Volume 234 — Illinois Reports

<p>1. Evidence—where a conspiracy is charged, evidence admissible against one defendant is admissible against all. Where a bill charges a conspiracy among the defendants to obtain money from complainant, and the evidence sufficiently establishes such charge, admissions made by one defendant concerning the transaction are competent against the others.</p> <p>2. Conspiracy—when an order to pay money may be canceled. An order to a bank to pay the proceeds of a certain certificate of deposit to various persons is properly canceled by a court of equity, where there was no consideration for the order, which wás obtained by a conspiracy among the persons in favor of whom the order was made.</p> <p>3. Contracts—when agreement to pay money is without consideration. . An agent who makes a contract in his own name for the sale of land of an undisclosed principal has no power to destroy the contract without the principal’s consent, and his act in doing so does not constitute consideration for an agreement by the proposed purchaser to pay the agent money to release the purchaser from the contract.</p>

<p>Special taxation-—cost of all portions of sidewalks built by city must be included in bill of costs. Under the Sidewalk act of 1875 the cost of all portions of the sidewalk constructed by the city under the ordinance must be included in the bill of cost in order that the tax may be computed in proportion to frontage, and it is not sufficient to make a bill of cost for the portion constructed in front of one lot and tax that lot for the full amount of such bill.</p>

<p>Writ oE Error to the Circuit Court of Fayette county; the Hon. A. M. Rose, Judge, presiding.</p>

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

W. M. McEwEN, Judge, presiding. This was a bill in equity filed by the Jones & Dommersnas Company against Hamilton Crary to declare a forfeiture of a license to manufacture and sell, under a patent, “fret or scroll saws,” upon the ground that the defendant had failed to make a sworn report to the complainant of the number of such saws sold by him, and the amount received therefor, during the quarter ending January I, 1904.

Writ óf Error to the County Court of Eayette county; the Hon. John S. StoneciphER, Judge, presiding. The defendant in error is a drainage district organized under the Eevee act of 1879, (Hurd’s Stat. 1905, p. 775,) and has been a going district since September, 1903. The original estimate of the cost of the improvement was $95,-195, for which an assessment was returned amounting to $95,173.14, and of this amount $88,830.69 was confirmed by the court.

<p>Appear, from the County Court of McLean county; the Hon. Rorrand A. Russerr, Judge, presiding.</p>

Soeon Phiebrick, Judge, presiding. This is an appeal by the Court of Honor, a corporation, from a judgment of the Appellate Court for the Third District dismissing an appeal by appellant from a judgment rendered against it, in favor of Johanna Kennedy, in the circuit court of Douglas county, at the March term, 1907, and from a judgment of said Appellate Court denying a motion filed in that court by the People, on the relation of appellant, for leave to file a petition for a…

<p>1. Drainage—when selection of commissioners by town clerk is legal, tinder the law as it stood between July 1, 1901, and February 27, 1907, if a drainage district was organized comprising land lying in two towns, the town clerk was authorized to select from the highway commissioners of the two towns three persons to act as drainage commissioners for the district. \</p> <p>2. Same—section 13a, as embodied in emergency act of 1907, is part of the Farm Drainage law. Section 15a, as embodied in the emergency act of 1907, (Laws of 1907, p. 273,) is a part of the Farm Drainage law, and from the date of its enactment must control as to the election of drainage commissioners in union districts wherein the highway commissioners selected by the town clerk are acting as drainage commissioners.</p> <p>3. Same—town clerk cannot select commissioners un*der section 13a of the emergency act of 1907. Under section 13a of the emergency act of 1907 it is the duty of the town clerk to call an election for the purpose of electing commissioners to succeed the acting commissioners selected by such clerk, and a selection made by the town clerk to fill a vacancy, after the said section has taken effect, is unauthorized.</p> <p>4. Same—it is the duty of the town clerk to call the first election. Under section 15a of the emergency act of 1907 (Laws of 1907, p. 273,) it is the duty of the town clerk to call the first election, whether it is called at the time specified in the statute or at a later date; and it is not the duty of the commissioners to call an election until there is a vacancy among the commissioners who" have been elected under the act.</p> <p>5- Statutes—■statute is enacted though it purports to amend a repealed law. Even though an amendatory act purports to amend a repealed statute, if the intent of the legislature is clear and unmistakable such intent must .govern, and the statute will be held to be enacted notwithstanding the reference is to a statute theretofore repealed.</p>

<p>1. Wills—jurisdiction of equity to construe will is incident to its jurisdiction over trusts. The jurisdiction of a court of equity to construe a will is incident to its general jurisdiction over trusts, and is exercised to insure a correct administration of a power or trust created by the will.</p> <p>2. Same—when no power or trust is involved. A bill to construe a will cannot be maintained where, even according to the contention of the complainants, there is no trust or power to be executed until the youngest child of the testator has attained majority, which time has not arrived.</p> <p>3. Same—when equity will not take jurisdiction to construe a will. A court of equity will not take jurisdiction to construe a will the only purpose of which is to give the testator’s wife a life estate with remainder to his named children, where the testator’s intention is plain although the method of expression is crude, owing to the ignorance of the scrivener.</p>

<p>1. Criminal law—right to a speedy trial continues after mistrial. The right of one imprisoned for crime to a trial within the' time fixed by section 18 of division 13 of the Criminal Code continues after a trial has been had and the jury has disagreed; and in such case the prisoner, after his remandment to prison, is entitled to another trial within the same limit of time, beginning to run from the date of the disagreement of the jury.</p> <p>2. Same—a trial by a court having no jurisdiction must be disregarded. In determining the right of a'prisoner to discharge for want of a trial at some term of court held within four months from the time he was remanded to prison after the failure of the jury to agree in his first trial, the proceedings in another court, to which the cause was subsequently transferred against the prisoner’s objection and which resulted in a trial and conviction, must be disregarded, where such court had no jurisdiction to try the case.</p> <p>3. Same—what is not a waiver of prisoner’s rights. The fact that the prisoner, after being tried by a court having no jurisdiction of the offense, moves for a new trial, in arrest of judgment and for time to file a bill of exceptions, does not constitute a waiver of his right to object to the jurisdiction of the court nor amount to a consent to the delay in bringing him to trial in the proper court.</p> <p>4. Sams—prisoner held under void sentence is not held for punishment. A prisoner held under a void sentence by a court having no jurisdiction of the offense for which- he was tried and convicted must be regarded as being held for trial in the proper court, and not as being held for punishment.</p> <p>5. Sams—what is no excuse for delay in bringing a prisoner to trial. That a prisoner who had been tried,, convicted and sentenced by a court having no jurisdiction of the offense, filed a petition for a writ of habeas corpus, which he subsequently dismissed, affords no excuse for delay in bringing the prisoner to trial in the proper court, where no writ of habeas corpus was ever ordered to be issued on the petition.</p>

J. W. Craig, Judge, presiding. This is an appeal from a judgment of the circuit court of Clark county, rendered in a proceeding for mandamus. Relators and others, constituting a majority of the land owners in a certain portion of the town of Casey, presented their petition to the board of supervisors of said county praying that six sections off the town of Casey be detached from said town and united with the town of Martinsville.

<p>Writ op Error to the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>Appeals and Errors—when no question is presented for the Supreme Court. No question is presented for the Supreme Court’s consideration upon appeal from the Appellate Court in a case at law heard in the trial court, by agreement, without a jury, upon stipulated facts, where there were no rulings of the court upon the evidence and no propositions of law were submitted.</p>

Writ op Error to the Branch Appellate Court for the First District;—heard in ° that court on appeal from the County Court of Cook county; the Hon. Advah F. Wingprt, Judge, presiding. This is an action of assumpsit by the defendant in error against the plaintiff in error, in which a trial by the court without a jury resulted in a judgment for the defendant.

C. D. Myers, Judge, presiding. Appellant sued appellee in assumpsit to recover $1060.33, the contract price of coal sold and delivered during the month of March, 1906. The general issue was pleaded by appellee and notice given of a special defense, consisting of a set-off growing out of the failure of appellant to deliver coal promptly, as ordered, during the said month of March.

Axel Chytraus, Judge, presiding. Arthur Bahr, as administrator of the estate of Bruno O. Bahr, deceased, commenced a suit in the superior court of Cook county against the National Safe Deposit Company to recover damages for the death of Bruno O. Bahr, which it is alleged resulted from the negligence of defendant.

