Volume 244 — Illinois Reports

<p>1. Practice—general rule where a chancery case is remanded. When a chancery case is remanded by the Supreme Court with directions as to the decree to be entered, the trial court can only carry such directions into effect, and cannot permit the pleadings to be amended or new pleadings to be filed so as to change the issues and require a re-trial upon the facts.</p> <p>2. Same—when Ming an alleged supplemental bill does not reopen the case. Where the Supreme Court has remanded a chancery case with directions as to the decree to be entered, the filing of an alleged supplemental bill reciting the history of the litigation and stating what sort of a decree has been directed to be entered does not re-open the case for a trial of new issues raised by answers to such supplemental bill.</p> <p>3. Same—when question of homestead cannot be injected into case after remandment. Where the Supreme Court, upon the first appeal in litigation involving an oil and gas lease, holds that the question of the lessor’s homestead was not raised by the pleadings, or, if raised, was waived, and upon second appeal directs the entry of a decree omitting all reference to the homestead estate, the question of such homestead cannot be put in issue and tried upon re-instatement of the case.</p> <p>4. Same—when Supreme Court may modify decree. Where a decree limiting an injunction, in accordance with the mandate of the Supreme Court, contains a provision which, in effect, nullifies the limitation directed, the Supreme Court may modify the decree by eliminating such nullifying provision therefrom.</p>

<p>1. Witnesses—an administrator is a competent witness in his own behalf in suit on note. An administrator is a competent witness in his own behalf in a suit by him to collect notes due the estate even though his wife is sole heir of the intestate, as the disqualification of the statute is not against the party suing or defending as administrator, but against the party suing or defending adversely to the administrator.</p> <p>2. Practice—effect of Appellate Courfs first decision as to its being the law of the case. The fact that the Appellate Court’s decision of a question of law upon first appeal may be binding in that court as the law of the case upon subsequent appeals does not bind the Supreme Court to such view of the law.</p> <p>3. Same—general rule as to estoppel to assign error on subsequent appeals. It is a general rule that where a cause has been remanded with directions, the party appealing will not, upon subsequent appeals, be permitted to assign for error any matter which occurred prior to the first appeal and which he could have assigned for error on such appeal.</p> <p>4. Same—when a party is not estopped by a failure to assign cross-error. Where a judgment in favor of an administrator is reversed by the Appellate Court upon the ground that statements made by him when offered as a witness were prejudicial to the defendants though the trial court held him to be an incompetent witness and excluded his statements, and the cause is remanded without directions, the fact that he did not assign cross-error on the ruling of the trial court holding him to be incompetent does not estop him from assigning a like ruling as error upon his appeal from a judgment for the defendants in a subsequent trial.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.</p>

Writ or Error to the Branch Appellate Court for the Eirst District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.

<p>Appeals and Errors—order of severance must be entered before cause is taken. Where the co-plaintiffs in a writ of error who have failed to appear and assign error have been summoned, an order of severance must be obtained as to them before the case is taken under advisement, and if the case is inadvertently taken under advisement through an error of the clerk in noting the case as ready though no order of severance had been entered, the order taking the cause will be set aside.</p>

<p>1. County seats—ground of equity jurisdiction in contests had prior to act of i8ps. Prior to the act of 1872, providing for the removal of county seats, courts of equity had taken jurisdiction of the county seat election contests, not because the contest of an election was' either an action at law or a case in equity, but for the purpose of determining where the citizens of the county had a legal right to transact business, and the question of the legality of the votes was only incidentally involved.</p> <p>2. Elections—general Flection law and County Seat Flection law must be construed together. The act to provide for the contest of elections for the removal of county seats and the general Election law were passed by the same legislature, took effect on the same day, related to the same subject matter and are not inconsistent with or repugnant to each other, and being contemporaneous and in pari materia must be construed together.</p> <p>3. Same—when proceeding to contest county seat election must be brought. The general limitation contained in section 117 of the general Election law, requiring a proceeding to contest an election upon any subject which may by law be submitted to a vote of the people of the county to be begun within thirty days after the result of the election shall have been determined, applies to elections for the’ removal of county seats.</p> <p>4. Same—contest of election for removal of county seat cannot be reviewed on writ of error. A proceeding to contest an election for the removal of a county seat is a purely statutory proceeding in which a writ of error is not a writ of right, and the only mode of bringing such proceeding to the Supreme Court for review is by an appeal, as provided in the general Election law, and not by writ of error.</p>

<p>i. Criminal law—what does not show that grand jury was not legally constituted. The fact that the record of the board of supervisors in which the names of persons selected as grand jurors appear does not give their respective townships does not show that the grand jury was not legally constituted, where the certificate of the county clerk does state such townships and shows that no two of the grand jurors were from the same township.</p> <p>2. Same—proof of condition of deceased’s family is improper in murder trial. In a murder trial it is error to permit the State’s attorney to make statements and introduce proof to the effect that the deceased was one of five children and that the father was dead and the mother left with the other four children without means of support, as such matters have no bearing on the guilt of the accused and tend only to prejudice the jury against him.</p> <p>3. Same—when proof of trouble .between accused and his wife is improper. In a trial for the murder of a girl employed in the family of the accused, proof that the accused and his wife did not get along well together and that he made disrespectful remarks about her is incompetent; and even though the evidence is stricken out, it is highly improper for the State’s attorney to comment on it in his argument and insist that he differed with the court and that the evidence should have remained in, giving his reasons for his views in that respect.</p> <p>4. Same—fact that the defendant did not testify should not be commented upon. A State’s attorney may, without violating the statute forbidding reference to or comment upon the fact of the defendant not testifying, refer to the testimony of the witnesses for the People and call attention to the fact that such testimony was not contradicted even though the defendant is the only person who could contradict it, but it is improper for the State’s attorney to make use of such privilege for the purpose of calling the jury’s attention to the fact that the defendant did not testify.</p> <p>5. Same—State’s attorney cannot assume facts not in evidence and base argument thereon. While great liberty is permitted in the argument to the jury of the facts shown in evidence by the testimony in a criminal case, yet the State’s attorney is not at liberty to assume or state as facts matters not in evidence and base an argument thereon.</p> <p>6. Same—statements and explanations of State’s attorney can not take the place of evidence. Where the most damaging, statement by a witness against the defendant in a murder trial does not appear in the transcript of his testimony at the coroner’s inquest and the stenographer who made the transcript testifies that she does not remember that such statement was made, it is proper to show by evidence, if it is a fact, that the statement was made but was omitted from the transcript, but it is error to permit the State’s attorney’s explanations, statements and arguments to take the place of evidence.</p> <p>7. Same—what action by State’s attorney is reversible error. Where the name of the wife of the defendant in a murder trial is endorsed on the indictment as a witness and the verdict of the coroner’s jury recommending that both the defendant and his wife be held to the grand jury is read to the jury by the State’s attorney, it is reversible error to permit comments by the State’s. attorney the effect of which is to inform the jury that the defendant’s wife had been before the grand jury and that she had not been indicted, the inference .being that her story exonerated her and placed the blame on the defendant, where it belonged.</p> <p>8. Same—remarks tending to show that defendants wife is aiding prosecution are prejudicial. . Where it appears that a witness for the prosecution in a murder trial, who, when called by the defendant’s counsel to prove the time of a certain transaction, testilled at variance from her previous statement to the defendant’s counsel, has refreshed her memory since her conversation with him by talking to someone in the State’s attorney’s office, it is prejudicial error to permit the State’s attorney to remark that she had talked to the defendant’s wife, thus giving the jury to understand that defendant’s wife was at the State’s attorney’s office and aiding the prosecution.</p> <p>9. Same—-what evidence is admissible in murder trial. Where the theory of the prosecution in a murder trial is that the defendant poisoned the deceased in an attempt to conceal his previous unlawful relations with her, proof that the deceased, who was a young girl, was pregnant at the time of her death, and proof of circumstances tending to show that the defendant was or might have been the father of the unborn child, is admissible.</p> <p>10. Same—when proof of statements by the defendants wife is not erroneous. Proof of statements made by the defendant’s wife to a doctor and another person in explaining how her attention was first called to the fact that something was the matter with the girl the defendant is charged with murdering and what the condition of the girl was when she was found by the defendant’s wife is not erroneous, where there is nothing in such statements prejudicial to the defendant or in any way connecting him with a crime.</p> <p>11. Same—when a new trial should he granted for misconduct of a juror. Where the affidavits in support of a motion for new trial, in a murder case clearly show that one of the jurors was prejudiced against the defendant when accepted, and that he not only concealed that fact but made untruthful statements in doing so, and no attempt is made to contradict such affidavits by a denial by the juror or counter-affidavits froth any source, a new trial should be granted.</p> <p>12. Same—court should preserve order and decorum at a trial. While a trial is public hearing, which people have a right to attend as spectators, yet they must conduct themselves in an orderly manner and should not be permitted to manifest their prejudice or partisanship or give expression to their pleasure by cheering and clapping hands, and if such demonstration does occur it is the duty of the court to prohibit its repetition and resort to necessary means to preserve order and decorum.</p>

