Volume 241 — Illinois Reports

Appear from the Branch Appellate Court for the First District;—heard in that court oil appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.

<p>1. Res judicata—when decree dismissing bill to remove cloud is not res judicata. A decree dismissing a bill to cancel a tax deed as a cloud on title in accordance with a direction of the Supreme Court in a judgment of reversal based upon the ground that the complainant did not at that time have title or possession, is not res judicata such as bars a second bill between the same parties to set aside the same tax deed after plaintiff has perfected his title and obtained possession. (Gage v. Ewing, 114 Ill. 15, followed.)</p> <p>2. Practice—section 39 of the Chancery act and section 38 of the Bvidence act must be constmed together. Section 39 of the Chancery act and section 38 of the Evidence act must be construed together, and when so construed they mean that when a case is referred to the master to take evidence and report his conclusions or state an account the master must take all the evidence, including oral testimony, and if the oral testimony is properly reported by the master to the court it is taken “on the trial,” within the meaning of section 38 of the Evidence act.</p> <p>3. Same—what is not a material departure from procedure in hearing chancery suit. The fact that the chancellor, after hearing part of the evidence in a proceeding to cancel a tax deed as a cloud, referred the case to a master to take the remainder of the evidence, after which the cause was heard in its entirety by the chancellor on the evidence reported and that previously heard, is not a substantial departure from proper procedure, where the master was not required to, and did not, report any conclusion, but merely the evidence in the form of questions and answers.</p> <p>4. Evidence—when record of former action is not admissible. Where pleas setting up a former proceeding as res judicata have been overruled and there is no issue of fact upon such question the record of such former proceeding is not admissible; - but, the evidence being incompetent, it will be assumed, on appeal, that the chancellor disregarded it.</p> <p>5. Ceoud on TiteE—what is sufficient to enable party to maintain bill. One who is in possession of property claiming in good faith to be the owner thereof under a master’s deed purporting to convey the title to him may maintain a bill to cancel a tax deed as a cloud upon his title.</p> <p>6. Tax deeds—person in possession claiming ownership is entitled to notice. One who is in possession of land claiming to be the owner thereof at the time when the notice required by section 216 of the Revenue act should be served, is entitled to notice whether he is or is not an owner of the premises within the meaning of such section.</p> <p>7. Sams—defendant should not he required to pay master’s fees in absence of tender. A decree canceling a tax deed as a cloud upon the complainant’s title should not adjudge the master’s fees against the defendants, where there is no proof that the complain-' ant, before filing the bill, tendered the taxes, costs and interest or that the money therefor was paid into court.</p>

<p>x. Taxes—when equity has jurisdiction of bill to enjoin collection of taxes. A court of equity has jurisdiction of a bill to enjoin the collection of taxes extended on an original assessment by the board of review and an assessment increased by such board, where the complainant has exhausted her remedy at law so far as the board of review is concerned, having appeared before it and been fully heard.</p> <p>2. Same—equity has jurisdiction if tax was unauthorised by law. ■ The fact that the board of review may have final authority to value property does not preclude a court of equity from taking jurisdiction to grant relief to the party assessed by such board if the tax is unauthorized by the law.</p> <p>3. Same—amount which minor must contribute towards debts of estate should not be assessed as his personal estate. In determining the amount to be assessed against a minor as his personal property the amount which he is required to contribute toward the payment of the debts of his father’s estate should be deducted, and the proportion which his interest should so contribute is properly measured by his interest in the property left to him.</p> <p>4. Same—when judgment in favor of widow should not be assessed as an asset. Where the widow uses funds in her hands as guardian to pay debts of the deceased which have not been allowed as claims against the estate, the fact that she improperly filed a claim for the amount and obtained a judgment therefor .against the estate does not justify the board of review in assessing the amount of such judgment to her as a personal asset.</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. Axel Chytraus, Judge, presiding.

Farlin Q. Ball, Judge, presiding. This was a petition filed by the appellant September 21, 1903, under the Burnt Records act, (Hurd’s Stat. 1908, chap. 116, p. 1728,) to establish its title in fee simple to lot 82 (except the north twenty-five feet thereof) and lots 83 to 86, inclusive, in Greene’s South Branch addition to Chicago, Cook county, Illinois, and to enjoin certain of appellees from using a switch track on said lots, the public records relating to which title were…

<p>Attorneys at law—attorney who uses clienfs money should be disbarred. An attorney who collects money for a client should pay it over promptly, and if he uses it for his own purposes he is guilty of unprofessional conduct justifying his disbarment; and the fact that at the time he used the money his credit at the bank was greatly damaged by depreciation in value of securities he had given the bank as collateral is no excuse.</p>

Lockwood Honore, Judge, presiding. April 3, 1907, appellee filed in the circuit court of Cook county a bill for separate maintenance against appellant, alleging their marriage on August 13, 1904, and that appellee had lived with appellant as his wife until about February 26, 1905, when she was compelled to separate from him.

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

<p>Appeal from the Circuit Court of McDonough county; the Hon. John A. Gray, Judge, presiding.</p>

<p>1. Instructions—when an instruction as to disregarding testimony is not necessarily ground for reversal. An instruction permitting the jury to disregard the uncorroborated testimony of any witness who they believe has been “successfully impeached,” without explaining the meaning of such term, is objectionable, in that the jury may understand the term to apply to witnesses who have been contradicted by other witnesses; but whether the giving of such instruction is reversible error depends upon whether it appears from the whole record that the jury might have been misled and the opposite party prejudiced by it.</p> <p>2. Partnership—liability of secret partner does not extend beyond scope of business. While the liability of a secret or dormant partner to third persons does not depend upon their knowledge or belief as to the existence of the partnership, yet it is essential to such liability that the credit be given in a transaction within the scope of the partnership affairs, and he is not liable on individual contracts of other partners with respect to their personal matters.</p>

Writ or Error to the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding.

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Macon county; the Hon. W. C. Johns, Judge, presiding.

Appeals from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding. On October 6, 1906, Robert W. Huey sued Ira S. Powell and William A. Powell in the circuit court of Hancock county in an action of assumpsit. On January 21, 1907, he filed a bill against the same parties and Martha M. Powell, wife of William A. Powell, for the foreclosure of a mortgage.

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

Appear from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. This is an appeal from a decree of the circuit court of Cook county sustaining special demurrers to and dismissing appellant’s bill for an injunction. Paragraph I of the amended bill alleges that in December, 1868, complainant and Martin D. Sykes and John F. Tracy became and were the owners in fee simple and were then seized and possessed of certain lands described in the bill.

<p>1. Public policy-—courts cannot change the public policy of the State. The public policy of a State is to be determined, in large measure, from its constitution and legislation, judicial decisions and the practice of the executive department, but when the legislature has acted upon a subject upon which it has power to legislate, public policy is what the statute passed by it indicates, and any change in such policy is for the legislature and not the courts.</p> <p>2. Corporations—limits of power of a corporation to hold real estate. It is against the public policy of the State of Illinois, as evidenced by its statutes, judicially construed, for a corporation, either domestic or foreign, to hold real estate beyond what is necessary for the business or specific purposes of the corporation.</p> <p>3. Same—corporation cannot be organized to acquire and hold real estate. A corporation cannot be organized in Illinois for the purpose of acquiring and holding real estate, whether it is to be acquired by a deed or by the purchase of a leasehold estate for a term of years. (Imperial Building Co. v. Chicago Open Board of Trade, 238 Ill. 100, adhered to.)</p> <p>4. Same—a corporation cannot be organized to lease land and construct office building. A corporation cannot lawfully be organized in Illinois to buy or lease land for the purpose of erecting an office building to rent to its tenants, even though the furnishing of power, heat, light and water to its tenants is included among the designated purposes of its organization. (Rector v. Hartford Deposit Co. 190 Ill. 380, distinguished.)</p> <p>5. Same—a corporation may organise for lawful purpose and hold necessary real estate. A corporation may be organized in Illinois for any purpose allowed by law and may own the necessary real estate for its business, but it cannot be organized for the purpose of owning real estate and do the necessary business incidental to such ownership.</p> <p>6. Same—prosecution for ouster cannot be barred if there is no law for the organisation of a corporation. Where there is no law authorizing the organization of a corporation for the purposes claimed, no lapse of time and no acquiescence or waiver can bar a prosecution by the public for .the ouster of the persons claiming to exercise the franchise.</p> <p>7. Statutes—when principle of contemporaneous construction does not apply. The principle that in interpreting a statute great regard should be paid to a practical and contemporaneous construction put upon it by public officers charged with its execution is useful in cases of doubtful meaning but it has no application where there is no ambiguity, nor can it be invoiced to relieve one from the consequence of following such a construction against a contrary judicial construction by the Supreme Court.</p>

Writ of Error to the Appellate Court for the Eirst District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.

Appear from the Branch Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. This was an action of the fourth class brought by appellee in the municipal court of the city of Chicago to recover damages for personal injuries alleged to have been sustained by the appellee and for damages to his buggy.

<p>1. Deeds—when a deed cannot be set aside. A deed knowingly and understanding^ made by a wife in consideration of her husband’s promise to transfer to her a certain amount of the stock of a corporation cannot be set aside upon the ground that after the certificates of stock were delivered to her they were surreptitiously taken by a subsequent purchaser of the property.</p> <p>2. Same—grantor cannot set aside deed to corporation because the grantee exceeded its power. The grantor in á deed made to a manufacturing corporation has no standing, in equity, to set aside the deed upon the ground that the corporation exceeded its power in taking the real estate, which was residence property, since the State alone can interfere where a corporation, haying power to hold real estate for the purposes of its business, exceeds such power.</p>

Writ or Error to the Circuit Court of Monroe county; the Hon. B. R. Burroughs, Judge, presiding. The litigation involved in this case was commenced in 1896 by defendant in error, Linnertz, bringing an ejectment suit against plaintiff in error, Brickey, for the recovery of a tract of land known as a part of survey 342 of the commons field of Fort Chartres.

