Volume 240 — Illinois Reports

<p>Appear from the Superior Court of Cook county; the Hon. Earein Q. Baer, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Sangamon, county; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>Appeal from the County Court of Jackson county; the Hon. W. F. Ellis, 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>

<p>1. Officers—effect where statute fixes term of office. Where the term of an officer is fixed by statute for a specified period and it is provided that he shall hold office until his successor is appointed or elected and qualified, the mere expiration of his term of office does not operate to vacate the office or impair the powers of the officer to perform his duties, nor to release his bondsmen for defalcations between the time the term of office expired and the appointment and qualification of the successor.</p> <p>2. Bonds—when the sureties on township treasurer’s bond are liable. Section 23 of article 3 and section 1 of article 4 of the School law, relating to the term of office and the bond of the township treasurer, must be construed together, and when so construed they render the sureties on his bond liable for all moneys and securities coming into his hands as township treasurer from the date of such bond until the time when he turns the same over to his successor, who has duly qualified by giving a new bond.</p> <p>3. Evidence—books and reports of township treasurer are admissible against bondsmen. Books and reports kept and made by a township treasurer as required by law are admissible in evidence in an action against the sureties on his bond, and the sureties are liable for the amounts shown therefrom to be unaccounted for after allowing credits over which there is no controversy.</p>

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

<p>Special assessments—when property cannot he assessed for condemning land for street. Property cannot be specially assessed for benefits arising from the opening of a street where the ordinance provides only for the condemnation of the strip of land required and makes no provision for the removal of the buildings which occupy such strip nor for putting the surface of the land in condition to be used for a public street.</p>

Writ op Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Carroll county; the Hon. Oscar E. Heard, Judge, presiding.

<p>Writ or Error to the Circuit Court of Greene county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Information to disbar.</p>

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

<p>1. Fellow-servants—when motion to direct verdict on ground that parties were fellow-servants is properly denied. A motion to direct a verdict upon the ground that the plaintiff and the person whose negligence caused the injury were fellow-servants is properly denied where such person was plaintiff’s foreman, and there is evidence tending to show that in giving the order resulting in the injury he was exercising his authority as a vice-principal.</p> <p>2. Pleading—when defendant is not harmed by Ming of additional count. A defendant in a personal injury case is not harmed by the filing of an additional count alleging in greater detail the same matters charged in the original count and additional circumstances proof of which would have been admissible under the allegations of the original count.</p>

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. John Gibbons, Judge, presiding.

Owen P. Thompson, Judge, presiding. This was a bill filed in the circuit court of Morgan county for the construction of certain clauses of… Held: used and enjoyed by the said trustees as a site for an art gallery and school of art, to be known and designated as ‘The Strawn Art School and Gallery,’ such school and art gallery to be under the management and control of the said trustees as an annex, and to be used in connection with the school known as the Jacksonville Female…

A. C. Barnes, Judge, presiding. This is an appeal by Angus J. C. Ledgerwood from a judgment of the Branch Appellate Court for the First District affirming a judgment for the sum of $5556.90 and costs of suit recovered by Henry D. Laughlin, appellee, against appellant, in the superior court of Cook county, in an action in assumpsit. To the declaration, which contained only the common counts, appellant interposed the general issue.

Writ oE Error to the County Court of Kendall county; the Hon. William Hill, Judge, presiding. This is a writ of error sued out of this court to review a judgment of the county court of Kendall county confirming an assessment made by the drainage commissioners of Morgan .Creek Drainage District, a drainage district organized under the Levee act.

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

<p>1. Evidence—when widow and children are not incompetent to testify. In a proceeding for partition among the children of the deceased land owner,and to cancel certain deeds to two of them, if the only issue made is the validity of such deeds, the children are not incompetent to testify under section 2 of the Evidence act; nor is the widow incompetent, except as to matters from which she is excluded by section 5 of such act.</p> <p>2. Same—husbands of co-tenants are not incompetent to testify. In a proceeding for partition the husbands of the female co-tenants are competent witnesses, since the litigation is concerning the separate property of their wives.</p> <p>3. Same—testimony of attorney who withdraws merely nominally will not be given great weight. Courts are not inclined to give great weight to the testimony of an attorney who conducted the case for the defendants up to the time his testimony was required, where it was apparent from the time the bill was filed that his testimony would be important to his clients and where there is good reason to believe that his withdrawal from the case to testify was merely nominal.</p> <p>4. Deeds—when delivery of a deed as an escrow does not pass title. Where a voluntary conveyance from father to son is placed in an envelope and deposited in a bank, to be delivered after the death of both the grantor and his wife, and a contract is made at the same time by which the grantee agrees to pay a yearly sum so long as the grantors, or either of them, shall live, in consideration of delivery of possession of the land, no title will pass until the death of both the grantor and his wife, notwithstanding the wife, after the grantor’s death, obtains possession of the deed from the bank and gives it to the grantee."</p> <p>5. Same—deed and contract executed contemporaneously are to be construed together. A deed and a contract executed contemporaneously, relating to the same subject matter and referring to each other, are to be construed as one instrument in arriving at the intention of the parties.</p>