<p>1. Appeals and errors—-error in any judgment in the case is open to review on writ of error. An appeal is a purely statutory remedy, and if a final judgment in the case is not appealed from in time, it is not open for review on appeal from a later judgment; but a writ of error brings up the entire record, and any error may be corrected, whether it be in the judgment to which the writ of error was taken or in another judgment in the case.</p> <p>2. Same—all final orders in levee drainage proceedings may be reviewed in one writ of error. Error in the final order organizing a levee drainage district, as well as error in the final order fixing damages and benefits in the condemnation proceeding and confirming the assessment, may be reviewed on one writ of error which brings up the entire record.</p> <p>3. Same—effect of amendment of section 16 of Levee act in ipop. The amendment of section 16 of the Levee act in 1909, providing that the order organizing the district shall be final and allowing separate or joint appeals or writs of error, so far as it affects the procedure by appeal or writ of error, supersedes the old law in cases where the appeal had not been perfected or' the writ of error sued out before such amendment went into effect.</p> <p>4. Same—general limitation of Practice act applies to writ of error to review final order organising a levee drainage district. A writ of error can be sued out at any time within three years to review any final order organizing a levee drainage district, under section 16 of the Levee act as amended in 1909.</p> <p>5. Same—when exception to final order organising levee district is unnecessary. If an error in the organization of a levee drainage district appears upon the face of the record of the county court it may be taken advantage of by any property owner interested, without objections and exceptions to the final order organizing the district being preserved by a bill of exceptions.</p> <p>6. Drainage—every fact essential to jurisdiction to organise a district must appear in the record. In establishing drainage districts the county court derives its jurisdiction from the statute alone, and every essential fact must be affirmatively shown by the records, as no presumption arises to support its jurisdiction.</p> <p>7. Same—petition complying with statute is essential to jurisdiction of court. A petition complying with the statute is essential to the jurisdiction of the county court to organize a drainage district, and such petition should be so drawn that it can be ascertained therefrom that it is signed by owners representing the necessary proportion of individuals and acreage, and the boundary lines must be so described that they can be traced on the map.</p> <p>8. Same—when petition furnishes no basis for amended petition. If the original petition to organize a levee drainage district is so defective that it cannot be ascertained with accuracy what the boundaries of the district are or whether it has the requisite number of signers required by the statute, it furnishes no legal basis for an amended petition and does not authorize the organization of a district.</p>

Erank D. Ramsay, Judge, presiding. This was a bill in chancery filed in the circuit court of Mercer county by the appellee, against the appellant, for the partition of certain real estate which belonged to Anna Dellitt at the time of her death, and for a construction of the will of said Anna Dellitt.

W. G. Cochran, Judge, presiding. The DeWitt County Building Association filed a bill against U. S. Lyons and wife to foreclose a mortgage executed by them, and made E. R. Mickelberry, John E. Welch, the DeWitt County National Bank and others defendants.

<p>1. Drainage—power of court to change name of district. Under section 12 of the Levee Drainage law, as amended in 1881, the county court had power, in organizing a drainage district, to change the name of the district at the same time and by the same order that the boundaries of the district were changed, upon recommendation of the commissioners.</p> <p>2. Same—when order organising a district cannot be attacked on quo warranto. If the county court, in organizing a drainage district, had jurisdiction of the parties and the subject matter, the order organizing the district, even though it be erroneous, cannot be attacked by a proceeding in the nature of quo warranto.</p> <p>3. Same—non-user of corporate powers does not work dissolution of district. A drainage district, while it is not strictly a municipal corporation, is a public corporation, which can cease to exist only by legislative consent or pursuant to legislative provision, and mere non-user of its corporate powers for a period of years does not work a dissolution of the district.</p> <p>4. Same—a drainage district can be dissolved only under the statute. A drainage district can be dissolved only under the authority of the act of 1889, which authorizes dissolution of a district only when no indebtedness of such district exists, hence a drainage district having outstanding bonds cannot be dissolved, even on petition of the land owners.</p> <p>5. Same—failure to elect commissioners for several years does not work dissolution. Drainage commissioners duly chosen hold office until their successors are chosen and qualified, and if there is a failure for several years to choose commissioners, the county court may, under section 62 of the Levee act, appoint commissioners upon petition of land owners of the district.</p>

<p>1. Real property—restrictions upon the use of property are in the nature of an easement. Restrictions upon the use of property, which are imposed as a part of a general plan for the benefit of the several lots, give the purchasers a right in the nature of an easement, which will be enforced in equity, upon equitable principles, against the grantee of a lot; but such restrictions are not favored in law, and doubts are, in general, resolved against them.</p> <p>2. Same—equity will not enjoin breach of building restriction abandoned or waived. A court of equity will enjoin the breach of a building restriction where the intention is clearly manifested and the enforcement is necessary for the protection of substantial rights, but equity will not enjoin the breach of such a restriction if the original plan has been abandoned or the right waived.</p> <p>3. Same—what constitutes a breach of a building line restriction. Swell fronts or “bays,” which extend over the established building line and which run up the whole height of the building, from the basement to the roof, and are on a continuous foundation with the building, with continuous walls of the same material, are substantial parts of the building and their erection is a breach of the building line restriction.</p> <p>4. Same—when court of equity is not justified in establishing new building line. The fact' that part of the lot owners in a block, in violating a building line restriction, have erected their buildings in a uniform and symmetrical manner does not authorize a court of equity, at their instance and.against the will of any other lot owner, to establish a new building line which will conform to their buildings.</p> <p>5. Injunction—parties who violate a building line cannot enjoin violation by others. Lot owners who violate a building line restriction to suit their own desires and convenience cannot enjoin a violation of such restriction by another lot owner upon the ground that he is violating such restriction to a greater extent than they did.</p>

<p>Judgments and decrees—authorized agent and solicitor may petition to open decree. Section 19 of the Chancery act, permitting parties not summoned or served, or who failed to receive the notice sent to them by mail, to appear and petition to open the decree'within the time limited by such statute, does not require that such persons shall personally appear in court, and it is sufficient if they file a petition through a duly authorized agent and solicitor.</p>

Appeal, from the Appellate Court for the Second District heard in that court on appeal from the Circuit Court of Rock Island county; the Hon. W. H. Gest, Judge, presiding. This was a bill filed by appellant for the construction of the will, and first codicil thereto, of his father, George Wagner, deceased. George Wagner died testate January io, 1907, leaving three adult sons, Robert A. Wagner, Ernst Wagner and appellant, George Wagner, as his only heirs-at-law.