<p>Equity—what is not proper use of a court of equity. A party cannot maintain a bill to enforce an alleged option to purchase premises from the holder of the legal title where there is no averment that he has offered to make the payment entitling him to enforce the option, and the only apparent purpose of the bill is to use the court, for business reasons, to decide what kind of a title the complainant will take if he complies with the terms of the option, there being no real controversy between the parties and no issue of fact raised by the pleadings.</p>

<p>1. Briefs—appellee’s brief should be a reply to points made by appellant. Under the rules of the Supreme Court the brief and argument for the appellee should be a reply to the points made by the appellant and the argument should follow the order of their presentation, so that the court may get the points made by the appellant, with the answers thereto, in intelligible form.</p> <p>2. Master and servant—-duty of master to make rules—effect of an established custom. It is the duty of a master conducting a business with different branches to make, publish and enforce reasonable rules and regulations to promote the safety of servants, but in the absence of any rule governing a particular situation it is proper to consider the existence of an established custom with respect thereto.</p> <p>3. Same—when relation of master and servant exists. The relation of master and servant exists where the employer has the power to direct what work the employee shall do and the manner in which it shall be done and has the power to remove and discharge him.</p> <p>4. Same—when switch tender hired by one railroad company is not servant of another. A switch tender who is employed and controlled by one railroad company is not the servant of another company for whose trains he throws the switch under a trackage arrangement between the two companies, where the latter company has no control over him other than to complain to his employer of the manner in which he performs his duties, although it re-imburses his employer for a fixed part of his wages.</p> <p>5. Negligence—person is bound to anticipate results naturally following his acts. A switch tender who violates an established custom by letting a switch engine of another railroad company in upon a certain switch track without waiting for a road engine to back out or warning the switch crew of its presence, is bound to anticipate, as a natural result of his act, that the switch engine will proceed up the track, and if a collision between the switch engine and the road engine occurs as the proximate result of his negligence, his employer is liable to the injured members of the switch crew.</p> <p>6. Same—-what is proximate cause of an accident. The nearest independent cause which is adequate to produce and does, bring about an accident is the proximate cause of the same and supersedes any remote cause.</p> <p>7. Same—what tends to show negligence by a switch tender. The violation of a practically uniform custom by a switch tender by which a switch crew were misled and in consequence of which they encountered a danger they had no reason to expect, tends to prove negligence on his part.</p> <p>8. Same—fact that injury is partly due to negligence of fellow-servant does not preclude recovery. If an injury to a switchman is wholly due to the negligence of members of the crew who are his fellow-servants he has no cause of action against anyone; but if the negligence of a person not his fellow-servant is the proximate cause of the injury, the fact that the negligence of his fellow-servants concurred with such person’s negligence in producing the injury does not preclude a right of recovery.</p> <p>9. Instructions—when instruction need not state meaning of fellow-servants. An instruction stating that if the jury believe, from the evidence, that' a certain switch tender was the servant of the defendant railroad company and was not under the direction and control of another railroad company, and that the plaintiff was the servant of the latter company and not under the direction or control of the defendant, then the plaintiff and the switch tender were not fellow-servants, is not erroneous in failing to further inform the jury of the meaning of fellow-servants, in the law.</p>

<p>1. Appeals and Errors—error cannot be assigned on opinion of Appellate Court. Error cannot be assigned on the opinion of the Appellate Court, and if the judgment of the Appellate Court is correct it will not be reversed even though the Supreme Court does not agree with the reasons given for the correct decision.</p> <p>2. Same—duty of a party obtaining affirmative relief. A party obtaining affirmative relief by a decree must preserve the evidence upon which it is founded, either by a certificate of evidence or by a recital of facts in the decree.</p> <p>3- Same—a party obtaining decree has no right to appeal from its findings. A party who obtains a decree in full accordance with his claims has no right to appeal from findings of the court embodied in the decree.</p> <p>4. Same—purpose of statutory assignment of cross-errors. The purpose of the statutory assignment of cross-errors is to enable the court of review to finally decide the controversy without necessitating a separate appeal or writ of error.</p> <p>5. Same—rule as to necessity for assigning cross-errors. Except as a matter of practice, where an appellee or defendant in error desires alleged errors against him to be corrected upon a second trial in case the judgment is reversed, an assignment of cross-errors is only required where appellee or defendant in error seeks a reversal of the decree or judgment in some particular and might have appealed or sued out a writ of error to obtain such reversal.</p> <p>6. Same—-appellee may sustain decree on any facts in the record without assigning cross-error. An appellee or defendant in error has a right, without assigning cross-errors on the findings of the decree, to sustain the decree upon any facts in the record, whether they are the same as those found by the decree or not, and may in like manner sustain the judgment of the Appellate Court whether the reasons given in the opinion are good or not.</p> <p>7. Gambling contracts—the party asserting that transactions were gambling ones has the burden of proof. Executors who file a bill in equity, under section 132 of the Criminal Code, against stock brokers have the burden of proving the allegations of their bill that the sales and purchases of stocks made by the defendants for their testatrix were gambling transactions.</p> <p>8. Same—when broker is a "winner,” under section 132 of the Criminal Code. Under section 132 of the Criminal Code a broker is liable as a “winner” for losses of his customer if there was an understanding between them that there was to be a settlement between them on differences, only, and that there was to be no right on the part of the customer to demand and receive the stocks or any obligation to take or pay for them; but it must appear that both parties had the intention of settling on differences, only.</p> <p>9. Same—what does not justify the inference that stock transactions were gambling ones. The fact that the purchases and sales of stocks made by brokers for a customer were of great magnitude in proportion to the wealth of the customer does not justify an inference of an intention to settle on differences, only, where there is no proof of such intention and where the stocks were actually sold and delivered or received and paid for by the brokers, and there was no time when the customer could not have paid the balance due if the value- of the stocks were taken into account.</p> <p>10. Same—sales and purchases by broker under general order are not necessarily gambling transactions. The fact that sales and purchases of stocks are made by a broker under a general order to use his own discretion in buying and selling, without a specific order from his customer, does not make the transactions gambling ones, where each purchase or sale was reported to the customer and ratified by her on the day it was made, and where there is no proof of any intention to settle on differences, only.</p> <p>11. Same—zvhen section 132 of Criminal Code does not apply. Where, at the time of the death of a person who has been buying and selling stocks through a broker, the account stands with a profit in favor of the customer, losses subsequently occurring to th'e estate through the depreciation in value of stocks during the time they were under the control of the executors cannot be recovered by the executors from the broker under section 132 of the Criminal Code, upon the theory that the original purchases of the stocks were gambling transactions.</p>

<p>1. Judgments and decrees—no universal rule can be laid down as to when order is final or interlocutory. It is impracticable to lay down a rule which will be applicable to every case, separating into classes orders which are final and appealable and those which are interlocutory.</p> <p>2. Same—when order granting leave to intervene in partition is interlocutory. An order setting aside a partition decree and granting leave to an intervening petitioner to become á defendant to the partition proceeding and answer the bill will be regarded as interlocutory, even though the order 'finds that the court has “heard all of the evidence” and that the intervening petitioner “is the owner of an equitable one-fourth interest” in the premises, where such order was treated by all the parties as interlocutory until the intervenor filed an amended answer setting up that it was final.</p> <p>3. Practice—evidence as to claim of the intervening petitioner should be heard on final hearing. Where the prayer of a petition to intervene in a partition suit is granted and leave is given to the intervening petitioner to answer the" bill, the evidence on the issue made by.his answer should be heard on final hearing of the cause.</p>

<p>1. Pleading—what is sufficient averment of complainanfs relation as stockholder. In a bill by a stockholder against a corporation for accounting and relief, an averment that “in or about 1857 the complainant became, ever since has been and now is a stockholder” of defendant corporation “and the owner of 1500 shares, of the par value of $50 each, of the original capital stock of said defendant corporation,” is a sufficient statement of complainant’s relationship as a stockholder to require the defendant to answer.</p> <p>2. Same—averments of cross-bill not considered in determining sufficiency of original bill. In determining the sufficiency of an original bill, facts stated only in a cross-bill filed by a party made a defendant on his intervening petition cannot be considered, since ■to so bring extraneous facts into view would be, in effect, to recognize a speaking demurrer, which is never allowable.</p> <p>3. Same—what averments in bill show laches. An averment in a bill to the effect that the complainant, “before the commencement of this suit,” made demands upon the defendant corporation for an accounting and for an opportunity, as a stockholder, to examine its books, shows laches on its face, where the bill also shows that the complainant has been a stockholder of the corporation for nearly fifty years, during which time his rights have been denied.</p> <p>4. Laches—when delay in making demand will bar relief. If a demand upon a corporation by a stockholder is a necessary condition precedent to his right to bring suit, unreasonable delay in making demand is as much a bar as delay in beginning suit, and, if unexplained, his right to relief will be as effectually barred in the one case as in the other.</p> <p>5. Same—stockholder must use due diligence in seeking relief against corporation. A stockholder must act with due diligence in seeking relief against a corporation for acts and omissions of such a character as would naturally be within his knowledge, and his unreasonable and unexplained delay will bar his rights, notwithstanding the trust relation existing between a corporation and its stockholders.</p> <p>6. Amendments—matter of amendments in chancery is largely within chancellor’s discretion. The matter of allowing amendments in chancery proceedings is largely within the discretion of the trial court, and the Supreme Court will not reverse for refusal of leave to amend unless there has been an abuse of such discretion.</p> <p>7. Appeals and errors—when it is not error to dismiss bill. If a bill, as amended after demurrer, is so defective as to show that the complainant has no cause for equitable relief, it is not error to sustain a demurrer to such amended bill, deny leave to'make further amendments and dismiss the bill.</p>