<p>i. Appeals and Errors—provision of section up, relating to certificates of importance, construed. The words “not allowed by this act,” used in section 119 of the Practice act of 1907, providing for a certificate of importance in a case decided by the Appellate Court in which an appeal or writ of error to the Supreme Court is not allowed by this act, apply only to that class of cases in which the Appellate Court has entered a judgment or order determinative of the controversy but in which no right to have the judgment or order reviewed by the Supreme Court is given by section 121.</p> <p>. 2. Same—when an appeal will not lie though certificate of importance is granted. An appeal to the Supreme Court will not lie, even though the Appellate Court has granted a certificate of importance, where the judgment of the Appellate Court appealed from was not final in character nor such that no proceedings could be had except to carry the mandate of the Appellate Court into effect, but is merely a judgment reversing a judgment of the trial court in favor of the plaintiff for more than $1000 and remanding the cause generally for re-trial.</p>

<p>Appeal from the Circuit Court of Lawrence county; the Hon. J. R. Creighton, Judge,,presiding.</p>

<p>Contracts—what is not such negligence in preparing hid as precludes rescission. A mistake of some $6000 in a water-main bid for $25,500, caused by inadvertently using the weight per foot of iron pipe for its price per foot, is not such negligence as bars rescission of the bid in equity, where the contractor had only a few hours to figure the bid, the city engineer called the attention of the improvement board to the item as being a probable mistake before the bid was accepted, and where the contractor, upon discovering the mistake, notified the city attorney and attempted to withdraw the bid within a few hours after it was accepted and before the contract was signed or the city had changed its position to its injury. (Steinmeyer v. Schroeppel, 226 Ill. 9, explained.)</p>

<p>1. Rear property—crops go to personal representative upon a life tenanfs death, thotigh latter has power of appointment. Crops growing upon lands in which a party has a life estate at the time of his death go to his personal representative, notwithstanding the life tenant has, and exercises, a power of appointment by will to dispose of the fee.</p> <p>2. Same—a widow electing to take half the land is entitled to half the rent. A widow who renounces the provisions of a will and elects to take one-half of the land of which the testator died seized of the fee is entitled to one-half the rent of such land falling due after the testator’s death, and the devisees of the land under the will are entitled to the other half.</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. Ben M. Smith, Judge, presiding.

Writ or Error to the County Court of Jersey county; the Hon. Thomas E. Ferns, Judge, presiding. This suit is brought here by a writ of error sued out of this court to review an order of the county court of Jersey county confirming an. assessment of benefits made by the commissioners of the Nutwood Drainage and Levee District.

<p>1. Mechanics'’ liens—when sub-contractors’ liens are superior to claims of assignees of warrants. Where .warrants issued by a county to the contractor for building a court house are assigned to third parties, but the warrants are subsequently held void and judgment is entered against the county in the name of the contractor, for the use of the assignees, for the face value of the warrants, the sub-contractors who give written notice of their cláims to the county officials before the judgment is paid are entitled to priority over the equitable claims of the assignees, in the absence of any element of estoppel.</p> <p>2. Same—when a sub-contractor’s lien becomes complete. Under section 24 of the Mechanic’s Lien act, relating to contracts for public improvements, when a sub-contractor gives written notice of his claim to the officials whose duty it is to pay the contractor, the sub-contractor’s lien becomes complete as against any money, bonds or warrants not yet paid or delivered to the contractor.</p>

<p>1. Constitutional law—presumption is that a statute is valid. In determining the constitutionality of a statute the presumption is that the act is valid, and all doubts or uncertainties, arising either from the language of the constitution or the statute, must be resolved in favor of the statute, and courts will declare the statute void only in case of a clear conflict with the constitution.</p> <p>2. Same—doubts must be resolved in favor of validity of law. It is the duty of a court to construe an act of the legislature so as to uphold its constitutionality if it can reasonably be done, and if its construction is doubtful the doubt should be resolved in favor of the law.</p> <p>3. Same—plurality of title is no objection if act deals with but one subject. That the title of an act expresses more than one subject does not render the act invalid if the act itself deals with but one subject, since the subject expressed in the title and not embraced in the act may be regarded as surplusage.</p> <p>4. Same—purpose of constitutional provision concerning titles of acts. The provision of the constitution that no act shall embrace more than one subject and that shall be expressed in its title is intended only to prevent the incorporating, in one act, of matters not related to the subject of the legislation and of which the title gives no hint, and such provision is directed against the act itself and not against its title.</p> <p>5. Same—constitution does not require that act contain but one provision. The constitutional requirement that no act shall embrace more than one “subject” does not mean one “provision,” and any number of provisions may be contained in the act for the accomplishment of the legislative purpose, provided .they are not inconsistent with or foreign to the general subject of the act and legitimately tend to effectuate the object of the legislation.</p> <p>6. Same—Local Option law doe's not embrace more than one subject. The Local Option law of 1907 (Laws of 1907, p. 297,) embraces but one subject, which is the determination, by the legal voters of a certain district, whether the sale 'of intoxicating liquors shall be prohibited therein; and the fact that the act contains provisions for restoring to its former condition territory which has been made anti-saloon territory, so that the question of license shall be left to the municipal authorities, does not render the act invalid, as embracing more than one subject.</p> <p>7. Same—rule where act embraces some matter not expressed in its title. If an act embraces some matter not expressed in its title it is unconstitutional and void only as to such matter, unless the provisions are so connected together in subject matter, meaning or purpose that it cannot be presumed the legislature would have passed, or the people have voted for, the one without the other.</p> <p>8. Same—title of act is not required to be a synopsis of the act. If the title of an act fairly indicates the general subject and reasonably covers all the provisions of the act, and is not calculated to mislead the legislature or the people,' it is a sufficient compliance with the constitutional requirement that the subject of the act shall be expressed in its title; and this is true whether the act is to become operative with or without a vote of the people.</p> <p>9. Same—provisions of the Local Option law respecting forgery and perjury do not render it void. The provisions of the Local Option law of 1907 making a person who forges a signature to the petition guilty of forgery and one who swears falsely in verifying the petition guilty of perjury are proper regulations and safeguards such as are customarily found in election laws, and do not render the act void as creating new crimes of which no hint is given in the title. (Milne v. People, 224 Ill. 125, distinguished.)</p> <p>10. Same—provision making it unnecessary for information to charge the kind of liquor sold is valid. The provisions of the Local Option law of 1907 specifying what shall be included in the term “intoxicating liquors,” and making it unnecessary to charge in the information what kind of liquor was sold or the name of the person to whom it was sold, are not unconstitutional; but it is necessary that any prosecution under the act be for selling intoxicating liquor, and the sale must be alleged.</p> <p>11. Same—Local Option law docs not change doctrine of reasonable doubt in criminal cases. The provision of the Local Option law of 1907 making the United States internal revenue stamp or receipt prima facie evidence of a sale of intoxicating liquor, by the person to whom it is issued, at his place of business where the stamp or receipt is posted, merely establishes a rule of evidence, and does not change the fundamental rule as to the .burden of proof and quantum of evidence necessary to a conviction in a criminal case.</p> <p>12. Same—legislature has power to make one fact prima facie evidence of another. The legislature has power to prescribe that one fact shall be prima facie evidence of a certain other fact, provided there is some mutual connection between the facts, and the existence of the established fact reasonably tends to raise an inference of the other; but the right of one accused of crime to have his case submitted to the jury upon all the evidence, which must establish his guilt beyond a reasonable doubt, cannot be taken away.</p> <p>13. Same—effect of provision of Local Option law respecting failure to give notice of election. The question of the legality of that provision of the Local Option law which provides that a failure to give the notice of election specified in the act shall not affect the validity of the vote can only arise in case no notice of the election is given, and the determination of such question will depend upon the particular facts and circumstances and will not affect the whole act. <=</p> <p>14. Same-—provision suspending operation of license ordinances does not invalidate act. The provision of the Local Option law of 1907 that during the time any territory is anti-saloon territory the operation of ordinances relating to sales of liquor and dram-shop licenses therein shall be suspended, so far as inconsistent with the act, does not invalidate the act.</p> <p>15. Same—the provision requiring municipalities to refund unearned license fees does not invalidate act. The provision of the Local Option law of 1907 requiring a municipality to refund the unearned portion of a license fee received by it is within the general subject of the title of the act and does not have the effect of compelling a municipality to incur a debt against its will; but if such provision were regarded as void, its invalidity would not affect the remainder of the act.</p> <p>16. Same—Local Option law is not void as changing the charters of municipal corporations. The Local Option law" of 1907 is not void upon the alleged ground that it changes the charters of municipal corporations, overturns and abolishes local self-government and authorizes voters outside of municipalities to dictate the policies of such municipalities, since municipal corporations are creatures of the legislature, and their powers and privileges may be changed, modified or taken away by the legislature by general law.</p> <p>17. Same—fact that the Local Option law deñnes certain words and terms does not invalidate it. The fact that the Local Option law of 1907 defines certain words and terms and explains their meaning as used in the act constitutes no valid objection to the act; nor is the act objectionable because the definition of the term “intoxicating liquors” does not state how much water might be mingled with the liquors and still leave them intoxicating liquors.</p> <p>18. Same—provision of the Local Option law regulating sales of liquor by dmggists is proper. The provision of the Local Option law of 1907 exempting sales of liquor by druggists, under certain conditions, from the prohibition of the act is a proper regulation, since such sales do not partake of the nature of the saloon business.</p> <p>19. Same—Local Option law not invalid as giving outside voters the right to determine the use of money in a city. The provision of the Local Option law respecting the refunding of unearned license fees by a municipal corporation does not invalidate the act as giving voters residing outside of a city the right to determine the use of money in the city, since the voters merely determine whether territory shall or shall not be anti-saloon territory, and do not make the law or determine that license fees shall be refunded.</p> <p>20. Same—title of Local Option law is not misleading in using words “popular vote.” The title of the Local Option law of 1907 is not misleading in stating that it is an act for the creation of anti-saloon territory by "popular vote” whereas the act itself provides that a majority of the legal voters voting upon the proposition shall govern, since any election at which every elector is entitled to vote can be regarded only as an election by popular vote.</p> <p>21. Same—form of ballot for local option election is not misleading. The form of the ballot prescribed by the Local Option l.aw for the election to determine whether .territory shall become anti-saloon territory is not so misleading or ambiguous as to render the act invalid.</p> <p>22. Same—the Local Option law does not amend or revive any law. The Local Option law of 1907 does not purport to amend or revive any law, and its only effect is to withdraw certain territory from the operation of existing laws by which the sale of liquor is licensed, regulated or prohibited; and the fact that the act adopts the provisions of the general election law and adds to existing laws certain conditions, under which druggists may make sales of liquor in anti-saloon territory, does not invalidate the act.</p> <p>23. Same—Local Option law does not violate inter-State commerce provision of Federal constitution. The provision of the Local Option law of 1907 that the taking of orders or the making of agreements in anti-saloon territory for the sale or delivery of intoxicating liquors shall be held to be an unlawful selling will not be construed as violating the inter-State commerce provision of the Federal constitution, since the act does not purport to control importation of liquor from other States, and it must be presumed the legislature has not exceeded its jurisdiction,</p> <p>24. Same—Local Option law does not delegate legislative functions to the people. The Local Option law of 1907 does not purport to deal with the liquor traffic except in anti-saloon territory, but as to that subj ect it is perfect and complete and not in violation of any constitutional provision, and hence the fact that it is to become operative upon a vote of the people of the territory to be affected does not constitute a delegation of legislative fuctions to the people.</p> <p>25. Same—Local Option law not invalid as varying punishment for selling liquor in different localities. The Local Option law of 1907 does not vary the punishment for selling liquor as between saloon territory and anti-saloon territory, since the offenses under the Dram-shop act and the Local Option law are not the same; nor would a change of venue from anti-saloon territory to saloon territory have any effect upon the degree of punishment in the case of one accused of selling liquor in anti-saloon territory.</p> <p>26. Same—Local Option law does not deprive dram-shop keepers of property without diie process of law. A license to sell liquor is not a contract and creates no vested rights, but is merely a permit to do what otherwise would be an offense against the law; nor does the fact that bar fixtures can be put to no other use than for the sale of liquor create a property right, of which the owner can not be deprived by a law prohibiting the business of selling liquor.</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.'M. W. Pinckney, Judge, presiding.</p>

