Volume 228 — Illinois Reports

<p>Appeal from the County Court of Williamson county; the Hon. W. F. Slater, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Iroquois county; the Hon. Dorrance Dibell, Judge, presiding.</p>

T. N. Mehan, Judge, presiding. On July 16, 1906, appellant filed a bill in the circuit court of Mason county asking for a construction of the will of his father, Ebenezer M. Douglas, late of that county.

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

<p>Dram-shops—when refusal to grant license is not an abuse of mayor’s discretion. Refusal of the mayor to grant a license to keep a dram-shop close to a. charitable institution maintained as a place to reform wayward young girls is not an abuse of the mayor’s discretion, even though the requisite majority of property owners in the locality have signed the petition for the license. (Harrison v. People, 222 Ill. 150, adhered to.)</p>

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

<p>Information to disbar.</p>

C. A. Bishop, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment rendered by the superior court of Cook county against the city of Chicago, the appellant, in an action for personal injuries brought by Fred Loebel, the appellee. The declaration consists of three counts, which are substantially alike.

<p>1. Wills—undue influence must be directly connected with the execution of will. Undue influence, in order to avoid a will, must be directly connected with the execution of the instrument and be operating when the will is made.</p> <p>2. Same—when the court may take question of undue influence from the jury. The question of undue influence, in a will contest, is properly taken from the consideration of the jury where there is no evidence in the record even tending to show that any person said or did anything, at the time of the execution of the will, calculated to influence the testator to make any of the devises or bequests contained in the will or to prevent him from making any that he might choose.</p> <p>3. Same—course of conduct inspiring affection and regard is-not undue influence. That a principal beneficiary in a will has by his course of upright conduct and long and faithful service in business relations inspired in the testator affection for such beneficiary and confidence in his integrity and business ability does not amount to undue influence.</p> <p>4. Same—when instruction that every man is presumed to be of sound mind is proper. In a will contest case, where the proponents have made out the prima facie case required by the law, it is proper to instruct the jury that every man is- presumed to be of sound mind and capable of disposing of his property by will until the contrary is shown, and that it is their duty to hold that the testator was of sound mind and memory at the time of the execution of the will until they believe, from a preponderance of the evidence, that he was otherwise.</p> <p>5. Same—when will must be upheld. Where the preponderance of the evidence shows that the testator, at the time of executing his will, was of sound mind and memory and there is no evidence of undue influence, the will must be sustained, even though the evidence may show that the testator’s conduct was not in accordance with good morals.</p> <p>6. Instructions—counsel should point out in his brief wherein instructions are erroneous. Counsel should point out in his brief wherein instructions complained of are claimed to be erroneous or make some statement which shows to the court the basis of his objection, and if he fails to do so it is not the duty of a court of review to search for grounds upon which to declare the' instructions erroneous.</p> <p>7. Same—instructions should have basis in the evidence. Instructions in a. will contest announcing rules of law applicable to states of facts not appearing from the evidence to exist in the particular case, and instructions which are argumentative or which improperly single out and emphasize particular facts, are properly refused.</p> <p>8. Evidence—divorced wife of testator cannot testify as to occurrences during marriage. In a proceeding in chancery to set aside a will, a divorced wife of the testator is incompetent to testify to conversations or occurrences happening during the existence of the marriage relation which tend to overthrow the will.</p> <p>9. Appeals and Errors—when allowance of solicitor’s fees can not be. questioned on appeal. A ruling of the trial court allowing solicitor’s fees to the executors where the will sought to be set aside was sustained cannot be questioned on appeal, where the question was not among the points urged as grounds of the motion for new trial nor included in the assignments of error.</p>