D. N. Walker, Judge, presiding. This is an appeal by the commissioners of the Meredosia Lake Drainage and Levee District, and certain petitioning land owners, from a judgment of the county court of Cass county striking from the files the commissioners’ roll of assessments of benefits and damages and dismissing the proceedings for an additional assessment on the lands of said district.

<p>1. Taxes—what objection is not a jurisdictional one. An objection that the description of the improvement given in the publication notice and the judgment sale and redemption record varies from the description given in the ordinance for the improvement, in that the former specify a curbing of wooden blocks while the latter specifies limestone, is not a jurisdictional objection to be raised by special appearance, but is an objection going to merits.</p> <p>2. Same—the publication notice and delinquent list need not describe improvement. It is not necessary that the publication notice and delinquent list shall set out a description of the improvement for which the assessment was levied, and if a description is given which varies from that given in the ordinance, such description may be stricken out as surplusage.</p> <p>3. Same—a publication notice gives jurisdiction of person of land owner. A publication notice in a proceeding by the collector for judgment and order of sale for a delinquent special assessment gives the court jurisdiction of the person of the owner of the land described, even though the attempted description of the improvement for which the assessment was levied is incorrect, there being no claim that the improvement attempted to be described is not the improvement for which assessment was levied.</p>

<p>Writ or Error to the Circuit Court of McLean county; the Hon. Corostin D. Myers, Judge, presiding.</p>

<p>.Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.</p>

Appear from the Circuit Court of Piatt county; the Hon. W. G. Cochran, Judge, presiding. f This was a bill filed by appellants for the partition of certain real estate described, and to set aside as a cloud upon the title of the complainants the will of Ann Maria Moore Read. Appellants claim title to the land under and by virtue of the provisions of the will of Thomas Stafford.

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

<p>1. Deeds—when grantor’s act in executing deed is valid. Although the itiind of the grantor may be impaired by disease incident to old age, still if he is capable of transacting ordinary business and understands the nature of the business in which he is engaged and the effect of what he is doing, and can exercise his will with reference thereto, his act in executing the deed is valid.</p> <p>2. Same—when deed will not be set aside. A deed made by a grantor conveying a portion of his farm will not be set aside even though his mind may have been somewhat impaired by disease incident to old age, where it appears the sale was not an improvident one and that the grantor at the time had the advice of his wife and two adult sons with reference to selling the land, which brought substantially what it was worth at the time of the sale, which was made to raise money to pay off one of several mortgages with which the grantor’s property was encumbered.</p> <p>3. Evidence—presumption, before inquest found, is in favor of sanity. The presumption of law, before inquest found, is in favor of sanity, and one alleging insanity has the burden of proof.</p>

<p>1. Pleading—when admission of law is not binding. An admission of law, made by the defendant in' its answer, which was not intended to deceive and which did not deceive or prejudice the complainant or have any influence upon the action of the court, is not binding and may be stricken out.</p> <p>2. Same—parties cannot, by their admissions of law, bind the court to adopt their viezv. Parties cannot, by their admissions of law arising out of an undisputed state of facts, bind the court to adopt their view, although if an admission is made through fraud, or if it has induced the opposite party to take a position he would not otherwise have assumed, the party making the admission may be estopped to repudiate it.</p> <p>3. Canals—canal trustees had same power to plat land as the commissioners had. The canal trustees appointed under the act of 1843 had the same powers and duties with respect to the subdivision of canal lands, and the platting and sale thereof, as were possessed by the canal commissioners.</p> <p>4. Municipal corporations—track elevation ordinance does not work a reverter of fee in street. The Chicago track elevation ordinance, in so far as it affects the elevation of the railroad tracks in Stewart avenue from Thirty-first to Thirty-ninth street, does not amount to such vacation of that portion of Stewart avenue as effects a reverter of the fee to the abutting property owners or the dedicator. (Weage v. C. & W. I. R. R. Co. 227 Ill. 421, and People v. G. T. W. Ry. Co. 232 id. 292, adhered to.)</p>

<p>Parent and child—presumption is that a voluntary deed from child to parent is fraudulent. Where a parent obtains a conveyance of real estate from his child without consideration, particularly if the child is not bright mentally, it will be presumed that the transaction was fraudulent, and the deed will be set aside by a court of equity, as against the parent or his grantees with notice, unless it is clearly shown that the transaction was fair.</p>

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. William H. McSurELY, Judge, presiding.</p>

William H. McSurELY, Judge, presiding. Francis H. Buzzacott, on the igth day of November, 1901, entered into a contract in writing with the Dauntless Manufacturing Company, a Wisconsin corporation doing business at Beaver Dam, Wisconsin, to manufacture army ranges and to deliver them to Buzzacott, f. o. b. cars at Beaver Dam, for $20 each.

<p>Appeals and errors—when a constitutional question is not involved. A constitutional question is not involved, so as to give the Supreme Court direct appellate jurisdiction, where the constitutional question raised in the trial court is not argued in the brief, which argues another constitutional question not raised in the court below.</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. Marcus Kavanagh, Judge, presiding.

<p>1. Registration oE title—examiner should require applicant to give his street address if requested. Where the original and amended applications to register title, together with the report of the first examiner, are missing from the files, the second examiner should require the applicant to furnish his street address if requested by the defendantbut it will not be presumed, in a court of review, that such address was not given in the original and amended application if there is nothing in the record to show that fact and the examiner reports that the application w.as in the form required by statute.</p> <p>2. Same—when party cannot complain that original documents were not returned. A defendant to an application to register title is not in a position to complain that the examiner returned copies of certain, documents in his report instead of the original instruments offered in evidence, where such defendant did not make a motion or request to the court for a rule on the examiner to report the evidence and file the same, but merely requested the examiner to return the evidence.</p> <p>3. Same—decree should provide for reimbursement tó holders of tax deeds before title is registered. A decree in a proceeding to register title should not only require reimbursement to holders of tax deeds as a condition precedent to setting the deeds aside, but should also require such reimbursement as a condition precedent to registering title; and it is error to direct immediate registration of title and provide that if the holders of the tax deeds are not reimbursed within a certain period the decree as to so much of the land as is covered by the tax deeds shall be vacated.</p> <p>4. Appeals and errors—a party cannot insist upon error not shown by transcript. A party cannot insist upon an alleged error which is not shown by the (transcript of record.</p>

<p>1. Specific performance—when specific performance will not be denied. Where an heir, in buying out the interests of his brothers and sisters in a farm, agrees verbally with one sister to leave the farm and his personal property to her if she will convey her interest to him and live with him and assist in carrying on the farm, a court of equity will not, after his death, deny specific performance as being unfair to the other heirs merely because the brother’s estate, through the joint efforts of himself and complainant, has greatly increased in value since the contract was made.</p> <p>2. Same—when exclusive possession is not necessary to take case out of the Statute of Frauds. Where a sister, in accordance with her brother’s verbal agreement to leave a farm and his personal property to her, conveys her interest in the farm to him and resides with him upon the farm, doing the housework and assisting him in running the farm for some seventeen years, until the brother’s death, there is such possession by the sister, even though not exclusive, as takes the case out of the operation of the Statute of Frauds.</p> <p>3. Evidence—when a contract cannot be repudiated. Where a contract by which a sister agrees with her brother to live with and care for him and assist him in carrying on a farm in consideration of his leaving the farm and his property to her at his death is fully carried out by the sister up to the time of the brother’s last illness, no act or word of his at that time can operate as a repudiation of the contract without the sister’s consent, and his statements, during such illness, concerning the disposition of his estate inconsistent with the existence of the contract are not admissible to show the contract was not made.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.</p>

