Volume 245 — Illinois Reports

Writ op Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. Charles T. Moore, Judge, presiding.

<p>1. Corporations—jurisdiction of co%irts in controversies concerning internal affairs of foreign corporations. Bxcept in cases involving the exercise of visitorial powers, the doctrine that courts decline jurisdiction of controversies relating to the management of the internal affairs of a foreign corporation is not strictly a question of jurisdiction but rather of discretion in the exercise of jurisdiction, and the rule rests more on grounds of public policy and expediency than on jurisdictional grounds, and more on want of power to enforce a decree than on jurisdiction to make it.</p> <p>2. Same—when courts will decline jurisdiction. Courts will decline to take jurisdiction of a controversy relating to the affairs of a foreign corporation where the wrongs complained of are merely against the sovereignty by which the corporation was created or the law of its existence, or are such as to require for their redress the exercise of visitorial powers of the sovereign, or where full jurisdiction of the corporation and of its stockholders is necessary to such redress and is wanting.</p> <p>3. Same—when court should take jurisdiction of suit concerning foreign corporation. Where the relief sought by a bill by a stockholder in a foreign corporation substantially amounts to requiring resident directors to restore to the corporation such sums of money as upon an accounting they shall be found to have unlawfully diverted and retained from it, and the corporation and all persons necessary to a decree adjusting the rights in the controversy have appeared in the cause, the court should exercise the power of determining the controversy without remanding the suitor to a foreign jurisdiction.</p> <p>4. Same—stockholder may require directors to account to corporation wherever they are found. A corporation may maintain a suit for accounting against defaulting directors or officers wherever they may be found, and a stockholder who seeks to enforce the same right in favor of the corporation may maintain a similar suit, even though the act complained of is, in part, that of the corporation itself and though the complainant is affected only in his capacity as á stockholder, as the suit is, in effect, for the benefit of the corporation itself.</p> <p>5. Same—when stockholder cannot maintain suit in behalf of corporation. The theory of a suit by a stockholder to compel restoration to the corporation of funds unlawfully diverted and retained by its officers and directors is, that he has, himself, sustained a wrong through the injurious effect upon his stock, and if he has himself consented to or participated in the acts constituting the wrong or has waived his right to object to them, he cannot afterwards maintain a bill for relief for the benefit of the corporation or other stockholders.</p> <p>6. Same—the assignee of stock has no greater rights than assignor. The assignee of shares of stock in a corporation acquires no greater rights than his assignor, as he holds by the same title and subject to the same liability, and he cannot maintain a suit in regard to transactions with the corporation done or assented to by his assignor.</p> <p>7. Same—effect where a stockholder ratifies acts of directors. If a stockholder, in settling matters in dispute between himself and the directors of the corporation, for valuable consideration expressly ratifies all transactions between them and the corporation and waives all right he might have to object to such transactions, he cannot, while the contract remains unrescinded, seek relief against such transactions by suing in his own right or in behalf of the corporation or other stockholders; nor can such suit be maintained by his executor or the legatee of the stock.</p> <p>8. Same—when demand is necessary before a stockholder can bring suit. A demand upon the directors to bring suit is, in general, essential before a stockholder can maintain a suit to enforce a right of the corporation, and it is only when the majority of the directors are themselves involved in the matters complained of, so that it is evident a demand would be unavailing, that it can be dispensed with.</p> <p>9. Contracts—right to rescind contract must be exercised in toto. If a party accepts the provisions of a contract which are of advantage to him he is bound by the provisions which purport to be obligatory upon him, and if the right to rescind exists it must be exercised in toto, as the contract must stand in all its provisions or fall altogether.</p> <p>10. Same—party cannot retain consideration and refuse to be bound. A party to a contract cannot retain the consideration, or a part of it, and refuse to be bound; and the fact that he is unable to restore the consideration does not relieve him from the necessity of doing so, nor is it sufficient to offer to set off the amount against what is claimed from the other party.</p> <p>11. Same—rule where release was obtained by fraud not going to its execution. The rule that it is not necessary to return the consideration in order to avoid a release obtained by fraud refers to fraud in the execution of the instrument and not' to fraud going to the consideration, and in the latter case the release is not void but voidable, and is binding upon the party executing it until it is set aside in a court of equity.</p> <p>12. Same—contract creating power coupled with interest is not terminated by death of one party. A contract between a corporation and a syndicate, whereby the latter is entitled to the exclusive possession and use of certain real estate and personal property for a term of years as security for and in compromise of the syndicate’s claims against the corporation, creates a power coupled with an interest, and the contract is not terminated by the death of a member of the syndicate.</p> <p>13. Same—survival of rights and duties where one joint contractor dies. Whether a contract is such as to require the personal services of all of the joint contractors, so as to be terminated by the death of one or more, does not depend upon whether the rights and obligations devolve upon an administrator but whether they survive to and against the surviving joint contractors, and, in general, apon the death of one joint contractor before complete performance the survivors are bound by the contract and entitled to its benefit.</p>

<p>1. Practice—motion is an application made to the court. The filing of a paper in the office of the clerk without bringing it to the attention of the court and asking the court to act upon it is not such an application to the court as amounts to a motion.</p> <p>2. Special assessments—what is not a motion to dismiss petition. The filing of a paper setting forth that certain property owners object to the.confirmation of a special assessment, to the application and all the proceedings and to the report filed, and move ,to dismiss the petition and application and all the proceedings for the reasons attached and marked “objections,” does not amount to a motion to dismiss the petition.</p> <p>3. Same—when objection that clerk’s certificate had no seal cannot be insisted upon on appeal. An objection that a petition for confirmation of a special assessment should have been dismissed because the copies of the resolution, ordinance and estimate attached to the petition were not properly certified, in that the corporate seal was not attached to the clerk's certificate, cannot be insisted upon on appeal, where the parties, without moving to dismiss the petition, entered upon a hearing of the questions raised by their objections.</p> <p>4. Same—when ordinance need not be proved on the hearing. Where the ordinance for the improvement is attached to the petition for confirmation of a special assessment it is a part of the record, and no proof of the ordinance is necessary on the hearing of the objections, where none of such objections put in issue the fact that the ordinance was passed.</p> <p>5. Same—evidence to show that person who made assessment was inexperienced is not admissible. The provision of the statute that the person appointed to make a special assessment shall be a “competent” person means only that he shall be free from legal disqualifications, and evidence calculated to show that his experience and opportunities for acquiring knowledge of the matter in hand had been limited is properly rejected.</p> <p>6. Same—judgment of council as to reasonableness of improvement is final if there is room for difference of opinion. The judgment of the city council as to the necessity for and reasonableness of the proposed improvement is binding upon the court, unless the evidence so clearly shows injustice, oppression and unreasonableness that there is no room for a reasonable difference of opinion.</p> <p>7. Same—rule where parties signing the petition testify against reasonableness of ordinance. Where persons who signed the property owners’ petition for an improvement subsequently appear as objectors and testify against the reasonableness of the ordinance, the petition so signed is admissible for the purpose of attacking the opinions testified to by such witnesses, who are tiren allowed to state why they signed the petition; but the admission of. the petition does not authorize the admission of remonstrances offered by the objectors to confirm the opinions testified to.</p> <p>8. Same—the question of variance between resolution and ordinance as to method of payment cannot arise. The question whether an improvement shall be paid for by special taxation or special assessment is a matter which does not become the subject of consideration until an ordinance is recommended and‘is not among the questions to be considered at the public hearing on the resolution, and hence no question can arise of a variance between the resolution and ordinance as to the method of payment.</p>

<p>Writ of Error to the Circuit Court of Lake county; the Hon. Arthur H. Frost, Judge, presiding.</p>

WRIT or Error to the Circuit Court of Piatt county; the Hon. W. G. Cochran, Judge, presiding. Defendant in error Kathryn Ater filed her bill in the circuit court of Piatt county for the partition of one hundred and sixty acres of land described in the bill.