<p>1. Dram-shops—right to sell intoxicating liquors at retail not a common right. The right to engage in the business of selling intoxicating liquors at retail is not now a common right, and it can be exercised only in the manner and upon the terms which the statute prescribes.</p> <p>2. Same—court cannot disregard the legislative definition of a "dram-shop.” The statute defines a dram-shop to be a place where spirituous or vinous or malt liquors are retailed by less quantity than one gallon, and the fact that the popular acceptation of the term “dram-shop” is restricted to a place where liquors are sold at a public bar to the public generally, does not authorize the courts to give such restricted meaning to the term, in view of its legislative definition.</p> <p>3. Same—a profit is not essential to a sale. A profit upon intoxicating liquors dispensed by a social club to members paying therefor is not essential to constitute the transaction a sale, nor is it material that the dispensing- of such liquors is merely incidental to the main purpose of the club, nor that only members of the club and accompanying friends are admitted.</p> <p>4. Same—stockholders of corporation are not tenants in common of property. Stockholders of an incorporated social club are not tenants in common of the club property, including the stock of intoxicating liquors; and the distribution of such liquors to members paying a fixed price therefor cannot be regarded as a mere equitable distribution of the common property among its owners.</p> <p>5. Same—a social club, though not incorporated, is not a partnership. An association organized merely for social, literary, scientific or political purposes, although not incorporated, is not a partnership, and the members have no individual rights in the club property and own no proportionate share thereof, but have only the right to its joint use so long as they remain members.</p> <p>6. Same—transfer of specific part of common property for stipulated price is a sale. Even though property is owned by persons as tenants in common, if a specific portion of the property is transferred to one or more of such persons for a stipulated price the transaction is a sale.</p> <p>7. Same—social club dispensing liquors to members is within meaning of Dram-shop act. A social club, incorporated or unincorporated, which dispenses intoxicating liquor to members, who pay a fixed price therefor, even though no profit is made, is within the meaning of the Dram-shop act, notwithstanding the club is organized in good faith for social purposes, and not as a mere device to evade the statute requiring a dram-shop license to be obtained. (People v. Law and Order Club, 203 Ill. 127, adhered to.)</p>

<p>1. Evidence—rule as to establishing pedigree by proof of declarations. In a partition proceeding, where the complainant claims to be a half-brother of the deceased owner of the estate by reason of their both being illegitimate sons born of the same mother before her marriage, the declarations of the alleged mother and of the members of her family, including the husband of her daughter, are competent to prove the relationship claimed by complainant.</p> <p>2. Same—declarations of third parties are not admissible to establish pedigree. A declaration claimed to have been made to a witness for the complainant in a partition suit by the father of the witness, to the effect that the complainant and the witness were both sons of the declarant but that they had different mothers and that a certain woman was the complainant’s mother, is not admissible to sustain the complainant’s claim that he was the illegitimate son of such woman.</p> <p>3. Same—rule as to privileged communications between attorney and client. In order to render a communication between attorney and client privileged, it must relate to some matter about which the client is seeking advice or be made to put the attorney in possession of information supposed to be necessary to enable him to properly advise the client; but the disclosure of mere reasons moving a client to make a deed or will which the attorney is called upon to prepare under the client’s directions and about which no legal advice is asked or required is not privileged.</p> <p>4. Same—fact that person has conservator does not necessarily render his declarations incompetent. The fact that a person has so little mind and capacity to transact business that a conservator is appointed for him to care for his property, does not, of itself, render incompetent the declarations which he has made as to his relationship to another.</p> <p>5. Appeals and Errors—when presence of incompetent evidence will not reverse. The presence of incompetent evidence in the record of a chancery case will not require a reversal if there is sufficient competent evidence in the record to sustain the decree, particularly where the master’s report, which the chancellor approved after overruling exceptions, points out -the incompetent evidence and states that it was not considered by the master.</p>

<p>Appeal from the County Court of Livingston county; the Hon. C. F. H. Carrithers, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Mason county; the Hon. T. N. Mehan, 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. Windes, Judge, presiding.</p>

T. N. Green, Judge, presiding. On August 13, 1903, appellee, Post Sugar Company, a limited partnership doing business at Peoria Heights, Illinois, ordered from H. O. Wilbur & Sons, of Philadelphia, Pa., 5000 pounds of chocolate at twenty-one and one-half cents per pound, f. o. b. cars Philadelphia, to be shipped to Peoria Heights via lines of Chicago, Rock Island and Pacific Railway Company, hereinafter referred to as the Rock Island company.

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of LaSalle county; the Hon. R. M. Skinner, Judge, presiding. This was an action on the case commenced in the circuit court of LaSalle county by the plaintiff in error, against the defendant in error, to recover damages occasioned by the death of Verna Tollefson.

<p>1. Master and servant—master does not insure that appliances furnished by him are reasonably safe. The law requires that a master shall exercise reasonable care to furnish reasonably safe appliances with which his servant is to work, but does not hold him liable as an insurer in case of an injury from a defective appliance if there has been no negligence upon his part.</p> <p>2. Same—when an instruction states master’s duty too broadly. An instruction telling the jury that “it is the duty of the employer to furnish the employees suitable and reasonably safe appliances with which to work, and a neglect or failure to do so is negligence,” states the master’s duty too broadly and is reversible error.</p> <p>3. Pleading—what is not fatal variance between pleadings and proofs. An allegation in a declaration that the master furnished plaintiff a certain chain with which to load logs, a defect in which caused plaintiff’s injury, is supported by proof that the chain was, in fact, furnished to another employee of the same master engaged in the same work, whom plaintiff was instructed by the master to assist in loading the logs.</p>

<p>Writ of Error to the Circuit Court of Putnam county; the Hon. T. N. Green, Judge, presiding.</p>

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

Writ of Error to the Criminal Court of Cook county; the Hon. W. M. McEwen, Judge, presiding. Edward Goodman, plaintiff in error, was indicted, jointly with Harry Young and William Shepherd, in the criminal court of Cook county, for forgery, and for uttering as true and genuine a false and forged railroad pass.

