Volume 246 — Illinois Reports

<p>1. Criminal law—verdict should stand unless palpably against. the weight of evidence. Whether the evidence in a criminal case is sufficient to warrant a verdict of guilty is in the first instance a question for the jury, and the verdict will not be set aside as unauthorized by the facts unless it is so palpably against the weight of evidence as to indicate it was based on passion or prejudice.</p> <p>2. Same—what evidence warrants a conviction for mayhem. Where four witnesses for the People testify to the presence and participation of the defendants in the assault upon the complaining witness, which resulted in the loss of his ear, and three witnesses for the defendants testify that the defendants - were not present at the time of the assault but that the assault was committed by an unknown stranger, the jury are not unwarranted in finding a verdict of guilty.</p> <p>3. Same—question of irregularity in drawing jury can only be raised by challenge to array. A challenge to the array is the only manner in which the question of irregularity in drawing the jury can be presented to the Supreme Court for decision, as a defendant cannot sit by and accept the jury without objection and after an adverse verdict seek to have the verdict set aside for some irregularity which existed at the time the jurors were accepted.</p> <p>4. Same—when newly discovered evidence is not ground for a new trial. Alleged newly discovered evidence having some tendency to impeach certain- statements of witnesses for the People, but which is not of any such conclusive character as would probably have changed the result of the trial, is not ground for setting aside the verdict and granting a new trial.</p> <p>5. Same—what is not such an improper remark as justifies re- ■ versal. A statement by the prosecuting attorney to the jury in a mayhem case, to the effect that they do not send a man to the penitentiary but merely indicate what the punishment shall be, and that if they thought it should be a penitentiary sentence they might so indicate but that the time was fixed by law, and that if a man is sent to the penitentiary he is subject to parole after he has been there a year, is not ground for reversal, as having a tendency to lead the jury to think the maximum punishment for mayhem was one year. (Farrell v. People, 133 111. 244, distinguished.)</p> <p>6. Same—when instruction as to evidence of alibi is not harmful. An instruction stating that when the jury have considered all the evidence, as well “that touching the question of alibi as the incriminating evidence,” then, if they have any reasonable doubt of guilt, they should acquit, is not harmful, as tending to restrict the consideration of the defendant’s evidence to that of an alibi, only, where the defendant’s evidence does not tend to prove any other defense than that the accused was not present at the commission of the crime, which both parties treated as presenting the defense of an alibi.</p> <p>7. Appeals and Errors—a party should copy in his brief the whole of the instruction complained of. A party who complains of an instruction should, in copying it in his brief, copy the whole instruction, and not merely the portion of which he complains.</p>

<p>1. Taxes—legislature has plenary power over subject of taxation. The power of taxation is a necessary incident of sovereignty and is possessed by the State without being expressly conferred by the people, and in Illinois this power is vested in the legislature, which possesses plenary power over the subject, except so far as it is restricted by the Illinois constitution.</p> <p>2. Same—legislature may delegate power to tax or license to municipal corporations. Municipal corporations have no inherent powers independently of any grant, but the legislature may delegate the power to tax for local purposes or to license and regulate, and hence the validity of a municipal tax depends upon whether the power to levy it has been expressly granted.</p> <p>3. Municipal corporations—cities have full power to license and regulate theaters. Under clause 41 of section 1 of article 5 of the Cities and Villages act, municipal corporations have full power to “license, tax, regulate, suppress 'or prohibit” the various occupations enumerated therein, including theatrical and other exhibitions; and this power includes the power to classify the various amusements and fix a different license fee for each class.</p> <p>4. Same—rule as to reasonableness of a license fee. Where a license is levied solely as a regulatory measure the amounts should bear some reasonable relation to the additional burdens imposed by the business or occupation licensed, but where it is imposed for the purpose of revenue, or for revenue and regulation, the relation between the license and the public burdens is not involved.</p> <p>5. Same—a license for revenue need not be in proportion to value of property. Section 1 of article 9 of the constitution, which requires taxes to be levied in proportion to the value of the property taxed, has no application to licenses for purpose of revenue.</p> <p>6. Same—Chicago ordinance fixing theater license on basis of highest price for seats is valid. The Chicago ordinance classifying entertainments for gain and fixing a graded license fee for the first class, based upon the highest charge to be made for seats, exclusive of box seats, is valid as to such graded license fee.</p>

<p>Writ oe Error to the Superior Court of Cook county; the Hon. Wieeard M. McEwEn, Judge, presiding.</p>

<p>Limitations—statute runs against right of city to recover for damage to a bridge. While a city holds the title to its streets and bridges in trust for the public, yet it must maintain them at its own expense, and in attempting to recover against a towing company for damage to a bridge catised by a boat colliding with it, the city is seeking to enforce a mere private right and the Statute of Limitations is a defense to the action.</p>

Writ op Error to the Appellate Court for the Second District;-—heard in that court on writ of error to the Circuit Court of Bureau county; the Hon. R. M. Skinner, Judge, presiding.

<p>1. Injunction—when tax-payer may maintain bill for injunction. Even though the complainant in a bill for injunction may not be entitled to enjoin the collection of the special assessment on his property because the grounds alleged in the bill might have been urged as a defense to the confirmation of the assessment, yet if the proceedings are void and require the illegal expenditure of the public money of the municipality,- of which he is a tax-payer, he may maintain a bill to enjoin the letting of the contract.</p> <p>2. Special assessments—section 97a of the Local Improvement act contemplates one improvement in two municipalities. Section 97a of the Local Improvement act (Hurd’s Stat. 1909, p. 480,) was added to said act to permit one continuous improvement to be constructed jointly by two or more municipalities.</p> <p>3. Same—what are not two separate and distinct improvements. A sewer extending from a point in a city to the city limits and from the city limits through the territory of an incorporated town to the outlet, and designed for use by both municipalities, is one continuous improvement and not a separate improvement as to each municipality.</p> <p>4. Same—term “local improvements” deñned. The term “local improvements,” as used in section 9 of article 9 of the constitution, means such improvements as are paid for by special assessment or special taxation, and which, by reason of the locality of the particular improvement, are of greater benefit to property in the vicinity of the improvement, by enhancing its value, than to the municipality at large.</p> <p>5. Same—whether improvement is local is a question of fact. Whether an improvement is local is a question of fact and not of law; but the municipal authorities cannot arbitrarily determine that? an improvement shall be regarded as local which, in fact, is general, and that question is subject to review by the courts.</p> <p>6. Same—local improvement must he wholly within one municipality. An improvement must be wholly within the limits and under the control of one municipality in order to be a “local improvement,” as that term is used in the constitution. (Hundley v. Lincoln Park Comrs. 67 111. 559, followed.)</p> <p>7. Constitutional law—section p'ja of Local Improvement act is unconstitutional. Section 970 of the Local Improvement act, (Hurd’s Stat. 1909, p. 480,) authorizing a single improvement to be constructed jointly by two or more municipalities, is void.</p>

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

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

<p>1. Deeds—deed intended as a mortgage may be rendered absolute by parol agreement. Where land has been conveyed by a deed absolute in form but which is intended as security for the payment of a bona fide debt, the payment of the debt may be abandoned, in the absence of fraud, and the deed treated as an absolute conveyance.; and such an arrangement is binding though made by parol.</p> <p>2. Same—law does not imply fraud where deed is intended as security for debt. A deed absolute in form but which is intended merely as security for a debt is not void as to the grantor’s creditors unless there was actual fraud in which both grantor and grantee participated, as such a transaction is not one where the law implies fraud.</p>

<p>Writ or Error to the Circuit Court of Will county; the Eton. Dorrance Dibeel, Judge, presiding.</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. Frank P. SadlER, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding.</p>

Appeal f rom the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. William Wikoff died testate in McLean county on September 5, 1908, seized of 415 acres of farm lands and four lots in Chenoa and possessed of certain personal property. He left him surviving Emma Pingrey and Florence Rulon, his daughters and sole heirs-at-law.

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

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

<p>1. Special assessments—all distinctions between special assessment and special taxation are not abolished. All distinctions between special assessment- and special taxation are not abolished by the statute, though the power to settle conclusively the question of benefits, which formerly rested with the municipal authorities, is under the present law taken from the city council and the question committed to the court, to be tried by a jury.</p> <p>2. Same—the commissioner may consider foot frontage in fixing assessment. While a special assessment made on the basis of frontage, merely, without regard to benefits, would be invalid, yet the law does not preclude the commissioner from taking into consideration the foot frontage of the several lots as an element in fixing the amount of the assessment.</p> <p>3. Same—what method of making assessment does not vitiate assessment. The fact that the commissioner assessed against each lot the exact cost of the improvement in front of it does not, of itself, vitiate the assessment, where it appears that he determined that the benefit to each lot was equal to the cost of the improvement in front of it.</p> <p>4. Same—:when parties have all benefits of a special assessment proceeding. Where, on the trial of the question of benefits, the instructions to the jury treat the proceeding as a special assessment and the question whether the property is assessed more than its proportionate share of the total cost of the improvement is tried, which cannot be done in a special tax proceeding, the parties have all the benefits of a special assessment proceeding.</p> <p>5. Same—each part of railroad property touching upon an improvement need not be described separately. A general description of railroad property in a special assessment roll as the named company’s “right of way on Maple, Spruce, Pine and Cedar streets, $3031.06,” is sufficient under the proviso to section 40 of the Local Improvement act.</p> <p>6. Same—the fact that total assessment does not equal estimate does not invalidate assessment. While the total assessment levied cannot exceed the engineer’s estimate, yet the statute does not require that the entire estimated cost be spread against the property bnefited and the city, and the fact that the total assessment is less than the estimate does not vitiate the proceeding.</p> <p>7. Same—assessment cannot exceed benefits—effect of judgment. The amount assessed against property cannot exceed the special benefits, and if tire benefits do not equal the cost of the improvement the difference must be paid by general taxation; but the judgment of confirmation is not conclusive of the question of benefits unless it was found, in terms, on the hearing, that the property objected for would be benefited no more than the amount assessed against it.</p> <p>8. Same—what does not constitute a fatal variance between an ordinance and specifications. The fact that the street to be paved is described in the. ordinance as fifty feet wide from one street line to the other while the specifications describe the improvement at that point to be thirty feet wide between curb lines does not constitute a fatal variance, where it appears from the entire ordinance that the words “street line” and “curb line” were used to designate different points and that the part to be paved was thirty feet wide.</p> <p>9. Same—act of ipop, requiring referendum vote on bond issue, does not apply to special assessment bonds. The act of 1909, (Laws of 1909, p. 130,) providing for a referendum vote by the people on bond issues, does not apply to special assessment bonds. (City of Lawrenceville v. Hennessey, 244 111. 464, followed.)</p>