<p>1. Churches—civil courts have jurisdiction of church controversy if property rights are involved. Civil courts have jurisdiction over a controversy between two church corporations where the result of the decision is that one corporation will gain and the other lose a freehold interest in land, and in such case the Supreme Court has direct appellate jurisdiction to review the judgment or decree.</p> <p>2. Same—extent to which civil courts are bound by adjudication of supreme judicatory of church. In a controversy, over property, between churches which are merely subordinate members of an organization having a supreme ecclesiastical tribunal with general control over such churches and their property, which is not held under any special trusts or restrictions imposed by the deed or devise under which it was acquired, civil courts are bound by the decision of such supreme judicatory as to which church is the true one and entitled to hold the property.</p> <p>3. Same—when rule that civil courts are bound by decisions of ecclesiastical bodies does not apply. The rule that civil courts, in deciding property rights in controversies between churches, are bound by the decisions of ecclesiastical bodies on matters of faith, doctrine and other affairs within their legitimate sphere, does not apply where the property is held under some specific trust imposed by deed or will, or where the property is held by a religious corporation which is independent of other ecclesiastical associations and owes no obligation to any higher authority.</p> <p>4. Same—when property is not conveyed under a specific trust. Property conveyed by deed to the named trustees of a specified church, without any other trust of any character being impressed upon it, is not subject to such a specific trust as takes it out of the rule that civil courts, in deciding the ownership of the property as between factions, must be governed by the decisions of the supreme judicatory of the church which bear upon the question.</p> <p>5. Same—decision of general assemblies of Presbyterian church and Cumberland church is binding. The decisions of the general assemblies of the Presbyterian Church in the United States of America and the Cumberland Presbyterian Church that there were no such fundamental differences between the creeds, doctrines and ecclesiastical standards of the churches as would bar a reunion of the two churches are conclusive of such questions, in so far as they bear upon the determination of property rights by civil courts.</p> <p>6. Same—general assembly of Cumberland church had power to authorise reunion. While there may be no express power in the constitution of the Cumberland Presbyterian Church authorizing its general assembly to direct a reunion with the Presbyterian Church in the United States of America there is no express inhibition against such reunion, and the decision of the general assembly of the Cumberland church that it had such power falls within its jurisdiction and is conclusive on the civil courts.</p> <p>7. Same—decision of general assembly of Cumberland church that a reunion was effected by vote is binding. The decision of the generaf assembly of the Cumberland Presbyterian Church that a reunion with the Presbyterian Church in the United States of America had been effected by the vote of the various presbyteries of the church on the proposition for reunion, and that such proposition included a reunion under the name of the Presbyterian Church in the United States of America, is within the jurisdiction of such general assembly and is conclusive upon the civil courts.</p> <p>8. Same—reunion of Cumberland and Presbyterian churches is not invalid. The plan of reunion between the Cumberland Presbyterian Church and the Presbyterian Church in the United States of America having been adopted and approved by the legally constituted authorities of both churches, and the reunion having been effected in accordance with the laws and usages of both churches in a legal manner, such reunion is not invalid, even though it amounts practically, though not legally, to a merger. .</p> <p>g. Same—reunion of Cumberland and Presbyterian churches does not deprive members of constitutional rights. The reunion of the Cumberland Presbyterian Church and the Presbyterian Church in the United States of America did not deprive members of the Cumberland church of property without due process of law, as such members had no rights in such property as individuals but only as members of a congregation constituting an integral part of the general organization, and their rights in the property as members of the new organization will continue during their membership therein, though the legal title, by virtue of the reunion, is in the new organization.</p>

<p>This case is controlled by the decision in First Presbyterian Church of Lincoln v. First Cumberland Presbyterian Church of Lincoln, {ante, p. 74.)</p>

Thomas G. Windes, Judge, presiding. This was an application in the name of the People of the State of Illinois, to the circuit court of Cook county, for a writ of mandamus against the Chicago Telephone Company to compel it to furnish telephone service, without extra charge or toll, between subscribers in the village of Oak Park and subscribers in any other part of the territory which was embraced within the limits of the town of Cicero in 1898, including the territory…

<p>1. Drainage—zvhat is the final order in proceeding to organize special district. The final order in a proceeding to organize a. special drainage district under section 76 of the Farm Drainage act is either an order dismissing the petition at the cost of the petitioners or an order declaring the district organized.</p> <p>2. Same—appeal from order organizing special district under Farm Drainage act lies to circuit court. The Farm Drainage act neither allows nor prohibits an appeal or writ of error to review an order of the county court organizing a special drainage district under section 76 of the Farm Drainage act, but an appeal may be taken to the circuit court under section 122 of County Court act.</p> <p>3. Practice—effect of section 8 of Appellate Court act on section 122 of the County Court act. While section 8 of the Appellate Court act has repealed conflicting provisions of section 122 of the County Court act, yet it does not destroy the right of appeal from the county court to the circuit court in a case such as a proceeding for the organization of a special drainage district under the Farm Drainage act, which is not “a suit or proceeding at law or in chancery,” as those words are used in said section'8.</p> <p>4. Same—appeal from order organizing a special district under Farm Drainage act does not lie directly to Stipreme Court. An appeal from an order of the county court organizing a special drainage district under the Farm Drainage act does not lie directly to the Supreme Court, under section 118 of the Practice act, on the ground that a freehold, franchise or the validity of a statute is involved, since section 118 gives no right of appeal at all, but merely directs to what court appeals shall be prosecuted which are allowed by section 91 of the Practice act.</p> <p>5- Same—section pi of Practice act does not give right of appeal in statutory proceeding. Section 91 of the Practice act does not give any right of appeal to or writ of error from the Appellate Court or Supreme Court in any proceeding which is instituted and carried on solely in accordance with statutory provisions and not in substantial conformity with the forms and modes prescribed by the common law or the rules of chancery.</p> <p>6. Same—writ of error will not lie from Supreme Court to review organization of special drainage district. Land owners have a remedy by appeal to' the circuit court if dissatisfied with the action of the county court in organizing a special drainage district under section 76 of the Harm Drainage act, and the cause cannot be removed from the county court to the Supreme Court by a writ of error. (Lynn v. Lynn, 160 Ill. 307, distinguished.)</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. R. W. Clifford, Judge, presiding.

<p>Appeal from the Circuit Court of Cook county; the Plon. Thomas G. WindES, Judge, presiding.</p>

<p>1. Railroads—words “main track,” used in Crossings act of ipof, have no technical meaning. The words “main track,” used in the Crossings act of 1907, requiring a railroad desiring to cross the main track of another railroad to apply to the railroad and warehouse commissioners for permission, are not used with any technical meaning but in their ordinary sense of principal, chief, leading or most important track.</p> <p>2. Same—what is not the “main track” of a railroad. A short piece of track at the terminus of a railroad, which can only be used by throwing a switch and which is used exclusively to enable incoming freight trains to reach a switch track to the freight depot, is not the “main track” of such railroad within the meaning of the Crossings act of 1907, (Laws of 1907, p. 475,) though such track, prior to the division of the railroad and the construction of other connections, was a part of the main line.</p> <p>3. Pleading—complainant must stand or fall with case made by its bill. Every fact essential to the complainant’s right to maintain its bill and obtain the relief sought must be stated in the bill, and no relief can be granted for matters not charged in the bill, even though such matters may be apparent from other parts of the pleadings and the evidence.</p> <p>4. Injunction—when right of foreign corporation to operate street railway is not involved. • Where the complainant railroad company bases its right to an injunction upon the ground that the defendant street railway company, which is alleged in the bill to be a domestic corporation, is attempting to cross the complainant’s main track without complying with the Crossings act of 1907, and the complainant, instead of amending its bill, joins issue by replication when the defendant answers denying that it is a domestic corporation and averring that it is a foreign corporation, the defendant’s alleged lack of power, as a foreign corporation, to operate a street railway cannot be -availed of by the complainant as ground for the injunction.</p>

<p>Appeal from the Circuit Court of Schuyler county; the Hon. Guy R. Williams, Judge, presiding.</p>

George A. Carpenter, Judge, presiding. The bill in this case was filed by appellant, the West Chicago Park Commissioners, against appellees, to set aside a judgment of the circuit court of Cook county entered under date of December 6, 1905, in favor of Francis A. Riddle, for the sum of $20,583.53. Appellee Hudson was made a defendant to the bill as assignee of the judgment. The claim of Riddle against the park commissioners was for fees for services as attorney for the board.

