Volume 226 — Illinois Reports

Appear from the Appellate Court for the Fourth District;—heard in that court on.appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.

Dorrance Dibell, Judge, presiding. o On April 21, 1902, appellee, Wilhelmina Koerner, leased to one John Carlson, husband of appellant,… Held: but ordered that she might plow the stubble ground remaining unplowed within ten days from the date of the order at her own risk and without prejudice to the rights of the complainant, and in case the defendant failed or neglected to plow the ground within the time specified, then complainant might plow the same at her own risk and…

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

M. Kavanagh, Judge, presiding. The pleading and facts of the case ate sufficiently stated in the following statement made by the Appellate Court: “On March 21, 1902, the Chicago Railway Equipment Company, appellant, filed its bill in the superior court of Cook county to enjoin thfe National Hollow Brake-Beam Company and Henry D. Laughlin, appellees, from re-entering upon the premises occupied by appellant and removing it, or any of its property, therefrom, and to restrain…

L. C. Ruth, Judge, presiding. On March 23, 1904, appellee filed his bill in the circuit court of DuPage county against appellant and others, asking for specific performance of a contract and a perpetual injunction as to disposing of a certain master’s certificate, together with other relief.

Appear from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Champaign county; and writ of error to the circuit court of Champaign county; the Hon. Soron Phirbrick, Judge, presiding.

Theodore BrEntano, Judge, presiding. Appellant, Harriet L. Crawford, filed her bill in the superior court of Cook county against the appellee, the Northwestern Traveling Men’s Association, for an accounting of certain funds of appellee known as the emergency fund, and for the recovery of a balance which she claimed was due her as beneficiary upon a certificate of insurance issued to her husband, John W. Crawford.

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.</p>

J. W. Mack, Judge, presiding. Robert P. Bullen, of the city of Chicago, died testate November 14, 1901. His will bears date August 21, 1899, and directed that after the payment of the testator’s debts and funeral expenses, $10,000 of his estate should go to his nephew, Robert P. McDonald, and the residue to his widow,. Cornelia M. Bullen, who was named executrix of the will by the testator.

<p>1. Ejectment—plea of not guilty does not put in issue defendant’s possession and title. In ejectment, the plea of not guilty does not put in issue the possession of the premises by the defendant or that he claims title or interest in the premises, and if there is no other plea the plaintiff need not prove such facts.</p> <p>2. Same—defendanfs possession and interest should be put in issue by verified plea. A defendant in ejectment who desires to put in issue the question of his possession of the premises or his claim of title or interest therein should do so by special verified plea.</p> <p>3. Same—form of an action is the same whether premises are in possession or vacant. Under the Illinois statute the form of the action of ejectment is the-same whether the suit is brought to recover lands in possession or lands vacant and unoccupied, and a plea denying possession or demand does not put in issue the question of a claim of title or interest in the premises.</p> <p>4. Same—when question of title or interest is put in issue by a rejoinder. Where the plaintiff in ejectment, by his replication to the defendant’s sworn plea, denying demand or possession, admits such facts but avers further that the defendant claims some title or interest in the premises, a rejoinder which denies any claim of title or interest puts that question in issue and testimony upon that question should be heard.</p>

Truman E. AMES, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Fourth District affirming a judgment of the circuit court of Marion county in favor of the appellee for-the sum of $5000, for a personal injury alleged to have been sustained by him by being run over at a public highway crossing in Clinton county by a passenger train of the appellant, whereby his left leg was crushed and broken, necessitating its amputation.

J. W. Mack, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a decree entered October 4, 1904, by the circuit court of Cook county, disallowing the claim of appellant against the Pacific Railway Company, an insolvent corporation, then in the hands of a receiver.

George A. Dupuy, Judge, presiding. Appellee sued appellant on a policy of re-insurance issued by the Iowa Life Insurance Company of… Held: among other things, as propositions of law, that the Hall policy of re-insurance was in force at the time of the death of Hall and that appellee was liable thereon, and that under the contract of re-insurance the time within which appellant had a right to pay the premium of 1901 had not expired at the time of the death of the said…

<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. Homer Abbott, Judge, presiding.</p>