<p>1. Taxes—statute requires notice to property owner of Audit- or’s appeal. Under the statute (Hurd’s Stat. "1909, p. 1888,) it is the duty of the clerk of the board of review, upon receiving notice that the Auditor of Public Accounts will apply to the Supreme Court to annul the board’s decision granting a property owner’s petition to exempt property from taxation, to notify the petitioning property- owner that such application will be made.</p> <p>2. Appeals and errors—when order of submission may be set aside. If the record contains no evidence that any notice to the petitioning property owner of the Auditor’s intention to apply to the Supreme Court to annul the decision of the board of review granting a petition to exempt property from taxation has been given by the clerk of the board of review, and there is no appearance or. brief on the part of such petitioner, the order of submission may be set aside.</p>

<p>1. Corporations—right of stockholder to examine books. The common law rightof a stockholder to inspect the books and papers of the corporation can only be exercised in good faith and for reasons connected with his rights as a stockholder, but where the right is given by statute in unlimited terms the purpose or motive of the stockholder is immaterial and he cannot be required' to state his reasons.</p> <p>2. Same—what is no defense to petition by stockholder to compel inspection of books. Where the right of a stockholder to inspect the books and papers of a corporation is given by statute in absolute terms his petition for mandamus to enforce such right need not show the object of his inspection; nor is it a defense to the petition to allege an improper purpose, or that the information is sought in order to injure the business of the corporation.</p> <p>3. Same—all charters are subject to general laws enacted under the police power of the State. While charters of corporations granted by the State are contracts within the protection of the State and Federal constitutions against passing laws impairing the obligation of contracts, yet all charters are subject to general laws enacted under the police power of the State, and such power cannot be curtailed by any previous attempt of the legislature to grant immunity therefrom.</p> <p>4. Same—statute giving stockholder the right to inspect books is a police measure. The object of section 13 of the general Incorporation act, giving stockholders the right to.inspect the books and papers of the corporation, is not only to protect the rights of the stockholder, but also to protect the public against unlawful monopolies, combinations and unreasonable exactions, and is a proper exercise of the police power of the State.</p> <p>5. Same—section 13 of general Incorporation act construed. Section 13 of the general Incorporation act, ■ requiring the direct-, ors “of every stock corporation to cause to be kept at its principal office or place of business in the State correct books of account of all its business” and giving “every stockholder in such corporation” the right to inspect the books, means “each one and all” stock corporations and every stockholder in such corporations.</p> <p>6. Same—section 13 applies'to corporation whose special charter is silent on the subject. Section 13 of the general Incorporation act, requiring stock corporations to keep correct books of account at their principal office in this State and giving stockholders the right to examine such books, applies to corporations organized under prior special laws which are silent on the subject, and is a valid exercise of the police power of the State. (Wincock v. Txirpin, 96 111. 133, Union Life Ins. Co. v. Frear Stone Manf. Co. 97 id. 537, and Stevens v. Pratt, 101 id. 206, distinguished.)</p>

This case is controlled by the decision in In re Logan Square Presbyterian Church, {ante, p. 168.) Auditor’s certificate of appeal to review decision of board of review of Cook county.

<p>1. Criminal law—a sufficient information is essential to a conviction. Under section 27 of the Municipal Court act an information presented by a person other than the State’s attorney must be verified by such person’s affidavit, and it is essential to a conviction that the record contain a sufficient information.</p> <p>2. Same—verification of original information does not extend to amended one. If the original information charging a libel is insufficient because the libelous matter, or any part of it, is not set out, the filing of an amended information setting out such matter is an abandonment of the original information, and if the amended information is not sworn to by the complaining witness it is insufficient to sustain a conviction, notwithstanding the original information was so verified.</p> <p>3. Same—an exception is unnecessary to preserve what appears of record. If it appears from the record that the information upon which a conviction for libel was based is wholly insufficient and that the motion to quash, interposed by the defendant, should, have been sustained, it is not necessary for the record to show that an exception was taken to the overruling of the motion.</p> <p>4. Same—when objection will be presumed to have been made on motion to quash. An objection to the sufficiency of the information, which objection, and apparently no other, existed when a motion to quash was made and which was within the scope of the motion, will be presumed to have been urged, in the absence of anything showing the contrary.</p> <p>5. Same—defendant, though guilty, is entitled to a trial according to law of land. A defendant is entitled to a trial in the form prescribed by the constitution and the statutes regardless of the question of his guilt or innocence, and if the record is not legally sufficient to sustain his conviction the judgment must be reversed even though he may be guilty.</p>