<p>1. Appeals and Errors—when the Supreme Court may review facts relative to claim against estate. Where a claim against an estate is based on purely legal demands and no equitable defenses are made and there is no exercise by the probate court of its chancery powers, the judgment of the Appellate Court is final as to controverted questions of fact; but if the defense interposed is purely equitable or the probate court is required to exercise equitable jurisdiction the Supreme Court may review the facts.</p> <p>2. Same—what does not constitute an equitable defense to a claim. The defense that a contract was executed during the existence of the fiduciary relation of physician and patient and that it is therefore presumptively fraudulent is one which may be interposed in an action at law by the physician to recover on the contract, and hence the interposition of such defense to a claim against the patient’s estate based upon such contract merely shifts the burden of proof and does not require an exercise of equitable powers by the probate court.</p> <p>3. Same—finding that contract is against public policy is not a finding of fact. A finding by the Appellate Court that the written contract upon which a clainuagainst an estate was based was void, as being against public policy, is a finding of law and not of fact, and is not binding upon the Supreme Court.</p> <p>4. Public policy-—where public policy of State is found. The public policy of a State is to be found in its constitution and statutes, and when cases arise concerning matters upon which they are silent, then in its judicial decisions and the constant practice of the government officials.</p> <p>5. Same—law requires utmost freedom of contracting between competent parties. The laws and public policy of the State permit and require the utmost freedom of contracting between competent parties, and it is only when a contract expressly contravenes the law or the known public policy of the State that the courts will hold it void on that ground.</p> <p>6. Contracts—fact that contract may furnish some incentive to crime does not render it void. The fact that the benefits to accrue .to one party to a contract are conditioned upon the death of the other, as in case of contracts to devise property at death, and the like, does not render such contracts void, as against public policy, upon the ground that they furnish an incentive to the beneficiary to hasten the death of the other party.</p> <p>7. Same—what contract between physician and patient is not void. A contract between physician and patient whereby the former agrees, for a fixed sum to be paid after the other’s death, to render professional services and furnish medicine to the patient for the remainder of her natural lifetime in any sickness or indisposition she may suffer at any time or place, is not void as against public policy or as ar wagering contract.</p> <p>8. Evidence—burden of proof where parties to contract occupy a fidticiary relation. Where parties to a contract occupy the relation of physician and patient at the time the contract is executed, the burden is upon the former to show that the latter had competent and disinterested advice or that she entered into the contract voluntarily, deliberately and advisedly, knowing its nature and effect, and that her consent was not obtained by reason of the influence arising from the existence of the fiduciary relation, but he is not required to establish both propositions.</p> <p>9. Same—when statements of deceased person are admissible. Statements of a deceased person, made to various persons during her lifetime, with reference, to a contract made by her with her physician, her purpose in executing it and the services rendered by the physician, are competent, as admissions against interest, for the purpose of sustaining a claim against her estate based upon such contract.</p> <p>10. Depositions—depositions may be taken in matter of proving claim against estate. Section 60 of the Administration act, when construed in connection with the act relating to evidence and depositions, permits the taking of depositions in a proceeding in the probate court to establish a claim against an estate.</p> <p>11. Medicine and surgery—what does not render physician’s contract invalid. A contract by a physician to treat his patient professionally for any sickness she might suffer is not rendered invalid by the fact that he had no license to practice medicine in the State where the patient was temporarily sojourning at the time of her death, where he was duly licensed to practice medicine in the State where the contract was made and was merely attending such patient, and not in general practice in the other State.</p>

<p>1. Judgments and decrees—effect of reversal is to abrogate decree—rights of parties. A party to a suit cannot acquire any rights, while the decree is subject to review, which he can assert after the decree is reversed, since the effect of reversal is to abrogate the decree and leave the cause as it stood prior to the entry of the decree.</p> <p>2. Corporations—when ■corporation -is liable for stock transferred on its books. A corporation owes to a registered stockholder the duty to see that her stock is not transferred upon the books to a person not entitled thereto, even though such person obtains a decree, in a suit to which the corporation is a party, finding him to be the owner of such stock; and if the corporation transfers the stock to him while the decree is subject to review it is liable to the registered owner when the decree is reversed, where the transfer was not by command of the decree but at the request of a party who obtained possession of the stock by a writ of replevin after the decree was entered, and who immediately returned the stock to the corporation and directed its transfer.</p>

Lockwood Honors, Judge, presiding. On December 7, 1905, Thomas C. Clendenning filed his bill of complaint in the circuit court of Cook county against John F. Labahn, seeking to compel Labahn to convey to him certain real estate in the city of Chicago which Labahn had purchased at master’s sale made under a decree of the superior court of Cook county in a suit by Napoleon Provost against Anthony Kozlowski and others to enforce a- mechanic’s lien.

<p>1. Evidence—when copy of a notice to quit is admissible in ejectment. A true copy of a notice to quit is properly admitted in evidence in an ejectment suit, where the attorney for the party offering it testifies that he has had the original notice in his possession and that it was used in evidence in a former trial o' ii« case but that it has been mislaid or lost, and that he has bed for it in his office and among the files in the court hoc - - -.id has been unable to find it.</p> <p>2. Commons of Cahoicia—it is the deed, not lie: Lease, that is prima facie evidence under act of 18/4. It is the deed made by a supervisor of the village of Cahokia to the holder of a lease on the land which by the act of 1874 is made prima facie evidence that the grantee has a valid lease and has complied with the provisions of the act of 1874.</p> <p>3. Ejectment—prn/pHon where parties claim under different deeds to same /V :t> .¡¡ions of Cahokia. Where a lease on a lot in the,-comnioj,.. <>* Cahokia was forfeited by a supervisor for non-payment of í\ ¡¡i and a new lease was made to a different lessee, who subsequently acquired a supervisor’s deed to the lot, such deed will be presumed to be valid as against a later deed made by another supervisor to an assignee of the forfeited lease, unless it is shown that the rent was paid on the forfeited lease up to and including the date of the new lease, which would render the forfeiture, and the new lease and deed based thereon, invalid.</p>

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

Appear from the Appellate .Court for the Fourth District ;—heayd in that court on appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding. This is, an action on the case brought by appellee, George W. Strange, against appellant, in the circuit court of Crawford county. The amended declaration consisted of three counts.

<p>1. Evidence—parol evidence admissible to show that amount paid on a tax certificate has been re-pcid. In a proceeding to set aside a tax deed as a cloud on title, parol evidence is admissible to show that in a former partition suit to which both complainant and defendant were parties and in which another tax deed held by the defendant was canceled, the complainant had paid to the defendant, as required by the partition decree, the amounts due on other certificates of purchase held by him, including the one on which the tax deed sought to be set aside as a cloud was based.,</p> <p>2. Costs—when defendant should pay costs on setting aside tax deed. If a tax deed is wrongfully taken out by the holder of a certificate of purchase after the amount due on such certificate has been paid to him arid the certificate thereby satisfied, it is proper to tax the costs to him on setting aside the tax deed as a cloud on the title of the party who made the payment.</p>

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Frank D. Hooper, Judge, presiding.