<p>1. Deeds—provision of trust deed construed as to ¡extent of title conveyed. A trust deed conveying all right, interest, estate and property of the grantors conveys every interest acquired by the grantors prior to its execution, even though it makes particular reference to the title acquired through a certain quit-claim deed, where it also mentions other conveyances and expresses the intention that it shall convey every interest and property acquired by the grantors under them.</p> <p>2. Same—warranty deed must have consideration to support it. A deed of bargain and sale, such as a warranty deed, is effective under the Statute of Uses, and nothing will pass by such deeá without a consideration.</p> <p>3. Same—rule as to extrinsic evidence relating to consideration. Where no consideration is expressed in a deed of bargain and sale extrinsic evidence is admissible to show the consideration; but where a warranty deed fully states the consideration the recital can not be contradicted by parol evidence for the purpose of making the deed null and void.</p> <p>4. Same—when admission of evidence to contradict recital of consideration will not reverse. Improper admission, in a chancery case, of evidence which contradicts the recital of consideration in a warranty deed will not work reversal, where the case was correctly decided upon other grounds which did not require the consideration of such evidence.</p> <p>5. Same—warranty deed is presumed to have been delivered on its date. A warranty deed which has been delivered will be presumed, in the absence of evidence to the contrary* to have been delivered on the day of its date.</p> <p>6. Same—deed authorised by a decree is legitimate evidence of title. A deed executed under the authority of a decree is legitimate evidence of title.</p> <p>7. Judicial sales—rule as to confirmation of sale. A purchaser at a sale which has not been confirmed and where no deed has been made acquires no title and is not entitled to insist upon a conveyance until the sale is confirmed; but if the terms of the decree have been complied with, and there has been neither fraud nor mistake nor illegal practice, the purchaser is entitled to a deed. _</p> <p>8. Same—when deed cannot he attacked for want of conñrmation of sale. Where a decree directs a sale of property without redemption and requires the execution of a deed to the purchaser, and a sale is made, the report thereof filed and a deed executed, under which possession is taken by the grantee, the fact that the sale was not confirmed by the court furnishes no ground for attacking the deed after the grantee and those claiming under him have been in possession for thirty years.</p>

B. R. Burroughs, Judge, presiding. This is an action on the case in the circuit court of Madison county by the plaintiff, John Tetherington, against the defendant, the St. Louis, Troy and Eastern Railroad Company, to recover damages to his lands by reason of overflow.

<p>1. Indictment—highest degree of certainty is required in an indictment. The highest degree of certainty is required in an indictment, and the fact that enough may be gathered from the whole indictment to sustain a conviction is not sufficient.</p> <p>2. Same—essentials of indictment for perjury. An indictment for perjury is fatally defective which does not show upon its face that the alleged false testimony was material to the issue, and a mere averment that it was material to the issues, generally, is not sufficient.</p> <p>3. Same—an indictment for perjury should allege-that the false testimony was corruptly given. An indictment for perjury should allege that the false testimony was corruptly given, and it is not sufficient that it avers that the defendant “unlawfully, knowingly, willfully and feloniously testified,” etc.</p> <p>4. Perjury—evidence not tending to prove the issues under the indictment is incompetent. In a perjury case for alleged false swearing in a criminal prosecution for conspiracy to extort money by bringing a damage suit against a street railway company, it is error to admit in evidence the record of the civil suit, and testimony relating to such suit, and conversations with the accused in no way tending to prove the falsity of his testimony in the conspiracy case, upon which the indictment is based.</p> <p>5. Same—rule as to assigning perjury upon cross-examination. Perjury may be assigned upon the cross-examination of a witness only where the testimony in chief is material to the issue and the cross-examination affects the credibility of the witness.</p> <p>6. Same—when conviction for perjury cannot be sustained. A conviction for perjury, based upon the cross-examination of the accused as a witness, cannot be sustained where there is no proof in the record from which it can be determined whether the cross-examination was in any way material, or even proper, in view of the testimony in chief.</p> <p>7. Same—whether false testimony was material not a question of fact for the jury. Whether alleged false testimony was material to the issues is a question of law or a mixed question of law and fact, and it is error for the instructions to leave that question to the jury, especially where there is improper evidence in the record showing the testimony of the accused in another case than the one wherein the perjury is charged.</p> <p>8. Attorneys at law—it is not proper practice for an attorney to act as a witness in the case. While not unlawful, it is not proper practice for an attorney connected with a case to appear as a witness, particularly where he first appears as attorney in a civil case, then as special counsel for the People in a criminal prosecution for conspiracy in bringing the civil suit, and finally as a witness and as of counsel for the People in a perjury prosecution based upon the conspiracy case.</p>

Dorrance Dibell, Judge, presiding. On February 8, i8gg, J. C. Regan and John F. Quinn entered into a written contract with Ernst Heldmaier for the performance of certain work on the sanitary canal therein described.

Writ or Error to the Appellate Court for the Fourth District;—heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.

Writ oe Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county;… Held: and those were at the time it was first organized, in January, 1899. Some of the defendants in error state tliat they thought they were only going to help organize and that after that they would cease to be members, but there is nothing in the record to indicate that they took any steps to find out whether they were still trustees.

Axel ChyTraus, Judge, presiding. This is an action on the. case broughj; by Isaiah C. Smith against the Chicago and Grand Trunk Railway Company (hereinafter called the railway company) and the Chicago City Railway Company (hereinafter called the street railway company) to recover damages for personal injuries received on July 17, 1893, which resulted from a collision between a passenger train on the railway company’s tracks and a street car on which Smith was a passenger, at…

<p>Appeal from the Superior Court of Cook countythe Hon. W. M. McEwEN, Judge, presiding.</p>