E. R. E. Kimbrough, Judge, presiding. This suit, an action in assumpsit, was brought by appellees, as plaintiffs, in the circuit court of Vermilion county, against appellant, as defendant, to recover for the breach of a contract made and entered into between the parties July 8, 1905.

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.</p>

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

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of DeKalb county; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>1. Special assessments'—the Sanitary District act did not deprive cities of the power to construct sezvers. The power of cities within the Sanitary District of Chicago to construct sewers for local drainage by special assessment was not taken from such cities and vested in the sanitary district by the Sanitary District act. (City of Chicago v. Green, 238 Ill. 258, followed.)</p> <p>2. Same—engineer may include a small amount of extra sewer pipe to cover breakage. The fact that the engineer’s estimate for a sewer improvement includes some twenty feet more sewer pipe' than may be required is not ground for objecting to the assessment, as such a small amount may properly be included to cover possible breakage.</p> <p>3. Same—provision for sewer "to” a certain street may be held to mean "to a point” in such street. A provision in the resolution that a sewer shall be constructed from Seventy-first street “to” Seventy-third street may be held to mean “to a point” in Seventy-third street and thereby reconcile the resolution with the ordinance providing for the sewer to extend to the main sewer in Seventy-third street, which is in the center of the street.</p> <p>4. Same—fact that provision for house-slants does not except streets is not material. The fact that the provision in a sewer ordinance for house-slants opposite each twenty-five abutting feet of each lot, piece or parcel of land does not except street intersections along the line of the sewer is not material, as such streets do not abut upon the sewer but cross it.</p> <p>5. Same—judgment should be confirmed as to property not objected for. It is error to refuse to enter a judgment of confirmation against property for which no objections are filed.</p>

Colostin D. Myers, Judge, presiding-. On the 2ist day of October, 1905, the appellees, A. J. Keenan and L. C. Keenan, doing business under the name of J. Keenan’s Bank, caused to be entered by confession, in the circuit court of McLean county, ag-ainst the appellants, William Blue and James Vance, and one D. L. Buck-worth, a judgment for $4573.44 upon a promissory note for $4000, bearing- date March 8, 1905, signed by D. L. Buclcworth, William Blue and James Vance, and…

Writ oe Error to the Criminal Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. At the November term, 1908, of the criminal court of Cook county, Mary and David Davidson, as keepers of a house of prostitution, were convicted of harboring Josephine Piatkowski, an unmarried female under the age of eighteen years, /in the house of prostitution alleged to have been kept by them.

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

<p>1. Negligence—electric company must use care commensurate with the danger. A person or company engaged in the business of supplying electric current is bound to know the dangers incident to the use of electricity in a public street or alley, and must use a degree of care commensurate with the danger incident to its use to guard against accident.</p> <p>2. Trial—when refusal to take case from jury is proper. Refusal to take the case from the jury is proper where there is evidence tending to show that the plaintiff’s intestate was a telephone lineman engaged in stringing wires upon poles used jointly with the defendant electric company; that defendant’s wires were strung on the top cross-arm; that deceased was on the ground, attempting to flip his wire over the lower cross-arm, when it came in contact with an uninsulated joint in defendant’s wire; that the lack of insulation could not readily be seen from the lineman’s position, and that insulation of defendant’s wires was required by ordinance.</p> <p>3. Appeals and errors—«Viere alleged error in overruling motion in arrest cannot he availed of. Alleged error in overruling a motion in arrest of judgment cannot be availed of in the Supreme Court where it is urged there for the first time, without any assignment of error on such ruling having been made either in the Appellate Court or the Supreme Court.</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. Ben M. Smith, Judge, ' presiding. -</p>

<p>Appeal from the County Court of Cook county; the Hon. John E. Hillskotter, Judge, presiding-.</p>

Writ oE Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Edgar county; the Hon. M. W. Thompson, Judge, presiding.

Appear from the Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.