<p>1. Criminal eaw—offenses which may be prosecuted by information. The only offenses which may be prosecuted by information are those where the punishment is by fine, alone, by imprisonment otherwise than in the penitentiary, alone, or either by fine or such imprisonment or by both fine and imprisonment, but cases in which the punishment is by fine and imprisonment and some other additional penalty can be prosecuted only by indictment.</p> <p>2. Same—deprivation of civil rights as a penalty for committing offense is part of the punishment. The deprivation of civil rights which follows conviction for the offenses specified in section 7 of division 2 of the Criminal Code, which include larceny, is part of the punishment for the offense and not a tnere incident of the punishment. (Bx parte Bollig, 31 Ill. 88, distinguished.)</p> <p>3. Same—whether crime is infamous depends upon the statute. Whether a crime is infamous in Illinois depends not upon the common law but upon the statute, as the constitution does not define, nor restrict the legislature in defining, infamous crimes.</p> <p>4. Larceny—offense of petit larceny can be prosecuted only by indictment. Petit larceny is an infamous crime, which subjects the offender to a punishment other than by fine or imprisonment otherwise than in the penitentiary, and can be prosecuted only upon indictment by a grand jury.</p> <p>5. Same—fact that defendant is a woman does not authorise prosecution for petit larceny by information. The fact that one accused of petit larceny is a woman and that her loss of civil rights under section 7 of division 2 of the Criminal Code, which follows her conviction for the offense, is more restricted than in case the offender were a man, does not authorize the prosecution of the offense by information.</p> <p>6. Same—the fact that petit larceny is not a felony does not authorise prosecution by information. The fact that petit larceny is only a misdemeanor and not a felony does not authorize the prosecution of the offender by information, since section 7 of division 2 of the Criminal Code, which deprives of his civil rights a person convicted of an offense specified therein, is not based on the distinction between felonies and misdemeanors.</p> <p>7. Same—county court’s long assumed jurisdiction in petit larceny cannot be recognised as lawful. The fact that the county courts of the State have for many years assumed jurisdiction to try petit larceny cases on information does not require that such assumed jurisdiction, when finally brought in question, shall be recognized as a lawful jurisdiction, in the face of contrary provisions of the law.</p> <p>8. Same—effect of previous convictions for petit larceny on information. Previous convictions, in Illinois, of the crime of petit ' larceny when prosecuted by information have not deprived the persons so convicted of their civil rights, for the reason that the judgments rendered were without jurisdiction.</p>

<p>1. (Devices—office created by legislative action is wholly within legislative control. If an office is not an office of constitutional origin but is created by legislative action it is wholly within the control of the legislature creating it, and it is competent for the legislature to declare the manner of filling it, and to change, from time to time, the mode of election or appointment.</p> <p>2. Constitutional law—article 6 is source of all legislative authority. Article 6 of the constitution covers the whole judicial power of the people of the State and is the source of all legislative authority respecting courts; and the municipal court of Chicago is one of the courts which section 1 of article 6 provides may be created by law in and for cities and incorporated towns.</p> <p>3. Same—amendment of 1904 is not the source of legislative authority to create municipal court. Section 34 of article 4 of the constitution, adopted as an amendment in 1904, is not a new source of judicial power and does not authorize the legislature to create municipal courts but only confers authority to establish a municipal government for the city of Chicago; but it is in keeping with such object to regulate the practice and methods of a municipal court for the city which might be created under the already existing authority of section 1 of article 6.</p> <p>4. Same—legislative construction of doubtful provision of constitution is entitled to great weight. The legislative construction placed upon a doubtful provision of the constitution is entitled to great weight and consideration, and where an act has been recognized, sanctioned and acquiesced in by the different departments of the government and by the people for many years, such practical construction raises a strong presumption that it is correct.</p> <p>5. Same—judges of municipal court are not officers provided for in article 6 of the constitution. Article 6 of the constitution authorizes the legislature to create municipal courts in its discretion, but it does not “provide” for such courts, in the sense that judges of municipal courts which may be created shall be deemed “officers provided for” in said article, whose term of office, under section 32 thereof, is fixed at four years.</p> <p>6. Same—section p of the Municipal Court act, fixing term of judges, is valid. It is within the power of the legislature, when creating a municipal court for a city or incorporated town, to fix the term of such office, and hence section 9 of the Municipal Court act, providing the manner of filling the offices of associate justices of such court and fixing the term of office, after the first election, at six years, is valid.</p>

<p>1. Courts—term of office of judge of a city court is four years.f The term of office of a judge of a city court is not fixed by the constitution but is fixed by the City Court act at four years, and such term is not changed by the amendment of-1907, giving cities of certain 'population power to elect an additional judge and “fix the time when such election shall be held.”</p> <p>2. Elections—city has no power to ñx term of first additional city judge. Under the amendment of the City Court act, in 1907, a city council may exercise its discretion as to when an election for an additional judge of the city court may be held, but it has no power to provide that he shall hold office for less than four years after his election, and a provision to that effect on the ballots under which such judge is elected is void; but the election is valid for the term fixed by law.</p>

<p>1. Practice—amendment of igog did not change manner of applying for certifícate of importance. The manner of applying for a certificate of importance, and the conditions under which the same may be granted by the Appellate Court, or the judges thereof in vacation, were not affected by the amendatory act of June 4, 1909, (Laws of 1909, p. 304,) but remain as they were before that act was passed.</p> <p>2. Same—twenty day limitation applies .whether judgments are entered in term time or vacation. Sections 8 and 15 of the Appellate Court act and sections 100 and 121 of the Practice act are in pari materia and must be construed together, and when so construed it follows, by necessary implication, that the twenty day limitation provided for in section 100 of the Practice act within which appeals may be prayed and allowed applies to appeals upon</p> <p>, certificates of importance from judgments of the Appellate Court entered either in term time or vacation.</p> <p>3. Same—judges of Appellate Court may grant a certifícate of importance. The judges of the Appellate Court have ’jurisdiction to consider, in vacation, an application for a certificate of importance made within twenty days from the entry of the judgment and to make all necessary orders in connection therewith within that time, and a majority of the judges may grant such certificate of importance and certify their action, as judges of the Appellate Court, to the Supreme Court.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

Writ oE Error to the Branch Appellate Court for the Eirst District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding.

<p>Appear from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Drainage—two drainage districts cannot occupy same territory at same time. Drainage districts organized under the Levee and the Farm Drainage acts are both quasi corporations, and it is not consistent for two such corporations to occupy the same territory at the same time for the same purpose. (People v. Nibbe, 150 Ill. 269, and City of Joliet v. Drainage District, 222 id. 441, explained.)</p> <p>2. Same—pozver of drainage district to include land in incorporated city or village. The power of a city or village to divide its territory into drainage districts is merely incidental to the purpose for which the city or village is organized, and hence if it has not organized its territory into a drainage district and assumed jurisdiction over it for drainage purposes, the inclusion of such territory in a district organized under the Levee act or Farm Drainage act is not an unlawful devotion of it by another corporation to the same purpose for which the city or village was organized.</p> <p>3. Same—levee district cannot include land wholly in existing district. Sections 2 and 9 of the Levee act do not authorize a levee district to include within its boundaries lands lying wholly within a legally organized farm drainage district which has been in existence many years and subject such lands to condemnation for right of way for the levee district ditches and to assessment of benefits and damages for the drainage purposes of the district.</p>

<p>1. Corporations—if a foreign corporation transacts business without complying with law its contracts are void. If a foreign corporation for profit transacts its business in Illinois without complying with the requirements of the act of 1905 to regulate the admission of foreign corporations for profit to do business in Illinois its contracts connected with the business so transacted are void, provided such corporation is one which is amenable to the provisions of the act.</p> <p>2. Same—State has no power to regulate foreign corporations engaged in inter-State commerce. The power of a State to impose conditions upon foreign corporations for the exercise of their corporate franchises and privileges is subject to the restriction contained in section 8 of article 1 of the constitution of the United States, which grants to Congress the power to regulate commerce among the several States.</p> <p>3. Same—power of Congress to regulate commerce is exclusive. No State, except in the exercise of police power for the security of the lives, health and comfort of persons and the protection of property, can make any law or regulation which will affect the free and unrestrained intercourse and trade betweén the States as Congress has left it, or which will impose any discriminating burden or tax upon the citizens or products of other States coming or brought within its jurisdiction.</p> <p>4. Same—right of unrestrained trade extends to corporations. The right of free and unrestrained intercourse and trade is not confined to natural persons but extends to corporations.</p> <p>5. Same—Illinois statute concerning foreign corporations does not apply to corporations engaged in inter-State commerce. The act of 1905, to regulate foreign corporations doing business in Illinois, by its terms applies only to such corporations as are “amenable to the provisions of this act,” and does not apply to foreign corporations engaged in the business of inter-State commerce, and such corporations are therefore not precluded from using the courts of Illinois because they have not complied with such act.</p> <p>6. Same—when foreign corporation is engaged in inter-State commerce. A foreign corporation engaged in manufacture in the foreign State and selling and delivering its product to merchants in Illinois through its salesmen without having any office or place of business in Illinois is engaged in inter-State commerce, and may sue in the courts of Illinois for the price of merchandise so sold and delivered though it has not complied with the act regulating foreign corporations.</p>