<p>1. Taxes—revenue provided under charter of Illinois Centralis in lieu of ordinary taxes. All of the revenue provided under the charter of the Illinois Central Railroad Company is based on contract and is in lieu of and intended as a fair equivalent for ordinary taxes, and the provisions of the charter in regard thereto are constitutional and are binding upon the State and the company.</p> <p>2. Same—■provision of the Illinois Central charter concerning “gross” receipts includes receipts from inter-State traffic. The provision of the charter of the Illinois Central Railroad Company requiring the company to pay to the State a percentum of the “gross or total proceeds, receipts or income derived from said road and branches,” includes the receipts and income derived from the transportation of inter-State shipments over the company’s charter lines.</p> <p>3. Same—revenue provision of Illinois Central charter is not an attempt to regulate inter-State commerce. The provisions of the Illinois Central Railroad Company’s charter relating to the revenue to be paid to the State were intended as a fair method of fixing an equivalent for a tax that would otherwise ordinarily bp levied on the property of the company, and were in no sense an attempt to regulate or impose a tax on inter-State commerce.</p> <p>4. Same—revenue provision of Illinois Central charter is not in violation of inter-State commerce provision of Federal constitution. In granting the charter to the Illinois Central Railroad Company the State had power to provide, in advance of granting its charter, that the company, if it accepted the benefits of such charter, must pay a percentum of its gross receipts, including those from interstate traffic, as an equivalent for ordinary taxeá; and such provision is not an attempt to regulate inter-State commerce, in violation- of the Federal constitution.</p> <p>5. Accounting—-word “account" has no clearly defined legal meaning. An “account” is some matter of debt or credit, or of a demand in the nature of a credit, between parties, arising out of a contract or fiduciary relation or from some duty imposed by law, and it is not required to be in any particular form nor to contain detailed information.</p> <p>6. Same—a party having authority to pass upon account may waive right to have it itemised. A party who has authority to pass upon and settle an account may waive his right to have such account fully itemized.</p> <p>7. Sams—Governor may require a reasonable statement of account from Illinois Central. • Under the provision of the charter of the Illinois Central Railroad Company requiring the company to furnish a copy of the account of proceeds, receipts and income to •the Governor, the latter may require a reasonable statement of account showing, generally, from what sources such proceeds, receipts and income are obtained, in order to furnish him with such knowledge of the company’s affairs as will enable him to pass understandingly on the correctness of the account.</p> <p>8. Sams—Governor has power not only to investigate but to settle accounts between Illinois Central and the State. Under the charter of the Illinois Central Railroad Company the Governor, in passing upon the semi-annual accounts rendered by the company to the State, must be held to have power not only to investigate the accounts, but to correct them and finally adjust, audit and settle them, and in so doing he is not exercising judicial power nor changing the charter contract, in violation of the constitution.</p> <p>9. Sams—binding force of Governor’s action in passing upon semi-annual accounts of Illinois Central. The action of the Governor in passing upon and approving the semi-annual accounts rendered by the Illinois Central Railroad Company to the State is not an adjudication but amounts to an adjustment or striking a balance, and his decision can be reviewed by the courts only for fraud, accident or mistake.^</p> <p>10. Sams—rule of estoppel does not apply to charter contract between Illinois Central and the State. In enforcing the charter contract between the State and the Illinois Central Railroad Company the State acts in its governmental and not in its private capacity, and is not estopped by lapse of time from inquiring into the correctness of the semi-annual accounts rendered to it by the company, where there are no special circumstances requiring the doctrine of equitable estoppel to be applied.</p> <p>11. Sams—pleading—bill for accounting must state plain case. A bill for accounting must state a plain case, but the degree of certainty required depends somewhat upon the character of the accounts involved, and need only be such as to apprise the defendant of the matters for which he will be called upon to account.</p> <p>12. Sams—precise allegations are not required where matters rest within defendant’s knowledge. If matters essential to the determination of the complainant’s claims are.alleged to rest within the knowledge of the defendant alone, or must, of necessity, be within the defendant’s knowledge, and are the subject of a part of the discovery sought by the bill, precise allegations are not required, and it is sufficient if general statements of fact are made, under which pertinent details can be proved.</p> <p>13. Same—what must be charged by party seeking to open an account stated. A stated or settled account is an acknowledgment of an existing condition of liability of the parties from which .the law implies a promise to pay the balance thus acknowledged to be due, and one who seeks the aid of a court of equity to open up a stated or settled account must charge fraud or state particular errors, and the allegations must be definite and réasonably certain.</p> <p>14. Same—mistakes or errors must be specifically alleged. In order to open a stated account the bill must either charge fraud specifically or must point out particularly the mistakes and errors relied upon; and this rule applies whether the parties are dealing at arm’s length or occupy confidential relations.</p> <p>15. Same—what is not sufficient averment to justify opening stated account for fraud. Allegations that an account stated was falsely and fraudulently made and was incorrect, and that the defendant knew that fact at the time the statement of account was rendered, are not such averments of fact as justify opening the account on the charge of fraud.</p> <p>16. Same—vahen account may be regarded as an account stated. In ordinary business transactions, if an account is transmitted from one party to another and no objection is made thereto within a reasonable time the account will be deemed a stated account by reason of the presumed acquiescence or approbation of the parties.</p> <p>17. Same—vahen a defendant cannot complain that bill is not sufficiently specific. A different rule of pleading applies where a bill is filed to open a stated account and where it is filed to compel an accounting, and in the latter case, if the books and accounts in question are in the sole possession of the defendant, the latter can not complain that the bill does not specifically set out the items of account claimed by the complainant to be incorrect.</p> <p>18. Illinois Central Railroad—semi-annual statements rendered by Illinois Central prior to 1903 are stated accounts. The semi-annual statements rendered by the Illinois Central Railroad Company to the State prior to the year 1905 must be held to be stated accounts, as each Governor of the State had authority to obtain the necessary information to ascertain the accuracy of such statements, and it must be presumed that each ’Governor did his duty and made the necessary examination.</p> <p>ig>. Same—what does not overcome presumption that the Governor performed his duty in examining account. The presumption that each Governor of the State performed his duty in examining the semi-annual statements rendered by the Illinois Central Railroad Company and ascertained their accuracy is not overcome by allegations in a bill by the State to open up such accounts that the Governor made no examination of the company’s books of account, nor by the claim of the State that some of the statements show, on their face, that the Governor did not have time to examine the statements before approving them.</p> <p>20. Same—bill of State against Illinois Central is not sufficient to justify opening accounts prior to 1905. In view of the fact that the semi-annual statements rendered prior to the year 1905 by the Illinois Central Railroad Company to the State of Illinois must be held to be stated accounts, the bill filed in this case by the -State to compel an accounting from the company must be held to be insufficient to justify a court of equity in opening up and inquiring into the semi-annual statements for the years in question.</p> <p>21. Same—obligation rests upon Illinois Central to make true accounts to State. The relation existing between the State and the Illinois Central Railroad Company under the latter’s charter, while not strictly a fiduciary one, is of such a nature as to compel the State to repose confidence in the integrity of the company, and to require the latter, in rendering its semi-annual statements, to make true and accurate statements of its gross receipts, and to prove their truth and accuracy when they are questioned by the Governor, acting for the State.</p> <p>22. Same—the bill in this case is sufficient to require accdunting from Illinois Central for years 1905 and 1906. Under the present state of the pleadings the bill in this case must be held to be sufficient to require an accounting to the State by the Illinois Central Railroad Company for the years 1905 and 1906 with reference to the semi-annual statements of gross proceeds, receipts and' income rendered by the company for such period, and the burden is upon the company to establish the truth and accuracy of such statements in so far as they are sufficiently questioned by the bill.</p> <p>23. Same—rule for dividing joint traffic earnings-—what must be considered. In determining what is a fair division of joint traffic earnings between the charter and non-charter lines of the Illinois Central Railroad Company all factors must be considered which experience has shown are necessary to be considered in order to reach a fair division, and the mileage basis is not necessarily the only fair and equitable basis.</p> <p>24. Same—when mileage basis may be used as a basis for dividing joint traffic earnings. In determining what is a fair and equitable division of joint traffic earnings between the charter and non-charter lines of the Illinois Central -Railroad Company, if the State, on the hearing in this case, shall prove that certain charges were made for carrying goods partly over the charter lines and partly over the non-charter lines, the court, in the absence óf any other proof on that point, may divide such joint charges, pro rata, according to the length of the carriage over the respective lines.</p> <p>25. Same—State cannot compel repudiation of contracts with other roads in making a division of joint traffic earnings. If the proper officials of the Illinois Central Railroad Company have in good faith entered into contracts with other railroads as to joint traffic earnings between such companies and itself, the State can not in this proceeding arbitrarily require the repudiation of such contracts, in a division of joint earnings between such companies, in order to fix the amount of the State’s percentum.</p> <p>26. Same—railroad company has burden of showing that division of joint earnings has been fair. The allegations of the bill in this case are sufficient to require an accounting by the Illinois Central Railroad Company as to the division of joint traffic earnings between the charter and non-charter lines of the company for the years 1905 and 1906, and the burden of proof is on the company to show that the division which has been made is fair and equitable for the fixing of the State’s percentum, to which it is entitled under the provisions of the company’s charter.</p> <p>27. Same—a division of express earnings is governed by rules for dividing joint traffic earnings. The allegations of the bill in thisr case are sufficient to require an accounting by the defendant company with respect to the division of express earnings between its charter and non-charter lines for the years 1905 and 1906, and on the hearing ■ the same rules will apply to the division of such express earnings as will govern the division of the joint, traffic earnings.</p> <p>28. Same—right of State to accounting for drayage and switching charges. The allegations of the bill in this case are sufficient to require an accounting from the defendant company for drayage and switching charges for the years 1905 and 1906, but as the State is entitled to receive its percentum only upon the “gross or total proceeds, receipts or income derived from said road and branches,” if it shall appear that the charges for drayage and switching are earnings accruing to other companies for distinct and independent services performed by them, (even though collected by appellee along with its own charges,) they cannot be considered as part of such gross receipts.</p> <p>29. Same—Illinois Central cannot lessen gross receipts by free traffic arrangements. The Illinois Central Railroad Company has authority, acting in good faith, to make traffic arrangements between the charter and non-charter lines, or with other companies, for the use of its equipment, terminal facilities, depots, etc., but it cannot, in doing so, lessen the gross proceeds and receipts upon which the State’s percentum is computed.</p> <p>30. Same—charter and non-charter lines must be treated as independent lines for all purposes. In ascertaining the gross proceeds or receipts of the charter lines of the Illinois Central Railroad Company such lines must be treated as separate and distinct from the non-charter lines, not only in the matter of dividing joint earnings, but in the payment of operating expenses as well.</p> <p>31. Same—“gross receipts’’ means total receipts, without deductions. The term “gross receipts,” used in the charter of the Illinois Central Railroad Company as the basis for computing the* State’s percentum to be paid by the company, was intended to mean the total receipts received by the charter lines of the company before anything is deducted for the expenses of management.</p> <p>32. Same—charter lines must be credited with fair remuneration for services performed for the non-charter lines. The Illinois ■ Central Railroad Company must, under its charter, pay the State’s percentum upon the total proceeds,—not only the proceeds actually received, but those that should be credited to the charter lines as a fair remuneration for the services they are performing for the non-charter lines in granting them the free use of terminal facilities- and equipment, and for all other services which they have furnished free to the non-charter lines.</p> <p>33. Same—operation of dining cars and eating houses is within the powers of the Illinois Central. The operation of dining cars and eating houses for the use of charter line' patrons is necessarily incident to the business of the Illinois Central Railroad Company and is therefore within its powers, and the receipts from such dining cars and eating houses, so far as derived from patrons of the charter lines, should be included in the total receipts for computing the State’s percentum.</p> <p>34. Same—the value of free mileage books used on charter lines must be included in the total receipts. The value of mileage books issued by the Illinois Central - Railroad Company in payment for advertising and printing, and used on the charter lines, must, under the allegations of the bill in this case, be included in the total receipts upon which the State’s percentum is to be computed.</p> <p>35. Same—rule as to rentals received from other companies for use of cars. If, on the hearing in this case, it is shown that there has been an interchange of cars between the charter lines of the defendant company and other railroads, then up to the point where the amounts balance there is a mere exchange of the use of cars; but if tlje defendant company receives from any company rental for the use of its cars in excess of the amount paid out by it, then such excess should be made a part of the receipts by which to measure the State’s percentum.</p> <p>36. Same—charter lines must be credited with their hatils on shipments by Cairo and Mounds. On the hearing of this case the defendant company should be required to account, on a just and equitable basis, 'for the nine-mile haul over the charter lines on shipments from south of the Ohio river destined for St. Louis and billed to Mounds, and for the five-mile haul over the charter lines from Cairo Junction to Cairo on shipments from points south of the Ohio river destined for Cairo.</p> <p>37. Same—lawful rebates should not be included in gross receipts. Under the allegations of this bill that the defendant company has defrauded the State by allowing certain patrons rebates as fictitious claims, which have been deducted from the charter line receipts, it is incumbent upon the defendant company to show whether such rebates were lawful, and if they were, and the agreements on which they were based were entered into in good faith, they should not be included in the gross receipts.</p> <p>38. Same—interest on deposits or loans of charter line funds is not intended to be included in total receipts. The interest received by the Illinois Central Railroad Company on deposits or loans of the charter line funds was not intended to be included in the total receipts derived from said charter lines and branches for measuring the State’s percentum.</p> <p>39. Same—claim that Illinois Central has diverted traffic to reduce charter line receipts cannot be sustained. The claim of the State in this case that the defendant company has diverted freight from charter lines to non-charter lines for the purpose of reducing the gross receipts of the charter lines cannot be sustained, as the defendant company has the right, in the management of its business, to ship goods over any line of its railroad.</p> <p>40. Same—deduction of bridge arbitraries for use of Cairo and Dtibuque bridges is not unlawful. The deduction of bridge arbitraries by the Illinois Central Railroad Company for carrying traffic across the Cairo and Dubuque bridges is not unlawful, but the company must show that the charge made would be a fair and reasonable otic if the bridges were owned by independent companies, and that it was made in good faith. ■</p> <p>41. Same—right of State to recover percentum on Cairo bridge arbitrary. If, on the hearing of this case, the defendant company shows that the Cairo bridge arbitrary is a charge made in good faith for traffic over that part of the bridge and approach which is in Kentucky and that such charge is reasonable, then the State is not entitled to recover a percentum on such bridge arbitrary; but if it is shown that the charge is made, in part, for carrying traffic over the approach in Illinois, then the State is entitled to a percentum on a part of such arbitrary, the division to be on a fair and equitable basis; and the burden is on the defendant company to show the exact situation as to such arbitraries.</p> <p>42. Samt—Illinois Central must act toward the State in utmost good faith. The relations of the State and the Illinois Central Railroad Company under the latter’s charter are such as to require that the company, in reporting its gross receipts to the State as the basis for computing the State’s percentum, should act in the utmost good faith, and in this litigation the company must furnish the information called for by the interrogatories attached to the bill, in so far as they are germane to the accounting herein required.</p> <p>43. Same—State is not bound by contemporaneous construction of charter. The doctrine of contemporaneous construction has no application to “provisions of the charter of the Illinois Central Railroad Company which are plain and unambiguous, and, as to other provisions, the mere fact that in the past certain practices were followed in the matter of dividing joint traffic earnings, etc., does not bind the State to continue such practices under conditions which have radically changed since the methods of division were adopted.</p>

This case is controlled by the decision in the case of In re Logan Square Presbyterian Church, {ante, p. 168.) Auditor's certificate of appeal to review decision of board of review of Gook county.