<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. Jesse Holdom, Judge, presiding.</p>

<p>1. Trusts—when trust is an active one. Where the trustee in a declaration of trust is charged with the duty of caring for the property and paying taxes and assessments thereon, and he is authorized to advance his own money for that purpose and deduct the same out of the proceeds of the sale he is to make before distributing the proceeds among the cestuis que trustent, the trust is an active one.</p> <p>2. Same—when power of sale is obligatory—equitable conversion. A declaration of trust requiring the trustee to sell the land as soon as in his judgment such sale can be made for such a reasonable price as will be best for the cestuis que trustent and to divide the proceeds among the latter in a certain way, makes the power of sale obligatory upon the trustee and works an equitable conversion of the land into money, notwithstanding he is also required to sell, if directed to do so by the cestuis que trustent, before, in his judgment, he has been offered a fair price.</p> <p>3. Partition—what interest does not support bill for partition. Where a trust is created whereby an equitable conversion of the land into money is effected, a subsequent grantee of one of the cestuis que trustent who is entitled to share in the proceeds after the trustee has sold the land under the terms of the trust acquires no such interest as will support a bill for partition of the land.</p>

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

Charles A. Bishop, Judge, presiding. Rosina A. Dutton, appellee, filed her bill in the circuit court of DeKalb county praying for an injunction to restrain appellant from erecting a telephone line on State street west of California street, in the city of Sycamore.

S. L. Dwight, Judge, presiding. This is an appeal from the judgment of the Appellate Court for the Third District affirming a judgment rendered by the circuit court of Christian county against Manufacturers’ Fuel Company, appellant, in favor of James White, appellee, by his next friend, John White, in an action on the case for personal injuries.

Original petition for mandamus. This is a mandamus proceeding begun in this court.

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

<p>Civil service—deputy bailiffs of municipal court of Chicago are not under Civil Service act. The appointment of deputy bailiffs for the municipal court of Chicago is not controlled by the Civil Service act. (McGann v. People, 227 Ill. 567, followed.)</p>

<p>1. Wills—testimony sufficient to establish codicil establishes a will. If the testimony of the two subscribing witnesses to a codicil added to a will is sufficient to establish the codicil upon application to probate the will it is also sufficient to establish the will.</p> <p>2. Same—the courts cannot dispense with conditions of probate .prescribed by statute. The statute has prescribed the exact conditions upon which an instrument may be admitted to probate as a last will, testament or codicil, and courts have no power to dispense with any of the conditions so prescribed or substitute something different,</p> <p>3. Same—what proof is required to justify admitting a will to probate. To justify the county court in admitting a will to probate at least two of the subscribing witnesses must testify, on oath or affirmation, that they were present and saw the testator sign the will or codicil in their presence or that he acknowledged the same to be his act and deed, and that they believed the testator to be of sound mind and memory at the time of signing or acknowledging the same.</p> <p>4. Same—rule of evidence where appeal is taken to circuit court in matter of probate. Upon appeal to the circuit court from an order of the county court admitting a will to probate the requirements as to proof are the same as upon application for probate in the county court; but upon appeal from an order denying probate the proponent is not limited to the testimony of the subscribing witnesses, and may support the will by any evidence competent to establish a will in chancery.</p> <p>5. Same—fact that testimony of one subscribing witness meets the statute is not sufficient. The fact that the testimony of one, only, of the subscribing witnesses to a will or codicil meets the requirements of the statute is not sufficient, if the testimony of the other subscribing witness fails to cover one of the essential facts required to be established by the statute.</p> <p>6. Same—two subscribing witnesses must testify they believed the testator to be of sound mind. While it is not necessary for the subscribing witnesses to testify that the testator was of sound mind and memory at the time he signed or acknowledged the will, yet it is essential that they testify, on oath or affirmation, that they believed such fact.</p> <p>7. Same—what proof does not establish will or codicil. Testimony of one subscribing witness that he had no reason to question the fact that the testatrix was of sound mind and memory, as he did not know her, does not meet the requirements of the statute and does not justify admitting the will or codicil to probate, even though his testimony as to the execution of 1 the instrument may be regarded as sufficient and the testimony of the other subscribing witness meets all the requirements of the statute.</p> <p>8. Same—a subscribing witness may form belief in sanity from appearances. A subscribing witness to a will or. codicil may form a belief that the testator is of sound mind and memory from seeing nothing in his appearance, manner or conduct different from other persons of sound mind, but upon application for probate he must testify that he had such belief; and it is not sufficient that he had no belief and did not know whether the testatrix was of sound mind or not.</p>

T. J. Roth, Judge, presiding. This is an appeal from the judgment of the county court of Champaign county sustaining a motion in arrest of judgment made by appellees. This motion was made the same day that the order was entered overruling the objection to the confirmation of an additional or second assessment on the lands of said district to pay for completing the work originally planned.

