Volume 247 — Illinois Reports

<p>1. Practice—municipal court of Chicago cannot extend time for Ming statement after thirty days from judgment. In cases of the fourth class the municipal court of Chicago has no power to extend the time for filing the statement or stenographic report, which serves as a bill of exceptions, after thirty days from judgment, even though there is a stipulation of the parties to extend the time. (Lassers v. Steamship Co. 244 Ill. 570, adhered to.)</p> <p>2. Same—how to raise question whether point was made in Appellate Court. To enable the Supreme Court to determine whether a certain point was raised in the Appellate Court, a motion should be made, under rule 15 of the Supreme. Court, ior leave to file a certified copy of the briefs filed in the Appellate Court.</p> <p>3. Same—when Supreme Court cannot say that question was waived because not raised in the Appellate Court. The question whether the bill of exceptions in the municipal cou'rt was filed in time may be raised in the Appellate Court in the brief and argument, and hence if no certified copy of the brief and argument used in the Appellate Court is filed in the Supreme Court upon leave granted, the Supreme Court cannot say whether such point was waived because not raised in the Appellate Court.</p>

<p>1. Registration oe title—valid, tender is necessary to charge the defendant with costs. An applicant in a proceeding to register title who desires to charge the holder of a tax title with the costs should make a tender of the taxes, costs and interest before, filing his bill and keep such tender good by bringing the money into court, otherwise it is error to decree costs against the holder of the tax title.</p> <p>2. Appeals and ERRORS—decree not erroneous if in accordance with mandate of Supreme Court. Where a decree in a proceeding to register title is reversed and the cause is remanded, with directions to enter a particular decree, the provisions of the new decree which are in accordance with the mandate of the Supreme Court cannot be held erroneous.</p>

<p>1. Witnesses—parties not competent where other parties are suing and defending as heirs. Neither the complainant in a bill for specific performance nor her husband is a competent witness in her behalf where the defendants are defending as the heirs-at-law of the persons alleged to have made the contract; nor are they competent to testify in a partition proceeding where the complainants claim the land by inheritance, and their testimony will not be considered by the Supreme Court even though the trial court made no ruling on the question.</p> <p>2. Specific performance—verbal contract to convey land must be clearly proved. A verbal contract to convey land must be-proved by competent evidence and be clear, definite and unequivocal in its terms.</p> <p>3. Same—Statute of Frauds cannot be interposed in equity to accomplish a fraud. A court of 'equity will not permit the Statute of Frauds1, the only purpose of .which is to prevent fraud, to be used where the effect will be to accomplish a fraud.</p> <p>4. Same—when a court of equity will not listen to defense of Statute of Frauds. Where a -verbal contract has been performed, either fully or in part, by the party seeking the remedy, and the facts are such that it would be a virtual fraud to permit the defendant to interpose the Statute of Frauds, a court of equity will not listen to such defense.</p> <p>5. Same—in equity the rights and duties of the parties are the same as though the contract were in zvriting. In equity the rights ' and duties of the parties to a verbal contract are the same as they would be were the contract in writing and signed, and unless the . one who has performed the contract in good faith can be made whole in damages he is left without an adequate remedy at law, and equity will compel the other party to do the thing which was agreed to be done.</p> <p>6. Same—equity will grant relief to prevent fraud resulting from setting up defense of Statute of Frauds. A court of equity may grant relief by decreeing specific performance of a verbal contract where the contract has been performed by one party in such a way that the parties cannot be placed in statu quo or damages awarded which would be full compensation.</p> <p>7. Same—possession of land in lifetime of other party is not indispensable. Where a verbal contract to convey land does not contemplate that the promisee shall have possession of the land before the death of the promisors, the fact that the promisee does not have exclusive possession of the land during the lifetime of the promisors is not, of itself, ground for allowing the defense of the ' Statute of Frauds to be interposed to defeat the. promisee’s right to specific performance.</p> <p>8. Same—when party takes title subject to equities of promisee in verbal contract. Where a person receives the title to land without consideration and with knowledge of the existence of a verbal contract to convey the land and of its full performance on the part of the promisee, the title so received is, in her hands and in the hands of her heirs, subject to the equities of the promisee.</p> <p>9. Same—when equity should enforce verbal contract. A verbal contract to convey land in consideration of the rendition of services by the promisee in remaining with and caring for the promisor should be specifically enforced in equity as against the heirs of the promisor's wife, who received the title without consideration and with full knowledge of the contract and its performance, where the services, sacrifices and deprivations of the promisee in carrying out her contract were such as could not be estimated in money damages and where it would be a fraud upon the promisee to sustain-the defense of the Statute of Frauds."</p>

Writ or Error to the City Court of Pana; the Hon. John McNutt, Jr., Judge, presiding. At the February term, 1909, of the Pana city court the plaintiff in error was indicted for the crime of larceny by embezzlement. After a motion to quash had been overruled a plea of not guilty was entered, and upon a trial before a jury he was found guilty and sentenced to the penitentiary for an indeterminate period, and he has sued out this writ of error to reverse said judgment.

Appear from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of-Cook county; the Hon. Charles M. Walker; Judge, presiding.

Oscar E. Heard, Judge, presiding. This is a bill in. equity by appellee, Samuel T. Evans, as complainant, against appellants, who are executors, heirs and devisees of John H. Moore, deceased, to require them to account for, convey and assign to complainant certain real estate in the city of Dixon, Illinois, and certain personal property which in his lifetime belonged to David L. Evans, uncle of complainant, and was by said David L-Evans devised by last will and testament to…

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.</p>

<p>Appeal from the' Branch Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon.,John H. Hume, Judge, presiding.</p> <p>This action was brought by appellee, against appellant, to recover damages alleged to have resulted to the appellee from a breach of appellant’s contract to deliver a message. Appellee had written a policy of insurance on a paper mill in Newark, Ohio, belonging at the time to Frank B. Silk. The property subsequently passed to the Newark Paper Company, and on January 2, 1902, the policy was, by the consent of appellee, assigned to the Newark Paper Company. The policy contained a clause authorizing its cancellation at any time upon the request of the insured, or by the insurer upon giving five days’ notice of the cancellation. April 29, 1902, between eleven and twelve o’clock in the morning, F. W. Ransom, State agent of appellee, delivered to appellant’s agent at VanWert, Ohio, for transmission to M. J. Reese, appellee’s local agent in Newark, Ohio, the following message:</p> <p>“VanWert, Ohio, April 30, ipo2.</p> <p>“M. /. Reese, Agt. Providence-Washington Ins. Co.</p> <p>“Regret must cancel paper mill line. Daily was passed inadvertentÍr- F. W. Ransom.”</p> <p>This telegram was never delivered to appellee’s agent at Newark, Ohio, but was sent to New York City and delivered to appellee’s agent there, finally reaching its manager at Chicago through the mails. On May 2, 1902, Mr. Reese, appellee’s agent at Newark, Ohio, received instructions by mail to cancel the policy on the Newark Paper Company’s property, and the paper company claimed the right to the five days’ notice provided for in the policy. Before the expiration of the' five days the property was burned and the paper company sued appellee and recovered a judgment for $1636.94, which was afterwards compromised and $1200 paid by appellee in full satisfaction of the judgment. This action was brought to recover the $1200 and interest from the time of its payment. The case was tried before the court without a jury and a judgment rendered in favor of appellee for $1365. The Appellate Court for the First District affirmed that judgment and granted a certificate of importance, upon which the case is brought to this court for review.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>Constitutional law—"short cause calendar” provision of the Practice act is valid. Section 27 of the Practice act of 1907, relating to the placing of certain cases upon the short-cause calendar for trial, is not in violation of section 22 of article 4 of the constitution, concerning special legislation, but is 'a valid law. (Jensen v. Fricke, 133 Ill. 171, and Louisville, New Albany and Chicago Railway Co. v. Wallace, 136 id. 87, followed.)</p>