<p>Information to disbar.</p>

<p>1. Municipal corporations—source of a city’s power to pass ordinances. The power of a city to pass an ordinance must be found in its charter in express terms or it must be necessary in order to carry out the powers expressly granted, or be essential, and not simply convenient, to the declared objects and purposes of the corporation.</p> <p>2. Same—power to require theater owners to employ firemen is not expressly given nor essential. The power of a city to compel theater owners to employ and pay a city fireman to be present at each performance is not expressly given nor is it essential to the declared objects and purposes of the municipal corporation.</p> <p>3. Same—scope of a city’s power to. regulate places of amusement. The power of a city to regulate theaters and places of amusement extends to methods of construction, regulating the seating of the building and similar details with respect to the building,' but does not include the power to require the attendance of a fireman at a place of amusement, which is a matter relating not to the place but to the public attending the place.</p> <p>4. Same—power to license theaters has no application to requiring attendance of firemen. The power of a city to license, tax, regulate, suppress and prohibit theatricals and other exhibitions, shows and amusements, has no application to the matter of requiring theater owners to employ and pay a member of the city fire department to be in attendance at each performance.. •</p> <p>5. Same—power respecting nuisances does not authorise ordinance concerning ñremen at theaters. The power of a city to determine what shall be a nuisance and abate the same does not include the power to compel theater owners to employ and pay a city fireman to attend upon each performance, as a theater is not a nuisance per se and cannot be made a nuisance by a declaration of the city unless it is a nuisance in fact.</p> <p>6. Same—ordinance compelling theater owners to employ and pay city ñremen is not included in police power. The fact that an ordinance requiring the attendance of a city fireman at theaters is a provision for the safety of the public and is embraced within the city’s power to regulate the police and pass and enforce all necessary police ordinances does not determine the question of the city’s right to compel the owners of the theaters to pay for the services of such fireman.</p> <p>7. Same—a city has no power to require theater owners to employ and pay city ñremen. A city has no power, express or implied, to require persons conducting theaters to employ and pay firemen, to be detailed by the fire marshal of the city from the regular city fire department, to attend each performance and perform duties in furtherance of the public safety. (City of Chicago v. Chicago Union Traction Co. 199 111. 259, distinguished.)</p>

<p>1. Trusts—resulting trust cannot arise from verbal agreement. A resulting trust cannot arise from any verbal agreement between the parties or verbal declaration at the time of the purchase, but it arises where one person has paid the consideration, or some aliquot part thereof, as a part of the original transaction at the time the purchase was made and the title has been taken in the name of another.</p> <p>2. Same—what does not justify declaring a trust. A statement by a party, at the time of buying a lot, that he intended to build a house and make a home for himself and his mother, which expressed intention he carries out until his death, does not justify the court in declaring a trust in the lot in favor of the mother, either as a resulting trust or by construction, operation or implication, there being no fraud; and upon the son’s death, intestate, the' title passes to his only child as his heir.</p> <p>3. Accounting—when party is not entitled to a lien on property for balance due. Where a son buys a lot and builds a house with the expressed intention of making a home for himself and his mother as long as she lived and took care of his child, and the mother continues to live in the house and care for the child after the death of the son, intestate, the mother is chargeable, on accounting, with a fair rental value of the premises and is entitled to credit for money paid by her for taxes, insurance and interest and dues on a mortgage on the premises and for the care and support of the child, but she is not entitled to any balance over that can be made a charge or lien on the lot.</p>

<p>1. Specific performance—a purchaser of real estate is chargeable with notice of obvious conditions. A purchaser of real estate is chargeable with constructive knowledge of all facts and conditions which are obvious or which might have been known to him if he had exercised proper diligence.</p> <p>2. Same—what changes in building are not breach of contract of sale. Where the plans and specifications of a building, about four-fifths completed at the time a contract for the sale was made, reserve to the owner the right to make alterations and changes, such changes as had been made prior to the contract of sale and of which the purchaser might have learned by examination of the building had he availed himself of his opportunities do not constitute a breach of the contract by which the vendor agreed to “complete” the building according to the plans and specifications.</p> <p>3. Same—what changes in building cannot be made after contract of sale. An agreement in a contract for the sale of an unfinished building to complete the building according to the plans and specifications is a waiver by the vendor of the right to exercise, after the date of the contract of sale, the right to make changes which was reserved to him in the specifications, and after the contract of sale is made the vendor must do the remainder of the work necessary to complete the building, according to the plans and specifications.</p> <p>4. Same—zuhen changes cannot be made though agreed upon before contract of sale. After a contract for the sale of an unfinished building, to be completed according to the plans and specifications, has been made, the vendor has no right to make changes which had been previously agreed upon between himself and contractors, where the vendee had no notice of such intended changes, and could not, because of their character and the fact that the building had not reached the stage when they could be made, have learned of such changes at the time the contract was made.</p> <p>5. Same—what constitutes extension of time for performance. Where the vendor tells the vendee’s agent, when leaving him on the day agreed upon for paying the money and giving the deed, that the deed can be found at his office the following day if the vendee concludes to waive his objections, such conduct and statement amount to an extension of time by the vendor' for closing up the contract on the following day.</p> <p>6. Same—when decree is not erroneous in requiring vendee to pay interest. Where a decree of specific performance against the vendor requires the vendor to account for the rental value of the building from the date the contract should have been performed by him until the date of the decree, it is not error to require the vendee to pay interest upon the purchase money from the date the contract should have been ■ performed to the time it was paid to the clerk of the court for the vendor’s use.</p>

Charles B. Campbell, Judge, presiding. In the year 1848 a religious organisation was formed in the town of Crete, Will county, IJimois, at a place called Beebe’s Grove, under the name oW'Zion Lutheran Church,” and a church building was e/ected. In 1855 another religious congregation was farmed at Black Walnut, in said town of Crete, under thfe name of “St. John’s Lutheran Church,” and a church house was also erected.

<p>Writ oe Error to the Circuit. Court of Edgar county; the Hon. W. B. ScholEield, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. William B. ScholFiELD, Judge, presiding.</p>

<p>1. Criminal law—Parole law applies to convictions for manslaughter. The Parole law applies to convictions for manslaughter even though the statute making allowance for good time does not apply to life imprisonment.</p> <p>2. Same—an indeterminate sentence is for the maximum term. An indeterminate sentence is a sentence for the maximum term provided by law, and hence the sentence of one convicted of manslaughter “until discharged by the State board of pardons, as authorized and directed by law, provided such term of imprisonment shall not exceed the maximum term for the crime for which said defendant was convicted and sentenced,” is a sentence to life imprisonment.</p> <p>3. Same—discharge of prisoner under the Parole law is by the Governor. A sentence to imprisonment in the penitentiary “until discharged by the State board of pardons, as authorized and directed by law,” does not infringe any constitutional right of the person so sentenced, as the discharge, under the law, is by the Governor. (People v. Joyce, ante, p. 124, followed.)</p>

Thomas G. Windes, Judge, presiding. This was a bill in chancery filed by Norris Emerson, the appellee, against Sarah A. Fleming, the appellant, in the circuit court of Cook county, for the specific performance of the following contract in writing: “Chicago, September jj, ipo/. “Received of Norris Emerson two hundred ($200) dollars as part payment towards the purchase of the following described real estate: The south half of lot eighteen (18), in block thirty-one (31), School…

<p>1. Taxes—jurisdiction of equity to enjoin collection of a tax. The whole matter of valuing property for taxation is committed to the assessor and board of review under the controlling principle that the property shall be so valued that every person and corporation shall pay a tax in proportion to his or its property, and a court of equity has no jurisdiction to enjoin the collection of a tax unless it is unauthorized by law or is levied on exempt property or the property is fraudulently valued too high.</p> <p>2. Same—mere over-valuation or under-valuation is not evidence of fraud. Mere under-valuation or over-valuation, unless glaring and gross, is not evidence of a wrongful or fraudulent intent, but the valuation may be so unreasonable as to show that the officer must have known it was wrong and that he could not have been honest in fixing it, and in such case the valuation is a fraud.</p> <p>3. Same—constitution requires valuation to be made by proper officers. If the judgment of the assessor or board of review as to the value of property is honestly exercised, section 1 of article 9 of the constitution forbids a valuation by any other authority, but the tax-payer is entitled to the honest judgment of the assessing officers, and a tax founded on an assessment which, from corrupt and malicious motives, is made excessive or is rendered unequal or unfair by fraudulent practices of the officers may be enjoined.</p> <p>. 4. Same—when both the constitution and statute are violated. Every person and corporation is entitled to the protection of the constitutional and statutory provisions which preclude discrimination in favor of or against any class of property, person or corporation ; and to require one person or corporation to pay a greater proportion of the taxes levied, according to the value of his or its property, than another, violates both constitution and statute.</p> <p>5. Same—under the statute property should be valued at its fair cash value. Under the Revenue law all property should be valued by the assessor or board of review at its fair cash value and a fixed proportion thereof»taken for the assessed value, and it is a violation of duty for an assessor to make a practice of valuing real estate at forty-three per cent of its fair cash value, and moneys, stocks and securities at seventy-five per cent of the fair cash value.</p> <p>6. Same—moneys and securities should be valued the same as other property. It is not within the power of the legislature to provide that different classes of property shall be valued differently, and if moneys, mortgages, bonds or securities are valued at a different proportion of their full value or on a different basis from other property the constitution and statute are both violated.</p> <p>7. Same—equity cannot intervene on ground that property of others is valued too low. A court of equity cannot intervene in behalf of a taxpayer upon the ground that the property of others has. been valued too low.</p> <p>8. Same—when tax-payer has no equitable right to have valuation by board of review reduced. Where the assessor knowingly and intentionally discriminates between the real estate of the township and personal property by valuing the former at forty-three per cent of its fair cash value and the latter at seventy-five per cent, and the board of review raises the valuation of the shares of stock of a certain bank to a figure nearer but not equal to their full value, the bank has no equitable right to have the valuation of the board reduced to the basis of the real estate valuation, as such course would work injustice to other tax-payers.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Fayette county; the Hon. Samuel E. Dwight, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of McHenry county; the Hon. C. H. Donnelly, Judge, presiding.</p>

W. G. Cochran, Judge, presiding. This was a petition filed by the commissioners of highways of the town of Bement in the circuit court of Piatt county, against the commissioners of the Lake Fork Special Drainage District, to require said drainage commissioners to reconstruct a bridge which they had removed from over one of the main drains of said district where said drain crossed the public highway in said township, situated between sections 25 and 36, and to restore said…