<p>This case is controlled by the decision in City of Chicago v. Ogden, Sheldon & Co. 227 Ill. 595.</p>

Writ of Error to the Criminal Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Hervey H. Dorr and L. H. Sawyer were indicted for obtaining from Gustave Kitzeman, by means of the confidence game, a cashier’s check for $500. A second count charged the check was obtained by false pretenses. A nolle prosequi was entered by the State’s attorney as to said second count.

<p>1. Master and servant—what duties of master to servant are personal ones. The duty of the master to warn his servant of unusual and latent dangers of which the servant is, without fault, ignorant, and the duty of exercising reasonable care to furnish the servant a reasonably safe place to work, are personal duties, and the master cannot escape liability for their negligent performance by entrusting them to other persons.</p> <p>2. Same—when relation of fellow-servants does not exist. A servant to whom the master has entrusted the performance of a personal duty owing by the master to his other servants, is, as to such duty, the representative of the master, without regard to his grade or rank, and is not, with respect to the performance of such duty, a fellow-servant of those to whom the duty is owing.</p> <p>3. Mines—when timbermen are not fellow-servants of a mule driver. Timbermen in a mine, entrusted by the master with the duty of keeping the entry way of the mine in reasonably safe condition, are the representatives of the master in that regard, and are not fellow-servants of a mule driver who uses such entry, and if, without warning the driver, they place a dynamite charge in the roof of'the entry and fire the same while the driver is in the entry, the master is liable for the injuries sustained by the driver.</p> <p>4. Evidence—when proof of custom is admissible though not alleged. As bearing on the question whether or not a mule driver in a mine was exercising due care for his safety, as alleged in his declaration, he may prove the usual custom as to the time for firing shots in the mine entries, even though the declaration does not allege such custom nor aver its violation on the day of the injury.</p> <p>5. Instructions—when objection to instruction is waived. One who allows proof to go to the jury without objection, and permits the court to treat the same as properly before the jury by giving an instruction with reference thereto, cannot raise the question of variance between such proof and the declaration by objecting to the instruction upon that ground.</p> <p>6. Same—word “preponderance” before ‘"evidence” is not essential. An instruction using the expressions “if you believe from the evidence,” “as the jury may believe from the evidence,” etc., is not erroneous in omitting to use the word “preponderance” before “evidence.”</p> <p>7. Same—action of court on cautionary instructions is largely discretionary. The refusal of a cautionary instruction, such as one advising the jury that the defendant (a corporation) has as much right to fair treatment as the plaintiff, is largely a matter of discretion with the trial court and will not ordinarily be regarded as error.</p>

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

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

<p>1. Pleading—a plea denying that plaintiff is a corporation is a plea in bar. A plea denying that a plaintiff is now or ever has been a corporation is a plea in bar, since the sustaining of such a plea will defeat the action.</p> <p>2. Same—plea denying that defendant is a corporation is a plea in abatement. A plea denying that a defendant, sued as a corporation, is now or ever has been a corporation must give the plaintiff a better writ by pointing out whether the defendant is a joint stock company, partnership or other association of individuals, to the end that the plaintiff may amend, and hence is a plea in abatement.</p> <p>3. Same—plea of nul tiel corporation must be filed early. A plea of nul tiel corporation denying that the defendant is now or ever has been a corporation, being a plea in abatement, comes too late after the making of a motion for change of venue and the filing of a plea of the general issue, and is properly stricken from the files.</p> <p>4. Same—party cannot take inconsistent positions in same plea. A plea by a defendant sued as the Keokuk and Hamilton Bridge Company which recites, “Now comes the defendant, by * * * attorneys, and for first plea in this behalf says there is no such corporation as the Keokuk and Hamilton Bridge Company,” is inappropriate and inconsistent when filed with a plea of the general issue, since by the terms of the plea the named defendant appears, and, being present, pleads that it does not exist.</p> <p>5. Instructions—party is entitled to instruction on issue which there is any evidence tending to prove. If there is any evidence in the record which, with the fair inferences which may be drawn therefrom, tends to prove a material issue in the case, it is the duty of the court, when requested to do so, to instruct the jury as to the law applicable to such issue.</p> <p>6. Same—when giving an instruction allowing estimate of damages though no witness has testified to amount is not error. Giving an instruction that the jury might estimate plaintiff’s damages from the facts and circumstances proven, considering them in the light of their own knowledge, even though no witness had expressed an opinion as to the amount of such damages, is not reversible error, notwithstanding there are elements of damage charged in the declaration, such as medical attendance, loss of time, etc., to which the rule would not apply, where the plaintiff’s injuries were severe and the verdict of the jury is moderate.</p>

