction requiring a carrier to use “the highest degree of care and caution, consistent with the practical operation of the' road, to provide for the safety and security of the passenger while being transported,” is not erroneous in not having the word “reasonably” inserted before the word “consistent.”</p>

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

<p>1. Rape—what does not open the door to improper evidence. Calling out from the accused, on cross-examination, the statement that he had not been in the room up-stairs over a certain saloon at any time since he sold it, in which room the prosecutrix testified the rape was committed, does not open the door to rebuttal evidence that the accused had been in such room with another girl, an associate of the prosecutrix, notwithstanding no objection was made to the improper cross-examination.</p> <p>2. Same—what does not render evidence of actions with other women competent. In a prosecution for rape, where the proprietor of the saloon, in a room over which the crime is claimed to have taken place in the daytime, testifies that the rooms above the saloon were open only at night and that the street door was kept locked and bolted in the daytime, evidence that the accused was up-stairs in the room with another girl in a certain month is not admissible as tending to disprove the proprietor’s testimony, there being no showing that the parties went in at the street door or that the meeting was in the daytime.</p> <p>3. Same—when improper evidence will reverse. In a rape case, where the prosecutrix and the principal witnesses are prostitutes and their evidence is contradicted in toto by the defendant, it is prejudicial error to admit incompetent evidence tending to show the accused was in the habit of maintaining improper relations with young girls incapable, in law, of consenting to sexual intercourse.</p> <p>4. Same—what does not amount to former jeopardy—practice. Giving an instruction, at the close of the evidence for the prosecution, directing the jury to find the accused not guilty on two of the four counts of the indictment, no verdict being then returned, is not an acquittal of the charge contained in the other counts, upon which a verdict was subsequently returned; nor can the defense of former jeopardy, based upon such circumstances, be first raised in the motion in arrest of judgment.</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. M. Kavanagh, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.</p>

<p>1. Insurance—a contract of insurance is construed liberally in favor of insured. A contract of insurance is construed liberally in favor of the insured and is strictly construed against the insurer, and where two interpretations, each equally reasonable, are possible, that construction should be adopted which will enable the beneficiary to recover.</p> <p>2. Benefit societies—a beneficiary has no vested right in the certificate during member’s lifetime. During the lifetime of a member of a benefit society in this State his beneficiary has no vested interest in the certificate, and the member may revoke the appointment of the beneficiary and appoint another in the absence of any contractual rights, and may, without the consent of the beneficiary, entirely destroy his or her interest in the certificate.</p> <p>3. Same—wife may recover though member suicides, if contract of insurance is silent on that point. Suicide by a member of a benefit society while sane does not defeat the right of his wife to recover on the benefit certificate as the beneficiary named therein, where the contract of insurance is silent as to the effect, upon the rights of the parties, of the member’s act of self-destruction.</p> <p>4. Same—when notice of assessment must be sent to a member. Where the constitution of a benefit society provides that printed notices of assessment shall be sent by the grand recorder in such manner as the Grand Legion may provide, and further provides that the official organ of the society published and appearing on the first day of each month shall be an official notice of assessment to each member, it is necessary, in order to charge a member with notice, to show that the notice was not only published, but sent to such member.</p>

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

<p>Appeal from the County Court of Knox county; the Hon. J. D. Welsh, Judge, presiding.</p>

<p>Appeal from the County Court of McLean county; the Hon. R. A. Russell, Judge, presiding.</p>

Lockwood HonorE, Judge, presiding. Relator in this case was suspended from the “privileges of membership” in the Chicago Board of Trade under section 9 of rule 4 of that board on December 26, 1893, for ten years. He raises no question here as to the legality of that suspension.