<p>1. Appeals and errors—when freehold is involved in proceeding to sell land to pay debts. In an ordinary proceeding by an administrator to sell land to pay debts no freehold is involved and the case should be reviewed by the Appellate Court, but where it is sought to set aside a deed of the deceased and subject the land to sale a freehold is involved and the Supreme Court has direct appellate jurisdiction.</p> <p>2. Deeds—a conveyance in fraud of creditors is binding upon the parties. As between the parties to a conveyance made in fraud of the grantor’s creditors the deed is binding and the grantor retains no legal or equitable interest in the property, and it is only creditors who can assail the transaction.</p> <p>3. Same—an administrator cannot seek to set aside intestate’s deed as in fraud of creditors. An administrator occupies the same position as the intestate with reference to a voluntary conveyance made by the intestate, and he cannot, in a proceeding to sell land to pay debts, have such conveyance set aside as fraudulent as to him and the creditors of the intestate, notwithstanding the amendment of 1887 to the Administration act, authorizing an administrator to petition to sell land to which the deceased “had claim or title” at his death. „</p>

<p>1. Dram-shops -—facts in dram-shop case are settled by verdict of fury'. If the evidence tends to show that plaintiff’s intestate was intoxicated at the time he met his death and that the liquor sold to him by the defendant contributed to his intoxication, the finding of the jury on such questions, when approved by the judgment of the trial court and of the Appellate Court, is conclusive.</p> <p>2. Same—sale of liquor by defendant’s agent is a sale by defendant. An instruction stating that a sale of intoxicating liquor by the defendant is shown by proof that the same was made by the defendant himself or his agent or agents is properly given, where some witnesses testified that they saw the plaintiff’s husband served with liquor at the defendant’s saloon, but could not tell whether the defendant or his bar-keepers, all of whom were behind the bar at the time, made the sale.</p> <p>3. Same—right of widow to recover for loss of support though she has means of her own. The facts that the widow has means of her own and that an insurance policy on the life of her husband was in force at his death do not affect her right to recover damages, under the Dram-shop act, for an injury to her means of support .on account of the death of her husband.</p> <p>4- Trial—improper acts of parties litigant in open court must be shown by bill of exceptions. Alleged improper actions in open court on the part of parties litigant must be objected to and made to appear in the bill of exceptions, otherwise such actions cannot be reviewed by the Supreme Court.</p> <p>5- Same—improper remarks by counsel—when not ground for reversal. Improper remarks by the plaintiff’s counsel in a damage suit which are calculated to arouse the sympathy of the jury for the plaintiff will not ordinarily be ground for reversal, if the defendant’s liability is clearly established and the amount of the verdict is not large or excessive under the circumstances.</p>

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

Writ or Error to the,Circuit Court of McLean county; the Hon. CoeosTin D. Myers, Judge, presiding. This was a bill in chancery filed in the circuit court of McLean county by the plaintiffs in error for the partition of eighty acres of land in said county. It appears from the pleadings and proof that John Lambert, a resident of McLean county, died in the year 1872, intestate, leaving Nancy Lambert as his widow and no children him surviving.

Farein Q. Bale, Judge, presiding. On October 6, 1902, the James H. Rice Company, a corporation, filed its bill of complaint in the superior court of Cook county against Joseph Mcjohn and Edward Mcjohn, charging that on September 17, 1902, complainant recovered a judgment against said Joseph Mcjohn in the circuit court of Cook county for $1801.60; that prior to the rendition of the said judgment Joseph Mcjohn was the owner of certain real estate in Cook county, which was…

<p>1. Voluntary associations—the articles of association will be given effect as far as possible. While a voluntary association will generally be treated by the court as a partnership and its members as partners, yet the court will, as far as possible, give effect to the articles of association among the members themselves when they are the only persons interested.</p> <p>2. Same—associations are generally treated as partnerships as to third persons. If a voluntary association is organized for pecuniary profit it will be generally treated as a partnership, so far as the rights of third persons and the liability of its members to strangers are concerned.</p> <p>3. Same—an association may have transferable shares. There is nothing illegal in making the shares of a voluntary association transferable, but the transferability of shares makes the association different from an ordinary partnership, and neither a sale of such transferable shares by a member nor the death of' a member will work a dissolution of the association.</p> <p>4. Same—articles of agreement cannot be canceled contrary to its terms. Even though the articles of agreement of a voluntary association be treated as an ordinary partnership contract, such agreement cannot be canceled at the pleasure of any member, contrary to the terms of the agreement.</p> <p>5. Same—effect of making shares of stock transferable. The fact that the shares of stock in a voluntary association are made transferable is evidence of an intent that the death of a member or a transfer of stock shall not work dissolution of the association.</p> <p>6. Corporations—a corporation not for pecuniary profit may take and hold necessary real estate. A corporation not for pecuniary profit may take-and hold as much real estate as is necessary for the purposes of its organization, and if the organization of a particular corporation is authorized by law and the holding of real estate is necessary to the purposes of its organization, its power to hold real estate cannot be questioned in a collateral proceeding.</p> <p>7. Same—when a corporation may act as trustee. A corporation may take and hold land as trustee if the trust is within the general scope of the purposes of the organization of the corporation or relates to matters which will promote and aid the general purposes of such corporation.</p> <p>8. The court reviews the evidence in this cáse, and holds that it fails to establish the complainant’s charge of fraud and mismanagement in the affairs of the defendant development association and the sales of land made in pursuance of its plans, and holds that upon this record the syndicate agreement and declaration of trust involved are not contrary to public policy, as enabling a corporation to do indirectly what it could not do directly.</p>

<p>Appeal from the Circuit Court of McHenry county; the Hon. Robert W. Wright, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. •</p>

Writ of 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. W. H. Gfst, Judge, presiding.

Writ or Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Lake county; the Hon. CharlRS H. Donnejlly, Judge, presiding.

<p>1. Corporations—in absence of statutory regulation, corporation may do business in States other than its home State. By the comity which exists between States, and in the absence of any express law to the contrary, there .is an implied permission for a corporation to exercise its corporate powers in a State other than that of its domicile, provided the exercise of such powers is not repugnant to the policy of the State or prejudicial to its interests.</p> <p>2. Same—State has power to regulate or exclude foreign corporations. A State has the right to prohibit a foreign corporation from exercising all or any part of its charter powers within its borders, to prescribe such terms and conditions as it sees fit upon the right of the corporation to do business in the State or to entirely exclude it from the State.</p> <p>3. Same—general meaning of the words “doing business” or “transacting business.” The words “doing business” or “transacting business,” used in statutes regulating foreign corporations, have been given a well settled meaning and refer only to the transaction of the ordinary business in which the corporation is engaged, and do not include acts not a part of its ordinary business, such as instituting and prosecuting actions in'courts.</p> <p>4. Same—section 1 of act of 1903, concerning foreign corporations, construed. The words “corporate powers,” used in section 1 of the act of 1905, requiring certain conditions to be complied with before any foreign corporation shall be permitted “to transact any business or exercise any of its corporate powers in the State of Illinois,” refer to the express and implied powers necessary to enable the corporation to carry on the business for which it was organized, and do not refer to those powers, such as the right to sue, which are incident to every corporation and arise from the mere act of incorporation, without regard to the power to engage in any particular business.</p> <p>5. Same—right of foreign corporation to sue in Illinois though it has not complied with regulatory law. A foreign corporation which has transacted business in Illinois without complying with the act of 1905, concerning foreign corporations, is by the terms of the act precluded from suing in the courts of Illinois; but a foreign corporation which has not been transacting business in Illinois, in violation of such act is not required to comply with the provisions of the act before it can sue in our courts. (United Lead Co. v. Reedy Elevator Manf. Co. 222 Ill. 199, and Illinois Trust Co. v. St. L., I. M. & S. Ry. Co. 208 id. 419, distinguished.)</p> <p>6. Same—doing single act of business is not a violation of the statute. A single sale of goods in Illinois by a foreign corporation without complying with the act of 1905, relating to the right of foreign corporations to transact business in Illinois, is not a violation of the statute, such as precludes the corporation from bringing suit in Illinois upon a judgment against the vendee recovered in the United States Circuit Court for a certain district of a foreign State.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Jud^e, presiding.</p>