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

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

<p>1. Parks—power of park board to take over streets for boulevards. Under the acts of 1879 and 1895, giving park boards the power to connect any part of a city with the parks under its control and also power to connect any part of the city with any of the boulevards leading to said parks, such boards have power to take over, for improvement, streets or parts of streets connecting with boulevards leading to parks under their control, even though the improvement does not terminate at either end in a park.</p> <p>2. Same—by taking over one street for improvement the park board does not exhaust its power. By taking over one street for the purpose of making a boulevard connecting a part of the city with a park or boulevard the park board does not exhaust its power to take over other streets to connect other parts of the city, although in the same vicinity, with such parks or boulevards.</p> <p>3. Same—whether park board’s improvement is reasonable is not a question for the court. Whether the proposed improvement of streets by a park board is reasonable in view of the boulevards already established is a question to be determined by the park board, the city council and the majority of the owners of property abutting on such streets, and the Supreme Court will not interfere unless it clearly appears there has been an abuse of the discretion vested in the municipalities.</p>

<p>1. Taxes—town clerk must certify hard roads tax to county clerk. The certificate required by section 3 of the Hard Roads act of 1883 to be filed with the county clerk is similar to that required by section 4 of article 12 of the Township Organization act, and it is not sufficient for him to file with the county clerk the original certificate made by the commissioners of highways.</p> <p>2. Same—the hard road tax is illegal unless proper certificates have been made. Unless the certificates required by section 3 of the Hard Roads act of 1883 to be made by the highway commissioners and by the town clerk have been made the tax is illegal and the county clerk has no authority to extend the tax.</p>

<p>1. Deeds—general rule where grantor owns fee to center of adjoining highway. Where the fee to the center of a street or highway is in the adjoining owner, the fee to the center of such street or highway will pass to his grantee unless there are words in the deed which show the contrary.</p> <p>2. Same—when a deed to right of way does not convey fee to center of a highway. A deed conveying a strip of land ioo feet wide for a railroad right of way, “being 50 feet on each side of the line as now located,” which line ran parallel to a public highway half of which was on the grantor’s land, conveys only so much of the highway as is embraced within the ioo-foot strip-, notwithstanding the deed contains the words, “subject to public road as it now runs,” but the fee to the portion of the highway not embraced within the ioo-foot strip remains in the grantor and passes by his deed when the highway is abandoned.</p>

<p>1. Evidence—common law disqualification of husband as witness for or against wife. At common law a husband could not be a witness for or against his wife as to any matter, nor could he, either during the marriage or after its termination by death or divorce, be a witness to testify to communications between them or to any fact or transaction the knowledge of which was obtained by means of the marriage relation.</p> <p>2. Same—extent to which husband’s common law disqualification as a witness has been removed. The common law rule prohibiting a husband from testifying for or against his wife has been modified in Illinois by sections 1 and 5 of the Evidence act, but neither of those sections renders the husband a competent witness except in the cases enumerated in said section 5.</p> <p>3. Same—prohibition of section J is not limited to admissions or conversations. Section 5 of the Evidence act, which prohibits a husband or wife, in case the other be dead, from testifying to any admission or conversation of such other to the survivor or to third persons, does not remove the common law disqualification against testifying to any fact or transaction the knowledge of which was obtained by means of the marriage relation.</p> <p>4. Same—divorced husband not competent to testify in a will case as to mental capacity of testatrix. In a will contest case, where it is claimed the testatrix was of unsound mind, the divorced husband of the testatrix is not a competent witness to testify to acts of the testatrix, during the marriage relation, calculated to establish the fact that she was of unsound mind.</p>

<p>1. Appeals and errors—upon remandment of _ suit at law the case is open for re-trial upon facts. Where a suit at law, in which the parties are entitled to a jury trial, is remanded, the parties are not'bound by what is said in the opinion as to the facts, although the legal principles announced are binding in so far as they are applicable to the second trial, but the remandment opens the case for a new trial upon the facts.</p> <p>2. Eminent domain—when condemnation verdict will not be disturbed. Where the verdict in a condemnation case; rendered by the jury after viewing the premises, is within the range of the conflicting testimony as to value and does not appear to be the result of prejudice or passion, it will not be disturbed, on appeal, unless it appears to have been brought about by some improper ruling of the court.</p> <p>3. Same—what holding by Supreme Court is not a determination of a fact. A holding by the Supreme Court, on first appeal in a condemnation case, that the defendants had a right to prove, as an element of value,- that the land was benefited by its proximity to railroad tracks and by the probability that switch track privileges might be secured by contract with the railroads and the consent of the city, is not a holding, as a fact, that such benefit exists, but the question is one to be proved as a fact upon the second trial.</p> <p>4. Same—defendants cannot insist that petitioner's witnesses should take same view as defendants’ witnesses. The fact that the defendants are entitled to prove, as an element of value, that their lands are near a railroad and may secure switching connections, does not require that the witnesses for the petitioner shall take the same view as defendants’ witnesses of the value of such privileges, and the fact that they do not consider such privileges as increasing the value of the land as previously testified to by them goes only to the weight of their testimony and not its competency.</p> <p>5. Trial—cotirt may state grounds upon which it bases its ruling. In ruling upon an objection of counsel in the course of the examination of a witness the court has a right to state the grounds which form the basis of its ruling, and a statement by the court in a colloquy with counsel during the examination of a witness, to the effect that the witness had no right to bridge a public alley, is a correct statement of the law and is not ground for reversal as being an oral instruction to the jury, even though the jury overheard the statement.</p>

<p>Appear from the Appellate Court for the First District;—-heard in that court on writ of error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.</p>

<p>1. Husband and wipe—marriage relation affords no immunity against consequences of fraud by either party. While a husband may make a voluntary conveyance of a part or all of his property to his wife, which, in the absence of any fraud, will be sustained as against the husband or his representative, yet the intimacy of the marriage relation requires strict scrutiny of such a transaction, as such relation affords no immunity against the consequences of fraud practiced by either party upon the other.</p> <p>2. Same—when a deed from husband to wife will be set aside. A deed and bill of sale conveying all of an aged man’s real estate and personal property to his young wife upon her promise to cease her harsh and unkind treatment and live peaceably with him, will be set aside in equity if it appears that the wife obtained the property with the intention of pursuing the course of conduct she thereafter followed, which resulted in the husband’s being driven to leave his home and secure a divorce from the wife upon the ground of adultery.</p>

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

<p>1. Robbery—instruction defining robbery in language of statute is not erroneous. An instruction defining the crime of robbery-in the language of the statute is not erroneous because it omits to include a felonious intent as a constituent element of the offense, as such intent is not an essential element of the crime of robbery at common law, and the definition in the statute is complete.</p> <p>2. Instructions—when alleged error in instruction as to rearsonable .doubt is favorable to the plaintiff. An instruction stating that the reasonable doubt that the jury is permitted to entertain must be as to the guilt of the accused on the whole evidence and not as to any particular fact in the case “not material to the issue in the case,” is, if erroneous at all in including the quoted words, beneficial rather than prejudicial to the accused, and he is not entitled to complain thereof.</p> <p>3. Same—when instruction as to presumption of innocence is not erroneous. An instruction is not erroneous which states that the rule which clothes every person accused of crime with the presumption of innocence and imposes upon the State the burden of establishing his guilt beyond a reasonable doubt is not intended to aid anyone who is in fact guilty of crime to escape, but is a humane provision of the law, intended, so far as human agencies can, to guard against the danger of an innocent person being unjustly punished.</p> <p>4. Same—when instructions cannot be misleading as a series. If each instruction for the People in a criminal case is proper it cannot be said they were misleading and prejudicial as a series.</p>