<p>Original petition for certiorari.</p>

Appear from the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding.

<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> <p>' Matilda M. Clemens filed a claim in the probate court of Cook county against the estate of Gustav A. Bode for $7000, which that court disallowed. 'The claimant appealed to the circuit court, and upon a hearing before that court without a jury the full amount of the claim was allowed and judgment rendered against the estate, to be paid in due course of administration. Theresa M. Crane, administratrix of Gustav A. Bode’s estate, took an appeal to the Appellate Court for the First District. That court affirmed the ■ judgment of the circuit court. The administratrix by her further appeal has brought the record to this court for re.view.</p> <p>The evidence introduced consists of a written instrument executed January 2, 1893, and certain supplementary agreements endorsed thereon, together with a number of letters between appellee and Gustav Bode. The nature of the.questions involved is such that we deem it necessary to set out in detail the correspondence between the parties to the transactions out of which this litigation grows. Before doing so, however, a brief statement of some of the facts will throw some light on the written evidence hereinafter set out.</p> <p>Prior to the year 1890 the husband of appellee appears to have been engaged in the manufacture of soda water, cider, ginger ale and. other non-intoxicating drinks. Gustav A. Bode at that time, and subsequent thereto, was a manufacturer of extracts. A very close and sincere friendship existed between Bode and Clemens, and their families were likewise intimately acquainted. About the year 1890 Bode and Clemens appear to have had under consideration the formation of a partnership between them. Clemens died in 1890 and no partnership agreement was entered into between them. After attempting to continue the business of her husband for a year or more after his death, the appellee sold the business and her home for $7000. Before making 'this sale Bode and appellee had discussed the advisability of her selling out her business and investing it in the extract business with Mr. Bode. In February, 1891, appellee, in pursuance of a verbal understanding with Bode, sent him $1000, and soon afterwards sent him $1100 more, and in November, 1892, she sent $4550 additional, and a little later $350 more, making a total of $7000. This amount was subsequently raised to $7777, $777 of which was afterwards returned to appellee, leaving the net amount of $7000 in the hands of Bode. He remitted appellee $75 per month regularly until February 24, 1901. Bode died February 27, 1901. He paid the appellee at the end of each year about eighteen per cent on the amount of money due appellee, less the monthly payment of $75. The aggregate amount of payments made by Bode to appellee exceeded the principal sum in his hands belonging to her.</p> <p>The defense interposed by appellant to appellee’s claim is that the contract is usurious and that the several payments made were payments of usurious interest, which being applied to the principal sum extinguished it, leaving nothing due. The appellee contends that she invested her money in Bode’s business for a share of the profits and that she became a partner in the profits of his business, and that all payments made were on account of her share in such profits, and that therefore the whole of the principal sum is still due her.</p> <p>The contract upon which appellee’s claim is based is as follows :</p> <p>“This agreement, entered into this second day of January, 1893, by and between Gustav A. Bode and Mrs. M. M. Clemens, to-wit: ‘The said Gustav A. Bode agrees to accept from Mrs. M. M. Clemens the sum of six (6) thousand dollars ($6000), on which the said- G. A. Bode agrees and guarantees a net profit to the said Mrs. M. M. Clemens of not less than fifteen per cent per annum, said interest or profit to be paid between January 5 and 15 of each year, less $900, which $900 will be mailed to Mrs. M. M. Clemens in monthly lots of $75 per month, or $900 in twelve months. It is further agreed that $3000 shall be paid back to Mrs. M. M. Clemens or her heirs in five years from this date, January 2, 1893, and the remaining $3000 in eight years from this date, January 2, 1893. In the event of the death of the said Gustav A. Bode the said Mrs. M. M. Clemens agrees to surrender this instrument to the widow of the said Gustav A. Bode, who will pay to the said Mrs. M. M. Clemens the entire $6000, together with an approximate of the profits earned since the date of last settlement. This is not transferable only to the heirs-at-law of the said Mrs. M. M. Clemens or their guardian, for the heirs’ benefit. The above named $6000 can be used by the stated G. A. Bode either in his business or outside of it, as his judgment may elect.’ ' $7000</p> <p>Gustav A. Bode, $6000</p> <p>M. M. Clemens.”</p> <p>Endorsed on the back of this ■ agreement is as follows: The first endorsement:</p> <p>“Taking effect January 1, 1894, the sum total of the within agreement is increased to seven thousand dollars ($7000), the conditions remaining the same, excepting that this additional $1000 be returned to the said M. M. Clemens in January, 1895, or January, 1896, just as M. M. Clemens may dictate.</p> <p>Gustav A. Bode.”</p> <p>The second endorsement:</p> <p>“At request of Mrs. M. M. Clemens the above mentioned one thousand dollars ($1000) will remain a part of the within contract for two years from January 1, 1896. M_ M_ CwJm]Jns></p> <p>Gustav A. Bode.”</p> <p>“By mutual agreement the amount is changed from $7000 to $7777, and the conditions remain the same as stated in body of agreement, excepting that time for return of the $7777 is to be ' agreed upon January 15, 1901.</p> <p>“Dated at Galesburg, Illinois, January 14, 1899.</p> <p>Gustav A. Bode,</p> <p>M. M. Clemens.”</p> <p>“Galesburg, August 3, ipoo.</p> <p>‘ “Seven hundred and seventy-seven dollars of this contract has been this day refunded, leaving net investment seven thousand ($7000) dollars. This agreement expires January 15, 1903, in place of 1901. m. M. Clemens,</p> <p>Gustav A. Bode.”</p> <p>First of the letters in chronological order is dated February 14, 1891:</p> <p>“Matilda M. Clemens:</p> <p>“Dear Friend—I am in receipt of your favor with agreements signed and also draft for $1000. I enclose one of the agreements signed by me. I would say more now, but as I am a little rushed I will let it go until next time. Now that we are partners I will just simply say that I will do my utmost to malee you feel satisfied with this world.</p> <p>“Yours very respectfully,</p> <p>' G. A. Bode.”</p> <p>The second letter is dated January 18, 1892:</p> <p>“Mrs. M. M. Clemens:</p> <p>■ “Dear Friend—I received your letter with draft this forenoon. I think it best to give you a certificate showing that I have the money, and I enclose it. I made it for two (2) years. If you would rather have it for one year, send it back and I will exchange it and return it to you. I will do my best for you and remit the profit at same time that I remit the profit on the other $1000. If you would rather have it some other way, advise me and I will do as you wish me. We are glad that Ic’s improvement is permanent. Please accept our heartfelt thanks for your well wishes endeavors. Trusting you are having a nice trade, I am your friend> G. A. Bode.”</p> <p>The third is a certificate dated November 28, 1892:</p> <p>“This is to certify that I have received from Mrs. Matilda M. Clemens, of Fairbury, Illinois, the sum of $4550, to be used by me in such manner as to realize her the largest profitable income. Gustav A. Bode.”</p> <p>Underneath the above is written:</p> <p>“Mrs. Clemens—The above will do until you get the other $3450 in, and then I will give you .one writing to cover the entire $7000.”</p> <p>The fourth is a letter written by appellee, the material parts of which, omitting certain references to family matters, are as follows:</p> <p>“Mr. G. A. Bode: “Fairbury, III., Jan. 16, 1893.