<p>1. Municipal corporations—•constitution prohibits damaging of private property without compensation. Section 11 of article 13 of the constitution of 1870 prohibits not only the taking but also the damaging of private property for public use without just compensation, and such provision applies whether the damage is to a lot or building on the lot.</p> <p>2. Same—effect where building-was constructed before grade was established. The fact that a building was constructed on a lot before any grade of the street was established does not relieve the city from liability for damages to the building, resulting from the construction of a sidewalk at a subsequently established grade.</p>

<p>1. Evidence—when parties are incompetent. Where the complainants in a partition suit claim title on the" ground that their ancestor’s deed of homestead premises to her husband was inoperative to convey the homestead, and the defendants, as heirs of the grantee, claim that the deed was operative, neither the parties nor their husbands or wives are competent witnesses in their behalf.</p> <p>2. Homestead—when deed to homestead premises is inoperative. A deed to homestead premises by a householder to his or her wife or husband, not subscribed or acknowledged in accordance with the statute by such wife or husband, does not operate to convey the estate of homestead where possession is not abandoned or given pursuant to the conveyance.</p> <p>3. Same—when title to homestead property descends to grant- or’s heirs. Where a wife conveys the homestead premises, which are worth less than $1000, to her husband without the latter joining in the deed as provided by statute, and the wife continues in possession of the property with the husband until his death and remains in possession alone until her own death, the legal title to the property descends to her heirs, notwithstanding she may have believed her deed was valid.</p> <p>4. Same—fact that consideration was received does not affect force of statute. The fact that the wife, in conveying the homestead premises to her husband, may have received notes which she collected does not affect the force of the statute requiring the husband to sign and acknowledge the deed in order for the conveyance to operate upon the homestead estate.</p> <p>5. Same—widow’s agreement to release dower for possession of homestead is without consideration. A widow is entitled by law to occupy the homestead premises after her husband’s death whether she is the owner or her husband was the owner, and hence an agreement by which she releases her interest in other lands for the right to remain in possession of the homestead property, which is worth less than $1000, is without consideration.</p> <p>6. Same—when there is no laches in seeking to set aside deed. If the wife, after making a deed to the homestead premises to her husband, in which he did not join, remains in possession of the premises until her death, and there is no delay by the heirs-at-law after her death in asserting their right to have the deed set aside, there is no laches on the part of either.</p> <p>7. Same—when heirs are not estopped to claim the homestead property. The fact that a wife may have received the purchase money on conveying the homestead premises to her husband by a deed in which he did not join, does not raise any estoppel against her heirs to have the deed set aside after her death nor require them to tender back the purchase money, where they did not receive the purchase money nor take part in any fraud, deception or misrepresentation inducing a change of situation by any one.</p>

<p>Taxes—-lien for taxes on April 1 is not removed by subsequent transfer to educational corporation. The .lien of the State for real estate taxes in any year accrues on the first day of April of that year, and the fact that the property is subsequently conveyed by warranty deed does not remove the lien or discharge the obliga-, tion to pay the taxes, even though the property is to be devoted by the grantee to such purposes as may bring it within the law entitling it to future exemption from taxation.</p>

<p>Appeal from the County Court of Mercer county; the Hon. Henry E. Burgess, Judge, presiding.</p>

Writ or Error to the Appellate .Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Richland county; the Hon. E. E. Newein, Judge, presiding.

<p>Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>' Writ op Error to the Municipal Court of Chicago; the Hon. Henry C. BeiTrER, Judge, presiding.</p>

<p>1. Criminal law—Parole law applies to a case where punishment may be imprisonment for life. The Parole law by its express terms extends to all crimes but the four therein specially excepted, and applies to the crime - of robbery 'while armed with a dangerous weapon, with intent, if resisted, to kill or maim the victim, even though the maximum punishment therefor is life imprisonment.</p> <p>2. Same—sentence under the Parole law may extend to limit of life. The sentence, under the Parole law, for a “term of years not to exceed the maximum term fixed by the statute” is for a term extending to the limit of life, provided the maximum punishment fixed by the statute is life imprisonment.</p> <p>3. Same-—effect of fact that the Parole law preserves the allowance of good time. The fact that the Parole law preserves the allowance of good time, as provided by law, is not inconsistent with its application to sentences for life imprisonment, as no allowance-of good time is provided by law in such cases.</p>

<p>1. Practice—practice in suits at law applies where statute requires issue of fact to be submitted to jury. Where the statute requires a question of fact to be submitted to a jury the practice in an action at law applies, and the trial of an issue so submitted on a contest of a will is governed by the same rules as the trial of any issue at law before a jury.</p> <p>2. Same—exception to ruling is essential to preserve it for review. An objection, of itself, is not sufficient to preserve any question for review on appeal or error but there must be an exception to the ruling; and this requirement is not a technicality nor an invention of the courts, but is a rule created by the legislature and is fixed by section 8i of the Practice act.</p> <p>3. Same—decision of judge as to what occurred at trial is not subject to review. The trial judge being present and presiding at the trial knows what takes place and it is his duty to settle the bill of exceptions, and while he may resort to any available means to aid his recollection, the means by which he reaches his conclusion are no proper part of the bill of exceptions, and his decision as to what occurred.is final.</p> <p>4. Same—alleged exceptions cannot be shown by affidavit. Alleged exceptions to rulings of the court in the progress of a trial cannot be shown by affidavit of the parties but must appear from the bill of exceptions.</p> <p>5. Same—an appellant should not insert exceptions in abstract which are not in record. An appellant should not insert alleged exceptions in the abstract which are not shown by the bill of exceptions to have been taken.</p> <p>6. Same—proper form of issue at law in a will contest case. Where there are two instruments,—the original will and a codicil,—involved in a will contest case, it is preferable to submit, as the issue of law, the question whether the two instruments together are the last will of the testatrix, and if not, whether the original will is such last will, rather than the question whether each instrument separately is the last will, as the jury’s findings in the latter case might be repugnant in law.</p> <p>7. Same—exception to form of issues at law.not waived by going to trial. An exception to the form in which the issues at law in a will contest case are submitted to the jury is not waived by the objector joining in the issues and going to trial, as he can do nothing else than proceed to trial and waives nothing by doing so.</p> <p>8. Same—motion to direct a verdict is waived by introducing evidence. An exception to a ruling denying a motion by the contestant, made at the close of the proponent’s evidence, to instruct the jury in his favor is waived by introducing evidence after the motion is denied.</p> <p>9. Same—motion to instruct the, jury to return certain verdict should be accompanied by written instruction. A motion, made at the close of all the evidence, to instruct the jury to return a verdict in favor of the party making the motion should be accompanied by a written instruction to that effect, otherwise the question whether the court erred in denying the motion is not reviewable.</p> <p>10. Same—question whether there is any evidence tending to show that instrument was last will is one of law. In a will contest case the question whether there is any evidence fairly tending to show that the instrument produced was the last will and testament of the deceased is a question of law, which, under the statute, requires an instruction in writing, if any instruction is desired.</p> <p>11. Same—exception to overruling of a motion for new trial does not take place of exceptions on the trial. An exception to the overruling of a motion for new trial which specifies the things complained of does not take the place of exceptions to the rulings at the time they were made during the trial.</p> <p>12. Same—when exception to overruling of motion for a new trial is not preserved. A11 exception must be taken at the time of the ruling, and if no exception to the overruling of a motion for new trial is made until after the entry of the decree, at which time an exception is taken to the action of the court in overruling the motion and entering the decree, the exception can only be considered as applying to the entry of the decree.</p> <p>13. Evidence—right of non-experts to give opinions in a will contest case. In a will contest case involving the testamentary capacity of the testator, non-expert witnesses who have known the testator a considerable time and have stated their opportunities for observation and the facts upon which their opinions are founded may give an opinion as to the testator’s condition of mind.</p> <p>14. Same—manner in which questions shall be'put rests largely in discretion of court. The manner in which questions shall be put to witnesses rests largely in the discretion of the court, and it is not a ground for reversal that some questions are leading and suggestive, if there was no injury to the appellant.</p>

<p>1. Constitutional law—section 25 of Municipal Court act is invalid in so far as it■ authorizes certain writs of error. Section 23 of the Municipal Court act, in so far as it authorizes a writ of error from the Appellate Court to the municipal court in cases relating to the revenue or where the State is interested, as a party or otherwise, is unconstitutional, and such writs of error must be sued out of the Supreme Court under section 118 of the Practice act. (Clowry v. Holmes, 238 111. 577, Hosking v. Southern Pacific Co. 243 id. 320, and People v. Hibernian Banking Ass’n, 245 id. 522, adhered to.)</p> <p>2. Same—power of legislature to provide for review of judgments. The legislature may, in an act establishing a court, provide for a review of its judgments, and the practice on such review, without violating section 13 of article 4 of the constitution, which provides that no act shall embrace more than one subject, which shall be expressed in its title; but it does not follow that the legislature, in making provision for such review, may violate section 29 of article 6 of the constitution, requiring the jurisdiction, powers, proceedings and practice of all courts of the same class or grade to be general and of uniform operation.</p> <p>3. Same—provisions governing courts of same class or grade must be tmiform. Under section 29 of article 6 of the constitution, provisions of law relating to the jurisdiction, powers, proceedings and practice of all courts of the same class or grade must be general and of uniform operation, whether such provisions are contained in one act or several acts; and it is not competent for the legislature to provide that if a suit is brought in a certain court the judgment shall be reviewed by the Supreme Court but if brought in another court shall be reviewed by the Appellate Court.</p> <p>4. Same—municipal court of Chicago is a city court within the terms of Appellate Court act and Practice act. If the municipal court of Chicago is a city court for the purpose of its creation, it must be regarded as a city court within the terms of the Appellate Court act and Practice act in order to enable it to exist at all.</p> <p>5. Same—power of legislature to prescribe practice for municipal court extends no further. The legislature did not derive its power to create the municipal court of Chicago from the constitutional amendment of 1904, which is section 34 of article 4 of the constitution, but from its constitutional authority to create courts in and for cities and incorporated. towns, and the power to prescribe a practice in such municipal court different from other city courts does not extend to a writ of error, which is a new suit in the court of review.</p> <p>6. Taxes—tax on net receipts of insurance company is a tax. The net receipts of an insurance company are personal property and are to be listed by the board of assessors and board of review and taxed the same as other property, and such tax is a personal property tax and not merely a license to do business in the State.</p> <p>7. Same—net receipts of insurance company are properly listed as “property not enumerated.” Net receipts of an insurance company are properly listed under the heading “all other property not enumerated,” and in such case the assessment is an assessment of property and not merely an assessment against the company, which neither the board of assessors nor board of review could make.</p> <p>8. Same—what does not show that the assessment was void. While a tax-payer has a right to show that he did not own the property assessed against him, yet in case of an assessment of the net receipts of an insurance company under the heading “all other property not enumerated,” testimony of the insurance company’s agent that the company had no personal property in the county the year of the assessment does not show the assessment was void.</p> <p>9. Same—what is presumed where the assessments have been changed by board of review. Where it appears that the assessment made by the board of assessors was raised by the board of review in one year and lowered by it another, it will be presumed that the officials did their duty and that the tax-payer had notice of the increase the first year and made application for the reduction the next, and that there was a hearing before the board of review in each year by the owner actually assessed.</p> <p>10. Same—error in name does not affect validity of tax. The fact that an assessment of net receipts of an insurance company described the company as the “Cosmopolitan Insurance Company” instead of the “Cosmopolitan Fire Insurance Company,” there being a notation of the agency, which identified, the company intended, does not affect the validity of the tax.</p>