<p>1. Wills—a bill to contest will should allege all grounds relied upon. Upon a bill in chancery to set aside the probate of a will the prima- facie case made in favor of' the will by the certificate of the oath of the attesting witnesses can-be impeached only upon the particular grounds alleged in the bill and not upon grounds not alleged, even though they may appear from the evidence.</p> <p>2. Same—when question of proper attestation of will is not involved. The question whether a will was legally executed and attested is not involved in a proceeding to set aside the probate of the will, where the only grounds alleged in the bill are want of testamentary capacity and that there was undue influence.</p> <p>3. Same—when question of fiduciary relation is immaterial. If the evidence in a will contest case clearly shows that the instrument was the product of the mind and will of the testatrix and not that of the person who drew the will, the question whether such person sustained a fiduciary relation to the testatrix is immaterial.</p> <p>4. Same—mere relationship of a child to parent raises no presumption of undue influence. No presumption that a will made by a parent in favor of a child was procured by the child’s undue influence arises from the mere fact of their relationship, in the absence of evidence that a confidence was, in fact, reposed in the child; nor do the mere facts that the child procured the attendance of the attesting witnesses and had a disagreement with another child over the- matter raise any such presumption.</p> <p>5. Instructions—argumentative matter should be stricken out. A preliminary statement in an instruction in a will case, to the effect that the law recognizes that wills are often made in extremis and when the bodily powers are broken and mental faculties are enfeebled, is merely argumentative and should be stricken out.</p> <p>6. Same—what statement in instruction is incorrect. A statement that the reasonableness, justice or propriety of a will are not questions for the jury to take into consideration or pass upon is not a correct statement of the law, and should be either modified or stricken out of an instruction which was intended to inform the jury that the will could not, for those causes alone, be set aside.</p> <p>■ 7. Evidence—whether evidence of conversations with testatrix is too remote rests largely with the court. Whether conversations with the testatrix, prior to the making of the will, with reference to the disposition of her property are too remote in point of time to be admissible is a question which cannot be determined by any fixed rule but must rest somewhat within the discretion of the court.</p>

<p>1. Pleading—at law the defense of the Statute of Limitations must be raised by plea. In actions at law the defense of the Statute of Limitations must be raised by plea and cannot be raised by demurrer, even though it may appear from the face of the declaration that the period of limitation for bringing suit has expired.</p> <p>2. Same—party must stand by demurrer if he desires to have court’s action in overruling it reviewed. A party who desires to have a higher court review the trial court’s action in overruling a demurrer must stand by the demurrer, and he waives the question if he pleads over.</p> <p>3. Same—effect of filing rejoinder to replication. Filing a rejoinder to a replication after the overruling of a demurrer to the replication amounts to admitting the sufficiency of the replication and waives right to assign error on overruling of demurrer.</p> <p>4. Same—when demurrer to rejoinder cannot be carried back to replication. A demurrer to a rejoinder to replication cannot be carried back to the replication if there is no motion to carry the demurrer back to the replication, or if the court has already passed upon the sufficiency of the replication on demurrer thereto.</p> <p>5. Limitations—effect of non-suit. The distinction between voluntary and involuntary non-suits, as respects the right to bring another suit within a year, only becomes material when the non-suit occurs after the period of limitation for bringing the action has. expired, as before that time any number of suits may be brought, whether previous non-suits are voluntary or involuntary.</p> <p>6. Practice—when cause must be remanded to the Appellate Court. Where the Appellate Court reverses a judgment at law without remanding the cause, upon the ground that the trial court had no jurisdiction because the cause of action was barred by the Statute of Limitations, if the Appellate Court was wrong in its conclusion on that question, which is one of law, the judgment of the Appellate Court must be reversed and the cause be remanded to that court to consider other errors assigned upon the record.</p>

<p>1. Trial—purpose of the opening statement to jury. The only-purpose of the opening statement is to give the jury an idea of the nature of the action and defense; but such statement is not a necessary matter, nor is it intended to take the place of pleadings, as a legal statement of the cause of action or defense.</p> <p>2. Same—right to introduce evidence is not governed by opening statement. A party is entitled to introduce evidence to prove a cause of action or to defend against evidence tending to sustain a cause of action even if no opening statement is made, and if one is made he is not confined to it in the introduction of evidence.</p> <p>3. Same—opening statement is not an admission of the facts. The authority of an attorney to admit facts and waive the introduction of evidence thereof is limited to admissions in the trial of the case, but the opening statement to the jury is not an admission which the court or the jury can treat as binding upon the client.</p> <p>4. Same—court cannot direct a verdict on opening statement. If the parties are entitled to a trial by jury on the issues raised by the pleadings the verdict must rest upon the evidence or want of evidence, and the court cannot treat the opening statements of the attorneys as evidence and direct a verdict thereon.</p> <p>5. Same-—court should decline to proceed when called upon to adjudicate rights based on illegal contract. When it appears that the court is being called upon to adjudicate rights based upon a contract void as against public policy or as in violation of law, the court should decline to proceed with the case, whether the claim of illegality is made by the pleadings or not.</p> <p>6. Same—what is not ground for directing a verdict. A statement in defendants’ motion for a continuance in a forcible detainer case, to the effect that their remedy against the action was in equity and that they desired to proceed in a court of equity, is not ground for directing a verdict upon a denial of the continuance.</p> <p>7. Forcible detainer—fact that title is in plaintiff is not conclusive of right to possession. Even though it is admitted in a forcible detainer suit that the title to the premises is in the plaintiff, it does not necessarily follow from such admission, and from the fact that the title cannot be adjudicated in such an action, that the plaintiff is entitled to the possession of the premises.</p>

<p>1. Pleading—different acts of negligence may be charged in different, counts—proof. It is allowable to charge, in different counts of the declaration, different acts of negligence' as the cause of the injury alleged, and the plaintiff is not required to prove each count of the- declaration in order to entitle him to a verdict, and he may recover if one count is sufficient and the proof supports that count.</p> <p>2. Practice—principle of sections 71 and 78 of Practice act applies where there is one count supported by evidence. Although sections 71 and 78 of the Practice act have reference to counts of the declaration which are defective or faulty in the sense that they are not sufficient to support a verdict, yet by analogy the same principle applies where there are several good counts but one or more of them are not supported by evidence.</p> <p>3. Same—effect of erroneous denial of a motion to take unproved counts from jury. The erroneous denial of a motion to take from the jury counts of the declaration there is no evidence tending to prove is not ground for reversal if there is one good count which there is evidence tending to support, as it will be presumed the jury based their verdict on the count supported by the proof.</p> <p>4. Master and servant—when a servant is relieved from assumption of risk. Where a servant complains to the master of a dangerous condition and the master promises to remedy the same, the servant may, in reliance upon such promise, remain in the employment a reasonable time without assuming the risk of such conditions, unless they are so obvious that no man of ordinary prudence would engage in the work or unless the defects are in tools or appliances of simple construction, with which the servant is as familiar as the master.</p> <p>5. Same—whether the servant continued in employment more than a reasonable time is for the jury. Whether the dangerous conditions complained of by a servant were of such a character that no reasonable man would have remained in the employment notwithstanding the master’s promise to repair, and whether the servant continued in the employment longer than was reasonably necessary to enable the master to fulfill his promise to repair, are questions of fact for the jury.</p>

<p>1. Churches—the existence of local religious societies must he proved. Courts will not take judicial notice of the existence or non-existence of local religious societies, but such facts, in order to be entitled to consideration, must be proven.</p> <p>2. Dedication—what does not show dedication of cemetery to Church .of England. The mere fact that certain lots in Illinois City, laid out on the commons of Cahokia in 1825, were designated on the plat as “English graveyard” does not authorize holding that such cemetery was dedicated to the Church of England and its successor in the United States, the Protestant Episcopal Church, there being no evidence to support such claim.</p>