</p> <p>“Dear Friend—* * * I wrote you that I was not just satisfied with the agreement you sent. It was not what I expected, and your second .letter convinces me we are laboring under a misunderstanding. I thought all the time you expected to use my money in your business and would give me such profits as it realized. Don’t you remember me saying, before I sold my business, I would sell if you would let me put the money in your extract business, the same as you had the $1000, and you said you would,. and as you could not malee any change in the business until the first of the year you would use that money I sent you to the best advantage until that date? Then I understood you was to put it in your business and give me papers to that effect. I don’t understand.your writing about having it out on ninety days’ time when I expected it to go into your business January 1. When you'write the agreement I would much prefer you would say the money was in the business and state a per cent that it will not fall below; in fact, just duplicate the agreement for the $1000, only have it for $6000. (I will just leave the $1000 as it is, as it. has one more year to run, and in case I should need the money in one year it will be due at that time.) Have the article for $6000 drawn up for a period of eight years, as Claude will be twenty-one then and he can take this care off of you. I would rather you would mention the amount you will pay me each month and state it is to be interest on the principal. I have found by keeping account of everything this month that $50 will not run us, as up to the 15th my expenses are $39.58, and I don’t see no reason why it won’t be just as much the rest of this month. You see I am paying $10 for rent and $10 for B. and S. for children, and that takes quite a piece from $50. I think I will have to ask you to send me $75 per month, and please state in article when balance of interest is to be paid. I-am very sorry of. the delay in answering your letter but it could not be avoided. I must stop writing, as my eyes are paining me. If I have failed to make myself understood I hope you will -tell me just where. After all of our conversations on this subject I did not think we would have any trouble about the agreement. I will return the one you sent me when I hear from you again, or destroy it, as it is not signed. I don’t think it will matter what I do with it, but I will keep it until I hear from you again. I am glad you are well again. When do you expect to move? We are all well but our eyes, and I hope they will be all right soon.</p> <p>“Ever your friend, M. M. Clemens."</p> <p>In a reply dated January 18, 1893, Mr. Bode wrote as follows; a few words not being legible:</p> <p>“Mrs. M. M. Clemens:</p> <p>“Dear Friend—Your letter reached me this morning and the contents of same are noted. Mrs. B. and myself are sorry to hear of your eye affliction, and I trust it will leave no bad effect on either of you. I will answer your letter by first saying that I understood that I was, and I expect, to use your money for your benefit in the extract line. The reason that I loan money for 60, 90 and 120 days at a time is, because I nearly always have from $2000 to $5000 more ready money than the immediate wants of my business justifies, and as I cannot get interest from my bank on it, I look about and find a safe place to invest it for the time desired and thereby make the profit at the end of the year to amount to just * * * left it unused at the bank. This makes that clear to you, I hope. Now, then, about the paper I sent you. In the first place, if I gave you an ordinary partnership paper, then in case of my death you would be obliged to depend upon the ability of the administrator to turn the real estate and other assets into cash, and in case of bad handling or financing (as is often the case with estates) you might not realize all that is coming to you, and even if you did get every cent.you would get it much later than if it is done as I intended for it to be done. I will try to explain my object and also my desire in sending you the paper I did. First of all comes the matter of safety,—that is, to make you perfectly safe in case of my death. To do this I put an insurance of $10,000 on my life, which is payable to my wife. Out of this she will pay you the amount due you, and as this insurance money is not a part of the estate it will not come under the jurisdiction of the court, and will thus simplify matters to such an extent that you can close it up among yourselves by you giving her my paper back and she giving you the cash. Should Mrs. Bode die first, then I would have your name put on the policy to the amount of your investment,1 and then you would in that event also be safe. I want to arrange everything to your entire satisfaction and at the same time make it as simple and easy as possible for you to get all of your money back at the earliest possible moment after my death, should it happen during the time I have your money, and it is the * * * at heart when I made out the paper. Regarding the per cent you will get, I can simply say that it will be just as large as what my own per cent amounts to, and while I never expect to see it as low as fifteen per cent, it might by unexpected conditions of trade come to that, but I rather look for it to go to twenty-five per cent or thirty per cent before five years, as the business is growing and the quality of the extracts are making new trade continually. But then, what is the use of talking about that here? The whole thing must be left entirely with, me to malee the result good and the returns to you correct. It is therefore necessary, above all other things, that you have explicit confidence in me. Without this you will never be contented. And furthermore, I must insist on returning the money to you forthwith if you feel the least concern about its safety or mistrust me incapable of doing as I said I would, or that I will not do so even if I could. I have tried to make myself plain, and if there is anything about this letter that is not perfectly clear to you I wish you would write me about it and I will explain more fully, if possible. I shall take a tissue copy of this so that I can easily refer to it should you find it necessary to ask concerning it. I have changed the monthly remittance to $75, and as I told you when here, if you needed more just say the word and I shall send it. I shall await your reply regarding the agreement, and if you still think that you would rather have a regular partnership agreement you shall have it, although I feel I have done the very best that can be- done for safety, simplicity and prompt liquidation in case of my death. You say in eight years Claude will be twenty-one years old. Don’t you think that when he gets to the age of eighteen or nineteen that by your guidance he can start in to properly care for and look after money matters ? I appreciate the fact that young men entrusted with $2000 or $3000 at that age are liable to under-estimate the value of money, but I feel that Claude is a boy who will grow up into manhood realizing just what money is worth. The flat is about ready for occupancy, but I shall wait a while longer, as I -want to make sure that Gustav is entirely clear of the after-effects of measles, especially as the brick-work and plastering was done in cold and partly rain weather.</p> <p>“Hoping to hear from you as soon as you can conclude, I am your friend, , q. a. Borní.”</p> <p>Appellee answered as follows:</p> <p>“Mr. G. A. Bode: “Fairbury, III., Jan. 20,1893.</p> <p>“Dear Friend—Your letter was received last evening. You are so kind to let me have the agreement written as I wish, and, my dear friend, I do trust you thoroughly, and I have perfect confidence in your ability to do as you say and know you will if you can. My sending you the money before we had the written agreement proves to you I trust you. Forgive me for troubling you so much about this, but I realize life is short and I don’t think I will live very long. In case of my death these papers will pass into the hands of the children’s guardian, and on the other hand, should you be taken away you know how an estate becomes involved in law. It was so kind in. you to have your life insured, as you say, for security to me; but I understand for that to be security the amount coming to me should be named now, and I have a copy of the policy, otherwise Mrs. Bode could use her own pleasure about paying me or keeping it all. Oh! I do wish I did not have to say such things! You must understand me. I am so afraid I don’t express myself right. If.I was there I could say what I want to and I know it would not sound as it does when it is written. You know I want you to live years and years after I am gone, and I think it likely you will, for you have something to live for.</p> <p>“Regarding the agreement, I think you know from my last letter about what I want. I do not want to trouble you too long with this money, and, as you suggest, Claude may be able to do for us by the time he is eighteen or nineteen, which will be in five years. I will just leave the $iooo as it is and will take that off your hands in one year, and then, if you will, make $3000 payable in five (5) and the other $3000 in eight (8) years. I would prefer the agreement written as the one is for $1000, giving me an interest in your business for a certain length of time, but as you probably have my last letter before this you will know just what I want.</p> <p>“With love to Mrs. B. and children and regards to yourself, I am your friend and tormentor, Clemens.”</p> <p>The next letter is as follows:</p> <p>“Mr G A. Bode: “Fairbury, III., Jan. 23rd, 1893.