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

<p>1. Instructions—what is necessary to justify instruction directing verdict if plaintiff has proved case as alleged. An instruction directing the jury to find for the plaintiff if they believe she has made out her case as alleged in the declaration, by a preponderance of the evidence, can only be justified where the declaration contains all the elements necessary to a recovery.</p> <p>2. Same—when declaration must negative defense of assumed risk. In an action brought against the master for damages, where the question of assumption of risk by the servant is a defense and there is evidence tending to sustain such defense, it is error to give an instruction authorizing a recovery by the plaintiff if she has proved her case as alleged in the declaration, where the declaration neither expressly nor by fair implication negatives such defense.</p> <p>3. Pleading—what is necessary in order to negative defense of assumed risk. If it appears from the declaration that the deceased servant knew of and complained to the master of the defects and conditions which caused his injury and continued work upon the master’s promise to remedy the same, it is necessary, in order for the declaration to negative the defense of assumed risk, to aver that the servant did not work longer than a reasonable time after such promise, and that the danger was not so imminent that it was the duty of the deceased to quit work until repairs were made.</p> <p>4. Appeals and errors—when error in giving an instruction is not cured. Error in giving an instruction which directs a verdict for the plaintiff but which omits an element essential to a recovery is not cured by other instructions of the series.</p>

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

Jesse A. Baldwin, Judge, presiding. This was a bill in chancery filed on the 21st day of July, 1909, by the appellants, in the circuit court of Cook county, against the appellees, asking the court to hold that they were the equitable owners, as against the appellees, of lot 29, in block 134, in McMartin, Rees & Ogden’s subdivision in School Section addition to the city of Chicago, and for an accounting.

<p>1. Limitations—zvhat constitutes color of title. Any instrument having a grantor and grantee, and containing a description of the lands intended to be conveyed and apt words for their conveyance, constitutes color of title such as is contemplated by sections 6 and 7 of the Limitation act.</p> <p>2. Same—when right to dower is barred. The fact that the only consideration for a quit-claim deed made by children to their mother is love and affection does not affect the character of the mother’s possession of the land, and if one of the children, whose husband did not join in the deed, dies while the mother is in possession the Statute of Limitations begins to run against the husband’s right to dower, and if no demand is made before the bar of sections 6 and 7 of the Limitation act is complete said right to dower is barred. (Brumback v. Brumback, 198 111. 66, explained.)</p>

<p>1. Constitutional law—-art to prevent unjust discrimination in freight rates is not invalid. Section 3 of the act to prevent unjust discrimination in rates charged by railroad companies, as amended in 1873, in so far as it prohibits railroad companies from charging a greater rate for freight hauled a certain distance than is charged for hauling the same class of freight, in the same direction, for a longer distance, and which makes proof of such a discrimination prima facie evidence of the unjust discrimination prohibited by the act, is not unconstitutional.</p> <p>2. Same—act to prevent unjust discrimination in rates is not invalid because of its penalties. The act to prevent unjust discrimination in rates charged by railroad companies is directed against the corporations and not against their officers and agents, and in defending a charge of unjust discrimination the corporation is not restricted to challenging the validity of the act, but may show that the discrimination was not, in fact, unjust, and hence the act is not in violation of the provision of the constitution prohibiting penalties not proportioned to the offense.</p> <p>3. Railroads—when People are entitled to judgment for penalty for unjust discrimination in freight rates. In an action of debt by the People against a railroad company for violation of section 3 of the act to prevent unjust discrimination in rates, the People are entitled to judgment on proof that the defendant charged more for hauling freight a certain distance than it charged for hauling the same class of freight at the same time, in the same direction, for a longer distance, where.the defendant offers no evidence in its behalf to show that the discrimination was not unjust.</p>

<p>Writ OB Error to the Circuit Court of Monroe county; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

<p>1. Wills—when will does not violate rule against perpetuities. A will devising a life estate in a farm to the testator’s son with remainder for life in the three named children of such son and with remainder in fee to their lawful children, and if any of the three grandchildren should die without leaving lawful children his share should vest in the surviving grandchildren for life with remainder in fee to their lawful children, does not violate the rule against perpetuities, since the fee will vest, if at all, at the death of persons in being at the death of the testator.</p> <p>2. Same—what is required by rule against perpetuities. All that is required by the rule against perpetuities is that the absolute ownership of the property must vest in someone within the period of a life or lives in being and twenty-one years and nine' months thereafter.</p>

<p>1. Special assessments—right to appeal or writ of error in a special assessment is purely statutory. The right to prosecute an appeal or writ of error in a special assessment proceeding is purely statutory, and the property owner is entitled to neither as a matter of right.</p> <p>2. Same—purpose of sections p¡ and p6 of Local Improvement act. Sections 95 and 96 of the Local Improvement act were intended to give every-property owner the right to have the special assessment or special tax proceeding reviewed once by appeal or by writ of error under certain conditions, but it was not intended to allow him both methods of review.</p> <p>3. Same—affidavit for writ of error required by section p6 must be filed. No writ of error to review a .special assessment proceeding can be sued out unless the aEdavit required by section 96 of the Local Improvement act is filed, and if a property owner, after due notice and a hearing, is allowed an appeal but fails to perfect the appeal he is not entitled to a writ of error.</p>

<p>1. Constitutional law—classification of counties may be reasonable or unreasonable, according to nature of the law. A law which is based upon a classification of counties into those under township organization and those not so organized may be valid or invalid, according to whether the classification is reasonable or merely arbitrary, in view of the nature and purpose of legislation.</p> <p>2. Same—amendment of 1907 making road commissioners personally liable for damages is invalid. The amendment of 1907 to section 51 of the Roads and Bridges act, which makes highway commissioners in counties not under township organization personally liable for injury to person or property due to their failure or neglect to keep the highways of their district in repair, is invalid as special legislation, there being no reasonable ground for making the commissioners liable in counties not under township organization and not making the commissioners in counties under township organization liable under the same conditions.</p>

<p>1. Trusts—donor parts with title when an express trust is created. One who agrees to give a sum of money to his daughter to purchase land on condition that the title be conveyed to him as trustee parts with all title to the money, except as trustee, when the deed is made conveying title to him as trustee for the daughter with power to convey at her request, and while the express trust terminates upon the conveyance of the premises at the daughter’s request, the title to the trust fund remains in her.</p> <p>2. Same—when resulting trust arises. Where money received from the sale of land held by a father upon express trust for his daughter is re-invested in other land, the title to which is taken in the name of .the father by a deed absolute in form, a resulting trust arises in favor of the daughter, which may be enforced against the father and his voluntary grantee having notice of facts.</p>

<p>1. Special assessments—power of court to re-cast assessment before hearing. After the assessment roll has been filed by the superintendent of assessments, the county court has power, on motion of the city, to reduce the assessment upon all the property and to re-cast the roll, even though such action is before the return day for filing objections to the confirmation of the assessment roll.</p> <p>2. Same—Bond Issue act of ipop does not apply to special assessment bonds. The act of 1909, requiring a vote of the people upon the question of the issue of bonds by a city, does not apply to bonds issued under the Local Improvement act against a special assessment. (City of Nokomis v. Zepp, {ante, p. 159,) and City of Lawrenceville v. Hennessey, 244 id. 464, followed.)</p> <p>3. Same—effect where total benefits assessed do not equal engineer’s estimate. If the court is of the opinion that the property has been assessed more than it is benefited it may reduce the assessment, and the fact that by such reduction the total amount of benefits assessed is less than the estimated cost does not invalidate the proceeding nor authorize the court to arbitrarily assess the difference between such amounts as benefits against the public. {City of Nokomis v. Zepp, {ante, p. 159,) followed.)</p>

<p>1. Murder—there must be malice, express or- implied, to constitute murder. It is indispensable to a conviction for murder that the killing be done with malice aforethought, express or implied, otherwise the offense, under the statute, is manslaughter.</p> <p>2. Same—when proof must show the defendant knew deceased was a policeman. Where the man killed by the defendant in an unprovoked assault by the deceased was unknown to the defendant and wore no uniform or badge and gave no intimation that he was a police officer in plain clothes, it must be proven beyond a reasonable doubt that the defendant knew that the deceased was a policeman before the People can rely upon the official character of the deceased as characterizing the killing as murder.</p> <p>3. Same—when conviction for murder cannot stand. A conviction for murder on the theory that the killing was done while the defendant was resisting arrest by the deceased cannot stand where the evidence shows that the deceased was unknown to the defendant, that he was in plain clothes and wore no badge and was not looking for the defendant for any reason, but that he suddenly seized the defendant, after inviting him to drink, and demanded what the defendant had in his pocket, and in the ensuing scuffle was shot by the defendant and killed.</p> <p>4. Same—when giving abstract instruction is error. In a murder trial, where the defendant relies upon self-defense, it is error to give an abstract instruction for the People which is susceptible of being construed as as'suming that the killing was not in self-defense. (People v. Jacobs, 243 111. 580, followed.)</p>