<p>1. Drainage—rules applicable to a common law jury apply in empaneling jury under section 37 of Levee act. Since section 37 of the Levee act, as amended in 1907, has prescribed no procedure for empaneling the jury to assess benefits, the rules prescribed by latv for the organization of a common law jury apply, and notice must be given to the parties interested, to' enable them to be present and participate in the selection of the jury.</p> <p>2. Same—section 69 of Administration act, relating to transferring cases to the circuit court, does not apply to drainage cases. Section 69 of the Administration act, relating to the transferring of cases to the circuit court, refers only to the settlement of estates, and not to drainage cases in which the county judge is interested as an owner of land in the district, and in the latter case it is sufficient if another county judge is called in to preside.</p> <p>3. Same—the same jury cannot spread different assessments. Proceedings under the Levee act for a second assessment, third assessment and an annual assessment are separate and distinct proceedings and must be prosecuted as such and be spread by different juries, even though one assessment is ordered before another one has been spread.</p> <p>4. Same—when'prior assessments may be included with subsequent ones. Prior assessments may be included with subsequent ones, under section 18 of the Levee act, only when such prior assessments were void and unpaid, owing to ■ some irregularity in the proceedings not affecting the merits of the assessment,</p> <p>5. Same—ivhen unpaid assessments cannot be included in subsequent ones. Drainage assessments which are unpaid because in part levied for a purpose unauthorized by law and spread by interested persons, and because the amount assessed included an assessment of benefits against land taken for right of way purposes, are not assessments which may be included in subsequent assessments under section 18 of the Levee act.</p> <p>6. Same—Levee act, in authorizing assessment against town for benefit to highway, is valid. Under section 31 of article 4 of the constitution, adopted as an amendment in 1878, if the highways of a town are benefited by a drainage improvement they may be assessed therefor, the assessment being enforceable against the town, and in so far as the Levee act authorizes such assessment it is valid and not in violation of sections 9 and 10 of article 9 of the constitution. (Morgan v. Schusselle, 228 Ill. 106, distinguished.)</p> <p>7. Same—effect of a contract with a town or railroad company with reference to assessment. A contract made, under section 55 of the Levee act, by drainage commissioners with a town or railroad company with reference to an assessment “about to be made” against such town or company can only apply to that particular assessment, and is no bar to subsequent assessments for benefits or to an annual assessment for repairs.</p>

<p>1. Res judicata—when judgment in ejectment is re's judicata of ownership of dam. An action of ejectment to recover possession of land upon which a dam is erected directly involves the ownership of the dam as well as the title to the land, and a judgment against the plaintiffs is res judicata, as between the parties, as to the ownership of the dam, even though the title to the dam may have been severed from the title to the land.</p> <p>2. Evidence—deed without proof of possession is not evidence of title in grantor. A deed purporting to convey land on each side of a river and an undivided half of a dam in the stream is not evidence of title in the grantor, in the absence of any proof that he ever had possession of any of the premises described in the deed.</p> <p>3. Same—declarations of one in possession of land are not competent to prove title in another. The declarations of a person in possession of land are admissible to show the character of his possession but not to prove title in another person.</p>

Writ op Error to the Criminal Cotirt of Cook county; the Hon. A. C. Barnes, Judge, presiding. Edward McCann, plaintiff in error, inspector of police of the city of Chicago, was indicted by the grand jury of Cook county for the crime of bribery. He was tried, convicted and sentenced to an indeterminate term in the penitentiary, and has brought the case here by writ of error for review.

R. J. GriEr, Judge, presiding. This proceeding was instituted by the State’s attorney of McDonough county in the name of the People of the State of Illinois, on the relation of John A. Black, George N. Runkle and James A. Butcher, by petition to the circuit court for leave to file an information in the nature of quo warranto against T. D. Sullivan, O. V. Beaver, W. H. Willey, W. R. Clawson and J. F. Lawyer.

<p>Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p>

<p>1. Plats—fee of streets in original town of Chicago is in the city. The fee of LaSalle street in the original town of Chicago, as platted by the canal commissioners, is in the city of Chicago and not in the owners of abutting property. (City of Chicago v. Rumsey, 87 Ill. 348, followed.)</p> <p>2. Easements—owner of land may use it in any way not inconsistent with an easement. The owner of land which is subject only to a public or private easement has a right to use his property for any purpose he may deem proper, so long as it does not interfere with the proper enjoyment of the easement!</p> <p>3. Municipal corporations—rights of city in streets in which the abutting owners own the fee. Where the owners of abutting lots own the fee in the streets the city may use such streets for all purposes to which a street may be put without the consent of the abutting owners, but it cannot divert the use of such streets to other purposes without such consent.</p> <p>4. Same—power of city to control sub-sidewalk space. If the fee of the street is in the city the city has power to authorize the use of the sub-sidewalk space by the owner of abutting property and may require him to pay compensation, provided the proper use of the street is not interfered with and subject to .the right of the city to require the surrender of the space if needed for public purposes ; but if the fee of the street is in the abutting owner the city cannot prevent his use of the sub-sidewalk space if it does not affect the use of the street, nor compel him to pay rent therefor.</p> <p>5. Same—city does not acquire fee by condemnation proceeding. Where a city, for the purpose of widening a street, condemns a strip of land off of the abutting lots the city does not acquire the fee but the fee remains in the abutting owners, subject only to the public use for which the land was condemned.</p> <p>6. Same—approval of building plans, including sub-sidewalk space, does riot work estoppel. Where the fee of the street is in the city, the fact that the building department of the city approves an abutting owner’s building plans, which include the use of sub-sidewalk space, amounts merely to a license to use such space, and does not estop the city from subsequently demanding the- removal of the sub-sidewalk structures or the payment of compensation to the city for the use of the space.</p>