<p>1. Partnership—when one partner cannot sue another in assumpsit. Money advanced by one partner, not as a mere loan to the other but in furtherance of the affairs of the partnership, the accounts of which are in dispute and unsettled, cannot be recovered in an action of assumpsit against the latter, who pleads such facts in defense.</p> <p>2. Appeals and Errors—improper remarks cannot be considered in absence of objection. An improper remark of witness upon leaving the witness stand cannot be considered, on appeal, as alleged error, where there was no objection interposed or exception taken.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

W. H. Gest, Judge, presiding. On October 13, 1905, the president and board of trustees of the village of East Moline passed a resolution authorizing its special water-works committee to advertise for bids for the erection and construction of a system of waterworks. On November 14, 1905, this committee reported that they had advertised for bids, and recommended that the sum of $32,100 be expended for said purpose.

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

<p>Appeal from the County Court of Cook county; the Hon. Dwight C. Haven, Judge, presiding.</p>

Charles A. Bishop, Judge, presiding. This is a petition for quo warranto, filed in the circuit court of Kane county on behalf of the People, on the relation of Frank R. Reid, State’s attorney, against appellees, C. J. Zellar, L. P. Myers and John Ashe, to determine the validity of the organization of drainage district No. I of the town-. ship of Sugar Grove, in said county, and the right of appellees to act as commissioners of the same.

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

<p>1. Highways—what essential to way by prescription. To establish a public highway by prescription, the use by the public must have been adverse, under claim of right, continuous, uninterrupted, and with the knowledge of the owner of the estate yet without his consent.</p> <p>2. Same—occasional travel to avoid bad places in road is not sufficient. Occasional travel over private property adjoining a public highway for the purpose of avoiding ruts o'r bad places in the highway is not sufficient to establish a prescriptive right.</p> <p>3. Samé—well defined line of travel must have existed for fifteen years. To establish a prescriptive right in the public to pass over private property, where the owner has done no act to indicate that such property is part of the public highway and the public authorities have taken no steps to indicate that they so consider it, it must be shown that a certain and well defined line of travel has existed over the property for at least fifteen years.</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. Elbridge Hanecy, Judge, presiding.</p>

<p>Writ or Error to the Criminal Court of Cook county; the Hon. George Kersten, Judge, presiding.</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. A. H. ChETrain, Judge, presiding.

<p>1. Special assessments—legality of drainage district organisation cannot be attacked on application for sale. The legality of the organization of a drainage district, admitted to be a de facto organization, cannot be questioned upon application for judgment of sale for a delinquent drainage assessment. .</p> <p>2. Same—provision requiring notice before letting contract for drainage work is mandatory. The provision of the statute requiring drainage commissioners to give notice when and where a contract for work to cost over $500 will be let is mandatory, and a non-compliance with such provision may be shown in defense upon application for judgment of sale for an assessment levied to pay for the work.</p> <p>3. Drainage—land owners not obliged to resort to the courts to compel commissioners to obey the law. Owners of land included in a drainage district are not obliged to supervise the acts of the drainage commissioners and resort to the courts to compel compliance with the statute, and if the commissioners fail to give notice of the time and place of letting a contract for work costing over $500, the land owners, by accepting the benefits of the work, are not estopped to raise the objection upon application for judgment of sale for the drainage assessment. (Givins v. People, 194 Ill. 150, distinguished.)</p>

<p>1. Appeals and Errors—when objection to admission of records of deeds is waived. A general objection to the admission in evidence of the record of a deed is a waiver of the specific objection that the offered evidence is secondary and that sufficient preliminary proof has not been made.</p> <p>2. Ejectment—what evidence authorizes recovery. Proof of a deed purporting to convey the title in fee to a certain person, together with proof of possession by him for thirty years and that such title as he had had passed to the plaintiff, is sufficient to authorize recovery in ejectment, where the defendant disclaims title and seeks only to show that he has never been in possession.</p>