R. S. Tuthill, Judge, presiding. This is an appeal by James Maxwell and Henry B. Maxwell, co-partners doing business as Maxwell Bros., from a judgment of the Appellate Court for the First District affirming a judgment for the sum of $5000 recovered by Frank Suchomel against appellants, in the circuit court of Cook county, in an action on the case for personal injuries alleged to have been sustained by him through the negligence of appellants while he was in their employ.

<p>Appeal from the Circuit Court of Scott county; the Hon. Owen P. Thompson, Judge, presiding.</p>

Appear from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Bureau county; the Hon. S. C. Stough, Judge, presiding.

<p>1. Appeals and errors—-Supreme Court may enter final judgment or remand the cause. The Supreme Court may in any case, either at law or in equity, render final judgment as provided by section no of the Practice act, or in case of a reversal may remand the cause to the inferior court.</p> <p>2. Same—inferior court miist be governed by the opinion rendered by Supreme Court. Where a cause is remanded by the Supreme Court it is the duty of the inferior court, in any case, to examine the opinion of the Supreme Court and conform its action to it, and in case of a general remandment without specific directions it must be determined from the nature of the case what further proceedings will be proper and not inconsistent with opinion.</p> <p>3. Same—rule where merits of case have not been determined. Where the merits of the case have not been determined by the Supreme Court an amendment of the pleadings and the introduction of additional evidence may be permissible, and while the inferior court is concluded by the legal principles announced in the opinion, other facts may be proved within those principles which obviate the objections to granting the relief sought or the allowance of the defense interposed.</p> <p>4. Same—if case has been determined on its merits the issues cannot be re-tried. If the merits of a case have been determined by the Supreme Court and the rights of the parties fixed, a direction to the trial court for further proceedings not inconsistent with the views expressed in the opinion does not permit of the introduction of further evidence for another trial of the same issues and a different determination of them. (West v. Douglas, 145 Ill. 164, explained.)</p>

Edgar EldrEdge, Judge, presiding. On August 28, 1906, the appellee was injured by reason of a defective sidewalk over which she was passing, in the city of Ottawa.

App^ai, from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Wihhard M. McEwbn, Judge, presiding.

<p>1. Elections—a primary election law must maintain constitutional rights of voters. A primary election is within the meaning of section i of article 7 of the constitution, prescribing the qualifications of voters, and to be valid a primary election law must sustain such qualifications, and not curtail, subvert or add to them.</p> <p>2. Same—section 44 of Primary Election act of ipo8 is invalid. Section 44 of the Primary Election act of 1908 is unconstitutional, in that in cities where the City Elections act is in force voters not on the last registration list are denied the right to vote at the primary election without having an opportunity to register, even though they may have acquired the requisite qualifications, since the last registration day, to entitle them to be registered.</p> <p>3. Same—proviso to section 44 of Primary act of ipoS does not cure the invalidity of such section. The proviso to section 44 of the Primary Election act of 1908, which makes provision for non-registered voters making an affidavit as to residence in the election district, etc., applies only to persons who have moved into the election district since the last registration, and affords no relief to voters becoming of age, becoming naturalized or otherwise becoming entitled to vote since the last registration, and hence does not cure the invalidity of such section. (People v. Hoffman, 116 Ill. 587, explained.)</p> <p>4. Same—when law which fails to give opportunity to register is invalid. A person possessing the other constitutional qualifications is only required to reside in the election district thirty days next preceding the election to entitle him to vote at the election, and if registration is a condition precedent to the right to vote, the law must afford him an opportunity to register within the period of thirty days before the election; and any law which, in effect, fails to afford such opportunity or which requires a longer residence than thirty days, adds to the constitutional qualifications of voters and is invalid.</p> <p>5. Same—when an act affects unequally parties possessing the same qualifications. An act conferring the right to vote upon a man who has moved into an election district after the last registration day and withholding such right from others who possess all of the qualifications of legal voters but who have not moved into another district, affects unequally parties possessing similar qualifications of electors afnd is in violation of the constitution.-</p> <p>6. SamB—section n of Primary Election act of ipo8 is invalid. Section ii of the Primary Election act of 1908, by providing that each qualified primary elector may cast one vote for each of as many candidates for representatives in the General Assembly as are to be nominated by his party, as determined by the senatorial committee, denies to such elector his constitutional right to vote for three candidates for representatives or to cumulate his vote upon or divide it between a less number, and is invalid. (Rouse v. Thompson, 228 Ill. 522, explained.)</p> <p>7. SamB—election of managing committee is within the title of the Primary Election act of ipo8. The provision of the Primary Election act of 1908 for the election of managing committees of the political parties is properly a part of the general subject of the act and is within the title, which is sufficiently comprehensive to meet the requirements of the statute.</p> <p>8. Constitutionab baw-—invalidity of sections 11 and 44 of Primary Election act of ipo8 renders entire act void. Sections 11 and 44 of the Primary Election act of 1908 are so essentially a part of the act that if eliminated the act would not be a complete law for the purpose for which it was intended, and hence the invalidity of such sections renders the entire act void. (People v. Election Comrs. 221 Ill. 9, and Rouse v. Thompson, 228 id. 522, adhered to.)</p> <p>9. SamB—holding Primary act invalid does not affect title of officers elected. After an election has been held the title of the successful candidates to their offices is not affected by holding unconstitutional the Primary act under which they were nominated.</p>