<p>1. Trial—what tends to show negligence with respect to electric wire. In an action against an electric company for injuries inflicted upon the plaintiff by a shock from a fallen live wire, testimony that the insulation was loose and hanging in threads, that a kite had hung on the wire for a week or two and that there were no guard wires to keep broken wires from falling, tends to show negligence by the defendant as respects thé falling of the wire; and the fact that the testimony is contradicted cannot be considered by the court on a motion to direct a verdict.</p> <p>2. Negligence—negligent act need not be sole cause to be the proximate cause. To constitute proximate cause the negligent act or omission need not be the sole cause nor the last or nearest cause, but it is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, produces the injury, or if it sets in motion a chain of circumstances and operates on them in a continuous sequence, unbroken by a new or independent cause.</p> <p>3. Same—injury must be natural and probable result of negligent act. While it is not necessary, to constitute proximate cause, that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, yet it must appear that the injury was the natural and probable result of his negligence; and the question is not determined by the existence or non-existence of intervening events, but by the character thereof and the natural connection between the original act and the injurious consequences.</p> <p>4. Same—when existence of condition is not proximate cause. If a negligent act does nothing more than furnish a condition by which an injury is madé possible, and such condition, by the subsequent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury.</p> <p>5. Same—when act of third person does not excuse wrongdoer. If the intervening cause of an injury is set in operation by the original negligent act or omission, such original negligence is still the proximate cause, and if the circumstances are such that the injurious consequences might have been foreseen as likely to result from the original negligent act or omission, the act of the third person will not excuse the original wrongdoer.</p> <p>6. Same—when the first negligent act is not proximate cause. Where the act of a third person, which is the immediate cause of an injury, is such as in the exercise of reasonable diligence would not be anticipated, and the third person is not under the control of the one guilty of the first negligent act or omission, the connection between the first negligence and the injury is broken and the first negligence is not the proximate cause.</p> <p>7. Same—test in determining the question of proximate cause. The test in determining the question of proximate cause is whether the person guilty of the first negligent act or omission might have reasonably anticipated the intervening cause'as a natural and probable result of his own negligence, and, if so, the connection between such negligence and the injury is not broken by the intervening cause.</p> <p>8. Same—electric company is liable for injury resulting from effort to remove danger of live wire. An electric company may reasonably anticipate, in case a live wire should fall upon the sidewalk or where persons using the sidewalk or roadway are likely to be injured, that someone may attempt to remove it to prevent injury, and if, as a result of such attempt, some other person is injured, the company is liable.</p> <p>9. Same—when electric company is not liable for injury from live wire. Where a live wire, which has just fallen between the sidewalk and the curb of a street, where it would do no injury to a person on the sidewalk or roadway, is struck by a policeman with his club and thrown upon a person standing on the sidewalk, the company owning the wire is not liable for the injury to such person, there being no explanation of the policeman’s act and no negligence imputable to the company in not removing the wire before the injury but only in not preventing the wire from falling.</p>

<p>1. Dedication—offered dedication may be withdrawn before acceptance. The making of a plat is a mere offer to dedicate, which, in the absence of circumstances which will estop the owner, maybe withdrawn at any time before the offered dedication is accepted.</p> <p>2. Same—dedication, though formal, is incomplete until acceptance. The dedication of a street, even though in formal compliance with the statute, is incomplete until acceptance, and until acceptance the fee remains in the original proprietor, and his conveyance of abutting lots before acceptance carries title to the center of the street, subject to the offer of dedication.</p> <p>3. Same—when owner of platted ground has no reversionary interest in fee of street. Where platted territory is open prairie and there is no municipality in existence or in process of organization which can accept the dedication, the fee of platted streets remains in the owner, regardless of the question whether the plat is a statutory one or not, and if, before public acceptance, he conveys lots upon a platted street his grantee takes the fee to the center of the street, and the grantor has no reversionary interest therein. (Hamilton v. C., B. & Q. R. R. Co. 124 Ill. 235, followed.)</p>

<p>1. Criminal, eaw—when-People need not make an election. In a prosecution for falsifying a jail calendar, which the bill of particulars charges consisted in the false entry of eighteen names of persons not committed to the jail, if there is no charge that the entries were made at different times and no proof that they were so made, the prosecution is not required to make an election, but may prove, as to each name, that it was entered in the handwriting of the accused and that the person named was.not committed to jail within the period stated in the entry, even though the entries are on different pages of the calendar and under different dates.</p> <p>2. Same—when alleged incompetent testimony as to handwriting will not reverse. The fact that a large part of the testimony of two witnesses as to the handwriting of the defendant in a prosecution for falsifying a jail calendar may have been incompetent is not ground for reversal, where the evidence remaining, if all their testimony were stricken out, would still have required a verdict of guilty, there being one unimpeached and uncontradicted witness, the competency of whose testimony is not questioned, who testified that the false entries were in the handwriting of the defendant, who offered no evidence except to prove good character.</p> <p>3. Same—what is not ground for disregarding testimony. In a prosecution against a deputy sheriff for making false entries in the jail calendar, the fact that one of the witnesses, who testified that the entries charged to be false were in the defendant’s handwriting, was himself a deputy sheriff and made entries in the calendar is not ground for disregarding his testimony.</p> <p>4. Same—when defendant is not prejudiced by jury’s taking alleged falsified record on retirement. The fact that the jury, in a prosecution for making false entries in a jail record, was allowed to take the record with them on retirement without anything being done to prevent their inspection of the portions of the record not offered in evidence, and thus satisfying themselves, by comparison, that the entries were in the defendant’s handwriting, is not prejudicial to the defendant, where such handwriting was established by uncontradicted evidence independent of the record. '</p> <p>5. Same—intent to falsify a public record is a criminal intent. Instructions in a prosecution for falsifying a public record which state that even though the jury might believe, beyond a reasonable doubt, that the defendant committed the act charged, still if they had a reasonable doubt as to whether he committed the act with a criminal intent to violate a public law they should find him not guilty, are properly refused where there is no evidence on which to base them, there being nothing to indicate that if the defendant falsified the record he did not intend to do so, as the intent to falsify a public record is a criminal intent.</p>

<p>1. Divorce—public has an interest in a divorce suit. While a divorce suit is a-controversy between private parties, yet the interest of the public in the marriage status is also concerned, and the court will regard such interest whatever attitude the parties may take, and will not grant a divorce upon the consent or collusion of the parties.</p> <p>2. Same—second bill on same facts should be dismissed. A decree dismissing a bill for divorce for want of equity, after a hearing of the complainant’s evidence, is a final decree, and if the same bill is subsequently filed and the matter presented to another judge, it is his duty to dismiss the bill upon learning of the prior adjudication, whether such adjudication is pleaded or not.</p> <p>3. Attorneys at law—an attorney filing same bill for divorce a second time may be suspended. An attorney who files a bill for divorce and obtains a decree without disclosing to the court that the same bill has been previously dismissed for want of equity by another judge upon substantially the same evidence is guilty of a fraud upon the court and may be suspended by the Supreme Court from practicing in all courts of record of the State.</p>