<p>1. Municipal corporations—a city’s title to streets is held in trust for public. Whatever title a city has in its streets, whether it owns the fee or only an easement, is held in trust for the public, and the interest of the public must always be paramount to all other interests.</p> <p>2. Same—rights of public in streets cannot be granted away or encroached upon. A city cannot grant away the rights of the public in its streets, nor can they be encroached upon by private individuals, with or without the consent of the municipality, to the detriment of the public.</p> <p>3. Same—rights of abutting owner where the city owns fee of street. Where the city owns the fee of a street by statutory dedication, the abutting owners have the right of ingress and egress and an easement of light and air in addition to the right to use the street in common with all other persons, but they have no right to exclusively appropriate any portion of the street, either on the surface or above or below it, without the consent of the city.'</p> <p>4. Same—power of city to allow use of streets not inconsistent with public use. In Illinois a city has power to allow any use of its streets which is not inconsistent with the public objects for which they are held, and it may regulate such use and fix a reasonable compensation to be paid for the same.</p> <p>5. Same—extent of city’s power to allow use of streets where it owns the fee. Where the city owns the fee in a street, its power to allow any use thereof and to regulate such use and fix a reasonable compensation therefor is subject to no limitation except that such use shall be reasonable and in a manner to safeguard the paramount right of the public to the free and unobstructed use of the street for the purpose for which it was dedicated.</p> <p>6. Same—right of abutting owner who owns fee to center of street. An abutting owner who owns the fee to the center of the street has the right to make any reasonable use of the ground which does not interfere with the full enjoyment of the easement which is held by the city for the use of the public, and he cannot be compelled to pay the city compensation for such use.</p> <p>7. Same—a city acquires only an easement ivhere street is acquired by condemnation. Where land needed for the purpose of a street is acquired by a city by condemning private property the city acquires only an easement, and the fee remains in the owner of the property subject to such easement.</p> <p>8. Same—right of. a city to regulate use of sub-sidewalk space. A city has the right to regulate the use of sub-sidewalk space and charge a reasonable compensation therefor where it owns the fee of the streets; but where the fee is in the abutting owners they may make any use of the sub-sidewallc space not inconsistent with the public easement in the street and cannot be required to pay the city compensation for such use.</p> <p>9. Plats—plat of School Section addition to Chicago was a common law plat. The plat of School Section addition to Chicago was not executed in accordance with the statute then in force and amounted merely to a common law dedication, under which purchasers of lots took title to the center of the streets marked thereon, upon which such lots abutted.</p> <p>10. Same—the curative act of 1843 did not affect prior conveyances. The curative act of 1843, designed to cure the defective execution of the plat of School Section addition to Chicago, had no effect upon conveyances made prior to the time such act took effect, as the title of abutting owners to the center of the streets vested at the time of the conveyances and could not lawfully be divested or disturbed by the act of 1843.</p> <p>11. Same—right of abutting owner under common law dedication is not a mere contingent interest. The title of an abutting owner to the center of a street in which the city does not own the fee is not a contingent interest or a mere expectancy but is a present subsisting ownership of the fee, subject to the,public easement, which he may subject to any private use he sees fit in connection with his lot, if not inconsistent with the public easement.</p>

<p>1. Practice—a bill of exceptions should be presented during term matters occurred. A bill of exceptions should be presented at the term when the matters complained of occurred or within such time, as the judge at that term has allowed, and it is not sufficient to incorporate such matters in a, bill of exceptions presented, without an extension of time, at a later term.</p> <p>2. Criminal law—effect of pleading to indictment. A defendant who pleads not guilty to an indictment cannot thereafter, as a matter of right, make a motion to quash the indictment for any matters that occurred before the grand jury.</p> <p>3. Same—statute does not require State’s attorney to sign indictment. There is no statute in Illinois requiring the State’s attorney to sign an indictment, and the general rule is, that in the absence of a statute to the contrary it is not essential to the validity of an indictment that it be signed by the public prosecutor.</p> <p>4. Same—proper practice where State’s attorney is complaining witness. Where the State’s attorney is to be the complaining witness it is better practice for the court to appoint a special State’s attorney before the matter is presented to the grand jury, but it is not ground for a motion to quash that the State’s attorney appeared before the grand jury at the request of its foreman and answered questions and that he signed the indictment, but was not present when the grand jury examined the other witnesses or discussed the evidence and voted.</p> <p>5. Same—when question, as to error in refusing challenge for cause is not presented. The question of alleged error in refusing a challenge for cause is not presented for review, on appeal, by an affidavit in support of the motion for new trial.</p> <p>■ 6. LibEE—when published article is a libel per se. A published article charging a State’s attorney with having prostituted his office for private interests and political purposes, for spite; that he was in collusion with violators of the liquor laws, and containing other direct charges and insinuations that he had grossly abused his office for dishonest purposes, is a libel per se.</p> <p>7. Same—when an open letter from complaining witness to defendant is not admissible. In a prosecution for libel an open letter from the complaining witness to the defendant, published some eight mouths prior to the libelous publication, and which shows on its face that it is in answer to a prior letter from the defendant, being in regard to a subject different from that of the libelous publication, is not admissible.</p> <p>8. Same—admissibility of surrounding circumstances must be determined by trial judge. In a libel prosecution the admissibility of the surrounding circumstances for the purpose of enlightening the jury as to the purport of the libelous article must be determined by the trial judge in his sound discretion, according to the degree of their relation to the matter in controversy.</p> <p>9. Same—what not admissible to show hostility of complaining witness. Where the complaining witness in a prosecution for libel for the publication of an article which is libelous per se has admitted that he is not on friendly terms with the defendant, it is not error to refuse to allow special facts to be proved for the purpose of showing the hostility of the complaining witness.</p> <p>10. Same—defendant cannot show that he did not mean what he said. In a prosecution for libel the guilt of the defendant must be determined by the article. itself and the meaning that would naturally be attributed to the words used therein, and not by some unexpressed meaning intended by the defendant and unknown to the readers of the article.</p> <p>11. Same—defendant has burden of proving truth of published article. In a prosecution for libel the truth of the article, if published with good motives and for justifiable ends, is a defense; but the defense" is an affirmative one, which the defendant must prove.</p> <p>12. Same—effect where an article, though false, is published'in good faith. The fact that an article which is libelous in itself is published in good faith has no bearing upon the issues, except as to the amount of the fine, unless the charges are true; but the question of the amount of the fine does not concern the jury.</p> <p>13. Appeals and errors—when refusal of a proper instruction will not reverse. Refusal of a proper instruction as to the duty of the jury, in weighing the defendant’s testimony, to take into consideration the fact, if it was a fact, that he was corroborated by other credible evidence or by. facts and circumstances proven on the trial, is not ground for reversal, where the defendant did not testify to any material facts with which the jury were concerned.</p>

<p>1. Plats—fee of Fifth avenue, in School Section addition to Chicago, is in abutting owners. The plat of School Section addition to Chicago was a common, law plat, and the fee of Fifth avenue, in such addition, is therefore in the abutting owners and not in the city.</p> <p>2. Sams—fee of Congress street, in School Section addition to Chicago, is in abutting owners. By reason of the failure of the owner of the land to properly acknowledge the plat by which Congress street, in School Section addition to Chicago, was dedicated, the title to said street remained in such owner, and when he conveyed lots abutting upon Congress street he conveyed title to his ^grantees to the center of the street.</p> <p>3. The principles involved in this case are discussed in the opinions rendered in Sears v. City of Chicago, (ante, p. 204,) and in Tacoma Safety Deposit Co. v. City of Chicago, (ante, p. 192.)</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. ■</p>