<p>Appeal from the City Court of Aurora; the Hon. John L. Healy, Judge, presiding.</p>

<p>1. Master and servant—servant clothed with authority over others is not their fellow-servant. A servant upon whom the master has conferred authority to control and direct the movements of the other servants is not, while exercising such authority, their fellow-servant.</p> <p>2. Railroads—relation of foreman of a switching crew stated. The foreman, of a switching crew is a fellow-servant of the other members of the crew when engaged in assisting them in their common duties, such as coupling or uncoupling cars, setting or releasing brakes or transmitting signals from one member of the crew to another; but he is not their fellow-servant in originating signals in pursuance of his authority to direct the work, or in performing any other acts which are incident to his authority and which the other members of the crew have no authority to perform.</p> <p>3. Same—capacity in which foreman of switching crew gave a signal is a question of fact. In an action for damages for the death of a switchman, caused by the negligence of the foreman of the switching crew in improperly signaling the engineer to back the train, the question whether the signal was given in the foreman’s capacity as foreman or in the capacity of a fellow-servant of the switchman is one of fact for the jury.</p>

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

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

Writ of Error to the Superior Court of Cook county; the Hon. O. E. Heard, Judge, presiding.

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

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

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

Appear from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding. This is an appeal from the judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county in an action of debt.

<p>1. Appeals and Errors—it is error to arbitrarily refuse to receive and examine instructions. It is error for the trial court to arbitrarily refuse to receive and examine instructions offered by a party, even though the court subsequently agrees to and does receive and examine part of them.</p> <p>2. Same—it must affirmatively appear that error was harmless or reversal must follow. A judgment will not be reversed unless error is affirmatively made to appear, but whenever error is shown to exist it will compel a reversal unless the record affirmatively shows the error was not prejudicial.</p> <p>3. Same—a cross-error should be assigned instead of renewing the motion denied by Appellate Court. Where the Appellate Court denies appellee’s motion to strike certain instructions from the bill of exceptions but affirms the judgment, the appellee, if he desires to insist upon his position, should assign cross-error upon the action of the Appellate Court in denying the motion and not renew the motion in the Supreme Court, since the latter court, in passing upon the Appellate Court’s action, must consider the same record.</p> <p>4. Same—when allowance of appellee’s motion would require reversal. Allowance of a motion by appellee to strike from the bill of exceptions certain instructions which the trial court had arbitrarily refused to receive and examine would require a reversal of the judgment, since, in the absence of such instructions from the record, it could not affirmatively be made to appear that the arbitrary refusal thereof was harmless.</p> <p>5. Pleading—the plaintiff must recover, if at all, upon the case stated in his declaration. If the plaintiff sets out in his declaration the negligent acts of the defendant which entitle him to recover he must prove such acts, and he cannot recover because of negligent acts not averred in the declaration, even though such acts caused the injury.</p> <p>6. Fellow-servants—when employees are fellow-servants. Employees of the same master, including the engineer and switchman and the laborers, working together in the same switch yard for the common purpose of bringing in and taking out, loading, unloading, weighing and switching cars, whose duties are such as to bring them into habitual association enabling them to exercise a mutual influence upon each other promotive of proper care and caution, are fellow-servants. (Hartley v. Chicago and Alton Railroad Co. 197 Ill. 440, distinguished.)</p>

A. H. Chetlain, Judge, presiding. This is an appeal from the judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county against appellant, a street railway company, recovered by appellee in an action on the case for personal injuries.

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Plaintiff in error filed her bill in the superior court of Cook county on April 23, 1904, seeking the specific performance of a contract, and other relief.

Orrin N. Carter, Judge, presiding. Appellee filed his petition in the county court of Cook county under the Insolvent Debtors act, seeking to be discharged from imprisonment. The court entered an order releasing him, and that order has been affirmed by the Branch Appellate Court. The record is brought here by appeal.