<p>1. Waters—general presumption where party purchases from riparian owner. While the grantor of a riparian estate may reserve the land under the water, yet the general presumption is that the purchaser’s title extends as far as the grantor owned, in both fresh and tidal waters.</p> <p>2. Same—the owner of land on- both sides of river owns bed of stream. The owner of land on both sides of a river owns the whole of the bed of tire stream to the extent of the length of his lands upon it, and his conveyance of the land carries title to the bed of the stream, in the absence of any reservation in the deed or language denoting a different boundary.</p> <p>3. Same—-distinction as to ownership of bed of navigable and non-navigable streams. In grants upon navigable waters above tide waters the riparian owner takes title to the thread of the stream, subject to the public easement of navigation; but as to waters not navigable the title to the bed of the stream passes absolutely, free from the public easement.</p> <p>4. Same—a meander line is not ordinarily a boundary. With the exception of cases where monuments are erected when the meander line is run the meander line is not a boundary line, but is designed to point out the sinuosities of the bank or shore and provide a means of ascertaining the quantity of land in the fraction which is to be paid for by a purchaser.</p> <p>5. Same—meander line provision of the act of 1839 was superseded by act of 1843. The provision of the act of 1839 relating to the sale of canal lands, which declared that lands situated upon streams which had been meandered by the United States surveys (which included' the Desplaines river) should be considered as bounded by the meander line and not by the stream, is inconsistent with the act of 1843 f° the pledging of the canal lands, and, as to lands sold under the act of 1843, to procure money with which to pay the debts created thereunder, was superseded by act of 1843.</p> <p>6. Same—the State of Illinois does not own bed of Desplaines river 'in lands sold under act of 1843. In the absence of any conditions, reservations or restrictions in deeds made by the canal trustees to 'lands bordering upon the Desplaines river, which had been acquired by the State under the government grant of 1827 and which passed as unsold lands to the canal trustees under the conveyance by the Governor under the act of 1843, the grantees in such deeds took title to the bed of the river, and the State is not the owner thereof.</p> <p>7. Same—party alleging that stream is navigable has burden of proving such fact. A complainant in a bill to enjoin the construction of a dam in a stream which is alleged in the bill to be navigable has the burden of proving such navigability as a question of fact, but he is not required to show that the stream is navigable for its entire length or that its navigable portion is open for use at all times of the year.</p> <p>8. Same—navigability is to be determined with reference to natural condition of stream. The navigability of a stream is to be determined with reference to its natural condition, and not with reference to conditions which exist after the construction of canals or other artificial channels which add to the volume of water.</p> <p>9. Same—vested rights cannot be destroyed by making a non-navigable stream navigable. If a stream is non-navigable in its natural condition the State has no power to destroy, without compensation, the vested rights of riparian owners by making the stream navigable by means of artificial additions to its waters.</p> <p>10. Same—rule where stream naturally navigable is improved. Where a stream which is, in fact, navigable in its natural condition is improved for the purpose of enlarging its usefulness, the public have a right to enjoy the easement in its enlarged condition.</p> <p>11. Same—the State cannot destroy riparian rights in a non-navigable stream. The State cannot directly by its own act or indirectly through the act of an agent change an unnavigable stream to one that is navigable without compensation to riparian owners for the destruction or damaging of their rights in the bed of the stream, as such rights are as much protected by the constitution as are rights in land above the water line of the stream.</p> <p>12. Same—riparian owners not required to forfeit rights to aid improvement of non-navigable stream. A navigable stream may be improved or a non-navigable stream may be made navigable with funds raised by general taxation; but property fronting upon the navigable stream cannot be specially assessed for the improvement of such stream for public benefit, nor can the owners of riparian rights in the non-navigable stream be compelled to surrender their rights, without compensation, to aid in its improvement.</p> <p>13. Same—legislature cannot destroy vested rights by declaring stream to be navigable. If a stream is not navigable in its natural condition, vested rights of riparian owners cannot be destroyed by an act of the legislature declaring such stream to be navigable.</p> <p>14. Same—the Sanitary District act did not declare Desplaines river to be navigable. Section 24 of the Sanitary District act, providing that when the channel is completed and the water turned in to a certain volume “the same is hereby declared a navigable stream,” has reference only to the channel of the sanitary district, and not to the water after it leaves such channel and enters the Desplaines river.</p> <p>15. Same—what is necessary to.make stream a navigable one. A stream, to be navigable, must in its ordinary, natural condition furnish a highway over which commerce is or may be carried on in the customary modes in which such commerce is conducted by water. (Hubbard v. Bell, 54 Ill. 110, and Schulte v. Warren, 218 id. 108, followed.)</p> <p>16. Same—Desplaines river is not, in its natural condition, a navigable stream. The Desplaines river, notwithstanding its occasional use as a means of transportation by the few early explorers and traders, is not, in its natural condition, a navigable stream.</p> <p>17. Canaes—an agreement for perpetual ñowage is, in effect, a sale of an interest in land. An agreement for perpetual flow-age is, in effect, a sale of an interest in the land and a right of perpetual possession, and if such an agreement is made by the commissioners of the Illinois and Michigan canal, it must, under the Canal act of 1874, (Hurd’s Stat. 1908, p. 220,) be made in accordance with the requirements of clause 8 of section 8 of such act.</p> <p>18. Same—ñowage contract of September 2, 1904, is not a.perpetual license. ■ The flowage contract made September 2, 1904, between the commissioners of the Illinois and Michigan canal and Harold T. Griswold, and which is now assigned to the Economy Light and Power Company, is not a perpetual license, but must be regarded, in view of the other contracts executed between the parties and the statutory power of the commissioners, as being for a period of twenty years, notwithstanding the use of the word “perpetually” with reference to the said Griswold’s obligation to keep the tow-path in repair.</p> <p>19. Same—canal Commissioners have poiver to lease “ninety-foot strip.” The commissioners of the Illinois and Michigan canal have no power to sell any land or any portion of the “ninety-foot strip” along the canal which is now utilized in connection with the use of water power, hut they have power to lease canal lands and the ninety-foot strip for not to exceed twenty years, provided that where the lease is connected with a water power it must be' made under clause 6 of section 8 of the Canal act of 1874.</p> <p>20. Same—what is meant by lease of water power. The leases of “water power and any lands or lots connected therewith,” referred to in clause 6 of section 8 of the Canal act of 1874, and which the canal commissioners cannot lease without complying with the requirements of the statute, are leases of water power in the canal itself, and lands or lots connected therewith which the State owns and the commissioners are authorized to lease.</p> <p>21. Same—flowage contract and lease herein involved are not a lease of water power. The flowage contract and the lease of the “ninety-foot strip” made by the commissioners of the Illinois and Michigan canal September 2, 1904, to Harold T. Griswold, do not constitute a lease of water power and lands connected therewith, as meant by clause 6 of section 8 of the Canal act of 1874.</p> <p>22. Same—the provision for renewal of leases applies only to leases of water power and land connected therewith. The provision of clause 6 of section 8 of the Canal act of 1874 authorizing the commissioners to provide for an extension of its leases for a period of not to exceed twenty years, applies only to leases of “water power and lands or lots connected therewith,” and has no reference to leases made by private treaty of “canal lands and lots owned by the State,” as mentioned in clause 5 of said section.</p> <p>23. Same—provision for renewal in lease of September 2, 1904, does not render entire contract void. The provision for renewal, contained in the lease of September 2, 1904, made by the commissioners of the Illinois and Michigan canal to Harold T. Griswold, is void as being unauthorized by law; but its invalidity does not render the entire contract void, since such provision is an independent and severable covenant, which may be disregarded and the legal portion of the contract enforced.</p> <p>24. Same—a ’hat is not ground for setting aside deed to cantal lands. The fact that a sale of canal lands was made by a third person acting at the request of the commissioners instead of by the commissioners in person is a mere irregularity which is not ground- for setting aside the deed, where the land was sold in accordance with the formalities required by statute, a deed executed to the purchaser and the purchase money received and retained by the State, which was, in legal contemplation, the grantor in the deed, and where no steps were taken' to avoid the sale while the title was in the original purchaser, whose record title was clear.</p> <p>25. Same—the deed of January 6, 1905, to "sixteen-acre tract” passed entire title of State. The quit-claim deed of January 6, 1905, from the commissioners of the Illinois and Michigan canal to Harold T. Griswold, conveying the so-called “sixteen-acre tract,” was not a conveyance of any land connected with the water power of the canal but of land the commissioners had power to sell, and such deed was effective to convey the entire interest then owned by the State in such tract.</p> <p>26. Same—the “Kankakee feeder” lease of August 8, ipofj, is not a, water power lease. The “Kankakee feeder” lease, made August 8, 1905, between the commissioners of the Illinois and Michigan canal and Harold T. Griswold, is not a lease of water power, within the meaning of clause 6 of section 8 of Canal act of 1874.</p> <p>27. Same—revocation provision of the “Kankakee feeder” lease construed\ The provision of the “Kankakee feeder” lease, (herein involved,) reserving the right to the canal commissioners to cancel the lease “whenever, in the judgment of the canal commissioners or other proper officers of the State at such time having charge of canal property, they shall deem the interests of the State require it, to re-possess and use said property,” means the canal commissioners or such officers as the State may designate to have charge of the . canal property in the place of the commissioners, and does not mean the legislature.</p> <p>28. Same—when lease cannot be canceled except by canal commissioners. The right of one party to the “Kankakee feeder” lease of August 8, 1905, to declare the contract at an end without the consent of the other party must be strictly construed, and as long as the State continues the canal commissioners in charge of canal property, such commissioners are the only officers who may, under the contract, cancel such lease, and their discretion in that regard cannot be exercised by State officials in another department of the State government.</p> <p>29. Same—“Kankakee feeder” lease is not within joint resolution of 1 pop. The joint resolution of the legislature adopted on November 27, 1907, is directed against certain leases made by the canal commissioners on September 2, 1904, and does not include the “Kankakee feeder” lease, which was executed August 8, 1905.</p> <p>30. Same—canal commissioners may lease Kankakee feeder. The commissioners .of the Illinois and Michigan canal may treat the abandoned Kankakee feeder, and the lands and lots connected therewith, as other canal property, and may lease the same, during such time as it is not needed, for any lawful purpose which does not interfere with any right which the State may have to resume the use of such feeder for canal purposes.</p> <p>31. Same—the “pole lease" of September 2, ip04, is not void. The “pole lease,” executed between the canal commissioners and Harold T. Griswold September 2, 1904, does not give to the said Griswold control of the tow-path of the canal for the length of the line, but merely gives him the right to place poles under the direction of the commissioners, and there is no ground for declaring such contract void unless the line of poles erected thereunder interferes with the use of the tow-path and canal.</p> <p>32. Contracts—a contract by canal commissioners should be read in the light of the statute. Where a flowage contract made by the canal commissioners specifies no time for its duration it must be inferred that the contract was made with reference to the statute under which the commissioners were acting, and the contract should be read in the light of such statute, and, if it is possible, such a construction should be given the contract as to render it valid rather than one which destroys it.</p> <p>33. Sams—rule where one attempts to grant a greater estate than hechas. Where one attempts to grant a greater estate than he has, the conveyance will be effective to pass the estate which he has though the grant may be inoperative as to the greater estate.</p> <p>34. 'Sams—contemporaneous agreements should be construed together. Where different instruments are executed at the same time between the same parties with reference to the same subject matter, all of the instruments should be construed together in determining the real intention of the parties.</p>

<p>1. Deeds—when law presumes undue influence. In the case of a deed from child to parent, client to attorney or ward to guardian the law presumes undue influence, and if the good faith of the transaction is challenged the grantee has the burden of establishing such good faith.</p> <p>2. Same—the law does not presume tmdue infltoence in case of deed from parent to child. In the case of a deed from parent to child the law does not presume undue influence, and if any such presumption arises it must arise as a presumption of fact, based upon proof that the natural dominion of the parent has ceased and that his will has been overcome by that of the child, so that his act is not his own but the act of the child.-</p> <p>3. Same—when the grantee is not required to prove good faith. The grantee in a deed from father to son is not required to sustain the deed by proving the good faith of the transaction, unless the evidence shows that the grantor, by reason of old age or'other condition, has become subject to the dominion of the grantee.</p> <p>4. Same—fact that grantor divides property unequally is not evidence of mental weakness. A father may divide his property unequally among his children and may prefer one and cut off another, with or without reason; and the mere fact that he deeds the principal part of his property to his sons instead of dividing it equally among his sons and daughters is not evidence of mental weakness upon his part.</p> <p>5. Same—old age and feebleness not ground for setting aside deeds. If a father has sufficient mental capacity to comprehend naturally the transactions in which he is engaged when he conveys the principal part of his land to his sons, the mere fact that he was advanced in years and enfeebled by sickness is not ground for setting aside the deeds.</p>

Emery C. Graves, Judge, presiding. This was an action on the case commenced by William A. Lee, the appellee, against the Republic Iron and Steel Company, the appellant, in the circuit court of Rock Island county, to recover damages for a personal injury alleged to have been sustained by -the appellee while he was in the employ of the appellant, in consequence of the negligence of the appellant.