<p>1. Municipal corporations—validity of an ordinance requiring rental to be paid for use of sub-sidewalk space. An ordinance requiring abutting lot owners to pay a reasonable rental for the use of sub-sidewalk space in connection with their property is valid as to streets wherein the city owns the fee, but it cannot be enforced as against owners of lots abutting upon streets wherein the city has only an easement, the fee being in the abutting owners. (Sears v. City of Chicago, [ante, p. 204,] and Tacoma Safety Deposit Co. v. City of Chicago, [ante, p. 192,] followed.)</p> <p>2. Same—city of Chicago owns fee of streets in Fort Dearborn addition. The fee of the streets and public grounds in the Fort Dearborn addition to Chicago must be held to be in the city.</p>

<p>1. Pleading—what allegation in bill to set aside copy of will is not a conclusion of law. In a bill to set aside as a cloud upon complainants’ title an authenticated copy, of a will, an allegation that the testator died “leaving him surviving as his heirs-at-law and next of kin his two sisters,” the complainants, is an averment of fact and not a conclusion of law.</p> <p>2. Cloud on title—•when a bill attacking will cannot be maintained as a bill to remove a cloud. A bill seeking to set aside a foreign will, a duly authenticated copy of which has been filed with the clerk of a probate court in Illinois, cannot be sustained as á bill to remove a cloud from the title of complainants, who claim the land in Illinois by inheritance. (Bale v. Bale, 242 Ill. 519, and Bieber v. Porter, 242 id. 616, explained.)</p> <p>3. Wills—when bill is, in effect, a proceeding to contest a will. When the only relief that can be granted in a chancery proceeding is to set aside a will and render it null and void, the same as in a contest under section 7 of the act relating to wills, the proceeding is, in effect, the contest of a will and must be governed by the law relating to such contests.</p> <p>4. Same—force of probate of foreign will. A decree admitting to probate a will disposing of personal property is conclusive as to the capacity of the testator and the due execution and validity of the will, but if the will affects real estate the probate establishes nothing beyond the validity of the will in the State where it is probated, and its validity as a will in other States depends upon its execution in conformity with their laws.</p> <p>5. Same—force of foreign zvill affecting real estate. The probate of a will in one State, though conclusive as to personal property if made at the testator’s domicile, can have its force as a devise of lands in another State only by virtue of some law of the State where the land is situated.</p> <p>6. Same—right to contest á will in chancery is purely statutory. The'right to contest a will in chancery is not a vested right but is a purely statutory one, which, if the legislature sees fit, may be abrogated.</p> <p>7. Same—section p of the Wills act construed. Section 9 of the Wills act, providing that foreign wills, or authenticated copies thereof, proven according to the laws of the foreign country, shall, when accompanied by the proper certificate, “be recorded as aforesaid, and shall be good and available in law in like manner as wills made and executed in this State,” means recorded by the clerk of the county or probate court as provided for in section 2 of such act, and when so recorded letters of administration may be granted thereon the same as in case of wills formally probated in Illinois.</p> <p>8. Same—section 7 of statute authorizing contest of wills applies to all wills. The provisions of section 7 of the Statute of Wills, relating to contests in chancery, apply to any will, or authenticated copy thereof, upon which letters of administration are authorized to be issued under section 2 of such act. (Stull v. Veatch, 236 Ill. 207, and Amrine v. Hamer, 240 id. 572, explained.)</p> <p>9. Same—bill to contest a will is not a collateral attack. A bill to contest a will in chancery is a direct attack upon the judgment of probate and not a collateral attack, such as is a bill for partition or a bill to quiet title.</p> <p>10. Same—a bill lies under section 7 to contest a foreign will. When a duly authenticated copy of a foreign will disposing of-land in Illinois is filed with the clerk of the probate court, a bill to contest such will upon the ground that it was not the will of the testator may be maintained under section 7 of the act relating to wills, if the bill is filed within one year from the time such authenticated copy was filed.</p> <p>11. Same—effect of successful contest of foreign will. The effect of a successful contest of a foreign will a duly authenticated copy of which is filed with the clerk of a probate court in Illinois, merely prevents the will from operating upon real estate in Illinois and leaves such real estate to be governed by the statute regulating the descent of real property.</p>

Julian W. Mack, Judge, presiding. This was one of eight bills in chancery filed in the circuit court of Cook county by property owners in the city of Chicago whose property abuts upon the public streets of said city, against the city of Chicago, to enjoin the city from enforcing, as against their respective properties, the provisions of an ordinance passed by the common council of said city on February 5, 1906, which ordinance provides no person shall use any space…

Julian W. Mack, Judge, presiding. This was one of eight bills in chancery severally filed in the circuit court of Cook county by property owners in the city of Chicago whose property abuts upon the public streets of said city, against the city of Chicago, to enjoin the city from enforcing, as against their respective properties, the provisions' of an ordinance passed by the common council of the said city on February 5,. 1906, which ordinance provides no person shall use any…

<p>1. Res judicata—doctrine is not limited to questions actually decided. The doctrine of res judicata extends not only to the questions which were actually decided in the former case, but to all matters properly involved which might have been raised and determined and to all grounds of recovery or defense which the parties might then have presented, whether they did so or not.</p> <p>2. Same—when dismissal of bill is res judicata. A decree dismissing, after a hearing on the merits, a bill to establish title in complainant to land held by her brother in his name is res judicata of a subsequent bill for substantially the same relief, where complainant bases her claim in each case upon the same contract although the second bill alleges a different reason from the first bill for the taking of the title in the brother’s name, and where no ground for relief is urged in the second bill that did not exist at the time of the first adjudication.</p> <p>3. Same—what does not destroy force of decree as res judicata. The fact that a bill which was dismissed after a hearing upon the merits would have been insufficient, had the defense of the Statute of Frauds been raised by demurrer or plea, to warrant a decree for any relief does not destroy the force of the decree as res judicata.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. Frank Perrin, Judge, presiding.</p>

<p>Original petition for mandamus.</p>

<p>1. Municipal, corporations—right of city to require railroad company to build viaducts. A city has power, in granting permission to a railroad company to lay its tracks in the city, to require the company to construct and maintain proper crossings at streets, alleys and highways, and, if the safety of the public so requires, to erect and maintain .viaducts and proper approaches thereto.</p> <p>2. Same—approach to viaduct is ordinarily a part of the viaduct. The approach to a viaduct over railroad tracks is ordinarily a part of the viaduct, but the questions as to which is the viaduct and which is the approach, where one ends and the other begins, and what is a street or highway as distinguished from an approach, are more questions of fact than of law, and depend for their determination largely upon the facts and surroundings in each case.</p> <p>3. Same—railroad not required to maintain what is in reality a street or highway. While a railroad company must keep and maintain its crossings so they will continue to meet the needs and requirements of an increasing population, yet it is not necessarily required to keep and maintain that which is for every practical purpose a street or highway, even though it is incidentally used as a part of the ascent or approach to reach a viaduct.</p> <p>4. Same—when railroad cannot be compelled to pave- ascent to viaduct as an “approach." Where the grade of a street for an entire block is raised to conform to the ascent to a railroad viaduct, and the street - is filled from building line to building’ line, buildings are erected to conform to such grade, curbing is set, sidewalks built, pavement laid and man-holes provided, such ascent must be regarded as a street and not merely an approach to the viaduct, and the railroad company cannot be compelled to re-pave the surface at its own expense.</p>