<p>1. Municipal corporations—subject of oil inspection is under control of legislature. The subject of oil inspection is under the control of the legislature, which may delegate the power to municipal corporations, or, after such delegation, itiay resume the power itself and deprive municipal corporations of the right to exercise it.</p> <p>2. Same—city has no authority to legislate on subject of oil inspection. By the act of 1874, relating to oil inspection, '(Rev. Stat. 1874, p. 731,) the legislature has resumed control over the subject and has taken away the authority of municipal corporations to legislate thereon under section 2 of article 6 and paragraph 54 of section 1 of article 5 of the City and Village act of 1872.</p> <p>3. Same—when ordinance relating to oil inspection is void. An ordinance creating the office of oil inspector of the city, which fixes -a monthly salary for the inspector and his deputies, provides for his turning over the fees collected from inspection to the city, provides for a bond payable to the city and fixes the term of office at two years, is not an attempt to comply with the act of 1874 regulating oil inspection, and as its provisions are interdependent the ordinance is void in toto.</p> <p>4. Same—when person is not an officer de facto under statute concerning oil inspection. A person who acts as oil inspector for a city under‘an ordinance which does not purport to be an attempt to comply with the provisions of the act of 1874 respecting oil inspection, but is void as an attempted exercise by the city of a power it does not possess, is not an officer de facto under the said act of 1874.</p> <p>5- Same—one who collects fees under authority of an ordinance cannot claim them as his own. One who collects fees under the assumption that he is clothed with authority to do so by the ordinance creating his office, which required that such fees be collected and turned over to the city, cannot deny the obligations imposed by the ordinance nor dispute the title of the city to the money upon the ground that the ordinance was void and the fees illegally collected.</p> <p>6. Same—when city has the right to retain money deposited to cover alleged shortage. Money voluntarily deposited with the city by an ex-officer thereof to cover any alleged indebtedness in the matter of fees which it was claimed he had collected and failed to account for, without any conditions or agreements except that the money be applied to cover the indebtedness, may be applied by the city for that purpose as soon as the indebtedness is ascertained.</p> <p>7. Fees and SALARIES'—provision of the Oil Inspection act construed. The purpose of the Oil Inspection act of 1874 in requiring the local authorities to fix the amount of an oil inspector’s compensation, which is to be paid by the persons requiring his services, is to protect the public and to have the compensation fixed at such sum as is fair and reasonable to pay for such services, and not to require dealers in oil to pay tribute to the inspector or the city.</p>

<p>Writ or Error to the County Court of Henry county; the Hon. T. H. Cheseey, Judge, presiding.</p>

<p>1. Appeals and errors—what questions are settled by Appellate Court’s judgment. A judgment of the Appellate Court affirming a judgment for the defendant in an action for damages for forfeiting plaintiff’s contract conclusively settles the questions of when the work was to begin, which depended entirely upon the facts proved; when notice was given to the plaintiff to begin work; that the forfeiture was not based upon a mistaken assumption of facts by the defendant, and that the plaintiff had not completed the portion of the work required by the contract.</p> <p>2. Same—question of waiver is mixed question of law and fact. Whether a sanitary district has waived its right to declare a forfeiture of the contract for excavation is a mixed question of law and fact, upon which the judgment of the Appellate Court, in an action at law, is conclusive.</p> <p>3. Instructions-—when instruction that forfeiture was illegal is properly refused. A general instruction to the effect that defendant’s forfeiture of the plaintiff’s contract was illegal and insufficient is properly refused where there is no dispute that the forfeiture was regularly declared, and where the question of its legality and sufficiency involves the determination of controverted questions of fact as to the progress of the work, its character, the alleged waiver by the defendant, and other matters in dispute.</p> <p>4. Contracts—provision as to forfeiture construed. Where a contract for excavation provides for a forfeiture upon the failure of the contractor in the matter of the progress of the work and the character of the work performed, a failure in either respect is a failure as to both, and the fact that the plaintiff may have complied with the contract as to the character of the work does not prevent a forfeiture if he has failed to make the progress which the contract requires.</p> <p>5. Same—when time for beginning work is not question of law. Where a contract for excavation requires the plaintiff to begin the main work when certain conditions, specified in the contract, existed, the question as to when such work should be begun depends upon the evidence as to the existence of the necessary conditions, and is a question of fact for the jury and not of law for the court.</p> <p>6. Same—when question of effect of new contract is for jury. Where the work on river diversion is taken out of the original contract for canal excavation by a new contract, which contains nothing else affecting the original contract and expressly provides that nothing therein contained shall affect the rights of either party with reference to an existing controversy over the original contract, the question whether the performance of the new contract affected the progress of the work under the original contract is one of fact for the jury, no reference thereto having been made in the contract itself.</p> <p>7. Same—when notice to begin work does not depend upon the weather conditions. Where a contract for drainage canal excavation requires the contractor to begin work when notified by the other party, and provides that he shall bear the expense and damage from flooding and build at his own expense all levees necessary to protect the work, the fact that the weather conditions in the winter were unfavorable to beginning work and made the work unreasonably expensive does not require that the notice to begin work be delayed until a more convenient season.</p> <p>8. Same—when plaintiff must prove that forfeiture of contract was wrongful. One who alleges in his declaration in an action for damages for forfeiture of a contract that he did not perform the contract because it was wrongfully forfeited has the burden of proving that the forfeiture was wrongful, under the rule requiring a plaintiff to prove the allegations of his declaration.</p> <p>9. Same—courts of law enforce contracts as made. Courts of law enforce contracts as made, and, so far as it can be said to be a rule that such courts incline against forfeiture, the rule is never to be carried to the extent of relieving the parties from the terms of their contract.</p> <p>10. Same—rule that forfeitures are not favored in law applies particiilarly to courts of equity. The rule that forfeitures are not favored in law is peculiar to courts of equity; but even equity will not interfere with a forfeiture .for breach of conditions or covenants where no clear estimate of damages or ju'st compensation can be made.</p> <p>11. Same—when refusal of instruction that forfeitures are not favored in law is proper. In an action for damages for alleged wrongful forfeiture of a contract, an instruction which, stripped of all elements not fully covered by other given instructions, amounts merely to a declaration that forfeitures are not favored in law, is properly refused, as tending 'only to unjustly prejudice the defendant’s case.</p> <p>12. Same—when notice to begin excavation work does not depend upon question of title to the land. The fact that at the time notice was given to a contractor to begin work upon drainage canal excavation the district had not acquired the title to the land does not render the notice of no avail where there had been a condemnation proceeding, and where the contractor, without objecting, took possession of the land and continued his work without molestation or interference.</p> <p>13. Waiver—zvhat is not an improper modification of instruction as to waiver. An instruction stating that knowledge of an act on which a forfeiture might be based will constitute a waiver is not improperly modified by making it read “full knowledge,” etc., since there is no substantial difference between the terms “knowledge” and “full knowledge.”</p>