John Gibbons, Judge, presiding. This is an action in assumpsit under the common counts to recover upon a certificate claimed to be a final certificate issued as payment under a contract which provides, among other things: Article 1: “The contractor, under the direction of and to the satisfaction of William M. Wheatley, who shall act as superintendent of and for the purposes of this contract as agent for said owner, shall and will provide all the materials and perform all the…

John L. Healy, Judge, presiding. This is a proceeding in the circuit court of Cook county for the partition of real estate in that county. The only question here involved is whether the fees of complainant’s solicitors should be apportioned among the parties and taxed as costs. The trial court allowed $4000 so taxed. The Appellate Court reversed the decree on this .point and remanded the cause.

<p>Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.</p>

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

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. Thomas G. Windes, Judge, presiding. This was an action of assumpsit commenced by plaintiffs in error in the circuit court of Cook county, against the defendant in error, upon a promissory note for $4033.86, bearing date May 15, 1902. The declaration contained one special count and the. common counts, and the general issue was filed.

<p>1. Loan associations—money must be let at competitive bidding to avoid taint of usury. In order that a loan by a building and loan association at illegal rates shall not be subject to the defense of usury it is essential that the money be loaned at a competitive bidding such as the law requires, where there is no by-law of the association dispensing with competitive bidding and fixing a level premium for all loans.</p> <p>2. Same—applicant for loan need not be present at meeting. It is not essential to competitive bidding, within the meaning of the act relating to loan associations, that a bidder be personally present at the meeting, and it is sufficient if he submits a written application for the loan but bids no premium, where the business was transacted in open meeting, some bidders offering a premium and others none, but all applications were accepted and loans authorized.</p>

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

<p>1. Wills—survivorship clause construed as referring to death of devisee after death of testator. Where a will creates a life estate for the widow, after which the property shall descend in equal parts to the testator’s two sons, (naming them,) and in case either of the sons shall not survive the wife the survivor shall take all, the survivorship clause refers to the death' of such sons after the death of the testator, and not before.</p> <p>2. Same—when children of deceased son take under section 11 of Statute of Descent. Where a will creates a life estate in the widow, at the termination of which the property shall descend to the testator’s two sons, (naming them,) or in case either of them dies before the widow the survivor shall take all,' but makes no provision for the contingency of the death of the sons before the testator’s death, if one of the sons dies during the lifetime of the testator the children of such son take his share, under section 11 of the Statute of Descent.</p> <p>3. Same—purpose of section 11 of Statute of Descent is to prevent lapses. The purpose of section 11 of the Statute of Descent is to prevent lapses where a devisee or legatee, being a child or grandchild of the testator, dies before the testator, leaving issue, and no provision is made for such contingency in the will.</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. Homer Abbott, Judge, presiding.</p>

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding.

Writ of Error to the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding. This is a writ of error to the circuit court of McLean county to review a decree sustaining a demurrer to and dismissing a bill filed by Frank B. McKennan and Lawson D. Welch against E. R. Mickelberry and others, praying a decree for the specific performance of a contract and for other relief. The bill, which was verified, was filed on June 16, 1906.

Theodore Brentano, Judge, presiding. This suit was commenced in the superior court of Cook county on June n, 1896, by the Western Planing and Manufacturing Company against the Concord Apartment House Company, appellant herein, to enforce a lien upon certain property in Chicago for material furnished.

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

C. D. Myers, Judge, presiding. Mary Brechbeller filed a bill for partition in the McLean county circuit court in which she alleged that she was the owner of an undivided one-fourth part of certain real estate which formerly belonged to her father-in-law, John Brechbeller, who died December 20, 1889, leaving a last will, which was afterwards admitted to probate in the McLean county court.