<p>1. Quo warranto—defendant must disclaim or justify. In a proceeding by an information in the nature of quo warranto the defendant must either disclaim or justify, and if he justifies he must set out his title specifically and must show on the face of the plea that he has a valid title to the office.</p> <p>2. Same—effect where a replication is filed after demurrer to plea of justification is overruled. Filing a replication to a plea of justification after a demurrer has been overruled admits the sufficiency of the plea, in law, to bar a recovery, but it does not prevent the making of issues of fact upon the allegations of the plea, and if the allegation of-the plea that the county court had jurisdiction of the subject matter is denied and the record of the county court,—the only evidence offered,—does not show such jurisdiction, judgment should be for the relator.</p> <p>3. Drainage—purpose of Farm Drainage act—effect of section 76. The main purpose of the Farm Drainage act is to permit the organization of drainage districts on petition of a majority of the property owners owning one-third of the lands or of one-third of the property owners owning a majority of the lands, and section 76 of that act is not intended to defeat such main purpose.</p> <p>4. Same—what lands may be included in district organised under section 76 of the Farm Drainage act. Under section 76 of the Farm Drainage act, where owners' of lands have constructed a ditch and refuse to keep it in repair a proceeding may be begun to organize a district which will include such lands and lands connected with said ditch or its branches by voluntary action of the land owners, but unconnected lands cannot be included merely because the surface drainage thereof is toward the common outlet.</p> <p>5. Same—what must be shown by petition to organize district under section 76. A petition to organize a district under section 76 of the Farm Drainage act should, by specific words or reference to a map, set out the description of the ditch and its branches and of the lands proposed to be included in the district, so that it can be ascertained from the petition whether the ditch and its branches are continuous and connect with the lands proposed to be included and whether they are in one or more towns.</p> <p>6. Appeals and errors—when sufficiency of evidence to sustain plea is presented on appeal. The question of the sufficiency of the evidence to sustain a plea of justification in quo warranto is presented for consideration, on appeal, where the evidence was objected to when offered and a motion made at the close of the hearing to exclude the evidence and find the defendants guilty.</p> <p>7. Estoppel—People not estopped by acts of relators to question organization of drainage district. Where there is nothing to show that an information in the nature of quo warranto questioning the legality of the organization of a drainage district is filed for the exclusive benefit of the relators, neither lapse of time nor the conduct of the relators will operate as an estoppel against the right of the People to prosecute such information.</p>

<p>. Writ op Error to the Criminal Qourt of Cook county; the Hon. Henry V. FrEEman, Judge, presiding.</p>

<p>1. Attorneys at law—an attorney has no right to appropriate client’s money, even temporarily. An attorney has no right to appropriate to his own use, even for a temporary purpose, money collected for his client, and if money so collected is not paid over, particularly after demand, it is the duty of the Supreme Court to deprive the attorney of his license to practice law.</p> <p>2. Same—fact that a client recovers judgment against attorney does not preclude disbarment. The fact that a client recovers a judgment against her former attorney for the amount of money which the attorney had collected for her and refused to pay over upon demand, does not .bar a proceeding to disbar the attorney for his improper conduct in appropriating the money for his own use without the client’s consent.</p>

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

<p>1. Fiduciary relations—fiduciary relations are not confined to legal relations. Fiduciary relations are not confined to the legal relations of attorney and client, guardian and ward, etc., but the relation exists whenever it is proven that confidence was reposed by one party and the trust accepted by the other.</p> <p>2. Same-—presumption is against validity of contract when a fiduciary relation is proven. In equity, when a fiduciary relation is proven a presumption is raised against the validity of the transaction, and the burden is cast upon the dominant party to show that the transaction is not against equity and good conscience.</p> <p>3. Same—transactions between parties occupying fiduciary relation are voidable upon grounds of public policy. Transactions between parties occupying a fiduciary relation are voidable upon grounds of public policy and will be closely scrutinized by courts of equity, and relief will be granted at the suit of the confiding party unless the other party shows, by clear and convincing proof, that he acted in good faith and did not betray the confidence.</p> <p>4. Same—■existence of confidential relation gives cause for suspicion. The existence of a confidential relation between parties to a contract gives cause for suspicion, and if a reasonable suspicion exists that' the confidence reposed has been abused the contract should be set aside.</p> <p>5. Same—actual fraud is not necessary in order to invalidate a deed if a fiduciary relation exists. When a fiduciary relation is shown to exist it is not necessary that intentional and actual fraud be established in order to set aside a contract or deed.</p>

<p>1. Injunction—when a bill should not be dismissed on motion for prelimmary injunction. A bill in chancery should not be dismissed on motion for a preliminary injunction unless the injunction is the only relief sought.</p> <p>2. Same—it is only when bill cannot be helped by amendment that it will be dismissed on motion. It is only when a bill cannot be helped by amendment that it will be dismissed on motion, upon the ground there is no equity apparent upon the face of the bill.</p> <p>3. Pleading—when motion to dismiss is treated as a demurrer. The equity of a bill can only be questioned by demurrer or on the hearing, but a motion to dismiss for want of equity apparent on the face of the bill or for want of jurisdiction is treated as a demurrer, admitting all facts well pleaded by the bill.</p> <p>4. Same—averment that land is classified too high or too low is mere conclusion. There being no invariable standard for classifying lands in a drainage district, an averment that certain lands were classified too high or too low is a mere conclusion.</p> <p>5. Drainage—classifying lands involves exercise of discretion. The classifying of lands in a drainage district according to benefits is a matter involving judgment and discretion on the part of the commissioners, and the fact that other persons may consider the classification unfair does not show that the commissioners were influenced by improper motives.</p> <p>6. Same—land owner has remedy at law against unfair classification. A land owner who considers the classification unfair may object that his land is marked too high and that of others too low,' and he may appeal to the county court to have the classification reviewed in those respects, and he may have a further appeal to the circuit court if the county court grants it, otherwise the county court’s judgment is conclusive.</p> <p>7. Same—equity will not take jurisdiction to make new classification. The statute providing for an appeal from the classification of drainage commissioners affords a complete remedy to an objecting land owner for the correction "of alleged inequalities in the classification, and hence equity will not take jurisdiction to make a new classification though the bill alleges the commissioners acted fraudulently, from selfish motives.</p>