</p> <p>“Dear Friend—Your letter received, also the agreement. I am pleased with the agreement and am very sorry I have troubled you so much about it. I want you to know I feel perfectly satisfied and shall not worry at all. I know you will do just what you agreed to. There is not another man on earth that I could trust my all with and not feel afraid I might" lose it, but my inner self tells me this is all right, and I know it is. I return the agreement signed by me. I also send the one for $i ioo. The ones for $7000 that are not "signed I will destroy. We are having pleasant weather here now. It is nice sleighing, but I think we will lose the snow before long if the weather continues so warm. I suppose Mrs. Bode is very busy getting ready to occupy her new house. Give her my love, and tell her I am always glad to receive a letter from her.</p> <p>“Thanking you for your kindness, I am, as ever, your friend, m. M. Clemens.” .</p> <p>The agreement referred to in the foregoing letter appears to be the agreement dated January 2, 1893, first above set forth. A letter dated February 24, 1901, is the last of those written by the deceased, who died a few days after. It is as follows, omitting certain portions relating to family matters or not apparently relevant:</p> <p>“Mrs. M. M. Clemens, München, Ger.</p> <p>“Dear Friend—* * * It is just two months ago today that we arrived home, and they have been without question the busiest sixty days, as well as the most trying, that I ever lived through. It was not until yesterday forenoon that I was able to get 1900 figured out correctly, and you know how anxious I am to get such matters off my hands as soon after the end of the year as possible, but it seemed that one thing and then another turned up to hamper me. * * * In spite of the fact that I was away from the business this past summer a good part of the time that I could have increased the total net profits, the profit would have been twenty-one per cent but for one loss of the matter of nearly $1000. This loss is in such shape that it cannot be considered an asset, as it may never pay out more than ten per cent, and on this account I have charged it to profit and loss. If the party should get on his feet again I may be able to realize on it, with interest, but in the present condition he is in it malees the case a very doubtful one, and as much as I do not think it advisable to call the claim an asset. The net profit of all invested is a fraction of a mill over eighteen per cent. I will carry the fraction over and call it even eighteen per cent, on which basis I remit.</p> <p>“Jan. I, 1900, to June 30, 1900, $7777 at 18%...........$ 699.93</p> <p>June 30, 1900, to Aug. 1, 1900, $7700 at 18%............ 115.50</p> <p>Aug. 1, 1900, to Dec. 31, 1900, $7000 at 18%.......... 525.00</p> <p>Total..........................................$1340.43</p> <p>Remitted during 1900............;................... 900.00</p> <p>440.43</p> <p>For January and February, 1901...................... 150.00</p> <p>59043</p> <p>Money order on B-V Bank of München, enclosed herein. 590.43”</p> <p>“It is my sincere wish that )7ou will be satisfied with the result, and I feel contented because I know that I did better than several of the rest that are at it.”</p> <p>The defendant introduced also a letter from appellee to appellant’s attorney, which is as follows:</p> <p>“Galesburg, III., Oct. 16, ipo2.</p> <p>“Attorney Francis F. Croarkin, Chicago, III.</p> <p>“Dear Sir—I just received in this morning’s mail a letter from my attorney, Mr. Wm. D. Godfrey, stating you wanted an itemized statement of all payments received by me from Mr. Bode, as interest or otherwise, during his lifetime. I immediatetly went to Mr. Godfrey’s office, but he is out of town and will not return until next Monday. His secretary showed me your letter of October 10, making the request for statement. I am sorry he did not notify me sooner, for then I could have consulted him and no doubt he could have explained to you in less words what. I think you should know to thoroughly understand both the business and friendly relations concerning my contract with Mr. Bode. You state there are some things you do not understand. I will try to explain.</p> <p>“Mr. Bode and my late husband were sincere friends, and a short time before my husband’s last illness, in 1890, he and Mr. Bode made a trip together looking for a location to enter into a business partnership. After my husband’s death Mr. and Mrs. Bode came to my home in Fairbury, 111., and Mr. Bode told me my husband had asked him to look after us in case he (my husband) should die. He said he had a presentiment he would not live long. His presentiment proved true, as he died in about four weeks after taking this trip. Mr. Bode kindly offered to help me and I was benefited by his advice. At the time of his death my husband had a business that was bringing us from $300 to $800 per month. We decided to get a man to continue the business for one-half of the profit. This was not successful, as the business was decreasing and did not much more than pay expenses. Through Mr. Bode’s advice I decided to take hold of it, and I ran the business for fourteen months and I was very successful. I brought each month’s sales up to what my husband’s were during the last year of his life. This was very encouraging financially, but it was very trying on my health, and I had two small children that needed my attention. Now that the business was in good standing again, Mr. Bode advised me to sell, stating that he was willing to take the money and give me all he could make out of it in remembrance to what he had promised my husband. He also stated he would be willing to guarantee it would never run below fifteen per cent. Hence the contract, a copy of same I enclose to you. I sold my business, together with my house, for $7000. This amount I eventually trusted to Mr. Bode with full consent of Mrs. Bode. Thus you will see that our business relations were on a friendly basis and I trust also on a legal basis. Mr. Bode kept his part of the contract faithfully up to his death. A part of the time the interest slightly exceeded fifteen per cent, and on the 25th of each month $75 was mailed to me for our living expenses, and in January of each year I received a statement of what had been made on my money and a check for whatever it exceeded $900. The January check usually included the $75 for the said month of January. I cannot send you an itemized statement. Owing to the friendly relations of the families I did not think it necessary to keep account of such, and as Mr. Bode was much younger than I, his death before my own was unexpected. However, I enclose to you a copy of the letter written to me by Mr. Bode the day before his death. In same he had written a statement of the preceding year, and his check book will show what has been mailed to me. When I first loaned money to Mr. Bode I got a statement on his financial standing, and in 1891 or 1892 his standing was $2000, so you see while he was making fifteen per cent for me on my money he was also making money for himself. Just at the time he received my money he built the brick building now occupied by the family and the office. In said office you will find a picture of my husband in a frame hanging on the wall, unless it has been removed since last May, when I was there. This will help you to understand the friendship existing between Mr. Bode and my husband.</p> <p>“Trusting you will pardon the length of this explanation, and feeling confident you will look at the enclosed copy of contract in both the friendly and legal relations, I am</p> <p>sincerely yours, (Mrs.) M. M. Cuímjsns,</p> <p>828 North Cherry Street, Galesburg, III.</p> <p>“P. S.—I am willing to answer any questions you may wish to ask. Any communication from you will receive a prompt reply. M. M. C.”</p> <p>In addition to the foregoing written evidence, the bookkeeper employed by Bode during all of the time covered by his transactions with appellee testified that Mr. Bode kept two bank accounts,—one a private account and the other his business account. The book-keeper had no knowledge of the business relations between Mr. Bode and appellee until after Bode’s death. The book-keeper testified that Bode built a house costing $11,000 or $12,000, which was completed in 1893. She also testified that she did not make up any trial balance annually, monthly or at any time showing percentage of profit or loss in the business; that she was never called upon to make any estimate of profits due appellee and knew of none being made by Mr. Bode. The evidence is sufficient to raise a reasonable probability that a considerable amount of appellee’s money was used by Bode in the construction of the building.</p> <p>The foregoing statement embraces, in substance, all the facts proven on the trial.</p>