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

Writ op 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. Oscar E. Heard, Judge, presiding.

<p>1. Criminal law—party not entitled to instruction unless it is in proper form. The right of a defendant to an instruction with reference to his defense of alibi is the right to an instruction in proper form, and he is not entitled to one which calls attention to the evidence of the alibi alone.</p> <p>2. Same—the jury must consider whole evidence and not that touching an alibi alone. It is the duty of the jury in a criminal case to consider all the evidence, including the criminating evidence as'well as the evidence on the defense of alibi, as it is a reasonable doubt on the whole evidence, and not as to a particular fact, which will authorize acquittal.</p> <p>3. Rape—when a judgment of conviction will be reversed. A judgment of conviction for rape will be reversed by the Supreme Court where the only evidence for the People is that of the complaining witness, which is flatly contradicted by the defendant and other witnesses, and which is so unreasonable and inconsistent as to raise a grave doubt of the defendant’s guilt and to lead to the conclusion that the verdict was the result of passion or prejudice on the part of the jury.</p>

<p>x. Inpants—contract of infant is voidable though he is in business. The contract of an infant is, in general, voidable by him, and it gains no additional force from the fact that he is engaged in business for himself or is emancipated.</p> <p>2. Same—right of an infant to disaffirm contract exists for his protection. The exercise by an infant of his right to disaffirm his contract may operate injuriously upon the other party, but the right exists for the protection of the infant against his own improvidence and may be exercised entirely in his discretion.</p> <p>3. Same—fact that infant’s contract is executed does not preclude disaffirmance. The fact that the contract of an infant has been executed does not preclude its disaffirmance by him, as there is no distinction in that respect between executed and executory contracts. (Chicago Mutual Life Indemnity Ass. v. Hunt, 127 Ill. 257, explained.)</p> <p>4. Same—voluntary payments may be recovered by an infant— rule as to returning consideration. Voluntary payments made by an infant under his contract may be recovered when he disaffirms the contract, and while he must return such part of the consideration as remains in his possession, yet if he has lost or expended it it need not be restored.</p> <p>5. Same—when contract may be avoided either after or during minority. Contracts concerning personal property and executory agreements may be avoided by an infant either after or during his minority.</p> <p>6. Same—infant may disaffirm purchase of capital stock and. recover ptirchase money. Shares of stock in a corporation are personal property, and a purchase of such stock by an infant from the corporation may be disaffirmed by him during minority or after, and he may return the stock and recover the purchase money.</p> <p>7. Same—cancellation of stock certificate is restoration. In a proceeding by an infant against a corporation to repudiate his purchase of stock and recover the purchase money, a provision of the decree that the certificate of stock be canceled amounts to surrender of the stock by the infant and restoration to the corporation.</p>

<p>1. Fellow-servants—co-operation must be in particular employment. To make servants of the same master fellow-servants under the first branch of the fellow-servant rule, relating to cooperation, it is necessary that the servants, at the time of the injury, be co-operating with each other in a particular work, and it is not enough that they are servants of the same master and are co-operating in the general business.</p> <p>2. Same—whether relation of fellow-servants exists is a mixed question of law and fact. The definition of “fellow-servants” is for the court, but whether certain employees of a common master fall within that definition is a question of fact, and hence the question whether the relation exists in a particular case is a mixed question of law and fact.</p> <p>3. Same—condition under which the relation of fellow-servants becomes a question of law. The question whether the relation of fellow-servants exists becomes one of law only when there is no dispute with reference to the facts and when the evidence and all the legitimate conclusions to be drawn therefrom are such that all reasonable men will agree to the existence of such relation.</p> <p>4. Same—-freight crews in same “chain gang” are not necessarily fellow-servants. Members of a freight crew are not necessarily and as a matter of law fellow-servants of the members of another freight crew, even though both crews belong to the same “chain gang” on the same division of a railroad and are engaged in moving freight on such division over a double track railroad; and this is true though there is some evidence tending to show that the duties of the crews brought them into habitual association.</p>

<p>1. Executors and administrators—when debt of executor to estate must be treated as .paid. Where a debtor is appointed executor or administrator of his creditor’s estate, and he has at the time of such appointment sufficient property to pay his debts, including the one to the estate, the law regards the debt to the estate as paid and the amount thereof as cash in the hands of such executor or administrator, notwithstanding he may subsequently become insolvent.</p> <p>2. Same-—when refusal to permit sale of land to pay debts is proper. A petition by executors to sell land to pay debts of the estate should be denied where it appears that the alleged deficiency of assets is due to the failure of the executors, who were solvent at the time of their appointment, to charge themselves with the amount of their personal indebtedness to the estate and inventory the same as cash.</p>

<p>1. Taxes-—tax-payer who has failed to Me schedule may have assessment reviewed by board of review. Paragraph 329 of the Revenue act, relating to the review of assessments by the board of review, includes the review by such board of an assessment of personal property made by the board of assessors, under paragraph 313 of such act, against a person who failed or refused to file a schedule, for which failure the board of assessors has added a fifty per cent penalty to the assessment made by it against such person.</p> <p>2. Same—jurisdiction of board of review is revisory. Where the board of review reviews an assessment of personal property made by the board of assessors its jurisdiction is revisory and not original in character, and while it may affirm the action of the board of assessors or raise or lower the assessment in such manner “as shall appear to be just” it has no arbitrary discretion, and has no power to relieve a tax-payer of the penalty imposed by the board of assessors for failure to file a schedule.</p> <p>3. Same—rule where the board of review changes assessment carrying a penalty. If the board of review raises or lowers an assessment of personal property made by the board of assessors which carries a fifty per cent penalty for failure of the tax-payer to file a schedule, it must add to the “fair cash value” of such property, as determined by. it, fifty per cent of such value and extend the aggregate of these two amounts as the corrected assessment.</p>

<p>1. Contracts—ante-nuptial contracts are generally recognised as valid. Contracts between parties contemplating marriage, which seek to preserve to each the ownership and control of his or her separate property and to provide for a different disposition of the property at death than is provided by the statute governing the disposition of the estate of a deceased husband or wife, are generally recognized as valid by the courts, especially courts of equity.</p> <p>2. Same—rule where an estate is to vest upon happening of an event. Where an estate is to vest upon the happening of an event it must be shown that the event has taken place, and if the event consists. of several particulars it must be shown that every particular has been performed.</p> <p>3. Same—legal title to land does not vest by contract—specific performance. Where an ante-nuptial contract provides that upon the wife’s death the husband shall immediately become vested with the title to all her property, the legal title to her real estate does not vest in the husband at her death but vests in her heirs; but if the husband has complied with the conditions of the contract he becomes the equitable owner of the land and may compel specific performance against her heirs in a court of equity.</p> <p>4. Same—when provision that the wife’s property shall vest in husband cannot be enforced. Where a provision of an ante-nuptial contract that the wife’s property shall vest in the husband at her death is based upon the consideration, in part, that the husband will keep in force a certain existing life insurance policy, or its equivalent, during his life, the proceeds of which shall belong to the wife if she survives him, failure of the husband to keep the insurance in force defeats his right to enforce such provision against the heirs of the wife, either affirmatively or as a defense to their bill for partition.</p>

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

<p>Appeal from the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>1. Appeals and errors—effect where affirmance by Appellate Court is 'for a failure to comply with its rules. If the Appellate Court affirms a judgment or decree for non-compliance with its rules for the preparation and filing of briefs and abstracts, there is nothing which the Supreme Court may review on further appeal or writ of error, either with or without a certificate of importance.</p> <p>2. Same—Appellate Court must ñle opinion giving the reasons for its decision. Under the statute it is the duty of the Appellate Court to file a written opinion giving the reasons for its decision, and while error cannot be assigned on such opinion, yet the Supreme Court has a right to look into such opinion to ascertain what questions were considered and to avail itself of the benefit and aid furnished by the reasons given in such opinion, even though the affirmance or reversal of the judgment depends upon the correctness of the judgment, irrespective of the reasons given.</p> <p>3. Same—effect where Appellate Courfs opinion does not show reasons for judgment. If it is doubtful from the opinion of the Appellate Court whether it' affirmed a decree because of a noncompliance with its rules or because of its consideration of the merits of the case the Supreme Court will neither affirm nor reverse the judgment but will remand the cause to the Appellate Court, with directions to file an opinion stating distinctly the ground upon which the judgment is based.’</p>