J. E. DunnEGAN, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Fourth District affirming a judgment- of the circuit court of Madison county in favor of appellee, and against appellant, for $1999.

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

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

<p>Writ op Error to the Circuit Court of Moultrie county; the Hon. Paul McWilliams, 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. E. O. Brown, Judge, presiding.</p>

Appear from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.

George W. Patton, Judge, presiding. This is an information in the nature of quo warranto commenced by the State’s attorney of 'Livingston county, on the relation of Leonard Wetz and Frank Reed, against C. A. Hepler and George Brown, of Reading township, in Livingston county, and Patrick Healey, of Osage township, in LaSalle count)', charging that the defendants are unlawfully acting as drainage commissioners of an alleged drainage district known as Union District No. i, and-…

<p>1. Appeals and Errors—when judgment of the Appellate Court must be affirmed. Where the only error assigned is upon the trial court’s refusal, in a personal injury case, to direct a verdict for the defendant, the judgment of the Appellate Court affirming a judgment for the plaintiff must be affirmed by the Supreme Court if there is any competent evidence in the record fairly tending to support the plaintiff’s cause of action.</p> <p>2. Trial—when refusal to direct a verdict is proper. In an action for the death of an employee of a steel company, caused by an explosion due to a “break-out” in a blast furnace, whereby molten metal escaped and came in contact with water, it is proper to refuse to direct a verdict for the defendant where the proof shows that the furnace had been standing for about sixteen years, that it was under the control of the defendant, had not been “blown out” for inspection for about a year, that the deceased had no means of knowing of the condition and was not responsible therefor, even though it also appears that the “break-outs” were likely to occur in new furnaces as well as old, and that there was no certain way of anticipating them or determining their cause.</p>

Appear from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. W. CriEEord, Judge, presiding. This is an appeal from the judgment of the Appellate Court affirming a judgment: of the circuit court of Cook county in favor of appellee.

<p>1. Murder—when proof of conspiracy is not competent. Upon the trial of the clerk of a political club election for the murder of a candidate who he claimed had made an assault upon him, it is not error to exclude evidence that the candidate and his supporters had • entered into a conspiracy to oust the regularly appointed judges and clerks and carry on a fraudulent election, where everything that was in fact said or done was admitted, and the defense interposed was purely one of self-defense and related solely to what took place between the deceased and the defendant.</p> <p>2. Same—hozv election was conducted after affray immaterial. Proof .of the manner in which a club election was conducted, after the affray in which the defendant fatally wounded one of the candidates is not competent, where the only question in the case is whether the defendant was assaulted by the deceased and was. acting in self-defense when he inflicted the fatal wound.</p> <p>3. Same—what evidence is admissible on the trial of asn election clerk for mtirder. Upon the trial of a clerk of a political club election for the murder of a candidate who was trying to get possession of the ballot-box to investigate a charge of ballot-box stuffing, it is not error to admit in evidence the bunch of ballots which were taken from the box after only two men had voted, as tending to show the reason for the investigation and in corroboration of the witnesses for the prosecution, even though it is not claimed the defendant was in any conspiracy to stuff the ballot-box.</p> <p>4. Same—what does not justify election clerk in killing candidate. A candidate for president of a political club has a right to use reasonable means to ascertain whether a fraud has been committed by a voter by stuffing the ballot-box, and a clerk of the election who has charge of one of the rosters is not justified in killing such candidate, even to defend his possession of the roster, during an attempt by such candidate and his supporters to reach the ballot-box and investigate the alleged fraud.</p> <p>5. Evidence—¡fací that men in line were not known to election clerk is not material. The fact that the men in line waiting to vote for a certain candidate for the office of president of a political club were nearly all strangers to an election clerk cannot be proved upon the trial of such clerk for murder of the candidate, as tending to show that they were not entitled to vote, where the club’ has a membership of over four thousand persons.</p> <p>6. Same—when admission of photograph of the deceased is not ground for reversal. Admitting in evidence, in a murder trial, a photograph of the deceased, whose identity as the person killed was admitted by the defendant, is not, of itself, ground for reversal, even though the evidence is unnecessary and might properly have been excluded.</p> <p>7. Appeals and errors—one who fails to object to improper remarks at request of court waives his rights. A party who makes no objection to alleged improper statements of opposing counsel in his argument because requested by the court not to do so waives his right to urge such remarks as error on appeal, since if there is no objection and exception to a ruling or refusal to rule.there is nothing preserved for review in that respect.</p> <p>8. Instructions—practice of giving irrelevant instructions not approved. The practice of giving instructions in a criminal trial wholly irrelevant to any issue in the case is not commended, and will be ground for reversal of a judgment of conviction unless it is entirely clear that the instructions did not operate to the prejudice of the defendant.</p> <p>9. Same—instruction not based upon evidence may be refused. An instruction in a murder trial stating the right of a person to resist by force an attempt to commit a felony, even to taking the life of the person making the attempt, is properly refused, where there is no evidence of any attempt to commit a felony.</p>