<p>Motion to make writ of error a supersedeas.</p>

<p>1. Wills—verdict in a will case has same force as verdict at law. The verdict of the jury in a contested will case, under the statute, has the same force and effect as a verdict in a case at law under a like state of facts, and if the verdict is not manifestly against the weight of the evidence the court is bound by it in the same manner and to the same extent as in a case at law.</p> <p>2. Same—person not capable of transacting any kind of business lacks testamentary capacity. A person may not be capable of transacting “ordinary business” and yet have testamentary capacity, but if he is mentally incapable of transacting any kind of business whatever he is lacking in testamentary capacity.</p> <p>3. Same—when declarations of testator inconsistent with will are admissible. Declarations of the testator with reference to a disposition of his property contrary to the provisions of the will are admissible upon the subject of testamentary capacity, provided there is other proof of lack of testamentary capacity, otherwise they are not admissible.</p>

<p>1. Constitutional law-—legislature may prohibit or regulate traffic in intoxicating liquor. In the exercise of the police power the legislature may enact laws for the purpose of protecting the health, morals and safety of the people, either prohibiting the traffic in intoxicating liquors or licensing it, or permitting it under any conditions which their judgment may approve.</p> <p>2. Same—section 10 of Dram-shop act does not take property of owner of building without due process of law. Section 10 of the Dram-shop act, in providing that where an owner of a building knowingly leases it for the sale of intoxicating liquors or knowingly permits it to be so used the building may be subjected to the payment of a judgment recovered against the occupant of the building under section 9 of said act, does not deprive' the owner of the building of property without due process of law.</p> <p>3. Dram-shops—owe knowingly leasing building for dram-shop consents that building shall be surety for judgment against occupant. One who knowingly leases his building for the sale of intoxicating liquors or who knowingly consents to its use for such purposes must be held to have consented that the building shall be surety for the payment of a judgment against the occupant recovered under section 9 of the Dram-shop act, as provided in section 10 of said act.</p> <p>4. Same—owner of a building not entitled to contest facts of case in which judgment was recovered against occupant. Where a bill in equity to subject a building to the payment of a judgment recovered against the occupant under section 9 of the Dram-shop act sets forth the conditions specified in section 10 of the said act which make the property liable, it is not necessary to allege the truth of the facts giving rise to the cause of action in which the judgment was recovered against the occupant in order to give the owner an opportunity to contest such facts.</p> <p>5. Same-—courts cannot add conditions to those specified in section 10 of Dram-shop act. The conditions under which a building knowingly leased for the sale of intoxicating liquors or knowingly permitted to be so used shall be subjected to the payment of a judgment against the occupant are plainly specified in section 10 of the Dram-shop act, and the courts are not authorized to add to such conditions by requiring the party recovering such judgment to make the same proof against the owner of the building, for the purpose of establishing the lien, that would be necessary in order to recover a personal judgment against such owner.</p>

<p>1. Special assessments—person appointed to make assessment must be a resident of city. The person appointed to make a special assessment in a city which has no superintendent of special assessments must be a qualified elector who has resided in the city for one year, as provided in section -6 of article 6 of the City and Village act, even though he is not technically an officer.</p> <p>2. Same—act of ipop, relating to bond issues, does not apply to bonds against a special assessment. The act of 1909, (Laws of 1909, p. 130,) providing that no ordinance which authorizes the issuing of bonds (except refunding bonds) shall be valid until such ordinance shall have been submitted to the voters at an election and approved by a majority of votes, does not apply to bonds issued by a city against a special assessment for an improvement embracing only a part of the city.</p> <p>3. Same—depth at which sewer pipes are to be laid is an essential element of description. The depth at which sewer pipes are to be laid is an essential element of description, and if it does not appear, on appeal, that the defect in the ordinance in omitting to prescribe such depth was cured by the admission in evidence of a datum ordinance, the latter not being in the abstract of record, it must be held to be error to overrule an objection to the ordinance based upon such omission.</p> <p>4. Same—city cannot assess portion of a farm lying outside of the corporate limits. Where a farm lies partly within and partly without the corporate limits of a city, the city has no power to include the entire farm within a sewer district and assess the land lying outside of the limits of the city.</p> <p>5. Same—property cannot be assessed for sewer unless there is a benefit. Special assessments are based solely upon and justified by benefits to property, and property cannot be assessed for a sewer unless it is benefited by a present use of the sewer or an assured future use of such a nature that the owner can enfcrce his right and secure the benefits.</p> <p>6. Same—rule where property is within sewer district but not on line of main sewer. Property not abutting upon the line of a main sewer may be assessed to the extent of its benefits if it is within the defined' limits of a district having the right to drain into the sewer, but some provision must be made for securing that right to the property.</p> <p>7. Same—party making an assessment for sewer shoilld report boundaries of districts. The improvement board’s division of a city into sewer districts for the purpose of constructing a connected system of sewers is not a conclusive determination that all property in such districts can be assessed, and it is the duty of the person making the assessment to designate and report the district which will be benefited by the proposed sewer, describing such district by boundaries, and it is not sufficient to merely assess the lands in the district as fixed by the improvement board.</p>

Appear from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Knox county; the Hon. Robert J. Grier, Judge, presiding. This is an action of assumpsit brought in November, 1907, in the circuit court of Knox county, by E. A. Chalstran, appellee, against the Board of Education of Township High School District 13, range 1, east, Knox county, Illinois, appellant.

<p>1. Special assessments—when ordinance does not provide for a double improvement. Where there is already a sewer for part of the length of a street, an ordinance which provides for a new sewer in the street which is to connect with the old sewer and form one continuous sewer, and provides for house connections along the entire sewer in both the new and old parts, does not provide for a double improvement.</p> <p>2. Same—when a village cannot provide for house connections every forty-five feet. The power of a city or village to provide for house-slants does not authorize a provision in a sewer ordinance that house connections and drains, with pipes laid sixteen feet from the connection to the curb line of the street, shall be put in every forty-five feet along an unsubdivided and unimproved tract of land some seven hundred feet long, which is held for railroad purposes and not for business or residence property.</p>

<p>1. Wills—when instruction that testator must know that will disposes of property as he intended is not improper. Where the will involves no difficult ■ question of legal construction, it is not error to give an instruction that the testator must have had sufficient mind and memory to deliberate and determine for himself upon giving the property as disposed of by the will, and also to intelligently know and understand, from the contents of the will, whether it disposes of the property as determined upon.</p> <p>2. Same—jury may be instructed that they may consider provisions of will itself. The intrinsic evidence of the will itself, arising from the unreasonableness or injustice of its provisions, taking into view the state of the testator’s property, family and the claims of particular individuals, is competent and proper for the consideration of the jury upon the question of the testator’s mental capacity, and it is proper to instruct the jury that they may consider the provisions of the will itself, with the other evidence, in determining that question.</p> <p>3. .Same—when giving instruction having no basis will not reverse. An instruction authorizing the jury to find that the will in question is not the will of the testator, even though they believe he had sufficient capacity to transact ordinary business affairs, if they believe he was not of sound mind with regard to the subjects connected with the testamentary disposition of his property and the natural objects of his bounty, should not be given if it has no basis in the evidence, but it is harmless where the jury finds specially that he did not have capacity to transact ordinary business.</p> <p>4. Same—the known financial condition of objects of testator’s bounty may be considered. Evidence as to the financial condition of persons having claims upon the testator’s bounty, if such condition was known to the testator, may be taken into consideration, in connection with the will itself, in determining the question of testamentary capacity; but such evidence should be limited to the purpose for which it is admissible.</p> <p>5. Same—declarations of the testator are not evidence of their truth. Verbal declarations of the testator to the effect that his son managed the testator’s business in the country and that another person managed it in town are admissible as bearing upon the testator’s mental condition; but though such declarations are not evidence of their truth, it is not necessarily reversible error to refuse to so instruct the jury.</p> <p>6. Same—when it is not error to refuse to allow scrivener to testify whether he followed directions. Where the person who wrote the will in contest testifies as to what his instructions from the testator were, it is not error to allow him to testify that he wrote the will in accordance with such directions, as the will itself shows what he wrote.</p> <p>7. Same—witness cannot he asked whether he did rtot transact ordinary business with the testator. Where witnesses upon the question of the testator’s mental capacity are required to state fully what transactions they had with the testator, it is not error to refuse to require them to state whether they did not transact ordinary business with the testator and why they did so.</p> <p>8. Instructions—what instructions for defendants in a will case are objectionable. Instructions asked by the defendants in a will case are misleading and objectionable which isolate some one fact and tell the jury that such fact is not sufficient to overthrow the will.</p> <p>9. Same—party cannot complain of refusal of instruction if a more favorable one is given. A party cannot complain, on appeal, of the refusal of an instruction if another one upon the same subject is given at his request which is more favorable to him than the one refused.</p>