<p>1. Eminent domain—jury have a right to take into account their own observations. The jury in a condemnation case have a right to take into account the facts and conditions observed by them in viewing the premises, together with all the testimony in the case, and it is proper to so instruct the jury if no intimation is given that the jury may consider their own observations alone and disregard the testimony.</p> <p>2. Same—when instructions as to disregarding the testimony exaggerating or under-estimating value are not correct. It is the corrupt mdtive, or the giving of false testimony knowing it to be false, which authorizes the jury to disregard the testimony of a witness in so far as it is uncorroborated, and hence instructions are not correct which state that if any witness has placed too low or too high a value on condemned property, as a result of his prejudice or want of knowledge, experience or truthfulness, the jury may disregard his testimony in so far as the value is unjustly under-estimated or magnified.</p> <p>3. Same—a petition should describe land with reasonable certainty. A condemnation petition should describe with reasonable certainty the lands sought to be condemned, but if the defendants, without making any objection, file a cross-petition treating the description as certain and sufficient, the judgment should not be reversed for uncertainty of description in the petition.</p> <p>4. Same—judgment must be reversed if description is an impossible one. The description in the petition to condemn land must be followed in the verdict and judgment, and if the description given in the verdict, and judgment is an impossible one the judgment is void for uncertainty and must be reversed.</p> <p>5. Instructions—use of word “defendant” for “defendants” is not a serious matter. The fact that a few of the instructions in a condemnation case, where there are two defendants, use the word “defendant” instead of “defendants” is'not a serious objection, where there are numerous instructions on both sides advising the jury as to the rights of the defendants and their compensation and damages, which were awarded in terms according to the ownership of the property.</p>

<p>Writ or Error to the Circuit Court of Schuyler county; the Hon. Guy R. Williams, Judge, presiding.</p>

<p>1. Dower—death of husband entitles wife to dower unless it is barred. The death of the husband entitles the wife to dower in all real estate of which he was seized of an estate of inheritance during coverture unless her right has been legally barred.</p> <p>2. Same—rule as to bar of dower right by seven year Statute of Limitations. The right of a wife to dower may be barred by adverse possession for seven years under claim and color of title, with payment of taxes, but the statute does not begin to run against the right during the life of the husband. (Dugan v. Follett, 100 Ill. 581, explained.)</p> <p>3. Same—dower right may be barred by delay and inaction amounting to fraud. The right of a wife to dower may be barred by delay and inaction for such a period of time and under such circumstances as amount to fraud, but a wife is not bound by any fraud or mis-statement of her husband of which she was ignorant.</p> <p>4. Same—when right to dower is not barred. A false statement by the grantor, in his deed and in the certificate of acknowledgment, that he was an unmarried man does not bar the right of his wife to dower upon his death, where it is not shown that she knew of such false statement and no facts constituting an estoppel against her are alleged and proved.</p> <p>5. Same—fact that money was used to support wife does not bar her dower. If a wife has not participated in the husband’s fraud in falsely stating in his deed that he was an unmarried man, the facts that she continued to live with him after the conveyance and that the money derived therefrom may have been used in pay- . ing the family expenses do not bar her right to dower in the land at the husband’s death.</p>

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

<p>Appear from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

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

<p>1. Courts—municipal court of Chicago is not part of judicial department of State at large. The municipal court of the city of Chicago, while it comes under the generic name of “city court,” belongs to a specific class different from the city courts established under the general City Courts act, and is created, not as a part of the judicial department of the State at large, but as a local court of the city, for administering the law within the city.</p> <p>2. Constitutional law—when law is local or special. A law is necessarily local or special if the right to sue out a writ of error on a judgment for taxes recovered in one court of record shall be allowed, and on a precisely similar judgment recovered in another court of record under same circumstances shall be denied.</p> <p>3. Appeals and errors—practice in suing out writs of error to municipal court is the same as in other courts. Under section 29 of article 6 of the constitution, the practice in suing out writs of error from the Supreme Court or Appellate Court to the municipal court of Chicago must be the same as in cases of writs of error to other courts, and in so far as section 23 of the Municipal Court act attempts to prescribe a ’different rule it is unconstitutional.</p> <p>4. Taxes—it is the duty of personal representative to list property for taxation. Under the statute it is the duty of an executor or administrator to list for taxation property of the estate in his possession, and upon a failure to do so it is the duty of the assessor to ascertain, as best he can, the amount of such property and assess the same.</p> <p>3. Same—-a personal representative is personally liable for tax. By virtue of the statute making it the duty of an executor or administrator to list for taxation property of the estate in his hands and giving him a lien for taxes paid, there is a personal liability on the part of such executor or administrator to pay such taxes.</p> <p>6. Same—People not obliged to' proceed in probate court to recover taxes. The People are not obliged to proceed in the probate court in order to collect taxes due upon property of the estate assessed while it was in the hands of the executor or administrator but may bring an action of debt against such executor or administrator.</p> <p>7. Same—proceeding by People to recover taxes is not barred by Statute of Limitations. An action of debt by the People to recover taxes assessed against the defendant is not an action to recover a penalty and is not subject to the Statute of Limitations.</p> <p>8. Same—fact that property is assessed too high is no defense to action of debt for taxes. If an executor fails to list for taxation the funds of the estate in his hands, the fact that the amount of money actually in his possession as executor on April 1 is less than the amount set down by the assessor in an honest attempt to make a fair assessment is no defense to an action of debt to recover the taxes.</p> <p>9. Same—what amounts to an assessment against the executor. An assessment entered on the assessor’s book as “Sullivan, Daniel, Est. $40,000,” with the words “Hibernian Banking Association Extr.” in smaller letters immediately above, is a sufficient assessment to the executor, whether it is indexed under the letter “S” or the letter “H.”</p>

<p>Criminal law—when verdict is not sufficient to sustain conviction for keeping young girl in house of prostitution. A verdict finding the defendant guilty of “harboring a minor in a house of prostitution, in manner and form as charged in the indictment,” is not sufficient to sustain a conviction for so harboring an unmarried female under the age of eighteen. (People v. Lee, 237 Ill. 272, followed.)</p>

<p>1. Inheritance tax—inheritance tax is a tax upon right of succession. An inheritance tax is not a tax upon the property itself but upon the right to succeed to the property.</p> <p>2. Same—-laws governing descent and devise of property are subject to legislative change. The laws that govern the descent and devise of property are statutory, and are subject to legislative change, at discretion.</p> <p>3. Same—State may impose conditions on privilege of succession. The succession to the ownership of property being by permission of the State, the State may impose conditions in granting such privilege; and the imposition of an inheritance tax has been upheld where the State had jurisdiction of the beneficiary and the subject matter, regardless of the actual location of the personal property or the domicile of the decedent.</p> <p>4. Same—inheritance tax is not strictly a tax. An inheritance tax is not a “tax” in the strict sense of that term, nor are the -Inheritance Tax act and the general Revenue law in pari materia, as they were passed at different times and upon different theories, the former being directed to the right to succeed to the ownership of property and the latter to the property itself.</p> <p>5. Same—what property of non-resident decedent is siibject to inheritance tax. Tangible personal property of a non-resident decedent which is located in Illinois, and stocks and bonds of domestic corporations found in his safety deposit box in Illinois and cash on deposit in Illinois, are subject to an inheritance tax, but stocks and bonds of foreign corporations found in such safety deposit box are not subject to such a tax.</p> <p>6. Same—doubtful langttage should not be extended. The meaning of section 1 of the Inheritance Tax law as to what property of non-resident decedents shall be subject to the tax is not entirely clear, and the language thereof should not be extended beyond the clear import of the words used, in order to bring property within the provisions of the act and subject it to the tax.</p> <p>7. Same—section 10 of Inheritance Tax act construed. Section 10 of the Inheritance Tax act, authorizing the State treasurer, upon satisfactory proof rendered to him by the county treasurer, to refund taxes erroneously paid, was not intended to authorize the county treasurer to refund taxes erroneously paid to him, as the statute requires him to turn over such taxes to the State treasurer at stated intervals, and it will be presumed that he has performed his duty.</p> <p>8. Statutes—rule where statute of another State is adopted. Where one State adopts a statute of another State which has received judicial construction, it is presumed that the legislature intended the statute should receive the same construction by the courts of the State adopting the statute, unless such construction is in conflict with the spirit and policy of its laws.</p>

Writ or Error to the Circuit Court of Coles comity; the Hon. William B. ScholRiRld, Judge, presiding. This was an action of ejectment brought by plaintiff in error in the circuit court of Coles county to recover something over twenty acres of land described in the declaration.