<p>1. Divorce—decree dismissing bill is res judicata as to then existing grounds for divorce. A decree dismissing a bill for divorce filed by the wife is, while it remains in force, res judicata of everything that was or might have been alleged by her as ground for divorce at the time the bill was filed.</p> <p>2. Same—what does not justify a wife in living apart from her husband. A wife is not justified in living apart from her husband because he accused her of unlawful intimacy with a man whose association with her he had objected to, where the accusation was based upon the conduct of the wife in allowing the man to remain over night in a cottage of which she and two small children were the only occupants, and where she made no attempt to explain her indiscreet conduct or assert her innocence of any wrongdoing.</p> <p>3. Same-—when wife is guilty of desertion. A wife who leaves her husband after a quarrel over her indiscreet conduct and remains away for over two years notwithstanding the husband’s repeated efforts to induce her to return, and who refuses at all times to return and shows no desire for a reconciliation, never going further than to intimate that she might return at some future time if the husband complied with conditions which she had no right to impose, is guilty of desertion.</p> <p>4. Same—what is not a condonation of wife’s desertion. The facts that after more than two years’ unjustifiable absence the wife returns to her husband’s home and that she lives in the same house with him do not amount to a condonation of her desertion, where she had no intention of resuming, and did not resume, her marital relations with him, but employed detectives to watch her husband and devoted her energies to unearthing some cause which would entitle her to a-divorce from him.</p> <p>5. Same—when the Supreme Court will not award a new trial. Upon reversing a decree dismissing a husband’s cross-bill for divorce, if there are no errors of law to be corrected and it is manifest that the husband is entitled to a divorce, and that the ends of justice will not be served by another trial the result of which is certain, the Supreme Court will remand the cause with directions to the trial court to enter a decree of absolute divorce, and to make such order as to the custody of the children as is just and equitable.</p>

<p>1. Limitations—elements essential to such possession as constitutes a bar. The possession which is required to constitute a bar to the assertion of a record title to real estate by the -holder thereof must be hostile or adverse, actual, visible, notorious and exclusive, continuous, and under a claim of title inconsistent with that of the possessor of the record title.</p> <p>2. Same—what is not such possession as bars an easement. An easement created by recorded deed giving the use of a strip of land for a private alley between the east and west portions of a lot is not barred by twenty years’ use of such strip by the owner of the west portion for access to his property, storing delivery wagons at night, and other similar acts, and by the fact that he and his grantees maintained the fence erected between the strip and the east portion by a remote grantor of the owner of such east portion who had not, during such period, used, or needed to use, the strip as a private alley.</p>

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

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

Theodore BrENTano, Judge, presiding. The superior court of Cook county entered a decree dismissing, for want of equity, a bill filed by appellant against appellees. That decree has been affirmed by the Appellate Court for the Eirst District, and the record is brought to this court by appeal.

AppEae from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Flon. Joseph E. Gary, Judge, presiding. September n, 1901, appellant sold the premises which are the subject matter of this suit to Otto C. Meinshausen for the sum of $44,750.

<p>Appeal from the Appellate Court for the Second District ;■—heard in that court on appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.</p>

<p>■ 1. Assignments—what does not amount to an equitable assignment. An agreement between the complainant and the defendants in a partition suit to the effect that if the latter would not seek to enforce payment of a certain note of the decedent out of the personal estate, but would allow the estate to be distributed according to the respective interests of the parties as found by the decree, the complainant would see that none of the defendants were required to pay any portion of such note but would receive the same amount as though the note had been paid out of the personal estate, does not constitute an equitable assignment of a portion of the complainant’s distributive share to the defendants.</p> <p>2. Executors and administrators—when item should not be credited as a payment on a mortgage note. A check given by an executor to the master in chancery, to be applied to the credit of the heir to the personal estate upon her bid at the partition sale of the real estate, should be reported by the executor as a payment to such heir on account of her distributive share of the personal estate and not as a payment by her upon a mortgage note of the decedent, even though such note was paid out of the proceeds of the partition sale.</p>

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

Writ op Error to the Criminal Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. On May 3, 1906, the grand jury of Cook county returned an indictment charging Francesco Morello, the plaintiff in error, (hereinafter referred to in .this statement as the defendant,) with the crime of murder, committed by shooting Fillipo Anarino with a revolver on March 21, 1905, in the village of River Forest, in said county.