<p>1. Apeeals and errors—when decree will not be disturbed on appeal. Where the testimony in a mechanic’s lien proceeding is conflicting and the chancellor has confirmed the finding of the master, the Supreme Court will not. disturb the decree unless it is clearly against the weight of the evidence.</p> <p>2. Mechanics’ liens—contractor entitled to lien if he substantially performs his contract. A building contractor who obligates himself to follow the plans and specifications of the architect can not be held responsible for defects in the plans or specifications, and if he has by honest endeavor substantially performed the contract he is entitled to a lien under the statute.</p> <p>3. Same—contract construed as not requiring contractor to improve upon plans. A contract to install a heating plant, which provides that the contract shall be for “a complete and perfect job, even though every item required to make it such is not specially noted in the drawings or these specifications,” and that the contractor “shall furnish all labor, tools and appliances necessary to .complete his work according to these specifications, and shall perform his work in a true workmanlike manner in every particular and thus provide the building with a durable and mechanically perfect system,” does not require the contractor to improve upon the plans in order to make a mechanically perfect system.</p> <p>4. Trial—objection that a question is leading should be made when question is asked. An objection that a question asked of a witness is leading and suggestive should be made upon that ground when the question is asked, and if not so made it is waived.</p> <p>5. Interest—when decree may allow interest from date of the master’s report. Under section 3 of the Interest act the chancellor, upon confirming the master’s report in a mechanic’s lien proceeding, may include in the decree five per cent interest upon the amount found due by the master, computed from the date of the filing of the report to the rendition of the decree.</p> <p>6. Costs—shorthand reporter’s fees for taking testimony before the master cannot be taxed as costs. Fifteen cents per hundred words for taking testimony may be allowed to the master in chancery whether he transcribes it himself or employs a shorthand reporter, but the fee of the shorthand reporter cannot be taxed as costs, as the statute concerning shorthand reporters in circuit courts does not pertain to taking testimony before the master.</p>

<p>1. Practice—hearing and deciding case without acting on motion amounts to a denial of motion. Where the county court, after taking under advisement a motion by the People to compel the filing of inventories in a proceeding to appraise an estate for inheritance tax purposes, does not rule upon such motion but hears and decides the case and enters final judgment, such action amounts to a denial of the motion.</p> <p>2. Inheritance tax—court should compel filing of inventories required by Administration act. The filing of inventories by the executor, under section 51 of the Administration act, and by the surviving partners under sections 87 and 88 of such act, is not a matter of discretion with such executor, surviving partners or the court, and the court should compel such inventories to be filed when its attention is called to the omission.</p> <p>3. Same—People have a right to compel filing of inventories. The People have a right to compel the filing in the county court of the inventories required by the Administration act to be filed by the executor and by surviving partners to aid in determining the extent and value of the estate for inheritance tax purposes, and while such inventory is not conclusive, the People are entitled to the benefit thereof without having the burden of proving the value of the estate by examining witnesses.</p> <p>4. Partnership—partnership may exist by verbal agreement. Written articles of agreement are not necessary to prove a partnership, since a partnership may exist under a verbal agreement and circumstances may raise an inference of such agreement.</p> <p>5- Same—what proof justifies conclusion that there was o, partnership. Proof that the minor sons of a man who had been conducting business establishments in his own name went to work for him, and that he thereupon changed his signs and bank accounts by adding “& Sons” thereto, and thereafter transacted business under such name for many years after the sons reached majority, all of the parties drawing checks against the bank accounts, justifies the conclusion that there was a partnership.</p> <p>6. Same—resulting trust arises where land is bought with partnership funds. Where real estate is purchased with partnership funds and the title is taken in the name of'one of the partners a resulting trust arises in favor of the other partners in proportion to their interest in. the partnership.</p> <p>7. Appeals and errors—when objection to competency of witnesses will not be considered. Where surviving partners are called and examined on behalf of the People in the matter of determining the inheritance tax due on the estate of the deceased partner and no objection is made to their competency to prove the partnership, such objection will not be considered on appeal.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

Writ OR Error to the Appellate Court for the First District;—heard.in that court on appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.

<p>1. Courts—county court has no jurisdiction to decide a question of title to real estate. The county court, while it has jurisdiction of an action for damages for injury to real estate in an amount not exceeding $1000, has no jurisdiction to enter a judgment deciding a question of freehold.</p> <p>2. Appeals and Errors—when appeal in trespass should go to the Appellate Court. An appeal from the judgment of the county court in an action of trespass for damages to real estate, arising out of a boundary line dispute, must be taken to the Appellate Court, since, even though the question of the title to the real estate is incidentally involved, the county court is without jurisdiction to decide such question.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.</p>

<p>This case is controlled by the decision in Ritchie & Co. v. Wayman, (ante, p. 509.)</p>

Thomas G. Windes, Judge, presiding. Anson S. Piper died testate on June 21, 1886, leaving surviving him Julia E. Piper, his widow, and seven children, appellee, Sarah C. Wells, being one of said, children.

<p>1. Practice—the municipal court cannot extend time for filing statement or report after thirty days from judgment. Paragraph 6 of section 23 of the Municipal Court act authorizes a judge who has entered a final order or judgment to extend the time for the signing or filing of the statement or stenographic report therein provided for within thirty days of the entry of such judgment, but the court is without power to allow an extension of time after thirty days, even though the period of extension granted within such thirty days has not expired.</p> <p>2. Same—practice prevailing in circuit courts as to extensions of time does not control municipal court. The practice prevailing in circuit courts in reference to the signing of bills of exceptions and extensions of time therefor furnishes no guide to the practice in the municipal court of Chicago, which depends entirely upon the statute.</p> <p>3. Same—provision of section 38 of Municipal Court act does not apply to fourth and fifth class cases. The provision of section 38 of the Municipal Court act giving the right to tender a bill of exceptions at any time within sixty days after the entry of a final order or judgment does not apply to fourth and fifth class cases, which are provided for by paragraph 6 of section 23.</p> <p>4. Same—provisions of the Municipal Court act affecting that court alone are not unconstitutional. While those provisions of the Municipal Court act which purport to affect the practice in the Appellate Court and Supreme Court are invalid as in violation of section 29 of article 6 of the constitution, requiring uniformity of powers and practice in courts of the same class or grade, yet those provisions which affect only the record, jurisdiction, proceedings and practice of the municipal court are valid, as being authorized by section 34 of article 4 of the constitution.</p> <p>5. Same—when a party is under no obligation to move to set aside order. Where an order extending the time for signing and filing the statement or stenographic report provided for in paragraph 6 of section 23 of the Municipal Court act is made more than thirty days after the entry of the final judgment, the opposite party is under no obligations to move to vacate the order, as the court is without power to make it.</p>