Parren Q. Barr, Judge, presiding. John B. Mayer, a resident of Chicago, died June 3, 1892, leaving him surviving his widow, Veronicka… Held: among other things, that by the will of John B. Mayer Anna Mayer took a base or determinable estate in fee simple to the property devised to her by the said will, and that upon her death her mother became the owner thereof under the provisions of said will; that the determinable character of the estate devised to Anna McCracken in…

<p>1. Practice—when bill of‘exceptions must be taken. A bill of exceptions must be talcen at the term when the rulings excepted to are made, or within such time as the court may at that term grant for the purpose.</p> <p>2. Same—cross-errors are not necessary to raise question as to what is a proper part of record. Cross-errors are not necessary in order to "entitle an appellee* to raise the question as to what is a proper part of the record in the cause, and it is proper to have such question determined on a motion to expunge the portion of the bill of exceptions claimed to have been improperly made a part of the record.</p> <p>3. Pleading—when the right to question ruling on demurrer is waived. Where a defendant fails to stand by a plea after a demurrer thereto is sustained but takes leave to plead over and files another plea, the right to question the ruling on the demurrer to the former plea is waived.</p> <p>4. Same—plea amounting merely to general issue, also filed, is open to demurrer. A plea filed under leave after the general issue is filed, and which merely amounts, to the general issue, is ■open to demurrer on that ground.</p> <p>5. Corporations—when foreign corporation law has no application. The statute requiring a foreign corporation to comply with certain provisions before it is entitled to transact in Illinois the business for which the corporation was organized has no reference to a resort by such a corporation to the courts of Illinois to recover a contract liability.</p> <p>6. Same—when debt due foreign corporation may be reached by garnishment. A debt due a foreign corporation may be reached by garnishment under the Attachment act even though the corporation has not complied with the foreign corporation law and has no agent in Illinois, where the corporation voluntarily appears and files a plea of the general issue and where the debtor is subject to process of the courts of Illinois.</p> <p>7. Contracts—when a coal contract sufficiently fixes the quantity to be delivered. A contract whereby the vendor agrees to sell and the vendee agrees to buy estimated tonnage of 50,000 tons of Ella coal, is an agreement for a practically definite amount of coal to be delivered by vendor and which vendee is bound to take..</p> <p>8. Same—when contract made by foreign corporation is void. If a contract made by a foreign corporation is unlawful under the statute it is void, even though the statute does not declare the contract to be void but only imposes a fine upon the foreign corporation and' denies it the right to maintain any suit or action in the courts of the State.</p> <p>9. Same—when contract by foreign corporation does not violate the statute. A statute prohibiting a foreign corporation from transacting business, holding or disposing of property or maintaining any suits in the courts of the State unless it shall have complied with certain requirements, is not violated by the making of a single contract for the purchase of movable personal property, such as coal, and authorizing its delivery to a partnership located in the State.</p> <p>10. Same—when a contract is not ultra vires. A corporation having power, under its charter, to mine coal has the incidental power to sell it, and a contract for the sale of coal is not, therefore, ultra vires the corporation. ■</p> <p>11. Comity—when comity does not require coiirt to turn suitor away. The comity between States does not require the courts of one State to turn a citizen thereof away who has a good cause of action under the laws of such State merely because he could not maintain an action in another State.</p> <p>12. Evidence—when refusal to allow oral evidence as to ambiguities is proper. A refusal to allow oral evidence concerning alleged ambiguities in a contract is proper, where th'ere was no misunderstanding between the parties about the terms and no dispute whatever as to what the contract meant.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.</p>

<p>1. Municipal corporations—-city has power to construct or acquire underground street railways. The words “street railways,’’ used in section 1 of the Mueller law of 1903, giving cities power to own, construct, acquire, purchase, maintain, operate and lease street railways within their corporate limits, include not only street railways on the surface of streets but also those above or beneath the surface.</p> <p>2. Same—city has power to construct street railway subways. Under the Mueller law of 1903 a city has power to construct subways for street railways and to lease the same to the street railway companies, and the fact that a street railway company is to contribute a certain amount to the cost of the subways as consideration for their use does not change the relation of the city and the company from lessor and lessee to that of partners.</p> <p>3. Same—granting exclusive use of subways to certain street railway not unlawful. The fact that a city grants to a street railway company, as its lessee of a subway, the exclusive use of the tracks in such subway for the remainder of the term under which the company is operating, does not amount to an exclusion of the public from the street and is not unlawful.</p> <p>4. Same—city has bower to do preliminary work in connection with constructing subways. Having power, under the Mueller law of 1903, to construct or acquire underground street railways, a city has the power to construct or acquire the subways for such underground street railways, and to take such preliminary steps and do such preliminary work as are necessary in order to determine whether it is advisable to proceed with the construction of such subways.</p> <p>5. Same—the city of Chicago may use “traction fund” or any other available fund, in exercising its power to construct subways. In exercising its power to construct the street railway subways contemplated in the “traction ordinances of 1907,” the city of Chicago may expend for such purpose the “traction fund” or any other available funds of the city not otherwise appropriated, but the traction fund cannot be used for general corporate purposes.</p>

<p>1. Deeds—son may release expectancy in father's estate by accepting deed. A son may release his expectancy in his father’s estate by accepting a deed containing a clause to that effect, and it is immaterial whether the consideration for the release is the land itself or money paid by the father for the land or which he let the son have for that purpose.</p> <p>2. Same—grantee cannot claim under deed and repudiate part of its terms. A son who accepts a deed containing a clause releasing his expectancy in his father’s estate and who claims title under the deed and makes no objection during his father’s lifetime though he had knowledge of the clause in the deed for a period of ten years after he obtained it from the recorder, cannot repudiate the deed, after his father’s death, on the ground that he was not aware when the deed was made that it contained such clause.</p>

<p>1. Wills—courts favor construction giving fee to first taker. In construing wills courts are disposed to favor such a construction as will give the fee to the first taker, so as not to tie up the property and prevent its alienation, and a construction is uniformly adopted which favors the heir.</p> <p>2. Same—meaning of words "die without issue” depends upon intention of the testator. Whether the words “die without issue” shall be held to mean without having had issue or without leaving issue surviving does not depend upon whether the first taker has a life estate or a greater or less estate, but rests rather upon the connection in which such words are used and the intention of the testator as shown by the entire will.</p> <p>3. Same—courts are inclined to construe words “die without issue” as meaning without having had issue. Courts are inclined to construe the words “die without issue” as meaning “die without having had issue,” unless there are expressions or circumstances from which it can be collected that these words are used in a more restricted sense.</p> <p>4. Same—when cost of litigation should be borne by the fund. If the testator has expressed his intention in his will so ambiguously as to make it necessary to go into a court of chancery to get a construction of the will in order to determine which of two or more adverse claims to the same fund or property is valid, the costs of the litigation should be borne by the fund or property.</p> <p>5. Partition—when defendants are not entitled to solicitor’s fees. Defendants in a partition proceeding are not entitled to have their solicitor’s fees paid out of the estate, even though the case involves the construction of a will, where no trust was created by the will and no grounds alleged which would give a court of equity jurisdiction of the case other than the partitioning of the lands.</p>

<p>1. Wills—entire will must be considered in ascertaining testator’s intention. In construing a will the law requires that the intention of the testator be ascertained from a consideration of the entire will.</p> <p>2. Same—will should be construed, if possible, to give estate of inheritance to first taker. Wills should be so construed, if possible, to give an estate of inheritance to the first taker, and the different clauses should, if it can be done, be so construed as to bring them in harmony with each other and give effect to each clause.</p> <p>3. Same—codicil should not be held to revoke clear devise unless it is unavoidable. A codicil must be construed as part of the will, and should not be held to revoke a clear devise in the will unless there is no way of harmonizing them.</p> <p>4. 'The court construes the will herein involved, and holds that the devisees of the property in question took a fee simple title, and that the title to one of them was not limited to a life estate by the language of the fourth codicil to the will.</p>

<p>Appear from the County Court of Cook county; the Hon. W. A. Warr, Judge, presiding.</p>