<p>1. Criminal law-—when court may refuse leave to withdraw a plea of guilty. In Illinois the plea of guilty may be entered in all criminal cases, and the court may, in the exercise of its sound discretion, refuse leave to withdraw such plea, provided it is understandingly made.</p> <p>2. Same—consequence of plea of guilty must be fully explained. Before a plea of guilty can be entered in a criminal case in Illinois the defendant must be fully advised by the court as to his rights and the consequences of the plea, including his right to a trial by jury and the length of time he might be sentenced to the penitentiary.</p> <p>3. Same—what is not an explanation of plea of guilty. A mere inquiry by the court as to whether the defendant understood that if he pleaded guilty the court would sentence him to the penitentiary is not such an explanation of the rights of the defendant and the consequences of the plea of guilty as is contemplated by the statute.</p> <p>4. Same—when court should permit plea of guilty to be withdrazvn. Leave to withdraw a plea of guilty should be granted where the ends of justice will be best subserved by permitting a plea of not guilty in its stead, and particularly where the consequences of the plea were not fully explained to the defendant, who claims that he did not understand the same. (Marx v. People, 204 Ill. 248, distinguished.)</p>

<p>1. Trusts—express trust need not be manifested in any particular form of writing. Letters, memoranda or other informal writings may manifest an express trust, provided the object and nature of the trust appear with sufficient certainty therefrom.</p> <p>2. Same—what does not create estoppel to prove trust relation. Designating the money paid from one person to another as “rent,” which was in fact paid under an agreement that it should represent the interest on the cost of the land, does not conclusively show the relation of landlord and tenant nor create an estoppel to prove the true relation of trustee and cestui que trust.</p> <p>3. Same-—courts do not follow the analogy of Statute of Limitations in matter of an express trust. In suits to enforce a trust against an express trustee courts of equity do not follow the analogy of the Statute of Limitations as applied to suits at law.</p> <p>4. Same—when complainant is entitled to relief. In a proceeding against the holder of the legal title to land to have the title declared to be held in trust for the complainant, if the facts stated in the master’s report entitle the complainant to the relief prayed for he is entitled to such relief, regardless of whether the deed to the defendant can be construed as a mortgage or by what name the transaction was characterized in the master’s report.</p>

<p>1. Habeas corpus—appeal does not lie in a proceeding for custody of child. The final order in a habeas corpus proceeding for the custody of a child may be reviewed upon writ of error but not by appeal.</p> <p>2. Same—extent to which order in habeas corpus proceeding is final. An order determining the rights of the parties in a habeas corpus proceeding for the custody of a child is final, for the purpose of a writ of error, only in the sense that the parties are concluded under the particular circumstances existing when the order was entered; but if there is a change in the circumstances the order is not final and the issue may be tried again on a second application.</p> <p>3. Same—when jurisdiction of an appeal cannot be questioned. Where an appeal is taken to the Appellate Court from an order in a habeas corpus proceeding for the custody of a child and no motion. to dismiss the appeal is made by the appellee who voluntarily appears and joins in error, the jurisdiction of the Appellate Court to entertain the appeal cannot be questioned upon further appeal to the Supreme Court, since the Appellate' Court has jurisdiction of the subject matter if properly invoked, and appellee’s joinder in error amounts to an appearance.</p> <p>4. Parent and child—parent cannot be divested of custody of child zvithout notice. A parent has the right to the custody of his child as against the world unless he has forfeited his right or the welfare of the child demands that he should be deprived of it, and he is entitled to notice of any proceeding by which he is to be deprived of such custody.</p> <p>5. Same—father is presumed to be entitled to custody of child. A father’s right to the custody of his child is superior to the right of any other person, if he is a fit person to have such custody and is so circumstanced that he can provide the necessaries of life and properly maintain and educate the child; and it will be presumed that he is entitled to the custody of the child until proof to the contrary is made.</p> <p>6. Adoption—when decree of adoption is void as to parent. A decree of adoption, entered in a proceeding no notice of which was given to the father of the child although he was living within the State, is void, as to such parent, whether the Adoption statute expressly provides for such notice or not, and even though the petition for adoption alleges that he has deserted the child.</p> <p>7. Same—when holding decree of adoption invalid does not determine father’s right to custody. Where the only question tried in a habeas corpus proceeding by a father for the custody of his child is whether a certain decree of adoption is valid, the fact that the Appellate Court finds such decree was void as to the parent and reverses the order of the lower court does not necessarily establish the father’s right to the custody of the child, and the cause should be remanded to permit that question to be adjudicated according to the best interests of the child.</p>