<p>Writ of Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.</p>

<p>1. Municipae courts—fact that a plaintiff in municipal court misnames his action does not defeat his rights. A judgment of the municipal court of Chicago against one, only, of two or more defendants in a suit to recover damages for loss of freight may be sustained as a judgment for tort even though the statement of the claim is in the form of an action on contract, since, as no written pleadings are required in such court, the same rule applies as governs forms of actions before justices of the peace.</p> <p>2. Same—when section 286 of the Municipal Court act is not in point. Section 286 of the Municipal Court act, (Hurd’s Stat. 1908, p. 675,) providing that “it shall be the duty of the Supreme Court or the Appellate Court, as the case may be, to decide such case upon its merits as they may appear from such statement or stenographic report or reports signed by the judge,” is not in point upon the question of proper parties to a suit by a consignor against the carrier for damages for loss of shipment.</p> <p>3. Carriers—a consignor may sue carrier for damages for loss of freight. A consignor has such special property in the goods as entitles him to maintain an action of tort or assumpsit against the carrier, either as carrier or warehouseman, to recover damages for the loss of the goods. (Great Western Railroad Co. v. McComas, 33 Ill. 185, followed.)</p> <p>4. Same—consignee may sue carrier in tort for loss of freight. A consignee, even though the goods are consigned to him to sell on commission, may maintain an action of tort against the carrier to recover for loss of the goods.</p>

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

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

Charles M. Walker, Judge, presiding. This is an appeal by Fred A. Busse, as mayor, of the city of Chicago, and the city of Chicago, from a judgment entered in the circuit court of Cook county awarding a writ of mandamus commanding defendants to issue a license to Julius Goldberg, the relator, to keep a junk shop at No. 6406 South Halsted street, in that city, upon the tender by him of the license fee and bond required by the ordinances of said city in relation thereto.

Writ oe Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Eord county; the Hon. G. W. Patton, Judge, presiding.

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. W. M. McEwEN, Judge, presiding.

<p>1. Trusts—when trustee has no authority to make oil and gas lease. A trustee under a will devising to him the fee in trust, to manage, rent, lease and control, for the payment of taxes and repairs and payment of the income to the beneficiary, with remainder to the heirs of the beneficiary, has power to make ordinary farm leases but not to sell the property or make unusual leases, such as a lease to develop oil and gas from unopened wells.</p> <p>2. Waste—opening of new oil zvells by life tenant amounts to waste. Where there are no oil wells on land at the owner’s death, neither the life tenant under the owner’s will nor the trustee who holds the fee can operate for oil for the life tenanfis benefit, and the opening of such wells amounts to waste, which a court of equity will enjoin at the suit of the remainder-man.</p> <p>3. Same—contingent remainder-man may enjoin future waste. While a contingent remainder-man cannot sue at law or maintain a bill for accounting for past waste, he may, for the protection of the inheritance, maintain a bill in equity to enjoin future waste which is certain to accrue. (Fifer v. Allen, 228 Ill. 507, and Gannon v. Peterson, 193 id. 372, distinguished.)</p> <p>4. Leases—oil lease of unlimited duration is, in effect, a sale of a portion of the land. A lease of unlimited duration, giving the lessees the right to enter upon land and prospect for and develop oil and gas, is a grant of a freehold estate, and is, in effect, a sale of a portion of the land.</p> <p>5. Parties—an objection of misjoinder of complainants must be made by demurrer or answer. An objection that there is a misjoinder of complainants in a bill for injunction should be made by demurrer or answer and cannot be first raised on appeal.</p>

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

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Stephenson county; the Hon. R. S. Farrand, 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. Axer Chytraus, Judge, presiding.