• Appear from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the… Held: in the case of McChesney v. City of Chicago, 213 Ill. 592, that interest could not be collected on assessments which were not divided into installments. Thereupon Bransfield, in the name of McGovern, brought this suit. The circuit court, upon the facts disclosed by the stipulation, rendered judgment against appellant for $1033.13.

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the City Court of East St. Louis; the Hon. W. J. N. MoyERS, Judge, presiding.</p>

Albert O. Marshall, Judge, presiding. This case arises out of a partition proceeding brought in the circuit court of Kankakee county. J. Frank Leonard died intestate seized of certain city and farm property, which descended to his heirs-at-law, who were his first cousins, to the number of eighteen. All of these were adults and all but one were of sound mind and free from disability to convey land, the one exception being Jane O. Smith, who is alleged to be of unsound mind.

<p>1. Wires—what proof establishes prima facie a charge of undue influence. Proof that the testatrix, who was old and feeble, reposed great confidence in her son, who acted as her agent, and that the latter procured his attorney to draw the will, and that the son and the attorney were alone with the testatrix at the drawing and execution of the will, which made the son practically the only beneficiary of a large estate, whereas the other children and grandchildren were given but small amounts, establishes prima facie the charge of undue influence by the son.</p> <p>2. Same—when instruction as to undue influence does not conflict with rule as to burden of proof. An instruction in a will contest stating that where it appears the chief beneficiary of the will enjoyed the trust and confidence of the testatrix and caused the will to be prepared a presumption of undue influence arises, which must be overcome by other evidence in the case that the execution of the will was the free deliberation of the testatrix, is not in conflict with the rule that the burden of proof, upon the whole case, is on the contestant, since the presumption fails if there is evidence of free agency.</p> <p>3. Same—what is not error as to manner of submitting issue at law. The fact that the issue at law in a will contest not only submits to the jury the question whether or not the instrument was the last will and testament of the testatrix, but also submits the questions whether the testatrix possessed testamentary capacity and whether undue influence was exercised, does not constitute error in the manner of submitting the issue at law to the jury.</p> <p>4. Costs—when costs may be awarded against aH executor individually. Where a will is contested upon the ground of want of testamentary capacity and also for alleged undue influence by the executor, who was the chief beneficiary of the will, and both issues are found in favor of the contestants, the court may, in its discretion, award costs against the defendant individually, and not in his "capacity as executor.</p>

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

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Whiteside county; the Hon. F. D. Ramsay, Judge, presiding.</p>

O. E. Heard, Judge, presiding. The heirs-at-law of Jane Platt filed a bill in the Lee county circuit court to have clauses 5 and 6J2 of the will of Jane Platt declared void and for a partition of the real estate devised by said clauses. Jane Platt died testate March 1, 1904, leaving complainants and James J. Platt her heirs-at-law. Said Jane Platt left a will consisting of eleven clauses and a codicil of one ■clause.

<p>1. County boards—when a regular meeting terminates though not adjourned sine die. A regular meeting of the board of supervisors which has been adjourned to a fixed day “or to the call of the chairman” terminates as effectually as by a sine die adjournment, where the meeting is not called on the day fixed in the order of adjournment but upon a different day fixed by the chairman.</p> <p>2. Same—a county board can exercise no powers not given by law. Boards of supervisors can exercise only such powers as are expressly given by law, or such as arise by necessary implication from the powers granted, or are indispensable to carry into effect the object and purpose of their creation.</p> <p>3. Same—chairman of county board cannot call a special meeting. Special meetings of the board of supervisors must be called in pursuance of the provisions of the statute, at the request of at least one-third of the members of the board; and the chairman has no power to call a meeting at his discretion, even though the board itself has attempted to delegate such authority to him.</p> <p>4. Grand jury—grand jury not called at a regular or special meeting is illegal. A grand jury selected at a meeting of the board of supervisors called by the chairman on a date other than the one to which the previous meeting had adjourned, and which is neither a regular meeting nor one called at the request of at least one-third of the members, as required by statute, is illegal.</p> <p>5. Criminal law—when legality of grand jury is questioned in apt time. The legality of the grand jury is questioned ip apt time where the defendant, before pleading, moves to quash the indictment upon the ground that the grand jury was not selected at any .legal meeting of the county board, which motion is supported by affidavits as to the facts and setting out the record of the board.</p>

Appear from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding. This is an appeal from a decree of the circuit court of Madison county granting a partition of certain real estate, and other relief. The original bill was filed October 1, 1904.' June 27, 1905, an amended bill was filed, upon which the cause was heard.