<p>Appeal from the County Court of Crawford county; the Hon.. John C. Maxwell, Judge, presiding.</p>

<p>Writ op Error to the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.</p>

<p>1. Res judicata—general doctrine stated. A matter which has been adjudicated by a court of competent jurisdiction is deemed to be finally and conclusively settled in any subsequent litigation, in a court of concurrent jurisdiction, between the same parties where the same question arises, and neither the parties, nor those in privity with or represented by them, can re-litigate such matter.</p> <p>2. Same—what essential to render a judgment res judicata of the cause of action. To bring a case within the rule that a former judgment is res judicata of the cause of action it must appear that such former adjudication was upon a matter contested between the parties, and if the former suit was devised for the purpose of having a certain judgment entered, it will not be binding upon the public or those who are not parties to the scheme adopted for such purpose.</p> <p>3. Same—what is not material to application of the doctrine of res judicata. In determining whether a judgment in a former mandamus suit is res judicata as against a defendant in a subsequent suit it is not material that the judgment was rendered on a general demurrer confessing the facts alleged in the petition, provided the issue of law was contested in good faith; nor is it material that the judgment was erroneous and would have been reversed upon appeal or writ of error.</p> <p>4. Same—party sought to be bound by former jridgment must have been a party to the former suit. To render a judgment in a former suit res judicata as against a person it must appear that the person sought to be bound was in some way a party to the former suit or in privity with a party thereto.</p> <p>5. Same—zvhat sufficient to require proof that former suit was contested in good faith. The facts that a mandamus suit by the county commissioners, park commissioners and officials of the public library, against the county clerk, to compel him to extend the taxes levied by the petitioners at the rates certified to him instead of at the lower fates required by the amended Revenue act of 1909, was begun and finished on the same day,—the proceedings consisting of a petition, entry of appearance by the clerk, a demurrer by the State’s attorney and a judgment awarding the writ,-—are sufficient to require proof that the issue of law was contested in good faith, when it is sought to bind, a tax-payer by such judgment.</p> <p>6. Same—when persons not parties to the record are bound ■ by judgment. Persons not parties to the record may be bound by the judgment if they are in privity with some party thereto or are so represented by some party that their rights are fully protected, as in case of a suit by a tax-payer on behalf of himself and other tax-payers in which the merits of the controversy are decided, or an action by or against a municipality which is determinative of rights of individuals which are dependent upon the rights of the municipality and can only be derived and held through it.</p> <p>7. Same—when tax-payers are not represented by county clerk. In a mandamus suit by the county .commissioners, park commissioners and officials of the public library, against the county clerk, to compel him to extend the taxes levied by the petitioners at the rate certified to him, the county clerk is not the representative of the tax-payers to the extent of making them parties to the suit by representation and rendering the judgment in such suit res judicata against them in a proceeding to collect the taxes.</p> <p>8. Taxes—amount of tax voluntarily paid cannot be credited on other taxes though the paid tax was invalid. A tax-payer who voluntarily pays a certain tax against him is not entitled, upon application for judgment and order of sale, to have the amount so paid credited upon the other taxes he is liable for, even though he might successfully have defended against such tax and alleges it was paid through mistake and oversight.</p>

<p>1. Appeals and errors—a conclusion drawn from evidentiary facts is ultimate fact. The statute requiring the Appellate Court, when reversing without remanding as a result of its finding of the facts concerning the matter in controversy different from the trial court, to recite in its final order the facts as it finds them, implies the drawing of a conclusion from all the evidentiary facts bearing on the issue, and the conclusion so drawn is the ultimate fact or facts upon which the case depends and which it is the duty of the Appellate Court to find.</p> <p>2. Same—Supreme Court will not consider evidentiary facts recited to determine whether they sustain ultimate facts. If the Appellate Court, in its finding of facts, states all or a portion of the evidentiary facts, and in connection therewith also finds the ultimate facts, the Supreme Court will not consider the evidentiary facts recited to determine whether they sustain the ultimate facts.</p> <p>3. Same—finding of evidentiary facts may be rejected as surplusage. A finding by the Appellate Court of facts which are evidentiary in their nature may be rejected as surplusage, and if there remains a finding of the ultimate facts in issue between the parties such finding is binding upon the Supreme Court.</p> <p>4. Same—when portion of Appellate Court’s finding may be rejected as evidentiary. A finding by the Appellate Court “that the services in question rendered by appellant for the appellee were not switching or transfer services within the meaning of said rule 23” is a mixed finding of law and fact and is evidentiary only, but a further finding “that the defendant is not guilty of charging extortionate freight or switching rates, as charged in the declaration,” is a finding of an ultimate fact, and the evidentiary finding may be rejected as surplusage.</p> <p>5. Same—Appellate Court should not grant a certificate of importance after finding ultimate facts. If the Appellate Court reverses without remanding because of its finding of the facts concerning the matter in controversy different from the trial court and recites its finding of the ultimate fact or facts in its judgment, it should not grant a certificate of importance and allow an appeal.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. A. M. Rose, Judge, presiding.</p>

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

<p>Appeal from the County Court of Saline county; the Hon. G. H. Dorris, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>Appeal from the County Court of Morgan county; the Hon. Thomas Henshaw, Judge, presiding.</p>

<p>Appeal from the County Court of Macon county; the Hon. O. W. Smith, Judge, presiding.</p>

<p>Writ of Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.</p>

<p>Appeal from the County Court of Crawford county; the Hon. John C. Maxwell, Judge, presiding.</p>

<p>1. Elections—contestant is not limited to mistakes alleged in petition. The contestant in an election contest is not confined, on the re-count, to the mistakes and errors alleged in his petition, and if the court undertakes a re-count of the ballots it must count them all and declare the result according to their legal effect.</p> <p>2. Same—when ballots are not regarded as having distinguishing marks. Ballots upon which the imperfections in marking are apparently the result of mere inadvertence or carelessness on the part of the voter "are not regarded as bearing distinguishing marks.</p> <p>3. Same—when ballots cannot be counted. A ballot cannot be counted for a candidate on a certain ticket where there is no cross in the square in front of his name or in the circle at the head of such ticket; nor can a ballot be counted for a candidate where lines marked upon it do not cross in the square in front of his name.</p> <p>4. Same—when ballot should not be rejected. A ballot properly marked for a candidate should be counted for him even though the voter has made an honest but ineffectual attempt to vote for a candidate for another office on the ticket by the erasure or writing in of a name, where it is apparent the voter did not attempt to indicate who cast the ballot but merely to indicate his choice for the office.</p> <p>5. Same—what must be regarded as a distinguishing mark. Characters appearing upon the face of a ballot, even though intended as the initials of some candidate for office, do not show the choice of the voter and must be regarded as a distinguishing mark which affords a ready means of identifying the ballot.</p>

<p>Appeal from the County Court of Vermilion county; the Hon. Lawrence T. Allen, Judge, presiding.</p>