Writ oe Error to the Circuit Court of Christian county; the Hon. S. L. Dwight, Judge, presiding.

<p>i. Evidence—burden of proof in action against school, directors to recover money paid out without authority of law. In an action of debt against school directors to recover money alleged to have been paid out by them without authority of law, the burden is on the plaintiff to show that the law was not complied with and not upon the defendants to show that it was.</p> <p>. 2. Schools—a high school is a part of the common schools. A high school is a department of the common or free schools of the State, and it, as well as the grade schools, must be open to all children of the district of school age, free, and if the right of attendance is extended to children of other districts it must be upon the same terms to all similarly situated.</p> <p>3. Same—conditions for transferring pupils must be the same. The terms and conditions upon which the transfer of pupils from one district to another shall be permitted are matters for the legislature to determine, and it may make different terms or conditions where the transfer is to grade schools and where it is, to high schools, but in either case the same privileges must be extended to all children under the same circumstances.</p> <p>4. Sams—section 35 of general School law applies to transfer of pupils to high school. If the provisions of section 35 of article 5 of the general School law have been complied with in the matter of transferring pupils from one district to another the directors of the district where the pupils reside may pay the amount demanded by the district to which the pupils are transferred, even though they are transferred to a high school in such district.</p> <p>5. Constitutional law—act of 1907, concerning high school privileges for eighth grade graduates, is invalid. The act of 1907, (Laws of 1907, p. 523,) providing that eighth grade graduates in a district not maintaining a high school may attend the high school of another district, is invalid, in that it requires tuition to be paid by parents and guardians who are able to pay, whereas if they are unable the tuition is to be paid by the school board from the funds of the district.</p>

<p>Writ oe Error to the Circuit Court of Cook county; the Hon. John L. Healy, Judge, presiding.</p>

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

<p>Taxes—a library tax may be certified annually by town clerk. Under section io of the Libraries act, (Hurd’s Stat. 1908, p. 1348,) when the electors at the annual town meeting levy, by vote, a library tax of not to exceed two mills per annum, the town clerk is authorized to thereafter certify such tax annually to county clerk for extension and collection without further action by the electors.</p>

Oscar E. Heard, Judge, presiding. Simeon J. Fletcher died on April 7, 1901, owning 193 acres of land in Carroll county, and leaving the appellee, his widow, and his sister, Helen Root, his only heirs. He left a will, which was admitted to probate, by which he devised all his property to his widow for life with remainder to his sister or her heirs. The widow renounced the will and the sister executed a warranty deed conveying all the land to the widow.

Oscar E. Heard, Judge, presiding. This was a bill in chancery filed by the appellant in the circuit court of Lee county alleging that a certain conveyance made by the complainant to defendants Johnson and Avery on June 17, 1899, be declared a mortgage, and that complainant be permitted to redeem all of said lands that had not theretofore been sold by Johnson and Avery, and that as to said lands that had been sold said defendants be decreed to account to complainant and for…

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

<p>1. Ejectment—whether possession was adverse or permissive is question of fact. In an action of ejectment the question whether the possession of the defendant and his grantor was adverse to the plaintiff and his grantor or was permissive is a question of fact for the jury.</p> <p>2. Same—when possession is not adverse. A land owner who erects a boundary fence knowing it is not on the true line and intending when the true line is established to conform to it, does not hold adverse possession of the portion of the land within his fence but outside of the true line.</p> <p>' 3. Same—admissibility of possessor’s declarations. If the Statute of Limitations has run in favor of a person in possession of land his title so acquired cannot be divested by his declarations inconsistent with his claim that his possession was adverse; but if the statute has not run in his favor such declarations are competent, but not conclusive, upon the question of the character of his possession.</p> <p>4. Same—no demand is necessary if plea is the general issue. In ejectment no demand before bringing suit need be proved, where the only plea is the general issue.</p>

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

<p>Appear from the Superior Court of Cook county; the Hon. Parian Q. Bare, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District ;■—heard in that court on appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.</p>

Appear from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding. On January 24, 1908, Jettie Richardson filed her bill in the circuit court of Cook county against Esdras B. Trubey, appellant, and others, for partition of certain real estate in that county, owned at the time of her death by Luella B. Trubey, who died testate on June 3, 1905.

E/ E. Newlin, Judge, presiding. This was a bill for injunction filed to the March term, 1908, of the circuit court of Crawford county by appellees, to restrain the appellants, their agents, servants, employees, successors and assigns, from drilling for oil or gas on one acre of land situated in the south-west corner of the southeast quarter of the south-west quarter of section 21, township 7, north, range 13, west, in said county.