<p>Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.</p>

<p>1. Constitutional law—title of act must fairly point out its subject matter. The title of an act and the act itself should correspond,—not literally, but substantially; and while the title may be couched in general terms, to be sufficient it must fairly point out the subject matter of the act which follows.</p> <p>2. Same—title to Primary Election law of 1906 is not in harmony with the general provisions of the act. The title of the Primary Election law of 1906, which purports to apply to all primary elections for the selection of delegates to nominating conventions, is not in harmony with the general provisions of the act itself, which confine the operation of the act to nominating conventions of political parties and organizations.</p> <p>3. Same—Primary Election law of 1906 is void in so far as it authorizes voting for party candidates. The Primary Election law of 1906, in so far as it authorizes direct primary voting for the selection of party candidates by the “official primary ballot,” is unconstitutional and void, in that such subject is not only not expressed in the title of the act, but by the language used is excluded therefrom.</p> <p>4. Same—direct primary voting for candidates and voting for delegates may be included in a sufficiently broad title. The subjects of primary elections for the selection of delegates to nominating conventions of political parties or organizations, and of primary elections where the voter may express his choice for party candidates, are so far germane to each other that they may be included in one act, provided the title of such act is sufficiently broad to embrace them both.</p> <p>5. Same—sections 2 and 3 of Primary Election law of 1906 are void. County central committees of political organizations are not “public agencies,” and hence sections 2 and 3 of the Primary Election law of 1906, conferring power upon such committees to designate and establish delegate districts, are unconstitutional and void, in that the entire act is made dependent for its operation upon the action of such committees, which are merely groups of private individuals representing voluntary organizations.</p> <p>6. Same—operation of a statute cannot be made to depend upon action of private individuals. The power of the legislature to make the ultimate operation of a statute dependent upon some action to be subsequently taken, other than a vote of the electors, is limited to action by municipal corporations, commissions, boards or officers, which are “public agencies” created by law as distinguished from private individuals.</p> <p>7. Same—section 59 of Primary Election law of 1906, relating to vacancies, is void. Section 59 of the Primary Election law of 1906, providing that when a vacancy in an elective office shall occur and a special election shall become necessary the managing committees of the several political parties for the territorial area in which such vacancy occurs shall nominate the candidate to fill such vacancy, is void, as infringing upon the right of a voter of the party to participate in a free and equal election, as secured to him by section 18 of the Bill of Rights.</p> <p>8. Same—the provision of section 33 in regard to registration is void. The provision of section 33 of the Primary Election law of 1906 prohibiting any but registered voters from voting at a primary election in all cases where registration is required as a condition precedent to voting at regular elections is void, in that it gives no opportunity for registration thirty days before the time for the primary election in cities which have adopted the City Election law, since, in such cases, it adds to the constitutional qualifications of a voter the requirement of residence in the election district for more than thirty days.</p> <p>9. Same—provision limiting vote for representative to one candidate is void. The provision of the Primary Election law of 1906 permitting only one candidate for representative in the General Assembly to be nominated by vote of the electors and requiring any additional candidate or candidates to be nominated by the senatorial convention is void, since the constitutional provision that a voter may vote for one, two or three candidates for representative requires any primary election law which provides for nomination of candidates for representative to give the voter the right to participate in the selection of all candidates of his party which are to be nominated for representative.</p> <p>10. Same—Primary Election law may require senatorial committee to fix number of candidates for representative. The question of the number of candidates which a political party will nominate for representative in the General Assembly is a political and not a legislative question, and may be left by law to the determination of the senatorial committee or convention of the political party without violating the constitution; but the voter has a constitutional right to participate in the nomination of the full number of candidates for representative that are to be nominated.</p> <p>11. Same—the legislature may properly limit voters at primary election to members of party. The provisions of sections 33 and 34 of the Primary Election law, which are designed only to prevent any but voters affiliated with a particular party from voting at its primary elections, are reasonable and proper in view of the objects to be attained by a primary election law, and do not infringe upon any constitutional rights of voters.</p> <p>12. Same—Primary Election law of 1906 is void. While some portions of the Primary Election law of 1906 may be valid and some of the invalid portions might be eliminated from the act without destroying its efficacy, yet the unconstitutionality of sections 1 and 2, empowering county central committees to establish delegate districts, goes to the entire act, and renders it, as a whole, inoperative and void.</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>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.

<p>1. Habeas corpus—an order remanding prisoner to custody of sheriff not invalidated by subsequent void proceedings. An order of the criminal court of Cook county, entered upon the disagreement of a jury, remanding a prisoner indicted for murder to the custody of the sheriff of that county remains in full force and is a sufficient warrant to said sheriff to hold the prisoner, notwithstanding an invalid order transferring the cause to the municipal court of Chicago and a void and ineffectual attempt of the latter court to try the prisoner and sentence him for the crime with which he is charged.</p> <p>2. Same—irregular proceedings do not entitle a prisoner to discharge. A prisoner under indictment for murder in the criminal court of Cook county, who is by a valid order of that court remanded to the custody of the sheriff of Cook county upon disagreement of a jury, will not be discharged on habeas corpus because said criminal court subsequently attempted, without authority of law, to transfer the cause to the municipal court of Chicago, which latter court assumed, though without jurisdiction, to try and sentence the prisoner, where such prisoner has been continuously in the custody of the sheriff from the time he was properly remanded there by the criminal court, and where the cause had been re-docketed in the latter court and a capias issued to the sheriff for the prisoner after the writ of habeas corpus was issued.</p> <p>3. Same—question of failure to try a prisoner for four terms is not ground for writ. An application for the discharge of a prisoner because of the failure of the prosecution to bring the cause to trial at or before the fourth term of court, as provided by statute, should be made by motion when the cause is called for trial in the court where the indictment is pending, and cannot be first made on habeas corpus in another jurisdiction; and an improper denial of such motion should be preserved by bill of exceptions for review on error. (Murphy v. People, 212 Ill. 584, followed.)</p>