<p>1. Cloud on title—finding that complainant “is the owner” is a finding of fact. A finding in a decree canceling a tax deed as a cloud on title, that the complainant “is the owner of the premises,” is a finding of fact and not a mere legal conclusion.</p> <p>2. Same—what findings in a decree are sufficient to sustain it. A decree removing a tax deed as a cloud on title is sufficiently sustained by a recital that the complainant “is the owner of the premises,” and that he was in actual possession of the premises and an actual occupant thereof and resided thereon with his family at the date of the tax sale and during the whole period of redemption, and that he was still in possession at the date of the filing of the bill and was in possession when the decree was entered.</p>

<p>1. Drainage—there must be a hearing on petition to abandon proceedings and abolish district. The mere presentation to the court of the petition described in section 44 of the Levee act does not, of itself, abolish the district, but there must be a hearing by the court to determine whether the facts exist which authorize the entry of the order.</p> <p>2. Same—time of filing petition to abolish district does not determine status of case. The time of filing a petition, under section 44 of the Levee act, to abandon proceedings and abolish the district does not determine the status of the case, and parties who signed the petition have a right to withdraw their names before the hearing on such petition.</p> <p>3. Same—the amendment of 1907, precluding withdrawing of names from petition, applies only to petition to organise district. Section 4 of the Levee act, as amended in 1907, which prohibits signers of the petition from withdrawing their names except by consent of a majority of the other petitioners or in case the signatures were obtained by fraud, applies only to the petition to organize the district.</p>

<p>Writ or Error to the Circuit Court of Jasper county; the Hon. Albert M. Rose, Judge, presiding.</p>

<p>1. Crimes against children—uncorroborated testimony of a child must be clear and convincing to justify conviction. While the rule permitting a conviction for rape on the uncorroborated testimony of the prosecutrix may fairly apply to a prosecution, under the Illinois statute, for taking improper liberties with a female child, yet such testimony, as in rape cases, must be clear and convincing in order to sustain a conviction.</p> <p>2. Same—statute must be strictly enforced but evidence must be carefully examined. The statute providing for the punishment of a person taking indecent liberties with a female child must be strictly and impartially enforced, but it is especially necessary, in view of the public indignation aroused by prosecutions for such offenses, to carefully examine the evidence in order to determine that the verdict is not the result of passion or prejudice.</p>

<p>1. Deeault—when decree cannot be entered against bondholders. Where a village purchases an electric light plant subject to a mortgage indebtedness secured by bonds which the village does not agree to pay, the only rights the bondholders can assert are against the property and the electric light corporation which issued the bonds, and in litigation between tax-payers and the village, involving the power of the village to make the purchase and levy taxes, no decree can be entered affecting the rights of the bondholders, though they were made parties by publication, as unknown owners, and defaulted.</p> <p>2. Municipal corporations—what is a mere device to evade constitutional provision against incurring indebtedness. A plan whereby a village having $4200 as the constitutional limit of indebtedness acquires at a price of $11,496 an electric light plant having a mortgage indebtedness of $7296 by issuing $4200 in bonds is a mere scheme to evade the constitution, even though the contract provides that the village shall not assume or agree to pay the mortgage debt, since the indebtedness is nevertheless a debt of the village which it-must pay or lose the property.</p> <p>3. Same—when a municipal corporation does not create an indebtedness. The purchase, by a city or village, of property which is to be paid for out of the income of the property itself is not the creation of an indebtedness, within the meaning of the provision of the constitution limiting the amount of indebtedness which may be incurred by a municipal corporation.</p> <p>4. Same—it is not essential that obligation to pay shall be direct. While there must be a debt to constitute a mortgage there need not be any promise of the mortgagor to pay the debt, and it is not essential that the obligation to pay shall be direct.</p> <p>5. Same—when injunction should be limited to paying mortgage debt out of income of property. Where tax-payers, instead of attacking the validity of the entire transaction whereby a village purchased an electric light plant, concede that the purchase is valid to the amount of the bonds issued by the village, which equals the amount of indebtedness it could constitutionally incur, and seek merely to enjoin the village from paying the mortgage debt to which the property is subject, the only relief which ought to be given to the complainants is to enjoin the payment of the mortgage debt except out of the net income of the electric light plant after paying operating expenses and necessary repairs.</p> <p>6. Same—street lighting agreement is extinguished by purchase of plant by village. An agreement by a village to pay a certain annual price per light for a specified number of street lights for a period of thirty years creates an indebtedness for the whole amount, but the purchase of the electric light plant by the village immediately after its construction puts an end to the agreement and renders an injunction to restrain payment unnecessary, even though the indebtedness incurred exceeds the constitutional limit.</p>

<p>Writ oe Error to the Circuit Court of Wabash county; the Horn. P. A. Pearce, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding.

<p>1. Wills—when devisees take a life estate under section ó of Conveyances act. A devise of a remainder to named persons “and the heirs of their bodies, respectively,” creates, at common law, an estate in fee tail as tenants in common, but under section 6 of the Conveyances act the named persons take merely a life estate, with remainder in fee to the heirs of their respective bodies.</p> <p>2. Same—a complete sentence must be construed as such. A clause in a will which is one complete sentence must be read and construed as such in ascertaining the testator’s intention.</p>

<p>1. Evidence—what must be shown in affidavit laying foundation for admitting abstract of title. An affidavit presented under section 24 of the Records act to lay the foundation for the admission of an abstract of title in evidence must state not only that the original deeds or instruments are lost or destroyed, but also that the records thereof are destroyed, by fire or otherwise.</p> <p>2. Same—an affidavit for laying foundation for introducing abstract of title must be made by a party to suit or his agent. An affidavit made under section 24 of the Records act to lay the foundation for introducing an abstract of title in evidence must be made by a party to the suit or his agent or attorney, and the relation of agent or attorney must appear from the affidavit itself.</p> <p>3. Same—when defect in affidavit is not cured by second affidavit. The failure of an affidavit for introducing an abstract of title in evidence to state that the records are destroyed by fire or otherwise is not cured by an affidavit containing such statement, which was made by a person not appearing to be the agent or attorney of a party to the suit, for the purpose of showing that the copy of the abstract of title was a true copy, as required by the last clause of section 24 of the Records act, making sworn copies of instruments admissible.</p> <p>4. Same-—what must appear in affidavit made under section 36 of Conveyances act. An affidavit intended to lay the foundation, under section 36 of the Conveyances act, for the admission of the record of instruments and documents in evidence, riiust show not only that the original instruments are lost or destroyed and not in the power of the party to produce them, but also that they were not intentionally destroyed or in any manner disposed of for the purpose of introducing a copy thereof in place of the original.</p> <p>5. Costs—when appellee is required only to pay costs in appellate tribunal. Where a judgment is reversed on appeal and the cause remanded for a trial de novo, the appellee, unless it is otherwise ordered, is required to pay only the costs in the appellate tribunal, and the costs in the trial court will abide the final determination of the suit.</p>

<p>1. Taxes—personal property in transit through taxing district cannot be taxed. Personal property actually in transit through a taxing district has no situs there for the purposes of taxation, even though there is no express exemption to that effect in the Revenue law.</p> <p>2. Same—crude oil in transit through State by pipe line is a subject of inter-State commerce and not taxable here. Crude oil in transit through the State of Illinois from one foreign State to another by means of a pipe line, and which is kept moving as constantly as practicable by means of force pumps and equalizing tanks, is a subject of inter-State commerce and is not taxable in the taxing districts of Illinois through which it passes.</p> <p>3. Same—property, to be exempt, need not be in charge of carrier engaged in inter-State cormnerce. In order that property in transit may be exempt from local taxation as a subject of interState commerce it is not essential that it be in charge of some common carrier engaged in that class of business.</p>