George A. Carpenter, Judge, presiding. This was a bill filed by Thomas Lord, one of the trustees under the will of Harvey B. Hurd, deceased, praying, among other things, that the rights and duties of the trustees and the rights and interests of testator’s daughters and their heirs be determined.

<p>Easements—owner of an easement cannot materially increase burden on servient estate. A village having an easement to drain swampy land through an artificial channel, upon lands where the water would not flow in a state of nature, has no right to enlarge and deepen the channel' and thereby materially increase the burden upon the servient estate.</p>

R. S. Tuthill, Judge, presiding. Esdras B. Trubey, administrator to collect of the estate of Luella B. Trubey, deceased, instituted the litigation involved in this proceeding by filing a petition in the probate court of Cook county praying for an order on Arthur B. Pease, appellant, to turn over to the estate certain personal property in his possession, alleged to be the property of the estate.

Writ or Error to the Circuit Court of Greene county; the Hon. Robert B. ShireEy, Judge, presiding. This is a suit to contest a will. Martha E. Cameron, a widow, with no children or descendants of children, died on December 9, 1904. Her nearest relatives and heirs-at-law were brothers and sisters, nephews and a niece.

J. R. Creighton, Judge, presiding. On February 13, 1908, W. B. Fletcher, the appellee, filed his bill in the circuit court of Lawrence county against T. S. Underwood and others to compel the specific performance of a contract for the sale of an undivided one-fourth interest in certain real estate, alleged to have been entered into by appellee and S. E. Carney, one of the defendants.

<p>1. Appeals and errors—-case involving elective franchise goes directly to the Supreme Court. A decision of a State court having jurisdiction of a naturalization proceeding which determines the right of the petitioner to exercise the elective franchise involves a franchise, and an appeal therefrom lies directly to the Supreme .Court.</p> <p>2. Naturalization—courfs discretion to determine an alien’s fitness for citizenship is not arbitrary. While the Federal statute provides that the facts authorizing naturalization shall appear to the satisfaction of the court, yet the court’s discretion to determine the applicant’s fitness for citizenship is not arbitrary but is a sound legal discretion, which is subject to review.</p> <p>3. Same—Federal statute requires applicant to be of good character and not merely reputation. The Federal statute requiring an applicant for naturalization to have “behaved as a man of good moral character” means more than that he shall have a good reputation, and requires that his conduct, generally, shall' have been such as is authorized by law.</p> <p>4. Same—alien knowingly violating Sunday Closing law and intending to continue such violation should not be naturalized. An alien resident of Illinois who has habitually and knowingly violated the Sunday Closing law, which is in force in all parts of the State, by keeping the back door of his saloon open on Sundays, and who intends to continue such violation after he is naturalized, should be denied naturalization, notwithstanding many citizens of the United States engaged in the same business habitually violate such law in like manner.</p>

<p>1. Contracts—when contract between land owner and railroad is binding. A contract between a land owner and a railroad company requiring the land owner to construct and maintain fences between his land and the right of way of the railroad is binding upon the land owner, even though the contract may not have been executed by the proper official of the railroad company, if it was executed by the land owner for valuable consideration.</p> <p>2. Same—when fact that covenant may be only a personal one is without effect. The fact that a covenant by a land owner to construct and maintain a fence between his land and a railroad right of way may be only a personal one has no effect to give his grantee a right to recover damages for injury to live stock getting on the track on account of his failure to maintain the fence, where the statute in force when the contract was made expressly provided that in case such agreement was made the company would not be liable to the owner of the land, or his heirs and assigns, for damages of such character.</p> <p>3. Railroads—the duty to fence right of way is statutory. The duty of a railroad company to fence its track is imposed by the - State, in the exercise of its police power, for the protection of property and is subject to such conditions and limitations "as the legislature may impose; but it is not an absolute one at all times and under all circumstances.</p> <p>4. Same—effect of a fencing contract made under act -of 1855. The effect of a contract made in accordance with the provisions of the act of 1855, (Laws of 1855, p. 173,) relating to agreements by land owners to build and maintain right of way fences, is to perpetually relieve the railroad company from any liability to the owner either to build the fence or respond in damages for injury to live stock of such owner coming upon the track on account of his failure to construct or maintain the fence.</p> <p>5. Same—act of 1874 does not abrogate fencing contracts made under act of 1855. The right of a railroad company to operate its trains free from liability for damages to live stock of a land owner on account of his failure to maintain a fence he has contracted to ' build and maintain under the act of 1855 is a right which cannot be held to be abrogated by the act of 1874, relating to fencing and operating railroads, without violating the provision of section 14 of article 2 of the constitution.</p>