<p>1. Taxes—mere fact that property is owned by municipal corporation does not exempt it. Property owned by a municipal corporation is not exempt from taxation unless it comes clearly within some provision of the general law creating such exemption.</p> <p>2. Same—statutes exempting property from taxation are strictly construed.. Statutes exempting property from taxation are to be strictly Construed and will be held to apply only to property clearly within their terms.</p> <p>3. Same—when property of sanitary district is exempt. Lands within a sanitary district included within the channel and right of way and devoted exclusively to the purpose of drainage and carrying off the sewage of the district are exempt from taxation.</p> <p>4. Same—what property of a sanitary district is not exempt. Water power and property of a sanitary district located outside of the district are subject to taxation where located, as is also property within the district not used exclusively for public purposes.</p> <p>5. Same—sanitary district should inform assessor what property is devoted to public purposes. The fact that land of a sanitary district, a part of which is used for public purposes and a part leased to private persons, is assessed and taxed as one tract does not invalidate the whole tax where it does not appear the tax may not be apportioned, since it is the duty of the district, if it desires to claim an exemption, to inform the assessor what part of its property is devoted exclusively to public purposes.</p> <p>6. Sams—how judgment for taxes against lands of sanitary district should be entered. A judgment for taxes on lands of a sanitary district should be entered against the lands and not against the district, and should be in substantial conformity with the. statute, except that the order of sale should be omitted.</p>

<p>Writ oe Error to the Circuit Court of Ogle county; the Hon. R. S. Earrand, Judge, presiding.</p>

<p>1. Wills—when the will does not fail to appoint a trustee. ' If a testator, in creating a trust for charitable purposes, charges his wife, by name, with duties properly belonging to a trustee, the fact that the testator merely designates her as executrix, without distinguishing the duties imposed upon her as trustee from her duties as executrix, does not amount to a failure to appoint a trustee.</p> <p>2. Same—when executrix is invested with the powers of a trustee. Where the testator’s wife is invested, by name, with power to select the beneficiaries of the testator’s bounty under a charitable bequest and to determine the amounts to which they shall be entitled, and, as executrix, is vested with power to make all deeds and leases necessary to carry but the trust, she is invested with all the necessary powers of a trustee, notwithstanding the testator does not expressly designate her as trustee but only as executrix.</p> <p>3. Same—when a charitable bequest is not void as not devoted solely to charity. A clause of a will providing that “a part” of the income of the testator’s estate over and above the bequests previously given shall be devoted to charitable purposes will not be held void, as permitting a portion of the bequest to be used for other purposes, where there is no other disposition of the testator’s property aside from the specific bequests, and where the will names one beneficiary and authorizes the wife to name the others, and provides that at her death all the rest and residue of the estate shall be devoted to charitable purposes, the wife to designate, in her lifetime, the amounts and specific purposes.</p> <p>4. Same—the presumption against intention to die intestate is strong. The presumption that a testator intends by his will to dispose of his entire estate is so strong that courts will adopt any reasonable construction of the will rather than hold that he intended to die intestate.</p> <p>5. Same—when discretion of trustee in selecting beneficiaries is not unlimited. A will providing that a part of the income of the testator’s estate shall be devoted to charitable purposes, a certain named beneficiary “to receive a portion of such bequest,” but which leaves the amounts and purposes of the bequest to the discretion of the testator’s wife, does not make such discretion unlimited, and the beneficiaries selected by her can only share with the one named in the will; and in default of any selection by the wife the named beneficiary will be enttitled to the whole income.</p> <p>6. Same—the statute of Elizabeth is.in force in Illinois as part of the common law. Since the statute of 43 Elizabeth is a part of the common law of Illinois, the courts of Illinois will not declare a charitable trust void for want of certainty in the objects of the trust if there is a power of appointment somewhere by which the objects may be rendered certain; and if there is sufficient certainty to enable a court, in the exercise of its ordinary chancery powers, to carry out the testator’s charitable intent, the trust will not be allowed to fail.</p> <p>7. Same—rule where trustee is required to designate the beneficiaries. If the trustee is required by the will to designate the beneficiaries of a charitable bequest but no trustee is appointed by the will and no power is given to the court to appoint one, the gift is so imperfect that it cannot be administered; but if a trustee is appointed or the appointment is referred to the court the trust will be valid.</p> <p>8. Same—when gift to charity is not void for uncertainty of object. A clause in a will providing that after the death of the testator’s wife “all the rest and residue of my estate I direct shall be used for charitable and religious purposes, my said wife to direct, in her lifetime, in what amounts and for what specific purposes said estate shall be used,” is not void for uncertainty of the objects of the trust, since the wife has power to make such objects certain.</p> <p>9. Same—discretion as to designating beneficiaries of a charitable trust is not equivalent to making a will for the testator. Under a will devising the rest and residue of the testator’s property, after his wife’s death, to charitable purposes, but directing the wife, in her lifetime, to determine the amounts and specific purposes, the wife cannot devote the estate to other than charitable uses as defined by law; and the fact that she has a broad discretion in selecting the particular beneficiaries is not equivalent to making a will for the testator.</p>

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

T. N. GrEEn, Judge, presiding. , This suit is brought by appellee to recover damages he claims to- have sustained December 23, 1903, by reason of a personal injury alleged to have been caused by the negligence of appellant. The declaration consisted of three counts.

S. C. Stough, Judge, presiding. This is an appeal from a judgment of the Appellate Court affirming a judgment of the circuit court in favor of appellee for $4000. The following statement of facts made by the Appellate Court in its opinion is a correct and fair statement: “Appellee sued the Spring Valley Coal Company to recover damages caused by the death of her husband.