<p>1. Divorce—wife granted a divorce for desertion cannot complain that it was not granted for cruelty. A wife who has been granted a divorce upon the ground of desertion has no substantial ground to complain, on appeal, that the trial court erred in not decreeing that she was entitled to a divorce for extreme and repeated cruelty, even though there is evidence in the record tending to sustain such charge.</p> <p>2. Deeds—party claiming deed svas conditional has burden of proof. One claiming that a deed in the usual form of warranty deed, without restrictions or reservations except the clause relating to payment of taxes, was conditional and that it was not to take effect or be recorded until his death, has the burden of proving such contention.</p> <p>3. Same—what tends to show that a deed was unconditional. The facts that a deed joined in by husband and wife, conveying property to the wife, contained a clause providing that the latter should pay taxes for the current year, and that the husband subsequently made repeated offers to the wife to trade property in which he had unquestioned title for that conveyed by such deed, tend to show that the deed was unconditional rather than that it was to be of no effect unless the husband failed to recover from the illness he was suffering from when the deed was made.</p> <p>4. Same—fact that party is dissatisfied with his act in deeding property is not ground for setting deed aside. The fact that one who has executed a deed voluntarily for what he then regarded as sufficient consideration, and without fraud or coercion on the part of the grantee, subsequently decides that the transaction was inequitable is not ground for setting aside the deed in equity.</p> <p>5. Same—when court will hold a deed to have been delivered. A court of equity will hold that a deed was delivered where the acts of the grantor and all the attending circumstances are such as to show that the deed was made by him to his wife in the nature of a voluntary settlement in view of their probable separation, and that he intended to relinquish all control over the deed.</p>

<p>1. Special assessments—prior to passage of Local Improvement act of ipoy condemnation judgment was conditional. Prior to the passage of the Local Improvement act of 1907 the exercise of the right of eminent domain, under article 9 of the Cities and Villages act, to acquire land for a public improvement and pay for the same by special assessment was practically the same, in the matter of the petitioner’s right to discontinue the proceeding, as under the Eminent Domain act, and the judgment was conditional upon the petitioner’s acceptance of the land.</p> <p>2. Same—section ¡2 of the Local Improvement act construed. Under section 32 of the Local Improvement act a judgment in a proceeding by á city to condemn land for a public improvement and pay for the same by special assessment is conditional up to the time when the petitioner, after final judgment as to all the defendants, is required to elect to enter the judgment.</p> <p>3» Same—right of a city to dismiss condemnation proceeding after judgment. Where, in a proceeding by a city to condemn land under Local Improvement act, judgment is rendered against all the defendants but one and the assessment roll is ordered to be re-cast, but no judgment is ever entered on such re-cast roll although the assessment is increased, new parties are brought in and new objections filed, the city has power to dismiss the proceeding without the consent of the parties whose land is sought to be condemned.</p>

<p>1. Appeals and Errors—Supreme Court cannot consider question of amount of damages in a negligence case. The amount of damages in an action for personal injury is purely a question of fact finally settled by the judgment of the Appellate Court and not subject to review in the Supreme Court.</p> <p>2. Same—appellee is entitled to damages if appeal was taken only for delay. Where the only question raised either in the Appellate Court or the Supreme Court is that the damages awarded in a personal injury case were excessive the appeal to the Supreme Court must be regarded as taken only for delay, and the appellee is entitled, under the statute, to damages on the amount of the original judgment.</p>

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

Writ op Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.

<p>Appeals from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.</p>

<p>Rear property—when remainder created by deed is contingent. The remainder created by a deed to a named person “during her natural life and at her death to her children surviving her, share and share alike,” is contingent, since the condition of survival may prevent the remainder from ever coming into possession and the conditional element is incorporated into the description of the remainder-men. (Lehndorf v. Cope, 122 Ill. 317, and Welliver v. Jones, 166 id. 80, distinguished.)</p>

<p>1. Specific performance—court will not compel vendee to accept clouded title. In specific performance the court will not compel the vendee to accept a title clouded with substantial defects, or one which he may be required to defend by litigation or which he cannot readily dispose of by reason of defects therein.</p> <p>2. Same—proof that vendor’s title is doubtful is good defense. Where the vendor in a contract for the sale of land has agreed to furnish an abstract of title showing good merchantable title in him, all the vendee need do to defeat a bill by the vendor for specific performance is to show that the title which the vendor was prepared to convey was doubtful in character.</p> <p>3. Same—time when sufficiency of abstract of title is to be determined. In specific performance the sufficiency of the abstract of title is to be determined as of the date when the abstract was to be furnished and the deal closed under the terms of the agreement, and not as of some time subsequent to the filing of the bill for specific performance.</p> <p>4. Jurisdiction—service by publication—sufficiency of the notice that decree has been entered. Under section 19 of the Chancery act, providing that a party who has not been served with summons or by copy of the bill and has not received the notice required to be sent him by mail in case of publication, shall have three years in which to petition to open the decree unless he is notified in writing of the entry of the decree, in which case he shall have one year from the receipt of such notice, the written notice of the entry of the decree must be something more than a mere letter from a co-defendant, stating, in general terms, the result of the litigation, of which the recipient of the letter has had no previous notice.</p> <p>5. Same—when an executor does not represent heir-at-law. An executor having merely a power to sell land at the end of the life estate and pay over the proceeds to named persons, including an heir of the testatrix, does not represent such heir to the extent that the making of the executor a party to a bill to reform the deed under which the testatrix held title to the land will render the decree binding on the heir, who was a non-resident of unknown address, who was not served by summons or by copy of the bill and who did not receive the notice of publication.</p> <p>6. Wiees—distinction between directions to executor to sell and devise to executor with power to sell. There is a distinction between a direction to an executor to sell real estate and a devise to the executor with power to sell, as in the former case the executor has" a mere naked authority to sell, the freehold remaining in the heirs until the sale, while in the latter case the authority to sell is coupled with an interest and the freehold vests in the executor immediately.</p> <p>7. Same—when a will does not vest legal title in executor as trustee. A will providing that the husband of the testatrix shall have the use of certain land during his life and upon his death the land shall be sold by the executor and the proceeds divided by him among named persons, does not pass the legal title to the executor as trustee but the title remains in the heirs of the testatrix until the sale.</p> <p>8; Abstracts oe titee—when abstract of title is defective. In specific performance the abstract of title must be held not to show good merchantable title, where it shows a decree reforming a deed less than three years before the time fixed for consummating the sale but fails to show that the court acquired jurisdiction of a necessary party to the proceeding in such manner as to bar his right to come in, under section 19 of the Chancery act, and petition to open the decree and defend the suit to reform the deed.</p>

<p>1. Fraud—to be a fraud in law a representation must be an affirmance of a fact. To constitute a representation a fraud in law, such as will justify setting aside an ordinary transaction of bargain and sale, the representation must be an affirmance of a fact and not a promise to do something in the future; and while a statement of a matter in the future, if affirmed as a fact, may amount to a fraudulent representation, it must amount to more than an agreement to do something in the future.</p> <p>2. Same—intention not to perform does not amount to fraud. A mere breach of contract in an ordinary business transaction does not constitute fraud in law, and neither the promisor’s knowledge of his inability to perform nor his intention not to perform will make the transaction fraudulent, as the rule applicable to conveyances made in consideration of the support of the grantors for life does not apply to ordinary bargains and transactions for gain.</p> <p>3. Deeds—when a deed will not be set aside as for fraudulent misrepresentations. Failure of the grantees of a coal right to keep their agreements (which constituted the sole consideration for the deed) to move a large industry upon the grantor’s land, build a railroad, employ a large force of men and to mine the coal and deliver grantor’s share to him free of charge, is not such fraud as justifies setting aside the deed and canceling it as a cloud on title.</p>

<p>1. Constitutional law—City Blection act is not unconstitutional. The registration provision of the City Election act is not unconstitutional, upon the ground that it amounts to a discrimination between legal voters in elections held in territory which is partly within and partly without the limits of the city which has adopted the provisions of such act.</p> <p>2. Local option—petition required by statute is jurisdictional. The petition required by the statute for an election under the Local Option act of 1907 is jurisdictional, and the proposition whether the territory shall become anti-saloon territory cannot be submitted until a petition which conforms to the statute has been filed with the proper authorities and within the time prescribed by the statute.</p> <p>3. Same—when petition must state that signers are duly registered legal voters. Under section 4 of the Local Option act, in a city where the provisions of the City Election law have been adopted, a petition to submit the question whether territory wholly or partly within such city shall become anti-saloon territory must state, and the affidavit must show, that all signers of the petition residing within the limits of the city are “duly registered legal voters,” and'it is not sufficient to state that they are legal voters.</p> <p>4. Same—how election should be held where territory is partly in city where City Blection act is in force. Where the town in which an election under the Local Option act is to be held lies partly within and partly without the limits of a city which has adopted the provisions of the City Election act, the board of election commissioners should conduct the election in the territory within the city limits and the legal authorities of the town should conduct the election in the territory without such limits.</p> <p>5. Same—how petition should be prepared where territory is partly within city where City Blection act is in force. Where a town lies partly within and partly without a city which has adopted the provisions of the City Election act, a petition for an election in such town under the Local Option act should be addressed to the town clerk and the board of election commissioners, should be signed in duplicate and verified to show that signers residing in the city limits are duly registered legal voters and that those residing outside are legal voters, one of which petitions should be filed with the town clerk and the other with the election commissioners sixty days before the election is to be held.</p>