<p>Wires—a foreign will need not be probated in Illinois to pass title to land. Under section 9 of the Wills act, which changes the* common law rule, a will made in a foreign State which is executed and proven in conformity with the laws of such State is, when properly certified and recorded in Illinois, sufficient to pass title to land in Illinois, and it is not necessary that it be probated in Illinois or that it have the formalities entitling it to probate here. (Stull v. Veatch, 236 Ill. 207, followed.)</p>

<p>1. Wiles—when issue of undue influence should be taken from jury. The issue of undue influence should be taken from the jury-in a will case where the evidence shows that the testator went alone to the scrivener and had the will drawn and that none of the persons claimed to have exercised undue influence were present when the will was prepared, under consideration or executed, and there is no proof that they had anything to do with making the will.</p> <p>2. Same—undue influence is not to be proved by opinions of zviinesses. Whether a certain person could use any unusual influence over the testator and whether the witness had ever seen such person use influence over the testator are not proper questions, as such conclusion should be drawn, if at all, by the jury from the facts shown, and not proved by the opinions of witnesses.</p> <p>3. Same-—when instructions as to unreasonableness of will are not misleading. Instructions stating that the jury have nothing to do with remedying or adjusting inequalities of the will, and that if they believe the testator was of sound mind and executed the will it is immaterial whether they believe the will is just, are not misleading, as excluding from consideration, upon the question of the testator’s mental capacity, the unfairness and injustice of the will, where other instructions expressly require the jury to consider the injustice or unreasonableness of the will in determining whether the testator was of sound mind.</p> <p>4. Same—what is not a proper cross-examination. A witness who has testified to a single transaction with the testator four months before the will was made should not be asked, on cross-examination, what was the condition of the testator’s mind during the last two years of his life with regard to getting into an uncontrollable rage; nor should a physician who has testified as to the testator’s mental condition, and who has stated, on cross-examination, , that he had seen two of the testator’s sons at his home during his last illness, be further cross-examined as to whether their relations appeared to be friendly.</p> <p>5. Same—fact that one of defendants did not atithorize attorney to file answer is of no concern to jury. The jury in a will case are not concerned with the pleadings, and it is not error to refuse to permit the contestant to prove by one of the defendants that he had not authorized any attorney to appear and defend the suit for him, although the answer purported to be filed for all defendants.</p> <p>6. Same—zvhat docs not warrant assumption that will was probated. The facts that a copy of a will and the testimony of the subscribing witness is called a “certified” copy of the will, and that after the testimony of the witnesses appear the words, “Here follows certificate of clerk,” do not warrant any assumption that the will had been probated, where the certificate is not set out and there is nothing to show what it contained; and while it is error to admit such copy in evidence after the original will has been admitted, it is harmless.</p> <p>7. Same—effect where executor’s oath is attached to original will taken by jury on retirement. The facts that the executor’s oath was attached to the original will taken by the jury upon retirement and that the will bore the endorsement of the probate judge showing its admission to probate are not grounds for reversal, where the endorsement was covered, according to the agreement of the attorneys, by pasting paper over it, and the executor’s oath was not noticed by the attorneys or by the court, not having been given or offered in evidence.</p> <p>8. New Triae—suspicion that jurors may have read papers during trial is not ground for new trial. Mere suspicion that certain of the jurors may have read a damaging article relating to the trial of a will case, which was in a newspaper lying around the hotel where the 'jurors stayed at night during the trial, is not a ground for setting aside the verdict.</p> <p>9. Same—what is not inconsistent with truth of juror’s statement. The truth of a juror’s statement, on his voir dire, that he had never heard anything about the case before he heard the statement of counsel in open court is not impeached by an affidavit that before that time a remark had been made in the juror’s hearing by a stranger in a certain barber shop that “he would not swear to a lie for any man, and that Larabee [the testator] was sane and the boys had not treated him right.”</p>