<p>1. Constitutional law—power of legislature where constitution confers jurisdiction on certain court. The jurisdiction conferred upon any court by the constitution cannot be diminished by the legislature, but in the absence of a constitutional prohibition the legislature may confer concurrent jurisdiction of the same subject matter upon another court.</p> <p>2. Same—section 2 of Municipal Court act, conferring jurisdiction in criminal cases, is not invalid. Section 2 of the Municipal Court act, in so far as it attempts to confer upon the municipal court jurisdiction in criminal cases in which the punishment is by fine or imprisonment otherwise than in the penitentiary, is not in violation of section 26 of article 6 of the constitution, conferring jurisdiction of cases of a criminal nature in Cook county upon the criminal court, as the jurisdiction so conferred is not exclusive. (Berkowitz v. Lester, 121 Ill. 99, followed.)</p> <p>3. Same—constitution does not give an appeal to criminal court in all criminal cases in Cook eoimty. Section 26 of article 6 of the constitution does not give an appeal to the criminal court in all criminal cases in Cook county, but provides that such appeals as may be given by law in those cases shall be taken to the criminal court, and such appeals are tried de novo.</p> <p>4. Same—when constitutionality of a statute is not involved. The question whether section 22 of the Municipal Court act, so far as it provides for a review by the Appellate and Supreme Courts of judgments of the municipal court in criminal cases, is in violation of section 26 of article 6 of the constitution, providing that appeals in criminal cases in Cook county which may be given by law shall be taken to the criminal court, is not presented for consideration in the Supreme Court where the question of the right of appeal to the criminal court was not presented to or decided by the municipal court.</p> <p>5. Criminal law—section p of bill of right's contains no prohibition agáinst a trial of several offenses at one time. Section 9 of the bill of rights, relating to the right of an accused person to a speedy and public trial by an 'impartial jury of the county where the offense was committed, contains no prohibition against the trial, at one time, of several offenses committed in the county where the trial is had.</p> <p>6. Same—when question whether the accused had a right to be tried for one offense at a time is not presented. The question whether one charged in two informations with separate violations of the same section of a statute, each offense being a misdemeanor of the same grade and subjecting the offender to the same punishment, was entitled to object, on other than constitutional grounds, to going to trial on both informations, is not presented in the Supreme Court where the defendant made no objection to going to trial nor any motion for the prosecutor to elect, and where there is no bill of exceptions in the record or anything to show that evidence of more than one offense was heard.</p> <p>7. Same—several misdemeanors of the same nature may be embraced in separate counts of same information. It is no objection to an information that it charges, in separate counts, the commission of several misdemeanors of the same nature; and the joinder of several misdemeanors of the same nature will not, in general, vitiate in any stage of the prosecution, nor does the practice of quashing the information or calling on the.prosecutor to elect, exist in such cases.</p>

<p>1. Drainage—when original classification is valid. An original classification of lands made out by farm drainage commissioners at the office of their attorney outside of the limits of the district is not invalid, where it was filed in the town clerk’s office in the district and a time and place fixed for hearing objections thereto at the house of one of the owners of assessed land who resided in the district, where, after due notice, the commissioners heard the objections and confirmed the classification.</p> <p>2. Same—farm drainage commissioners must keep accurate accounts and make reports. Under the statute farm drainage commissioners must keep accurate accounts showing the receipts and disbursements of the district and make annual reports, which must be filed with the clerk and recorded in the drainage record for the information of land owners, as the latter have the right to be informed of the financial condition of the district at all times.</p> <p>3. Same—assessment for a deficiency cannot be levied unless the drainage record shows such deficiency. While farm drainage commissioners may, in a proper case, levy an additional or supplemental assessment, yet the drainage record must show that there is a deficiency which renders the assessment necessary; and it is error, on application for judgment and order of sale for such assessment, to enter judgment and order of sale without a deficiency being shown, and to refuse to allow land owners to prove that there is no deficiency.</p>

<p>1. Constitutional law—classification of cities for legislation must be reasonable. While the legislature may classify cities and enact laws applicable to such cities according to their classification, yet such classification cannot be arbitrary but'must be based upon reasonable differences in circumstances or conditions that will justify it.</p> <p>2. Same—provision of the statute requiring all road and bridge taxes collected upon property in city to be paid to city is invalid. The third proviso to section 16 of the Roads and Bridges act, as amended in 1909, (Laws of 1909, p. 332,) providing that in cities of 20,000 inhabitants all of the road and bridge taxes required to be levied under sections 13 and 14 of the Roads and Bridges act within the limits of the city shall be paid over to the treasurer of such city for city purposes, is unconstitutional, as granting a special privilege tó such cities, based upon a mere arbitrary classification. (Peoria and Pekin Union Railway Co. v. People, 144 Ill. 458, and 232 id. 540, distinguished.)</p> <p>3. Same—classification cannot be based upon the mere fact that municipality is organized as a city. The mere fact that a municipality has adopted the form of government provided for cities affords no reasonable basis for conferring upon it benefits and privileges withheld from villages of equal population, and differing from cities only in that they have not incorporated as cities.</p> <p>4. Taxes—additional road tax levied for contingency cannot be diverted from its purpose. The additional road tax levied by highway commissioners under section 14 of the Roads and Bridges act is limited to a contingency arising in the township outside of the limits of a city and to the amount necessitated by the contingency, and to require such portion of the additional tax as is levied and collected upon property within the limits of the city to be paid over to the city for its own use would be a diversion of the tax from the purpose for which it was levied.</p>

<p>Appeal from the County Court of Iroquois county; the Hon. John H. Gittan, Judge, presiding.</p>

<p>1. Jurisdiction—the word “non-resident” does not necessarily mean person residing outside the State. The word “non-resident” may be used to designate a person who does not reside in a county or smaller governmental subdivision of territory as well as a person who does not reside in the State.</p> <p>2. Same—word “non-residents,” used in section 13 of Practice act, relating to suits against partnerships, construed. The word “non-residents,” used in section 13 of the Practice act of 1907, which authorizes service of process upon an agent of a co-partnership “the members of which are all non-residents but having a place or places of business in any county of this State in which suit may be instituted,” means non-residents of the county.</p> <p>3. Partnership—purpose of section 13 of Practice act. The purpose of section 13 of the Practice act, relating to suits against partnerships the members of which are all non-residents of the county in which they maintain-a place of business, is to place such partnerships upon a basis similar to that of corporations with reference to bringing suits by service of process upon an agent.</p>