<p>1. Real property—rule in Shelly’s case is a rule of property in Illinois. The rule in Shelly’s case is one of the most firmly established rules of property and is unshaken in this State.</p> <p>2. Same—the rule in Shelly’s case defined. Under the rule in Shelly’s case, which is in force in Illinois, if.an estate for life is granted by any instrument and the remainder is limited by the same instrument, either mediately or immediately, to the heirs of the life tenant, the latter takes the remainder and the life estate.</p> <p>3. Same—application of the rule in Shelly’s case does not turn upon quantity of estate given to ancestor. The application of the rule in Shelly’s case to a given case does not depend upon the quantity of the estate given to the first taker, whether a life estate or more, but upon the nature of the estate intended to be given to the heirs, whether by inheritance or otherwise.</p> <p>4. Same—all heirs taking as heirs must take by descent. When an heir takes in the character of heir he must take in the quality of heir and all heirs taking as heirs must take by descent.</p> <p>5. Same—effect of limitation to heirs by that name as a class. A limitation to heirs by that name as a class, to take in succession, from generation to generation, requires the inheritance imported by that limitation to vest in the first taker.</p> <p>6. Same—requisites, of rule in Shelly’s case. The requisites of the rule in Shelly’s case are a freehold estate; a limitation of the remainder to the heir or heirs of the body of the person taking the freehold estate by the designation of heirs as a class, without explanation, as meaning, sons, children, etc.; the estates of freehold and in remainder must be created by the same instrument and be of the same quality,—both legal or both equitable.</p> <p>7. Same—estate of ancestor and that of heirs need not be of same quantity. It is not essential to the application of the rule in Shelly’s case that the estate of the ancestor and the estate of the heirs be of the same quantity, and it is no objection that the life estate is in one-half the property, only, while the remainder is in the whole tract.</p> <p>8. Same—effect of merger of life estate and remainder in ancestor. The fact that the life estate of the ancestor in one-half the property may, by the death of the other co-tenant during the ancestor’s lifetime, become merged with the remainder in him, does not affect the application of the rule in Shelly’s case.</p> <p>9. Same—under rule in Shelly’s case there is no contingent remainder. Under the rule in Shelly’s case there is no contingent remainder which might be destroyed if it did not vest before the termination of the particular estate, since the remainder to the heirs is declared by the rule to be in the ancestor, the same as though it had been expressly given to him and his heirs.</p> <p>10. Same—when the estate in remainder vests at once. Where there is a limitation to several for their lives with a remainder in fee to the heirs of one of them, the estate in remainder vests at once in the ancestor to whose heirs it purports to be given; and it is immaterial whether the estate of the ancestor be such as may possibly determine in his lifetime or not.</p> <p>11. Deeds—when rule in Shelly’s case applies to deed. Where a statutory quit-claim deed conveys property to “Joseph Kretzer and Mora Kretzer, his wife, during their natural lives, and after their death to the heirs of said Joseph Kretzer,” the rule in Shelly’s case applies and the husband and wife take as tenants in common during their joint lives with the remainder in fee to the husband, and upon the wife’s conveyance of her estate to the husband he becomes vested with the whole title.</p>

<p>1. Joint tenancy—joint tenancy defined. A joint tenancy is where two or more persons have any subject of property, jointly, in which there is unity of interest, unity of title, unity of time and unity of possession.</p> <p>2. Same—at common law, words of negation were necessary to avoid creating joint tenancy. At common law a grant or devise to two or more persons without limitations created a joint tenancy, and words or circumstances of negation were necessary to avoid this result.</p> <p>3. Same—survivorship is chief characteristic of joint tenancy. The doctrine of survivorship is the chief characteristic of joint tenancy; but this doctrine is not in accordance with the spirit of our institutions, and hence in the United States this incident of estates has been abolished except in a few jurisdictions, and in those jurisdictions joint estates are much restricted by statutes.</p> <p>4. Same—act of 1821 practically abolished joint estates in Illinois. The act of January 15, 1821, which is now found as section 1 of chapter 76 of our statutes, (Hurd’s Stat. 1908, p. 1296,) practically abolished joint tenancies in Illinois, except in case of estates held by executors, trustees or others in autre droit.</p> <p>5. Same—act of 1827 permitted creation of joint estates by express words. The act of January 31, 1827, which is now found without substantial change as section 5 of the Conveyances act, (Hurd’s Stat. 1908, p. 489,) modifies the act of 1821 (now section 1 of chapter 76 of our statutes) to' the extent of authorizing the creation of joint estates possessing common law qualities and incidents, where the words used clearly indicate an intention to create a joint tenancy and not a tenancy in common.</p> <p>6. Same—words used must clearly show intention to create a joint tenancy. While it is not essential to the creation of a joint tenancy that the exact words of section 5 of the Conveyances act be used, yet the intention to create such estate must be so clearly expressed as to leave no reasonable doubt in the mind of the court of the purpose to create the estate.</p> <p>7. Same—if a division is contemplated the estate is in common and not joint. If the instrument creating an estate contains language from which it can be reasonably inferred that the maker contemplated a division of the property among purchasers, or from which it can be seen that a distribution, either in equal or unequal shares, was intended, such language will be held to negative an intention to create a joint tenancy and the purchasers take as tenants in common.</p> <p>8. Wiles—when will creates a tenancy in common and not a joint tenancy. A clause of a will by which the testator devises and bequeaths the residue of his estate to his wife and two named daughters, “and to the survivor or survivors of them, share and share alike,” creates a tenancy in common and not a joint tenancy, since the words “share and share alike” indicate a contemplated division of the estate among the devisees living at testator’s death, which is inconsistent with the existence of a joint estate.</p> <p>9. Same—what strengthens view that an estate created by will was not joint. The view that a clause of a will devising the residue of the testator’s property to his widow and two named daughters, “and to the survivor or survivors of them, share and share alike,” creates a tenancy in common and not a joint tenancy is strengthened by the fact that a previous clause of the will gave another daughter (the only married one) an estate for life in certain land with remainder to her children, share and share alike, and if she died without children the land should revert to the widow and the two other daughters “in equal proportion.”</p>

<p>1. Specific performance—proof required where agreement to convey is verbal. To justify a decree of specific performance of a verbal contract to convey, alleged to have been made by a deceased person, the proof must clearly show that the contract was, in fact, made, and that the promisee, in pursuance of the contract, took possession of the land and made such valuable and lasting improvements as to take the case out of the Statute of Frauds.</p> <p>2. Same—what proof is not sufficient to warrant decree. Proof of declarations by a deceased person in which he spoke of a certain forty acres as belonging to his son, and proof of the building by the son of hog houses, fences and other improvements on the land, aggregating some $300 or $400, during the six years he was in possession, is not inconsistent with the defendant’s claim that the son was merely given the use of the land for a hog lot for an indefinite time, and does not warrant a decree specifically enforcing the alleged oral agreement of the deceased person to convey the land to the son, who was the only witness who testified that such contract was made. (White v. White, 231 Ill. 298, distinguished.)</p>

<p>1. Laches—laches must be set up in answer. While the defense of laches may be raised by. demurrer in certain cases, yet if the defendant answers the bill and fails to set up" laches he will not be allowed to insist upon such defense on the hearing.</p> <p>2. Statute oe Frauds—a verbal agreement to extend time for redemption is valid. A verbal agreement to extend the time for redemption from a judicial sale is valid and is not affected by the Statute of Frauds.</p> <p>3. Mortgages—equity will permit redemption where owner of equity of redemption has been misled. A court of equity will permit redemption from a judicial sale where the owner of the equity has been misled by the course of conduct and representations of the purchaser and has been induced by such fraudulent representations or promises to refrain from redeeming until the time for redemption has expired.</p> <p>4. Same—when equity will grant redemption. A court of equity will grant redemption from a foreclosure sale where the evidence shows that the purchaser permitted the owner of the equity to make expenditures for taxes, improvements and in defending litigation, knowing that such expenditures were being made in reliance upon his promise to permit redemption after the statutory period had expired.</p> <p>5. Equity—court of equity will look to substance rather than form. A court of equity will look to the substance rather than the form of a written instrument, and will seek to discover and carry into effect the real intention of the parties and enforce it according to the sense in which it was understood by the parties as shown by subsequent acts and conduct with reference thereto.</p> <p>6. Appears and errors—the chancellor’s findings from oral testimony are not lightly set aside. Where the chancellor has heard the testimony by the witnesses in open court, his findings upon disputed questions of fact will not be disturbed, on appeal, unless manifestly against the weight of the evidence.</p> <p>7. Interest—when interest should not be decreed. The mere fact that the purchaser of property at a foreclosure sale, after the period for redemption has expired, refuses to concede the right of the owner of the equity of redemption to redeem and defends a suit in equity to enforce such right, does not justify a provision of the decree that such purchaser shall account for interest on certain condemnation money for part of the premises, deposited with the county treasurer after the suit was begun.</p>

<p>1. Highways—what is necessary to establish a public street by dedication. To establish a public street by dedication there must be an intention on the part of the owner of the land to dedicate it to the public for street purposes and an acceptance, of the offered dedication by the public, and the proof of such offer and acceptance must be clear, satisfactory and unequivocal.</p> <p>2. Same—there can be no acceptance by public of offer not to public. Where the proposed dedication of a strip of land by the owners is for the benefit of private parties and not for the public there can be no acceptance of the offer by the public such as will constitute the strip of land a public street by dedication.</p> <p>3. Same—what is necessary to establish a public street by prescription. In order to establish a public street by prescription the use and enjoyment of the land claimed as a street must have been adverse, under a claim of right, exclusive, continuous, uninterrupted and with knowledge and acquiescence of the land owner.</p> <p>4. Same—the use for which land was set apart is, presumed to continue. Where land is set apart by the owner thereof as a private way, the use of the land for such purpose will be presumed to have been in accordance with the original intent of the parties until the contrary is proven.</p> <p>5. Injunction-—when allowance of $300 as damages on dissolution is not excessive. An allowance of $300 as damages upon the dissolution of an injunction will not be regarded as excessive, where it is within the range of the testimony and merely reimburses the defendant for the solicitor’s fees which he has expended or agreed to pay in procuring such dissolution.</p>

<p>1. Inheritance tax—section 2 of Inheritance Tax act does not exempt remainders after life estates. Section 2 of the Inheritance Tax act is not intended to exempt remainders after life estates, but only certain life estates as specifically provided in that section.</p> <p>2. Same—what is the "beneficial interest” of a child in real estate. Under section 1 of the Inheritance Tax act, where a person dies intestate, leaving a widow and one child, the “beneficial interest” of the child in the real estate is the value of such real estate after deducting the cash value of the widow’s dower therein. (In re Estate of Kingman, 220 Ill. 563, explained.)</p> <p>3. Same—person should be taxed only on the beneñcial interest he receives. The intention of the legislature, as evidenced by sections 1 and 2 of the Inheritance Tax act, is that a person shall be taxed only on the beneficial interest which he receives.</p>