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

<p>1. Highways-—party relying upon abandonment of a highway must make clear proof. A public highway, legally established, continues to be a highway unless the public has abandoned its right, and one who claims such right has been lost has the burden of showing, by clear and satisfactory evidence, an actual non-user under circumstances clearly indicating an intention to surrender and abandon the right.</p> <p>2. Same—when abandonment of a highway may be presumed. If the public has ceased to travel a road and has acquired another which accommodates public travel, an abandonment of the Arst road may be fairly presumed.</p> <p>3. Same—decision of highway authorities as to the relative advantages of two adjoining roads is sufficient. Where a strip of land adjoining a legally established highway is thrown open by the owner to the public, the public authorities in charge of highways have authority to decide upon the relative advantages of the two roads, and if they believe the new road is preferable and adopt and improve it as a public highway, their decision is sufficient.</p> <p>4. Same—when an old highway will be regarded as abandoned. Where a highway has ceased to be used and another is acquired in its place with the consent and approval of the public authorities, and the use of the original highway has ceased for a sufficient length of time to clearly indicate an acceptance by the public of the new highway, the original highway will be regarded as abandoned.</p> <p>5. Injunction—when construction of building in old highway will not be enjoined. Construction of a building on land originally a legally established highway will not be enjoined where the proof shows that the public has for more than twenty years ceased to travel such highway, and has used in its place an adjoining strip of land dedicated by the owner to the public and improved and accepted by the highway authorities as a substitute for the original highway, which has for many years been obstructed by buildings without protest by the public or the public authorities.</p>

Appear from the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. W. Crieeord, Judge, presiding.

<p>This case is controlled by the decisions in People v. Strassheim, (ante, p. 279,) and Rouse v. Thompson, 228 Ill. 522.</p>

<p>1. Criminal law—a verdict will not be disturbed on the facts unless clearly wrong. A verdict of guilty will not be set aside by the Supreme Court on the facts unless the finding is so palpably against the weight of the evidence as to indicate that the verdict was based upon passion or prejudice upon the part of the jury.</p> <p>2. Same—competency of evidence cannot be questioned if there was no ruling by the court. The competency of evidence admitted without objection cannot be questioned in a court of review where no ruling of the court as to its competency was sought or made.</p> <p>3- Same—when refusal to discharge a juror is proper. Refusal to discharge a juror after part of the evidence in a criminal case has been heard is proper, although the accused objected to proceeding with the juror on account of the “agitated condition of his mind,” induced by fear of the possible consequences of his ineffectual attempt to have himself excused from further service as a juror in accordance with the demand of his wife.</p> <p>4. Same—a zvitness whose name is not endorsed on indictment may be examined. It is not an abuse of the trial court’s discretion to permit a witness to be examined whose name was not endorsed on the indictment where the omission to endorse the name on the indictment was unintentional, and there is no claim that the witness testified to anything which took the defendant by surprise.</p> <p>5. Rape—when refusal of instruction as to absence of outcry or complaint is not error. It is not error, in a rape case, to refuse an instruction permitting the jury to consider the fact, if proven, that the prosecuting witness made no outcry or immediate complaint, where the prosecuting witness is a child only seven years old, and the instructions given fully authorize the jury to consider all the facts and circumstances proven on the trial, both by the defendant and the prosecution, and to acquit the defendant if they have a reasonable doubt of his guilt after considering all the evidence.</p>

<p>1. Real property—when purchaser takes subject to existing infirmities of grantor’s title. One who takes a quit-claim deed from a person who he knows is holding by a tax title, takes only such title as the grantor had and subject to its existing infirmities.</p> <p>2. Laches—mere delay for less than period covered by the Statute of Limitations is no defense. Delay for less than the statutory period of limitation in asserting rights in land will not bar the owner’s rights unless the delay is accompanied by some other element which renders it inequitable to permit such assertion of title.</p> <p>3. Same—passive acquiescence may not bar rights. The fact that the owner of land passively acquiesces for less than seven years in transactions involving the title and possession of the land does not bar the assertion of his rights, where he did no affirmative act to lead the parties interested, who were familiar with the facts, to believe he was not the owner of the land, or which would equitably estop him, as against such parties, to assert his rights.</p>

A. M. Rose, Judg-e, presiding. On the 5th day of February, 1908, Elizabeth Wallwork, of Montgomery county, Illinois, executed her last will and testament. William Fearn was appointed sole executor without bond, and E. B. Appleton and Alice E. Fearn subscribed said will as attesting witnesses.

Writ op Error to the Criminal Court of Cook county; the Hon. George ICERSTEN, Judg'e, presiding. The plaintiff in error was convicted in the criminal court of Cook county of the murder of Ophelia Williams, his wife, and his punishment was fixed at death. This writ of error is prosecuted to reverse the conviction. The plaintiff in error and his wife, whose maiden name was Hardy, were colored people.