<p>1. Wills—testator's intention should not be given effect if it violates the rule against perpetuities. If the testator has by the-language used in the will attempted to create an estate which is in violation of the rule against perpetuities, courts are not justified in frittering away such rule by construction in order to give effect to the intention of the testator, but the entire will must be considered in ascertaining the testator’s intention.</p> <p>2. Same—of two possible constructions, the one upholding the will is preferred. If the language of a will is susceptible of two constructions, one of which will render the will valid and the other render it void, the former construction will be adopted if it can be done without defeating the intention of the testator.</p> <p>3. Same—when executors take as exectitors and not as trustees. Under a residuary clause of a will providing that all the rest and residue of the testator’s estate after the payment of bequests shall go to the executors, to be held by them in trust for the purpose of assigning, transferring, conveying and delivering, the same to the regents of a named university as a perpetual endowment fund, the executors take as executors and not as trustees, and exercise their powers and duties with reference to the property in their capacity as executors.</p> <p>4. Same—when will does not violate rule against perpetuities. Where a residuary clause provides that “the rest, residue and remainder of my estate, both real and personal and wherever situated, after the payment of said bequests as aforesaid, I give, devise and bequeath unto the executors of this my last will and testament hereinafter named,” etc., the title vests in the executors immediately, subject to the payment of the bequests, as the words “after the payment of said bequests” refer- to the quantum of the estate devised and not to the time when title shall vest. (Johnson v. Preston, 226 Ill. 447, distinguished.)</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

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

<p>Appeals and errors—when judgment must be affirmed for the want of exception. A judgment overruling objections to certain items of a tax must be affirmed on appeal, where the abstract of the judgment order recites that the appellant excepted to the ruling of the court in entering judgment but no such exception is shown by the bill of exceptions.</p>

<p>1. Taxes—the hard roads tax is properly extended on the one-third instead of one-fifth valuation. A hard roads tax levy of one dollar on the $100 assessed valuation for a period of five years is, when properly certified, a valid tax levy for five years, and the change by the legislature from one-fifth to one-third of the actual value of property as a basis for the extension of taxes did not reduce the hard roads tax and the same is properly extended on the one-third valuation. (People v. Cairo, Vincennes and Chicago Railway Co. (ante, p. 327,] followed.)</p> <p>2. Same—section 4a of Hard Roads act construed. Section 40 of the Hard Roads act, added in 1909, authorizing a town, by vote of the people, to borrow money to build hard roads and issue bonds, was intended by the legislature to provide a method of raising funds for hard roads in addition to the method of taxation provided for in the preceding sections, so that'a town may vote a tax of one dollar on the $100 valuation and also vote to issue bonds and levy a tax, up to one dollar on the $100 valuation, to pay the principal and interest of such bonds.</p> <p>3. Same—tax to pay hard roads bonds need not be limited to maturing bonds and interest on all. The tax which may be levied in one year Fy a town to pay interest and principal of bonds issued for money borrowed for building hard roads cannot exceed one dollar on the $ioo assessed value, but the tax need not be limited to an amount which will only pay the interest upon all the bonds and the principal of the maturing bonds.</p>

<p>1. Criminal law-—when instructions must be accurate and free from substantial error. In a prosecution for rape, where the truth of the charge rests upon the unsupported testimony of the prosecuting witness, contradicted by the testimony of the defendant, the instructions must be accurate and free from substantial error, particularly where there is that in the testimony of the prosecuting witness which must naturally excite some suspicion and distrust.</p> <p>2. Same—when it is error to give instructions relating to circumstantial evidence. It is error, in a prosecution for rape, to give several instructions upon the right of the jury to consider and convict upon circumstantial evidence, even though they may correctly state the law, where tire guilt of the defendant is not dependent upon any circumstances proven at the trial but solely upon the facts testified to by the prosecuting witness.</p> <p>3. Same—when instruction as to presumption of innocence is erroneous and misleading. An instruction telling the jury that the presumption that the defendant is innocent remains until .such time “as the minds of the jury are convinced, from the evidence, that he is guilty,” and that they are to “start out on the proposition that this man is innocent; now, has the State proved his guilt and proved it beyond a reasonable doubt?” is erroneous and misleading.</p> <p>4. Same—argument to jury is an important element of the trial. The purpose of the arguments of counsel to the jury is to aid in arriving at the truth and obtaining a just verdict, and for the court to instruct the jury in such language as amounts to a direction to disregard the arguments of counsel entirely, is to deprive the parties litigant, in a substantial measure, of the benefit of counsel, and is error.</p>

<p>Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding.</p>

<p>1. Contracts—zahén an employee’s right to compensation is not governed by written contract. If an employee remains in the service of his employer after the expiration of their written agreement under a new verbal agreement as to his compensation, the rights and liabilities of the parties with respect to such compensation are governed by the verbal contract and not the written one.</p> <p>2. Practice—zvhat is not a proposition of fact within meaning of section 61 of Practice act. A proposition requested by the defendant and held by the court in a trial without a jury, to the effect that if the evidence showed that the plaintiff continued in the defendant's employ after the expiration of their written contract without any further or other agreement as to compensation then the rights and liabilities of the parties as to such compensation would be governed by the written agreement, is a proposition of law and not one of fact, within the contemplation of section 61 of the new Practice act.</p> <p>3. Appeals and errors—zvhat does not show that trial court misapplied the law to the facts. The fact that judgment was given for the plaintiff, in an action tried by the court without a jury, notwithstanding the court held as the law a proposition presenting the defendant’s theory of the law if the court found the facts to be as therein stated, does not show that the court misapplied the law to the facts, but only that it did not find the facts to be as contended by the defendant. .</p>

<p>Appeal from the County Court of LaSalle county; the Hon. Joseph Davis, Judge, presiding.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.</p>

<p>1. Equity—trial of feigned issue in chancery case is merely advisory. The formation and trial of a feigned issue in a chancery case, such as the question whether the grantor in a deed sought to be set aside in a partition proceeding was of unsound mind, is merely advisory to the chancellor, who may render a decree in accordance with the verdict, or, without setting it aside, render a decree contrary thereto.</p> <p>2. Appeals and Errors—when alleged error in rulings on evidence is unimportant. Alleged error in the admission of evidence in a chancery proceeding is unimportant if there is competent evidence in the record sufficient to sustain the decree and the incompetent evidence would not, if considered, change the result.</p> <p>3. Same—whew question on appeal is whether decree properly disposes of the cause, considering the entire record. Where a decree in a chancery proceeding for partition and to set aside a deed appears on its face to have been based not only upon the verdict but also upon the pleadings, exhibits, files and proofs submitted' in evidence, the question presented upon appeal is whether the decree properly disposes of the case, considering the entire record, and not whether there was error in rulings on evidence on the trial of the feigned issue. (Guild v. Hull, 127 Ill. 523, distinguished.)</p> <p>4. Deeds—when deed is properly set aside for lack of mental capacity* by grantor. It is proper for the chancellor to set aside a deed where the evidence establishes that the grantor had been a victim of melancholia for several years prior to the execution of the deed; that the disease progressed gradually until he was committed to an insane asylum for treatment and that at the time the deed was executed he was still suffering from his mental malady, though no witness testified to his mental condition on the morning the deed was executed except the notary, whose recollection of the transaction was very general and who testified that he saw nothing unusual in grantor’s actions and thought he understood the deed'.</p>