<p>Writ os Error to the Circuit Court of Alexander county; the Hon. William N. BuTlER, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Morgan county; the Hon. O. P. Thompson, Judge, presiding.</p>

<p>1. Fraud—when vendee in bill of sale is liable for amount received on re-sale. A vendee in a bill of sale made to defraud the vendor’s creditors and accepted by the vendee with knowledge of that fact, who subsequently sells the property to a bona fide purchaser and retains.the proceeds of sale, is liable for the amount so received when sued by the trustee appointed in the vendor’s bankruptcy proceeding.</p> <p>2. Appears and errors—what questions are concluded by Appellate Court’s judgment. Whether a vendee in a bill of sale had knowledge that the vendor was bankrupt, and whether he took possession of the property under the bill of sale and abandoned his rights under an unrecorded mortgage which he held, are questions of fact on which the judgment of the Appellate Court is conclusive.</p> <p>3. Same—when giving misleading instruction will not reverse. Giving an instruction that an unrecorded chattel mortgage was of no effect as against the mortgagor’s trustee in bankruptcy is not ground for reversal, even though the mortgagee took possession before the bankruptcy proceeding was begun, where the Appellate Court found, as a question of fact, that such possession was not taken under the mortgage but under a bill of sale, and that the mortgage was abandoned.</p>

Joseph E. Gary, Judge, presiding. On February 9, 1901, Kittie Gillmore, the appellant, (hereinafter referred to as plaintiff,) brought an action of case in the superior court of Cook county against the city of Chicago, the appellee, (hereinafter referred to as defendant,) to recover damages for personal injuries sustained by her on February 4, 1900, and which were occasioned by stepping into a hole in a sidewalk.

<p>Appeal from the Circuit Court of Coles county; the Hon. W. C. Johns, Judge, presiding.</p>

W. H. Gest, Judge, presiding. Appellee brought suit in the circuit court of Rock Island county against appellant for personal injuries.

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. Henry B. Willis, Judge, presiding.</p>

James A. Creighton, Judge, presiding. This* is an action on the case commenced in the circuit court of Sangamon county by appellee, Julie Etta Averill, against the Chicago and Alton Railway Company and the Springfield Consolidated Railway Company to recover for personal injuries.

<p>Appeal' from the County Court of Piatt county; the Hon. F. M. ShonkwilER, Judge, presiding.</p>

Theodore BrEnLano, Judge, presiding. This is a bill filed February 24, 1904, for the partition of certain real estate in Chicago, Illinois, of which Michael Crowe died seized January 19, 1887, the main question being whether appellee Grace Kennedy has a valid and subsisting lien on a portion of said real estate under a trust deed executed by said Crowe and wife July 26, 1886, to secure his note for $4000, or whether the right to enforce said lien is barred by the Statute of…

<p>1. Registration of title—when proof of title is insufficient. Proof of title to a forty-acre tract of land, followed by proof of a deed to a certain lot in a certain block of a subdivision of such tract, is not sufficient to show title to such lot where no plat of the subdivision is offered in evidence, and it is not shown that there was any such subdivision in existence or that there was any part of the forty-acre tract known by the lot number mentioned in the deed.</p> <p>2. Same—what does not create hiatus in chain of title. The fact that a trust deed upon which a foreclosure decree is based is not in evidence and there is nothing in the decree which connects it with such deed does not create a hiatus in the chain of title upon application for initial registration, where the decree was entered in a cause wherein the applicant, who was the mortgagee, was complainant, and the mortgagor, in whom the title was vested, was defendant, and the title was sold under the decree to the mortgagee, who received his certificate of purchase and master’s deed.</p> <p>3. Deeds—description must be stick as to identify the land sold. A conveyance of a lot or tract of land must contain some legal description by which the land conveyed may be found and identified.</p>