Writ or Error to the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. The plaintiffs in error, Theodore Horn and Ernst Horn, brought ejectment against Edward Metzger and others to recover possession of lot 8, block 175, of the platted town (now city) of East St. Louis. The common source of title was Emanuel Trotier, the owner of the fee, who conveyed the premises to Gustav Horn and Henry Jackeisch.

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

C. D. Myers, Judge, presiding. This is an action in assumpsit to recover on an insurance policy for $1500, alleged to have been issued by appellant to appellee on furniture and fixtures in the Phoenix Hotel, in Bloomington, which was destroyed by fire June 19, 1900. The declaration sets out in a special count the policy in hcec verba. This suit was commenced June 17, 1901. Appellant filed a plea of general issue. The first trial resulted in a disagreement of the jury.

<p>1. Bankruptcy—when a deed is invalid as to trustee. A deed from children to their mother, which was executed after two of the children were bankrupt, is invalid as against their trustee in bankruptcy where there was no consideration for the conveyance, even though there may have been a prior valid and binding agreement to make the conveyance when the youngest child should attain majority.</p> <p>2. Same—debtor .must pay his debts before he can give property away. One who is insolvent cannot defeat the rights of his creditors by giving away his property, no matter what promises he has made to that effect nor what form the gift assumes.</p> <p>3. Evidence—a parol agreement to make conveyance must be clearly proven. A parol agreement by children to join in conveying their interest in land to their mother cannot be held to be binding unless the agreement is clear and certain in its terms and established by definite and unquestioned testimony, and not merely by declarations of the promisors to third persons.</p>

<p>1. Judgments and decrees—presumptions are in favor of judgments of courts of general jurisdiction. A city court is a court of general jurisdiction within the limits of the city, and parties in favor of whom its judgments and decrees are rendered are entitled, on collateral attack, to the benefit of the presumption that it had jurisdiction to render the decree, until the contrary appears.</p> <p>2. Same—the party attacking decree collaterally must overcome presumption of jurisdiction. Where the jurisdiction of a court of general jurisdiction is attacked collaterally upon the alleged ground that the decree was rendered at the same term the bill was filed, the party attacking the decree must overcome the presumption in favor of the judgments and decrees of courts of general jurisdiction; and unless it appears the court was without jurisdiction it matters not that the decree was erroneous.</p> <p>3. Same—when court will not be presumed to have rendered a decree without jtirisdiction of parties. Where it appears from a decree that the court appointed a guardian ad litem, who answered for the infant defendants, it will not be presumed that the court entered the decree without first obtaining jurisdiction of the parties for whom such guardian was appointed, even though the decree says nothing about service of process.</p> <p>4. Same—decree is not ñnal until Med for record. While in a proper sense there is no filing of a decree any more than there would be a filing of a judgment, yet under our practice of having the decrees prepared by the solicitor and approved by the chancellor a decree is not final until it is approved and filed for record; and it is the recorded decree, and not the draft thereof, that is the decree of the court.</p> <p>5. Limitations—when seven year Statute of Limitations is no defense. Where a bill in chancery prays that the interest in land inherited by the defendants from their mother be conveyed to the complainant, and the decree and master’s deed operate upon such interest only, the seven year Statute of Limitations cannot be interposed by the complainant or his grantees as a defense to the assertion of an interest in the same land inherited by the defendants from another source before the bill was filed.</p>

. Appeal from the Appellate Court for the Third District heard in that court on appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding. Samuel R. White, appellant here was plaintiff below, and T. P. Bates, appellee here was defendant below.

M. Kavanagh, Judge, presiding. This is. an appeal from a judgment of the Appellate Court affirming a judgment of the superior court of Cook county. The action was assumpsit, brought by appellants, against appellees, to recover an amount claimed to be due on a draft drawn by Grindell & Dainty (also referred to as Dainty & Grindell) on appellees, upon which draft the cash was advanced to the drawers by appellants.

Writ of Error to the Municipal Court of Chicago; the Hon. John C. ScovFR, Judge, presiding.

G. A. Carpenter, Judge, presiding. This is a bill for partition of a valuable residence property situated on Michigan avenue, in the city of Chicago, occupied by Richard T. Crane, who claims to be the owner thereof. The original bill was filed by Alonzo T. Prentice, by his conservator, Allen T. Prentice. Alonzo T. Prentice died after the suit was commenced, and Allen T. Prentice and Lizzie P. Crane, his children and only heirs-at-law, were substituted as complainants.

<p>1. Constitutional' law—a law may be general though it does not operate alike upon every mtmicipal corporation. That a law does not operate equally upon every individual ór every municipal corporation in the State does not render it a special law, and the law is general if it operates alike upon all persons or municipal corporations in the State which are similarly situated. 1</p> <p>2. Same—classification of municipalities may be made the basis of legislation. A classification of the municipalities of the State, such as counties, cities, .villages and towns, may be made the basis for legislation, provided the classification rests upon some rational difference of situation or condition found in the municipalities placed in the different classes.</p> <p>3. Same—act relating to mobs and riots is not special legislation. The act of 1887, relating to a recovery by the owner of property destroyed by mobs and riots, is not unconstitutional upon the ground that it permits a recovery against cities but not against villages or towns, since there is a rational difference between a city and a village or town as respects the subject matter of the act.</p>

<p>1. Special assessments—an ordinance may establish or change grade and width of roadway. An ordinance providing for the paving of a street may establish the grade of the street and the width of the roadway for the first time or it may make changes in a grade or width already established.</p> <p>2. Same—when track elevation ordinance does not require approaches to sub-zvay to be paved. A track elevation ordinance requiring a railroad company to pave the roadways under its subways throughout their length and width, and that the approaches should be restored, as nearly as possible, to their condition before being excavated, does not require the railroad company to pave approaches which were dirt roads when sub-ways were constructed.</p> <p>3. Same—when provision of track elevation ordinance may be changed by a paving ordinance. A provision of a track elevation ordinance requiring a vertical curve where the heads of the approaches connect with the grade of the street may be modified by a paving ordinance which omits the curve and provides for a uniform decline of the approaches at a fixed grade.</p> <p>4. Same—when provision for connecting curbs is unnecessary. Where an improvement, consisting of the paving of a thirty-foot roadway, is to terminate at a sub-way, the roadway of which is paved by the railroad company for a width of thirty-eight feet, there is no necessity for the paving ordinance making provision for connecting the curb of the thirty-eight-foot roadway with the curb of the thirty-foot roadway.</p> <p>5. Same—kind of pavement to be laid is a question for the city to- determine. Whether a proposed pavement shall be macadam or asphalt is a question committed by law to the discretion of the city council, and courts will not hold the ordinance to be void for unreasonableness in that respect unless it is clearly shown by the evidence to be arbitrary, unjust and unreasonable.</p>

<p>1. Evidence—fact that witness is called by adverse party does not qualify her to testify in her own behalf. The fact that the complainant in a bill to contest a will calls a defendant beneficiary as a witness for the sole purpose of proving the genuineness of certain letters to the testatrix supposed to have been written by the witness and relied upon by complainant as evidence tending to show undue influence, does not remove the disqualification of the witness, under section 2 of the Evidence act, to testify in her own behalf upon the issues in the case.</p> <p>2. Same—expert cannot testify that person described in hypothetical question was capable of making a valid will. A medical expert may give his opinion, in answer to a hypothetical question, that the person described in the question is sane or insane, but he cannot give an opinion as to whether such person was capable of executing a valid will.</p> <p>3. Same—conversations with the testatrix prior to execution of will are competent upon question of mental capacity. Upon a bill by a daughter to contest her mother’s will for undue influence and want of mental capacity, a conversation between the mother and daughter, in the presence of a third person, before the will was executed, which concerns persons who are defendants to the bill, is admissible upon the qdestion of mental capacity without a special showing, in the first instance, that what was said by the daughter was necessary to an understanding of what was said by the mother.</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. Lockwood Honoré, Judge, presiding. The bill in this case was filed by appellant in the circuit court of Cook county to foreclose a trust deed upon certain real estate.