<p>1. Bill or exceptions—agreement to incorporate original bill in record cannot rest in parol. The agreement contemplated by the statute for the incorporation in the record of the original bill of exceptions, instead of a transcript thereof, must either be in writing on the original bill or attached thereto by the clerk below, or else it must, by stipulation in open court below, be made a matter of record in that court.</p> <p>2. Same—in the absence of agreement the original bill will be stricken from record. An original bill of exceptions incorporated in the record will, in the absence of an agreement in writing upon or attached to the record or in some proper way evidenced by the record, on motion, be stricken from the record, since the court of review cannot try the question of fact whether such an agreement was made, upon the conflicting affidavits of the parties.</p>

<p>1. Bill op exceptions—bill of exceptions must be taken at the term when rulings excepted to were made. In cases at law the bill of exceptions must be taken at the term at which the rulings excepted to were made, or within such time as the court may at that term have granted for that purpose; and this applies whether the ruling excepted to is a final and appealable order or not.</p> <p>2. Special assessments—when bill of exceptions must be taken to rulings on objections to confirmation. A bill of exceptions to the ruling of the court upon a hearing of legal objections to a special assessment must be taken at the term at which such ruling is made, unless the court at that term extends the time in which a bill may be signed and sealed, in which case it must be prepared and sealed within the extended time; and a bill taken at a subsequent term, when the court heard the case on the question of benefits, will be stricken from the record.</p>

A. H. Frost, Judge, presiding. This was a proceeding brought by appellant in a justice court of Winnebago county to recover double the value of a crossing put in by him across appellee’s right of way, and alleged to have been a farm crossing constructed in accordance with paragraph 66 of chapter 114, in reference to fencing and operating railroads.

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

Theodore Brentano, Judge, presiding. On May 19, 1902, the city council of the city of Chicago passed the following ordinance: “The commissioner of public works is hereby directed and instructed to remit and cancel all water taxes and rates heretofore levied and assessed or which may hereafter be levied or assessed against such property of any charitable, religious or educational institution within the city of Chicago as is used in the immediate conduct and carrying on of the…

Joseph E. Gary, Judge, presiding. The appellant filed a bill in the superior court of Cook county January 22, 1906, representing that for several years he had leased a certain piece of land in Chicago from the board of canal commissioners of Illinois and had improved and built certain structures thereon; that in the latter part of 1895 he agreed with the canal commissioners to take a new lease for ten years; that the lease was signed March 7, 1896, whereby the canal…

<p>1. Perpetuities—perpetuity defined. A perpetuity is a limitation taking the subject matter out of commerce for a greater period of time than a life or lives in being and twenty-one years thereafter; and such limitation applies to future interests in both real and personal property, whether legal or equitable and however created, but its. inhibition is against the postponement of the vesting of the estate and not against the postponement of possession.</p> <p>2. Wills—when will does not create a perpetuity. A will directing the testator’s farm to be rented during the lifetime of his three daughters, who were in being at his death, the net income to be divided equally among the three daughters and the survivors, and in case of the death of any daughter her share of the rent to be paid to her children, if any, but upon the death of the last surviving daughter the farm was to be sold and the proceeds divided among the testator’s grandchildren, does not create a perpetuity but vests a life estate in the daughters until the death of the survivor, while the grandchildren take a vested remainder which will open to let in after-born grandchildren.</p> <p>3. Same—when equity will not suffer the trust to fail. A valid trust created by will whereby the testator’s farm is to be rented for the benefit of his daughters during their lifetime and until the death of the survivor, when the farm is to be sold and the proceeds divided among the testator’s grandchildren, will not be allowed to fail by a court of equity because of the fact that no executor or trustee was appointed by the will, which attempted to confer the powers of the trustee upon the person who should be appointed by the county court to act as administrator, but in such case a court of equity will appoint a trustee.</p>

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

Theodore Brentano, Judge, presiding. On July 12, 1900, the Independent Order of Svithiod, a fraternal beneficiary society, issued a membership certificate to Alfred Stake, who was then unmarried, for $1000, payable upon his death to his brother, the appellee.

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding. Carl Moll brought this action against the defendant in error in the circuit court of Cook county. A demurrer was sustained to the declaration and a judgment rendered in favor of defendant, which, upon a writ of error sued out by his executrix, has been affirmed by the Appellate Court.