<p>1. Drainage—when one district cannot take possession of another's ditch. Where a drainage district acquires, by grant, a right of way for its ditch, which it constructs and uses as a necessary part of its system and exercises exclusive jurisdiction and control thereover, the fact that the whole tract of land in which the ditch is located is included within the boundaries of a district subsequently organized does not justify the latter district in ousting the former district of its possession of the ditch and assuming control thereof.</p> <p>2. Equity—when equity will enjoin threatened acts—irreparable injury. Where one drainage district, without the consent of the other, is about to take possession of a portion of the latter’s main ditch to deepen and widen it, intending to thereafter assume control thereof, which will result in the complete ouster of the district owning the ditch and cause the lands of such district to be overflowed by the stoppage of surface drainage into the ditch, a court of equity will enjoin the threatened acts upon the ground of irreparable injury, even though there may be a remedy at law.</p>

<p>1. Res judicata—extent to which construction of zvill is res judicata. If the Supreme .Court has construed the word “heirs” in a will to mean "children” and not heirs generally, such construction is binding on a subsequent appeal involving the same clause of the will, even though it was not disclosed to the court .upon the first appeal that there were adopted children to be considered; but in such case the question whether the adopted children come within the meaning of “children” is not res judicata.-</p> <p>2. Wills—state of law at time will was made is to be considered. In construing language of a will capable of more than one interpretation the circumstances and environment of the testator at the time the will was executed, including the state of the law at that time, may be considered.</p> <p>3. Same—each will must be considered in the light of its own phraseology. Within the settled general rules and principles of law each will must be considered in the light of its own phraseology and the facts and circumstances surrounding the testator at the time the will was made, and for that reason the decisions in will construction cases are of less value as precedents than the decisions in other classes of cases.</p> <p>4. Same—word "heirs" in its comprehensive sense, will include adopted children. The word “heirs,” in its general and comprehensive sense, includes all who stand in a relation to the ancestor that will entitle them, under the law, to inherit at his death, and this includés adopted children.</p> <p>5- Same—when adopted children will not take under a will. Adopted children are not within the meaning' of the word “heirs” in a cla'use of a will devising land to the testator’s son but should he die without “heirs” then the property to go to named persons, where Supreme Court has previously construed the word '“heirs” to mean children, and where, at the time the will was made and at the time the testator died, there was no law in the State giving adoped children the right to inherit. (Butterfield v. Sawyer, 187 111. 598, distinguished.)</p>

<p>1. Wills—devise of fee simple may be limited by a subsequent provision. Although an estate in fee simple is devised it may be limited by a subsequent valid provision that the estate shall go over to others upon the happening of a certain contingency, and in such case the estate so limited is still a fee, as it will last forever if the contingency does not happen, but so long as it is possible that the contingency may happen it is a base or determinable fee.</p> <p>2. -Same—contingency of death of first devisee without issue is a valid one. One of the contingencies upon which a limitation of a prior devise in fee simple may rest is the death of the first devisee without issue, and in so far as the executory devise depends upon the death of the first devisee without issue it is valid.</p> <p>3; Same—executory devise is indestructible by any act of first devisee. An executory devise is indestructible by any act of the owner of the preceding estate, and hence if the first devisee has an estate which he can convey in fee simple by virtue of his ownership, so as to destroy the attempted limitation over, such limitation is void.</p> <p>4. Same—addition of a power of sale does not increase estate. The addition of a power of sale to an estate does not, of itself, increase the estate.</p> <p>5. Same—determinable quality of fee follows its transfer. If the owner of a base or determinable fee conveys in fee simple, the determinable quality of the fee follows the transfer.</p> <p>6. Same—where there is an ■absolute power of disposition an attempted executory devise is void. If there is an absolute power of disposition in the first devisee an attempted limitation over is void as a remainder because the first devisee has the entire estate, and is also void as an executory devise because the limitation is inconsistent with the absolute estate or power of disposition. (Burton v. Gagnon, 180 111. 345, explained.)</p> <p>7. Same—when executory devise is void. Where a remainder in fee simple is devised to the niece and three daughters of the testator in equal shares, an attempted limitation providing that in case the niece “shall not dispose of the said estate devised to her, by will or otherwise, before her death, and should die without issue, seized of the estate,” then the estate devised to her shall go to and vest in the three daughters, is void because the niece has an absolute power of disposition, freed from the limitation over. {Friedman v. Steiner, 107 111. 125, explained.)</p>

<p>1. Appeals And errors—no seal to a certificate of evidence is required. If the trial judge approves and signs a document prepared by the court reporter purporting to contain all the evidence heard in a chancery cause the evidence is preserved as a part of the record, even though the document is informal and has no seal.</p> <p>2. Benefit societies—person not of eligible class cannot take as beneficiary. A person who is not eligible as a beneficiary under the statute is not entitled to the fund even though named as beneficiary, and in such case the heirs of the deceased member are entitled to the fund.</p> <p>3. Same—fact that beneficiary is not eligible is not an objection such as the society alone can raise. The fact that the beneficiary named in a certificate is not eligible is not an objection such as the society alone can raise, as the rights of the parties are fixed by law and are not affected by thé action of the society in filing a bill of interpleader to determine conflicting claims.</p> <p>4. Same—voluntary payments of dues by third person create no debt. Voluntary payments by a third person of dues or assessments on a benefit certificate create no debt either against the member or the beneficiary, and even if a debt were created the money due on the certificate could not, under the act of 1893 relating to fraternal beneficiary societies, be appropriated, by any legal or equitable process, to its payment.</p> <p>5. Same—when reimbursement for dues or assessments may be made. The only case in which reimbursement out of the proceeds of a benefit certificate for dues or assessments.paid on the certificate may be made is where such payments are made by a person named as beneficiary, with the expectation of receiving the fund itself, but who is, in fact, not eligible as a beneficiary.</p>

<p>Criminal law—no set phraseology is necessary to show that indictment was returned in open court. While a defendant cannot rightfully be put upon trial for a criminal offense prosecuted by indictment unless the record shows the indictment was returned in open court by the grand jury, yet it is sufficient if that fact appears from the record by ary apt words, and no set form is necessary.</p>

<p>1. Wills—rule in determining time to which survivorship refers. Where a gift to survivors is preceded by a life estate or other prior interest the gift takes effect in favor of those, and those only, who survive the period of distribution, unless a special contrary intent is found in the will. (Hempstead v. Dickson, 20 I1L 194, disapproved.)</p> <p>2. Same—effect where a testator does not provide for contingency of prior death of deviseev. Where a testator fails to make provision for the contingency of his surviving a devisee, section 11 of the Statute of Descent applies if the deceased devisee is a child or grandchild of the testator, and the devise is governed by the provisions of such section.</p> <p>3. Same—what is not making provision for the contingency of death of devisee. A devise of a life estate to the son of the testatrix with remainder at his death “unto my beloved children, share and share, or the survivor or survivors of them, and their heirs,” does not make provision for the contingency of the death of any such children before the testatrix, as the words “and their heirs” are merely used as words of limitation to characterize the estate devised, and not to restrict the devise to those children, only, who survived the testatrix. (Grimmer v. Friederich, 164 111. 245, distinguished.)</p>

<p>1. Cloud on title—what is sufficient proof of title. In a proceeding to set aside a tax deed as a cloud on title, evidence that the complainant, at the time the bill was filed, was in possession of the property as alleged in the bill, claiming in good faith to be the owner thereof under a deed purporting to convey the same to him, is sufficient proof of title.</p> <p>2. Same-—presumption as to possession is in favor of holder of legal title. In a proceeding to set aside a tax deed as a cloud on title every presumption will be made in favor of the holder of the legal title, and as against him no presumption will be indulged in' favor of the holder of color of title.</p> <p>3. Same—when a defendant is estopped to deny a complainant’s title—privity. One who inherits land purchased from the assignee of a tax deed is so in privity with the holder of the certificate of purchase who made the affidavit for the tax deed that she is bound by such person’s statement in the affidavit with reference to the ownership of the land, and is estopped to deny such statement when the party named thereby as owner files a bill to set aside the tax deed and the conveyances based thereon.</p> <p>4. Same—what constitutes possession depends upon circumstances. To constitute possession there must be such appropriation of the land as will apprise the community in the vicinity that the land is occupied and who the occupant is, but the question as to what acts establish such possession depends in a measure upon the nature and locality of the property, the use to which it is adapted and the situation of the parties.</p> <p>5. Same—question of possession is determined as of time bill was Med. In a proceeding to remove a tax deed as a cloud on title the question of the complainant’s possession of the land is determined as of the time the bill was filed, and his acts subsequent to that time have no bearing on the matter.</p> <p>6. Same—prior, possession by holder of legal title will be' protected. If the holder of the legal title goes into possession of the land before the holder of color of title, who has paid seven years’ taxes thereon as vacant land, the possession of the holder of the legal title will be protected, unless there is clear proof that he was actually ousted of his possession before he filed his bill to remove cloud from title.</p> <p>7. Same—where two are in possession the seisin follows title. Where there is joint possession by two persons, even though their claims are adverse, the seizin follows the title, and there is no disseizin of the holder of the legal title unless he is altogether deprived of his possession by the other.</p> <p>8. Same—land need not be entirely fenced to establish possession. The fact that in the wire fence erected by the holder of the legal title around the land, gaps are left for a roadway and between the edges of certain ponds, does not prevent his acts in cutting the paths for the surveyors, running the lines and putting up the wires from constituting the taking of possession.</p> <p>9. Same—when holder of legal title is in possession. Where the holder of the legal title goes upon vacant land with ■ surveyors and erects posts and wires except across certain ponds, where gaps are left, his possession is established notwithstanding the holder of color of title, before the fence is finished, also strings wires on the same posts and across the ponds, there being no surrender by the holder of the legal title of his prior possession. (EeSourd v. Edwards, 236 111. 169, followed.)</p>