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

Writ oe 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.

<p>Writ oE Error to the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.</p>

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

<p>1. Inheritance tax—when a gift is made in contemplation of death. A gift of property made by the donor for the purpose of so reducing his estate that the widow would not be likely to elect to take one-third of siich estate in lieu of the provision made for her in the donor’s will, the object being to prevent the widow’s son by a former husband from inheriting the property through his mother if she elected to take under the statute, is made in contemplation of death, within the meaning of the Inheritance Tax law.</p> <p>2. Same—gift made "in contemplation of death” not restricted to a gift causa mortis. A gift made “in contemplation of death,” as expressed in the Inheritance Tax lato, is not restricted to a gift causa mortis, but includes gifts inter vivos if they are made when the donor is looking forward to his death as impending and in view of that event, for the purpose of placing his estate, or some part thereof, in the hands of the persons whom he desires to enjoy it after his death.</p>

<p>1. Mines-—when a miner was rightfully at place of injury. A mule driver who has been ordered to take a mule and empty car and clean up coal at a certain entry, and who, when the car is full, has need of another empty to finish the work, may rightfully attempt to put the loaded car on the nearest track where loads are stored, in the absence of any direction with respect to that matter or of any custom or usage in that regard.</p> <p>2. Pleading—word “necessary” may mean “expedient.” An allegation in a declaration by a miner in a personal injury suit that it “became necessary for plaintiff, in the performance of. his duty, to place a certain car loaded with coal upon the side-track,” is supported by proof that it was convenient and tended to greatly facilitate the performance of his duty to place the car on ' such side-track, even though it was not absolutely necessary.</p> <p>3. Evidence—what statement is a conclusion, only. A statement, in an affidavit for continuance, that it was not the duty of the plaintiff to do a certain thing, but, on the contrary, it was his duty not to do so, is but a conclusion, and proof in the form of such statement would not be admissible in evidence in an action by the plaintiff for damages for an injury received while doing such work.</p>

E. F. Dunne, Judge, presiding. By the original bill filed in this case the ownership of 455 shares of stock in the Rosehill Cemetery Company is sought to be determined. This company was organized in' 1859 and its property is located in Cook county.

<p>Writ oe Error to the Criminal Court of Cook county; the H011. Theodore Brentano, Judge, presiding.</p>

S. L. Dwight, Judge, presiding. On December 29, 1905, the W. W. Brown Construction Company, the appellant, filed its bill in the circuit court of Montgomery county against the Central Illinois Construction Company, the St. Louis and Northeastern Railway Company, (appellees,) and the Equitable Trust Company, to enforce a sub-contractor’s lien against the property of the railway company, under paragraph 8 of chapter 82, Hurd’s Revised Statutes of 1905.

<p>1. Principal and agent—authority to ñnd a purchaser is not authority to bind principal by contract. A real estate agent employed to find a purchaser for land, although the terms of sale are fully prescribed, does not have authority to execute a contract of sale which binds the owner of the land.</p> <p>2. Same—letter authorising agent to act must be strictly construed. In construing a letter authorizing an agent to act for the owner of land with reference to selling the same, every word must be considered in determining the authority conferred, and the letter will be strictly construed and the, authority thereby conferred will not be extended.</p> <p>3. Same—when contract merely authorises agent to ñnd a purchaser. A writing sent by the owner of land to an agent saying, “Please assist me to sell my property described below until sale is made and properly closed; I hereby authorize you to sell same, * * * it being understood that I may withdraw it from sale by payment of one-half of said commission,” etc., followed by a description of the property and terms of sale, does not authorize the agent to bind the owner by contract but only to find a purchaser, there being an encumbrance on the property and several other questions to be settled before a conveyance could be made. (Johnson v. Dodge, 17 Ill. 433, distinguished.)</p> <p>4. Costs—when defendant is not chargeable with costs before master. The fact that a defendant to a bill for specific performance answers without demurring but later files a demurrer when the complainant, after the cause had been referred to the master, amended his bill, and later amended again by striking out the first amendment, does not require that the costs before the master be awarded against the defendant upon his demurrer being sustained.</p>

<p>1. Roads and bridges—-county is only required to aid town in building one bridge. Section 19 of the Road and Bridge act, providing for county aid where the cost of a bridge to be built by a town exceeds twenty cents on the $100 of the latest assessment roll and the town has levied the full amount of the forty-cent. road and bridge tax for the past two years, does not permit a town to add the cost of several bridges, but is limited to cases where the cost of a single bridge exceeds the amount specified in the statute.</p> <p>2. Mandamus—what is essential to a petition to compel county aid in building a bridge. A petition' for mandamus to compel a county to aid a town in building a bridge must show that the conditions specified in section 19 of the Road and Bridge act exist, and that there are funds in the county treasury, or procurable by the county board, which may be lawfully appropriated to aid the town in building the bridge.</p>

<p>1. Constitutional law-—section 12 of Civil Service act does not delegate judicial power. Section 12 of the Civil Service act, providing that charges against officers in the classified service shall be investigated by the civil service commission “or before some officer or board appointed by said commission,” does not vest judicial power in the commission nor amount to a delegation of judicial power by the commission to the officer or board appointed.</p> <p>2. Civil service—commission not required to read the evidence heard by trial board. In considering the question whether the finding of the trial board which has investigated charges against an officer shall be approved or disapproved, the civil service commission is not required to review, in any specific manner, the evidence heard by the trial board, nor to call witnesses, notify the offender or give him an opportunity to be heard before approving or disapproving such finding.</p> <p>3. Same—whether charges were proved is not a question for the courts to review. Whether the charges against an officer were sufficiently proved is not a question which is subject to review by the courts, where the officer was accorded a trial in the manner provided by law, and the finding of the trial board, upon the evidence tending to show his guilt, has been approved by the civil service commission.</p>

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

Clair county; the Hon. R. D. W. Holder, Judge, presiding. This is a bill for injunction filed by appellee in the circuit court of St. Clair county October 16, 1906, praying that appellant, its officers and agents might be restrained from maintaining upon any part of a certain turnpike, toll gates, bars and obstructions in territory within the limits of said city of Belleville. October 27, 1906, a temporary order of injunction was entered by one of the judges of that court.

AppEae from the Circuit Court of Cook county; the Hon. J. W. Mack, Judge, presiding. Appellants filed their bill in the circuit court of Cook county for partition and other relief. Appellees demurred to the bill and the court sustained the demurrer. Appellants electing to stand by their bill, the court entered a decree dismissing it for want of equity, from which this appeal is prosecuted. The real estate sought to be partitioned is forty acres of land in Cook county.

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

Joseph E. Gary, Judge, presiding. This is an appeal from the judgment of the Appellate Court for the First District reversing and remanding, with directions, a decree of the superior court of Cook county rendered upon a bill for an accounting among partners. James L. Onstott filed a bill for an accounting against his associates in business, and upon a hearing the superior court rendered a decree in his favor for $5568.48.

<p>1. Special assessments—when property cannot be assessed for improvement. Property cannot be specially assessed where it will not be benefited by the improvement unless some other work, for which no provision is made, shall be done in the future.</p> <p>2. Same—when property cannot be assessed to pay for land condemned for sewers. A city has no power to specially assess property to pay for land condemned for the purpose of laying sewers across private property unless it has provided, by ordinance, for the construction of sewers in the strips of land sought to be condemned.</p>

Appear from the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Axér Chytraus, Judge, presiding.

<p>Writ of Error to tlie County Court of Iroquois county; the Hon. John H. Gieean, Judge, presiding.</p>

A. H. Frost, Judge, presiding. This is an appeal by the Chicago, Rock Island and Pacific Railway Company from a judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county recovered by Clarence W. Galloway, appellee, against appellant, in an action on the case brought in his name by Marie L. Galloway, the mother and next friend of appellee, for personal injuries.

Appear from the Appellate Court for the Third District ;—heard in that court on appeal from the City Court of Mattoon; the Hon. Horace S. Crark, Judge, presiding.