<p>1. Confidence game—an apparently legal contract may be part of a confidence game. The fact that a contract entered into by one party with no intention of carrying it out but for the purpose of inducing the other to part with his money without adequate consideration is apparently an ordinary partnership agreement to carry on a legitimate business venture does not prevent prosecution of the wrongdoer for the “confidence game,” upon' the ground that he has simply been guilty of a breach of contract.</p> <p>2. Same—when omission from instruction of words used in statute defining confidence game is harmless. An instruction for the People, in a prosecution for the confidence game, which advises the jury that “every person who shall obtain money from any other person” by the confidence game shall be imprisoned in the penitentiary, etc., is not harmful to the defendant because it fails to also include persons who “attempt to obtain” money by the confidence game, as is provided in the statute.</p>

<p>Information to disbar.</p>

<p>Writ or Error to the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. Truman E. Ames, Judge, presiding.</p>

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

Lockwood Honors, Judge, presiding. Mattie Seymour, a minor, by his next friend, brought an action on the case in the circuit court of Cook county against the Union Stock Yards and Transit Company and the Chicago Junction Railway Company to recover for personal injuries sustained by him on November 9, 1899, immediately south of Forty-ninth street between Wallace street and Union avenue, in the city of Chicago.

Writ OE Error to the Circuit Court of Macon county; ■the Hon. Soron Phirbrick, Judge, presiding. On December 20, 1903, the defendant in error, George M. Ashmore, filed his bill in the circuit court of Macon county, which was afterwards amended, against plaintiffs in error, alleging that he was the owner in fee of certain real estate situated in the city of Decatur; that the defendant Frank M..

<p>1. Certiorari—writ lies to review a proceeding of civil service commissioners for removing officer. The common law writ of certiorari lies to review a proceeding by the civil service commissioners for the removal of an officer appointed under the civil service rules and regulations. (Powell v. Bullis, 221 Ill. 379, followed.)</p> <p>2. Same—writ of certiorari is not a writ of right. To justify issuing a writ of certiorari good cause must be shown by the petition, since the writ is not a writ of right; and if it appears to the court, after issuing the writ, that it has been improvidently issued it should be quashed and the petition dismissed.</p> <p>3. Same—party must apply for writ speedily if public inconvenience will result from delay. While mere lapse of time short of the period of limitation for prosecuting a writ of error will not bar the issuing of a common law writ of certiorari, yet if any public inconvenience or detriment will result a party must act speedily in applying for the writ, and any unreasonable delay will warrant its refusal.</p> <p>4. Same—when certiorari should be refused. Writ of certiorari to review the proceedings of the civil service commission in removing a police patrolman from office should be denied where the petition is not filed for a year and a half after petitioner was discharged, and where the only excuse for the delay is that he was informed and believed he was legally dismissed but had only recently been advised that the rule he was alleged to have violated was not a rule of the civil service commission.</p>

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

T. M. Harris, Judge, presiding. This is an appeal from a decree dismissing at appellant’s cost his bill in chancery, filed in the McLean county circuit court, to restrain appellee, the county clerk of said county, from extending against him on the tax collector’s books for the year 1906 any tax assessments or penalties under the order of the board of review assessing against the appellant certain alleged omitted credits for the years 1893 to 1903, inclusive.

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

Writ oe Error to the Criminal Court of Cook county; the Hon. George Kersten, Judge, presiding. The record in this case brings up for review the judgment of conviction of Roy Aldrich for the crime of larceny. The facts developed on the trial were, in substance, as follows: In July, T905, Miss Flora May Barr checked her trunk at Grand Haven, Michigan, for Chicago, and took passage on one of the steamships belonging to the Goodrich Transportation Company.

Charles M. Walker, Judge, presiding. This suit was brought by appellee to recover damages on behalf of the next of kin of Patrick J. Gannon, who was so injured April 7, 1902, by a falling wall that he died the following day. Deceased was in the employment of appellant in the construction of the Rock Island depot in the city of Chicago. His duties were in excavating trenches for concrete piers, upon which the superstructure was to be built.

<p>Information to disbar.</p>