<p>.1. Wills—vahen widow takes a base fee. A will devising the testator’s real estate to his wife “provided she remains my widow, but should she marry, then all the property shall go to my children that are alive, except one-third of the land, which she is to have during her lifetime,” passes to' the widow a base fee -conditioned upon her remaining the testator’s widow.</p> <p>2. Same—word “provided” is an apt word to express a condition. The word “provided,” in the clause “provided she remains my widow,” is an apt word to express a condition, and will be so construed rather than as meaning “while” unless a different intent appears from the context and an examination of the whole will.</p> <p>3. Same—whether will passes subsequently acquired land is a matter of intention. Whether a will passes real estate acquired after the execution of the will depends upon the intention of the testator, and unless an intention to dispose of such estate affirmatively appears from the will it will not pass.</p> <p>■ 4. Same—what language shows an intention to devise after-acquired property. A will giving and bequeathing to the testator’s wife “all the real estate I may die seized of, being the land I now live on,” etc., indicates an intention to devise real estate acquired after the execution of the will, notwithstanding the descriptive words, “being the land I now live on.”</p> <p>5. Partition—there can be no partition of expectancy. Where the widow has a base fee in land with a limitation over to the children if the widow marries again, the children have a mere expectancy, which cannot be partitioned.</p> <p>6. Real property—an expectancy cannot ordinarily become the subject matter of an adjudication’by the courts. While contingent interests or expectancies having no present existence and resting only in possibility may be the subject of contract, yet they cannot ordinarily become the subject of adjudication by the courts, which deal with substantial interests and not possibilities.</p> <p>7. Same—one having a base fee may convey the same. One who has a fee in land upon condition that she shall not re-marry may convey such fee, but grantee takes subject to such condition.</p> <p>8. Specific performance—court will not entertain bill to compel conveyance of expectancy. Courts will not entertain a bill to specifically enforce a contract to convey a mere expectancy until the happening of the contingency which brings the expectant interest into existence.</p>

<p>1. Appeals and errors—Supreme Court cannot weigh the evidence in suits at law. In suits at law appealed from the Appellate Court the Supreme Court cannot weigh the evidence to determine whether the judgment is sustained thereby, and if no question of law is preserved for review the judgment of the Appellate Court upon the facts is conclusive.</p> <p>2. Same—when question of joint liability of defendants is not presented. The question of the joint liability of the several defendants in an action for damages is not presented by the refusal of a proposition of law that “if the court finds, from a preponderance of the evidence, that the defendants are guilty of the negligence charged in either count of the declaration, and that the said negligence materially contributed to and was the proximate cause of the damages suffered by the plaintiff, then it is the law and the court holds the defendants guilty.”</p> <p>3. Same—correctness of ruling on propositions of. law must be determined from propositions themselves. Whether the trial court erred in ruling upon propositions of law can be determined by the Supreme Court only by reference to the propositions themselves.</p> <p>4. Same—court not required to repeat same thing in different propositions. In a suit at law tried without a jury it is not error for the court to refuse to hold as the law a proposition repeating substantially the same principles stated in a proposition already held to be the law.</p>

<p>1. Constitutional law—object of section 13 of article 4 of constitution, concerning titles of acts. The object of section 13 of article 4 of the constitution, concerning titles of acts, is to prevent the joining in one act of incongruous or unrelated matters, but it was not its design to embarrass legislation by making laws unnecessarily restrictive in their scope and operation or to require that the title shall.be an index of the contents of the act.</p> <p>2. Same—section 13 of the Municipal Court act, concerning interchange of judges, is valid. Section 13 of the Municipal Court act, authorizing judges of the municipal court to interchange with judges of other city courts and with county judges, is not in contravention of section 13 of article 4 nor section 29 of article 6 of the constitution and is germane to the purposes of section 34 of article 4, and is a valid law.</p> <p>3. Courts-—section 13 of the Municipal Court act not in conñict with sections 10 and 12 of said act. Section 13 of the Municipal Court act, relating to interchange of judges, is not in conflict with sections 10 and 12 of said act, relating, respectively, to the qualifications of municipal judges and the increase of the number of such judges by election.</p>

<p>1. Appeals and errors—when a decree canceling oil lease involves a freehold. A decree canceling as a cloud on title an oil and gas lease, which is for a term of years and “as long thereafter as oil or gas, or either of them, is produced” by the lessee, involves a freehold.</p> <p>2. Fraud—when “equity will relieve party injured by false representation. . Although the parties to a contract are dealing at arm’s length and there is no fiduciary relation, yet if one party asserts, as a matter of fact, a material thing which he knows or ought to have known was false, with the intention and expectation that his assertion will be relied upon and acted upon by the other party, who does rely and act thereon tó his injury, equity will grant relief to the injured party by setting aside the contract.</p> <p>3. Same—representation as to bonus being paid for oil leases is a representation of fact. A representation by an agent of an oil company to a non-resident land owner, who was ignorant of the facts, that the highest bonus being paid for oil leases in the vicinity of her land was $10 an acre when it was in fact, and so known to the agent, much greater, is a false representation of a material fact such as amounts to fraud, and not merely an expression of opinion as to value.</p> <p>4. Same—principal cannot shield himself behind agent’s ignorance. If the field representative of an oil company knows approximately what a certain oil well will produce per day the company is charged with his knowledge, and it cannot escape responsibility for a misrepresentation of the fact by an uninformed agent selected to negotiate with a non-resident land owner for an oil lease, even though the agent may not have known, although he assumed to know, what the output of the well” would be.</p>

<p>1. Constitutional law—the legislature has power to prescribe rules of evidence. The legislature has power to prescribe rules of evidence, and may declare that a fact shall be prima facie evidence of another fact which it has a tendency to proye.</p> <p>2. "Same—amendment of ipo7 to the Torrens law is valid. The amendment to section 18 of the Torrens law in 1907, authorizing the examiner to receive in evidence abstracts of title, or certified copies thereof, made in the ordinary course of business by makers of abstracts, is not unconstitutional, on the ground that such ahstracts constitute evidence without the sanction of an oath.</p> <p>3. Same—all laws are not required to be applicable to every case. Section 29 of article 6 of the constitution, providing that all laws relating to courts shall be general and of uniform operation, does not require that all laws shall be applicable to every case, but that every law must apply uniformly to all cases governed by it.</p> <p>4. Same—amendment of ipo7 to Torrens law is not in violation of section 2p of article 6 of constitution. The amendment of 1907 to section 18 of the Torrens law, which provides a rule of evidence applicable to a proceeding for registering title without extending it to other forms of action in which the title to real estate is involved, is not in violation of section 29 of article 6 of the constitution, as the Torrens system of registering title is a distinct proceeding, differing from ordinary actions at law or in chancery.</p> <p>5. Same—fact that original act is adopted by vote of the people does not require vote on amendments. Statutes in Illinois derive their force from the action of the legislature, and even though the legislature may require a favorable vote by the people before a particular act shall take effect, such act, when it takes effect, is the act of the legislature, and may be repealed or amended without requiring a vote of the people.*</p> <p>6. Registration oE title—what does not justify requiring defendant to pay fees. It is the duty of an applicant for registration of title to establish a title good as against the world, and the mere fact that the holder of a tax deed appears and insists upon such proof by the applicant, though offering no evidence himself, furnishes no reason for charging him with any part of the cost of the proceeding.</p> <p>7. Same—when refusal of tender does not justify charging defendant with costs. Neither the necessity for a proceeding to register title nor the cost of such proceeding is affected by a tender to the holder of a tax title who offered no evidence in his own behalf but insisted upon the applicant making the proof required by law, and the refusal of such tender is not ground, in such case, for charging costs against the holder of the tax title.</p> <p>8. Same—applicant is, not bound to prove the invalidity of a tax deed. While an applicant for initial registration of title must establish a title good as against the world he is not required to show the invalidity of a tax deed held by a defendant, but the burden is on the defendant to establish the validity of such tax deed.-</p> <p>9. Evidence—what is not'sufficient proof to entitle abstract of title to admission. Testimony by a witness employed as an abstract maker in the office of the recorder of Cook county that a certain abstract of title made by the recorder was made in due course of business is not sufficient to entitle the abstract to admission in evidence in a proceeding to register title, where it appears from the testimony of the witness that he had never had anything to do with* the abstract and knew nothing in regard to any order for it, but testified merely from examining the abstract itself.</p>

Writ oe Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Perry county; the Hon. B. R. Burroughs, Judge, presiding. Plaintiff in error was on and prior to February 11, 1907, possessed of and operating a coal mine in Perry county, Illinois, containing numerous entries, rooms, cross-cuts and roadways, out of which it mined and hauled, coal.

<p>Appeals and errors—validity of a statute is never determined unless necessary. In order to give the Supreme Court direct appellate jurisdiction upon the ground that the validity of a statute is involved such statute must be the foundation of some right asserted or some defense made, so that the determination of the validity of the statute is necessary to a decision of the case, and if the issues can fairly be decided without reference to the statute, its validity will not be determined.</p>

<p>1. Courts—County Court act does not authorise county court to try a question of title to land. Neither the constitution nor the County Court act confers upon the county court power to try a case involving a freehold and render any judgment therein which is binding as to the title to real estate. (Boyd v. Kimmel, 244 111. 545j followed.)</p> <p>2. Same—Local Improvement act does not give county court power to adjudicate title to streets. The Local Improvement act,, particularly section 53, was not designed to enable the city, in special assessment or special tax proceedings, to conclusively try the question of title to streets, but merely to enable the county court to determine the question of title as incident to the main issue whether the assessment or tax shall be levied.</p> <p>3. Res judicata—judgment dismissing a special assessment petition is not res judicata as to the title to street. A judgment of the county court dismissing a special assessment petition after sustaining all legal objections thereto, among which was one which charged that the land upon which the improvement was sought to be constructed was not a public street, is not an adjudication of the title to the strip of land in question such as is binding upon the city in a subsequent suit to enjoin the city from removing obstructions from the alleged street.</p>

<p>1. Registration or titee—procedure where examiner fails to report evidence on request. Under section 18 of the Torrens law, providing that the examiner shall not be required to report the evidence submitted to him “except upon the request of some party to the proceeding or by the direction of the court,” it is the duty of the examiner to report the evidence if requested to do so by a party to the proceeding, and if he fails or refuses to do so such party may apply to the court for a rule upon the examiner to report the evidence; but if no rule is applied for, the party cannot complain, on appeal, that his request was not complied with.</p> <p>2. Same—harmless error will not reverse. Error in directing an examiner of titles to admit in evidence and consider as a part of the record a transcript of the proceedings had before another examiner, who had not certified the evidence or included it in any report to the court before his death, is not ground for reversal, where the only matter shown by the transcript and not covered by the evidence introduced before the master relates to a matter which was immaterial in view of the final decree.</p>