A. H. Frost, Judge, presiding. This is an action in assumpsit in the superior court of Cook county on two policies of insurance, of $3500 each, written by the appellee company on the life of Edward S. Curtis for the benefit of appellant, then his wife, but who has since re-married. Curtis was an old. friend of O. K. Clardy, general agent for .the appellee company at St. Louis, Missouri.

<p>Writ oe Error to the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. •</p>

<p>Appeals and Errors—allowance of statutory damages on failure to prosecute appeal is imperative. A motion for the allowance of damages on dismissal of an appeal for failure of the appellant to prosecute, as required by statute, (Laws of 1907, sec. 101, p. 464,) is not answered by showing that the appeal was prayed in good faith, but that thereafter, and before time to file abstract, an opinion was filed by the court to which the appeal was taken, decisive of the question involved, rendering it useless to proceed, the statute commanding allowance of damages being in such case imperative.</p>

<p>Abstracts or record—how index to abstract of record should be arranged. In preparing the index for an abstract of record the parts of the record and the documents and other similar matter should be separated from the names of the witnesses and indexed separately and alphabetically under some name by which they may be readily identified; then the names of the plaintiff’s witnesses should be grouped together and arranged alphabetically, and the same arrangement be made as to the defendant’s witnesses.</p>

Appear from the Circuit Court of.Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. In 1866 William G. Carter departed this life testate. He had been married twice, and left surviving him his widow, Mary Jane, and seven children of his second marriage, namely, Amanda Ann, Solon, Eucullus, Elijah, James Franklin, Erasmus and Vanando; also six children of his first marriage and one child of a deceased daughter of the first marriage.

Clair county; the Hon. R. D. W. Holder, Judge, presiding. Appellee, Robert S. MacDonald, filed a bill in the circuit court of St. Clair county for the partition of certain land, alleging that it was owned by his father at the time of his decease and passed by descent to the said appellee and his brother, Malcolm W. MacDonald, and sister, Helen Hunt MacDonald Jones, as the only heirs-at-law.

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

' 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.

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.

Ben M. Smith, Judge, presiding. This is an action in assumpsit brought by the appellee, against the appellant, in the superior court of Cook county. The appellee on April 20, 1890, purchased from appellant twenty lots in the city of Chicago and twenty contracts were entered into by the parties evidencing the purchases, and of these five are involved in this case.

<p>Appears and errors—when order taking case under advisement will be set aside and cause continued. Where the Supreme Court, after granting a stipulated motion to file the briefs used in a former case and entering an order of its own motion consolidating two cases involving the same transaction, finds that its conclusion was incorrect and that the briefs do not cover the questions involved, and that the order taking the case under advisement was inadvertently entered, such orders will be set aside and the cause continued, with leave to the parties to file new briefs.</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. James A. Creighton, Judge, presiding.

<p>Writ or Error to the Circuit Court of Sangamon county; the Hon. R. B. Shirley, Judge, presiding.</p>

<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>

<p>i. Statutes—when the word “may” will he construed to mean “shall.” The word “may” in' a statute will be construed to mean “shall” whenever the rights of the public or third persons depend upon the exercise of the power or the performance of the duty to which it refers, and in all cases where public interests and rights are concerned or a public duty is imposed upon public officers and the public or third persons have a claim de jure that the power be exercised or the duty performed.</p> <p>2. Drainage—commissioners have full power to construct necessary work. The statute plainly gives to drainage commissioners the power, under the .direction of the court, to perform any work necessary for the protection and ample drainage of land within the district, whether the work is to be done within or without the district, and to raise money, by assessment, for that purpose.</p> <p>3. Same—duties and obligations of commissioners are the same in farm drainage districts and levee districts. The duties and obligations of the commissioners to provide ample drainage for assessed lands in the district is the same in levee districts as in farm drainage districts, and under section 50 of the Levee act the commissioners- of levee districts are liable in damages to an owner of assessed land for neglect of their duties.</p> <p>4. Same—levee district commissioners are liable for damages to land owner from neglect of their duties. Commissioners of a levee district are not liable in damages for mere errors of judgment exercised in good faith, but if they neglect or refuse to ■ enlarge or clean out-the ditches so as to afford adequate drainage, under a practical and feasible plan, for land which has been assessed but has received no benefit from the drainage system, they are liable for damage from the flooding of the lands, even though the ditches as orginally constructed were inadequate.</p> <p>5. Same—fact that hooding of lands is due to natural cause does not relieve commissioners from liability. The mere fact that the flooding of assessed land in the district is due to natural causes does not relieve the commissioners of a levee district from liability for damages thereby sustained, since the purpose of a drainage system is to overcome natural conditions which cause a flooding of the lands in the district.</p> <p>6. Same—when instructions which excuse liability of drainage commissioners are erroneous. In an action against drainage commissioners for damages for the flooding of lands in the district, instructions holding that the commissioners could not be found guilty except for some failure or neglect to perform their statutory duty, without informing the jury what such statutory duty was, are bad.</p>

G. A. Carpenter, Judge, presiding. This suit was brought by appellants, minor children of John Hedlund, under section 9 of the Dram-shop act, for injury to their means of support caused by intoxication of their father. The original defendants to the suit were Oscar Geyer and Ernest Thoren, who were partners, and Louis Lundquist. Subsequently Thoren and Lundquist died.

Willard M. McEwEn, Judge, presiding. This was a bill in chancery filed in the superior court of Cook county by the complainants, Oehler and Reichhold, against the defendant, Charles Levy, to restrain Levy from maintaining a nuisance upon certain premises situated in the city of Chicago which belonged to him and which adjoined property owned by the complainants.

<p>Appeal from the Appellate Court for the Fourth Dis- ■ trict;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>1. Triad—what evidence tends to support specific allegations of negligence. Proof that the place where the “grip” on defendant’s grip-car became caught was at or near the butt end of the movable tongue of a certain switch, and that employees of the defendant’s wrecking crew drove wedges to widen the slot in which the grip ran, tends to prove specific allegations that the slot had become “filled, warped or clogged so that the grip would not pass” and that the switch frog had become loose, unsafe and misplaced.</p> <p>2. Evidence—the defendant cannot prove it has employees who have certain duties to perform. In an action against a street railway company for injuries to a passenger caused by the “grip” of a grip-car becoming caught, proof that the defendant had employees who had certain duties to perform is not admissible, since duties unperformed constitute no defense; and if the defendant proves all that was, in fact, done by its employees in the way of inspection and care of the track and appliances it cannot complain.</p> <p>3. Same—when question asked of expert is objectionable. It is proper to sustain an objection to a question put to the defendant’s witness, as an expert, as to whether it would have been possible for the accident to have occurred in a certain way, where that matter is one which anyone to whom the situation was explained would necessarily know and where there is no evidence for the plaintiff tending to show that the accident occurred in that way. .</p> <p>4. New triad—conduct of juror cannot be brought to attention of court by affidavits. The conduct of a juror cannot be brought to the attention of the court by affidavits of the jurors themselves, or affidavits of other persons, as to what the jurors have said to them on the subject.</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>

Homer Abbott, Judge, presiding. This is an appeal by the Chicago and Eastern Illinois Railroad Company from a judgment of the Appellate Court for the First District affirming a judgment for the sum of $4500 recovered by Henry Ades Fowler, administrator of the estate of Cordie L. Wall, deceased, the appellee, against appellant, in the city court of Chicago Heights, in an action on the case for damages for personal injuries alleged to have been caused- through the negligence…

<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. G. A. Carpenter, Judge, presiding.</p>

<p>1. Landlord and tenant—lessee desiring to rescind lease for fraud must act promptly. A court of equity should not decree the cancellation of a lease for a term of years upon the ground of false representations as to the condition of repair of the boiler, engine and steam pipes, where the lessee, instead of seeking to rescind the lease promptly upon discovering the condition of the boiler, engine and steam pipes, continued to occupy and pay rent for the premises for over two years.</p> <p>2. Same—when lease should not be canceled because lessor does not own the premises. The fact that leased premises are in fact owned by the lessor’s wife is not ground for cancellation of the lease in equity nor for enjoining the entry of judgments by confession for accruing rent, where the lessee was never disturbed in his possession nor threatened with any interference by the true owner, and where he did not abandon the premises on that ground but because the lessor refused to put in a new boiler, as he agreed to do, after the lease was executed.</p>