<p>Appeal from the County Court of DuPage county; the H©n. Mazzini Slusser, Judge, presiding.</p>

Appeae from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. A. H. ChETeain, Judge, presiding.

<p>Writ or Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Edgar county; the Hon. James W. Craig, Judge, presiding.</p> <p>The railroad of the defendants in error crosses a certain public highway in Edgar county. On August 4, 1904, there were no proper cattle-guards at this crossing. On said date plaintiff in error was driving a number of calves along the highway. When the calves reached the railroad crossing they turned and went a few yards along and upon the railroad right of way. Plaintiff in error followed, and was attempting to drive them back to the highway when a train operated by defendants in error approached the crossing at a high rate of speed without ringing a bell, sounding a whistle or giving any other signal of its approach. Plaintiff in error did not know of the approach of the train until it was quite near him, when he sought to reach a place of safety at the side of the right of way, but being old and compelled to move slowly he was unable to do so,- and while he was attempting to cross a ditch on the right of way in his endeavor to reach a safe place, the locomotive of the train struck one of the calves and hurled it against the plaintiff, thereby injuring him to such an extent as to require amputation of one of his legs.</p> <p>Plaintiff in error brought an action of case in the circuit court of Edgar county seeking to recover damages from defendants in error for the injuries so received by him. He filed a declaration containing two counts, each of which sets up the facts above stated. The two counts are alike, except one charges negligence in failing to ring a bell or sound a whistle continuously for eighty rods as the train approached the crossing, as required by statute, and the other charges negligence generally in failing to give any signal or warning of the approach of the train. ’Both counts allege that except for the negligence of defendants in error in failing to give the proper warning of the approach of the train to the crossing plaintiff in error would have discovered the approaching train in time to have removed himself to a place of safety.</p> <p>The circuit court sustained a general demurrer interposed to the declaration, and plaintiff in error electing to stand by his declaration, judgment was entered in favor of defendants in error. Plaintiff in error sued out a writ of error from the Appellate Court for the Third District, where the judgment of the circuit court was affirmed. Pfe now brings the cause to this court by writ of error.</p>

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

E. R. E. Kimbrough, Judge, presiding. The bill in this case alleges that George Brinkerhoff, a citizen of Edgar county, died testate March 2, 1901. By his will his son Taylor Brinkerhoff and George Murphy were named and afterwards qualified as executors. He left no widow. The heirs and legatees were four sons and three daughters, who were all of age and under no disabilities.

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

Writ op Error to the Criminal Court of Cook county; the Hon. Gporgp A. Dupuy, Judge, presiding. The grand jury of Cook county, at the January term, 1906, returned into the criminal court of said county an indictment charging Philip McEwen, George McEwen and George McCann with the murder of one William Bielski on January 24, 1906.

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

M. W. Thompson, Judge, presiding. The appellees, being fifteen judgment creditors of Coles county, filed their joint petition for a writ of mandamus in the circuit court of that county against its board of supervisors.

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

Appear from the Circuit Court of Massac county; the Hon. W. W. Duncan, Judge, presiding. This is an action of trespass quare clausum fregit.

Appear from the Circuit Court of Woodford county; the Hon. George W. Patton, Judge,- presiding. Appellant filed his bill March 23, 1905, in the circuit court of Woodford county, for partition of certain real estate between himself and other parties alleged to be the owners thereof as tenants in common. .At the September term, 1905, decree of partition was entered and commissioners appointed to partition the lands.

<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. Homer Abbott, Judge, presiding.</p>

Writ op Error to the County Court of Peoria county; the Hon. W. I. Slemmons, Judge, presiding. The State’s attorney of Peoria county filed an information in the county court of that county against the plaintiff in error charging him with unlawfully hunting rabbits without first having obtained a license so to do.

Solon Philbricic, Judge, presiding. On the 27th of October, 1897, appellee’s husband, Levi Drew, was the owner of an estate in certain lands lying in Douglas and Moultrie counties. He received his title by a conveyance from his father. Just what this title was is not involved and is not made to appear. The appellant says it was a life estate, while appellee claims it was uncertain whether it was a life estate or a fee.

<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. O. E. Heard, 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. Thomas G. VVindes, Judge, presiding.</p>

<p>1. Wires—law does not prescribe any particular form for will. An instrument reduced to writing and signed and attested in the presence of the testator or testatrix, in the presence of two or more witnesses, and which sufficiently manifests the intention of the maker to dispose of his estate after death, is entitled to probate upon the statutory proof being made.</p> <p>2. Same—when a deed is not entitled to probate■ as a will. A deed signed by the grantor and her husband and acknowledged before a notary public is not entitled to probate as a will, even though the notary be treated as a subscribing witness and the husband testifies that he was present and saw his wife sign the deeds and that she saw him sign them.</p> <p>3. Same—term “credible” means “competent ” as applied to attestation of wills. The term “credible,” as applied to subscribing witnesses to a will, means “competent,” and the competency of the witness is to be tested by his status at the time of the attestation, and not at the time when the will is presented for probate.</p> <p>4. Same—husbands and wives are not competent subscribing witnesses to each other’s wills. The incompetency of husbands and wives to testify for or against each other applies to the attestation of wills, and the disqualification as respects wills is not removed by the provisions of the act relating to evidence.</p>