<p>This case is controlled by the decision in People v. Strassheim, 240 Ill. 279.</p>

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

<p>1. Evidence—if testimony is immaterial, alleged error in admitting it will not reverse. In a personal injury case, if, as claimed by the defendant, the question of what kind of work the plaintiff had been doing for his employer previous to the time of the accident is immaterial, alleged error in permitting the plaintiff to state what such previous employment was cannot be prejudicial and is not ground for reversal.</p> <p>2. Same—testimony cannot be complained of on appeal if abstract of record shows no objection thereto. Alleged error in permitting the plaintiff in a personal "injury case to show that he was instructed by his foreman to unload a car of cinders in a certain manner, without requiring him to show that the defendants had any notice of the manner it was being unloaded or of the foreman’s instructions, cannot be availed of an appeal, where the abstract of record shows no objection to such testimony.</p> <p>3. Same—what tends to show negligence in switching a partly unloaded car. Evidence tending to show that the defendant company coupled a switch engine onto a partly unloaded car of cinders which it had placed for unloading two days before, and that after moving the car some distance suddenly stopped it on a sharp curve, the outside rail of which was much higher than the lower one, and that the car, which had been unloaded on one side, only, tipped over as the unloaded cinders settled to the lower side, tends to show negligence in handling the car.</p> <p>4. Negligence—when question of defendanfs notice of condition of car is one of fact. Whether the defendant company was charged with notice that a car of cinders was unloaded on one side, only, is a question of fact and not of law, where the defendant had placed it for unloading and two days later coupled onto it in its partly unloaded condition and was engaged in switching the car when it tipped over.</p> <p>5. Same—fact that someone else is also negligent is no defense. Even though it may have been negligence for the plaintiff’s employer to instruct the plaintiff to unload cinders from one side of a car, only, and that such condition of the car was partly the cause of its turning over when the defendant was switching it, yet if the defendant’s negligence in the manner of handling the car also contributed to its tipping over, the alleged negligence of plaintiff’s employer does not excuse the liability of the defendant.</p> <p>6. Instructions—when instruction is not misleading. An instruction advising the jury that if the defendant was guilty of the negligence charged in the declaration and such negligence caused the plaintiff’s injuries, then the fact, if it was a fact, that the plaintiff’s employer was also guilty of negligence in ordering him to unload the car in a certain way was no defense, is not misleading, as giving the jury to understand that the manner in which the car was unloaded, even if it caused it to tip over, was no defense, particularly where another instruction required the jury to find defendant not guilty if they found that the sudden stopping of the car on a sharp curve was not the cause of its tipping over.</p> <p>7. Appeals and Errors—Appellate Court’s judgment of affirmance settles fact of negligence. If there is any evidence sufficient to go to the jury upon the question of the defendant’s negligence, the fact of such negligence is settled by the judgment of the Appellate Court upholding the conclusions of the jury and trial court.</p>

<p>Appeals and Errors—when a judgment must be affirmed for want of bill of exceptions. Absence of a bill of exceptions from the record in a criminal case requires an affirmance of the judgment below, where the only errors assigned which are argued in the brief of the plaintiff in error are that the trial court erred in the admission of evidence and that the verdict is contrary to the evidence, as neither of such .assignments can be considered without the evidence, and the court’s rulings thereon, being preserved by a bill of exceptions and incorporated in the record.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge, presiding.</p>

<p>1. Reae property—possession of grantee is notice though deed is not recorded. Possession by a grantee under a deed conveying title to him is notice of his rights though he fails to record the deed, and a subsequent purchaser from the former owner takes title subject to the rights of such prior grantee.</p> <p>2. Same—when possession by grantee of fee is notice. Where a daughter purchases from a third person the fee of land in which her mother has a life estate, and the mother releases, by parol, her life estate tq the daughter in consideration that the latter will move upon the premises and improve the same, the moving upon and improvement of the premises by the daughter constitute possession such as is notice of her rights to persons dealing with her vendor though her deed was not recorded.</p>

<p>1. Scire eacias—bail—purpose of scire facias on forfeited recognizance. The purpose of a scire facias upon a forfeited recognizance is to give the parties an opportunity to show cause why judgment should not become absolute; but it is wholly immaterial whether the cognizor is guilty or innocent of the criminal charge against him, and that question cannot be inquired into.</p> <p>2. Same—fact that act upon which criminal charge is based is unconstitutional is no defense. A person under recognizance to appear and answer a charge against him cannot disregard his obligation to appear, and afterwards, in a scire facias proceeding upon the forfeited recognizance, attempt to justify his default upon the ground that the law upon which the criminal charge was based is unconstitutional. *</p> <p>3. AppEaes and errors—when appeal in scire facias proceeding should go to Appellate Court. A scire facias proceeding upon a forfeited recognizance is a civil suit to enforce a contract liability, and an appeal therein lies to the Appellate Court in the first instance, in the absence of any special ground for a direct appeal to the Supreme Court.</p> <p>4. Same—when alleged unconstitutionality of statute does not give Supreme Court jurisdiction. Since the unconstitutionality of the statute upon which a criminal charge is based cannot be urged in defense of a scire facias proceeding upon the forfeited recognizance of the person charged with such crime, the fact that the constitutionality of the act is attacked in such proceeding does not give the Supreme Court jurisdiction of a direct appeal from the judgment therein.</p>

<p>1. Deeds—certificate of acknowledgment cannot be impeached by unsupported testimony of the grantor. A statutory certificate of acknowledgment to a deed cannot be overcome by the unsupported testimony of the grantor.</p> <p>2. Same—proof of fraud must be clear to overcome certificate of acknowledgment. While, as between the parties to a deed, the certificate of acknowledgment may be impeached for fraud, collusion or imposition it cannot be otherwise attacked, and the evidence upon the issue of fraud, collusion or imposition must be so complete and reliable as to fully satisfy the court that the certificate is fraudulent and untrue.</p> <p>3. Same—what evidence does not overcome certificate of acknowledgment. A statutory certificate of acknowledgment to a deed made by a grantor who could neither read nor understand English is not overcome by her testimony that she remembered nothing about signing a deed or what was said at the time because she was sick but that her mind was clear and she did not lose it, where the notary testified that the grantor was sick but that the deed was explained to her, at her request, in language she understood, and that she said “All right," and signed the deed.</p> <p>4. Undue influence—a charge of fraud and circumvention is inconsistent with claim of undue inñuence. A charge of fraud and imposition in the execution of a deed is inconsistent with a claim that the deed was voluntarily executed by the grantor through the exercise of undue influence; and a finding in the decree that the deed was not knowingly executed is also inconsistent with a claim of undue influence.</p> <p>5. Fiduciary relations—when fiduciary relation does not exist. A fiduciary relation.does not arise from the mere fact of the relationship existing between the grantor and her daughter, who was the mother of the grantees.</p>

<p>1. Appeals and errors—Appellate Court’s approval of verdict settles the facts. If there is evidence sufficient to go to the jury upon a question of fact, the finding of the jury on that fact, when approved by the trial court and the Appellate Court, settles such fact, and no question of the credibility of the witnesses, or whether the evidence is sufficient to sustain the verdict or whether the weight of the evidence is against the verdict, can be raised in the Supreme Court.</p> <p>2. Negligence—place where body was found after explosion is not conclusive that deceased was there before. The fact that the place where the body of a miner was found, after an explosion, was some two hundred and sixty feet beyond the room where he was required to work is not conclusive that he was at that place at the time of the explosion, where there is some evidence that the rebound of the explosion might have blown the body there from the room where deceased was required to work.</p> <p>3. Mines—section 18 of the Mines and Miners act is for protection of all the employees. The provisions of section 18 of the Mines and Miners act relating to the daily examination and inspection of the mines and the daily record to be kept of such inspection are for the protection of all who are employed in the mines, including engineers, firemen, pumpmen, shot-firers, drivers and other workmen and employees.</p> <p>4. Same—a mine manager may also act as mine examiner. A person who is authorized to act as mine manager in Illinois may also act as mine examiner; but the refusal of an instruction to that effect in a personal injury case is not erroneous, where the defendant’s mine manager does not claim to have made any examination or report of the condition of the mine and there is no evidence that he made any such examination.</p> <p>5. Instructions'—■substantial repetitions of instructions may be refused. It is not reversible error to refuse instructions the substance of which is included in other instructions given to the jury.</p> <p>6. Same—party cannot complain of error in instruction for opponent if his own instruction has same error. A party will not be permitted to complain, on appeal, of an error in his opponent’s instruction where his own instruction contains the same error.</p> <p>7. Evidence—in an action for death, proof that deceased supported family is proper. In an action for negligent killing, proof of the resources of the widow or next of kin, or their financial condition at the time of or since the death of the deceased, is not admissible, but it is not error to allow questions concerning the earnings of the deceased and whether the wife and children were supported by him; and this is true whether the action is under section 33 of the Mines act or under section 2 of the Injuries act. (Jones & Adams Co. v. George, 227 Ill. 64, and McCarthy v. Spring Valley Coal Co. 232 id. 473, distinguished.)</p> <p>8. Triad—matter of cross-examination rests largely with trial court. The latitude to be allowed in the matter of cross-examination rests largely in the discretion of the trial court, and a cause will not be reversed for alleged error in rulings on cross-examination unless it is clear that such discretion has been abused.</p>

Julian W. Mack, Judge, presiding. The appellant, the Sanitary District of Chicago, filed its original bill of complaint in this cause in the circuit court of Cook county on the 7th day of August, 1908. The Metropolitan West Side Elevated Railway Company, the Aurora, Elgin and Chicago Railroad Company and the city of Chicago were made defendants.