<p>Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>1. Birrs and notes—general rule as to right of drawee to recover if endorsement is forged. Where a drawee pays a draft to an endorser who derives title to the draft through a forged endorsement, he may, as a general rule, recover the money back.</p> <p>2. Same—when a bank does not derive title to draft through forged endorsement. Where a grain company’s agent draws drafts on the company payable to ■ real persons or bearer, not intending that the payees should ever have possession of the drafts or any interest therein, or that they should endorse them, but intending to endorse such names himself, the payees are, in law, fictitious persons, and the drafts, being, in law, payable to bearer, are transferable by delivery, so that a bank which pays them may enforce them against the drawee without having to claim title through the agent’s forged endorsement.</p> <p>3. Same—rule where one of tzuo innocent persons must suffer loss by wrongful act of third party. Where one of two innocent persons must suffer loss by reason of the wrongful act of a third party, the one who has made it possible, by his own negligence, for the third party to commit the wrongful act must stand the loss.</p> <p>4. Same—when grain company„ and not bank, must stand loss of agent’s dishonesty. A grain company which knowingly allows its agent, although forbidden to do so, to draw drafts on the company payable to farmers who had delivered grain and endorse the names of the payees himself, thereby putting it in the power of the agent to secretly appropriate the proceeds of drafts drawn by him in favor of real persons or bearer for fictitious purchases of grain and endorsed by him in their names, must, as against a bank having no notice of the facts,' stand the loss resulting from the agent’s misconduct.</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding.</p>

<p>1. Specific performance—when evidence of complainant’s understanding of provision of contract is competent. The written contract for the sale of property controls in a specific performance proceeding, yet testimony by the complainant that he understood the defendant was to pay the taxes for a certain year is competent for the purpose of showing the offer of the complainant to perform the contract as he understood it, where there' is a provision in the contract for the payment of some taxes by the defendant which either sustains complainant’s understanding of it or is ambiguous.</p> <p>2. Same—when the defendant is properly- required to perform. Where the complainant has made a sufficient offer to perform within the life of the contract and removed all substantial objections to the defendant’s title raised by the bank which was to loan complainant money to complete the purchase, it is proper to require the defendant to perform, there being no equity in his claim of non-performance by the complainant, as to deny relief in such case would be to give the defendant the benefit of the efforts and expenditures of the complainant in clearing up defendant’s title, to which benefit the defendant had no just claim.</p>

<p>Appeal from the County Court of Kankakee county;; the Hon. A. W. DESELM, Judge, presiding.</p>

<p>1. Deeds—evidence is admissible to show actual consideration. While a consideration duly acknowledged in a deed cannot be contradicted by parol for the purpose of destroying the legal effect of the deed as a conveyance, yet it is legitimate and proper to show the actual consideration for the purpose of determining whether there was fraud fo.r which the deed should be set aside in equity.</p> <p>2. Same—deeds made in consideration of support 'are different from deeds of ordinary bargain and sale. A deed made in consideration of the future support of the grantor is distinguished from an ordinary deed of bargain and sale in that the grantor parts with his property in consideration of future support, which a court of equity cannot compel the grantee to furnish and a court of law can not make good in case the grantee violates his agreement.</p> <p>3. Same—when a court of equity may set aside deed made in consideration of future support. A court of equity may set aside a deed made in consideration of the future support of the grantor if the evidence is such as to justify the conclusion that the contract was entered into by the grantee with a fraudulent intent or has been abandoned.</p> <p>4. Same—grantee’s failure to perform must be substantial and not caused by grantor’s own fault. To justify setting aside a deed for failure of the grantee to perform his agreement to furnish support t'o the grantor, the grantee’s failure must be substantial and in relation to material matters; and if the grantor prevents the grantee from performing his agreement' there can be no presumption of fraud on the part of the grantee, such as will justify setting aside the deed.</p> <p>5. Same—grantee not obliged to pay for support or services she could render herself. Where a deed is made upon the consideration that the grantor shall live with and be supported by the grantee the latter is not bound to furnish support at any other place, and if the grantor chooses, without cause, to remain away from the grantee’s home and live with other persons, grantee is not bound to pay money for the support and services furnished by such other persons which she could have furnished herself in her own home.</p> <p>6. Same—condition in life of the parties bears upon question whether proper support was furnished. In determining whether proper support was furnished by the grantee under her agreement to support the grantor, the condition and station in life of the parties at the time the agreement was made must be considered.</p> <p>7. The court holds that in this case the clear preponderance of the evidence, coming from disinterested persons, is that the grantor in the deed in question was well cared for and supported by the grantee according to the station in life of th.e parties, and that the evidence in the record is not sufficient to sustain the decree of the lower court setting such deed aside.</p>

<p>1. Easements—making and recording of a plat not essential to create an easement. The making and recording of a plat are not essential to the creation of an easement and create no easement as long as title to the platted tract remains in the original owner, but, whether recorded or not, a plat, in connection with other evidence, may fend to show a disposition and arrangement by the owner of different parts of the tract.</p> <p>2. Same—easement may arise by owner’s division of land and sales with reference thereto. Where the owner of a tract of land has divided it into different parts, as lots and alleys or ways, in such a manner that one part derives from another an advantage of a permanent, open and visible character, and has afterwards sold a part of the property, the purchaser takes the part sold with all the benefits and burdens which appear at the time of the sale to belong to it.</p> <p>3. Same—easement claimed need not be absolutely necessary for enjoyment of estate granted. It is not essential -that the easement claimed by the purchaser of a lot be absolutely necessary for the enjoyment of the estate granted to him, and it is sufficient if it is highly convenient and beneficial thereto.</p> <p>4. Same—a grantee with notice takes no better right than his grantor. An owner of a tract of land who has divided it in such a way that an alley and court are reserved for the use of the premises sold and are openly used by the purchasers of such premises as a means of access to their lots from the street, cannot thereafter destroy the easement by closing up the alley and court, nor can he confer that right by quit-claim deed on a person having notice of the open and visible use to which the alley and court are subjected.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Effingham county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>Appear from the Circuit Court of Douglas county; the Hon. Soron Phirbrick, Judge, presiding.</p>

<p>x. Deeds—deed made in consideration of support will not be set aside if grantee has substantially performed his contract. A deed voluntarily made by a father to his son in consideration of the latter’s agreement to care for and support the grantor and his wile during their lifetime, will not be set aside in equity if the grantee has substantially and fairly performed his contract, even though he may have failed in trivial matters.</p> <p>2. Appeals and Errors—-when question of grantee’s violation of a certain covenant is not presented for review. The question of the grantee’s violation of a covenant in his deed that he should not sell any part of the land during the grantor’s lifetime is not presented for review on appeal from a decree setting aside the deed on other grounds, where the master found specially against such contention and no objection or exception was taken to that finding, and where the decree was in conformity with the master’s findings and no cross-error is assigned.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

Writ of Error to the County Court of-Saline county; . the Hon. G. H. Dorris, Judge, presiding. At the May term, 1910, of the county court of Saline county an information was filed against the plaintiff in error, Harry Evans. This information charged him with having violated the statute known as the Miners’ Examining Board statute.

<p>1. Carriers—law of the State of shipment governs contract of carriage. The law of the State where a contract of carriage was made and the goods delivered to the carrier governs the rights of the parties, and not the law of the State to which the shipment is transported.</p> <p>2. Same—laws of the United States are paramount to laws of States. The laws of the United States pertaining to inter-State transportation of goods are paramount to the laws of the several States if there is a conflict.</p> <p>3. Same—section 20 of the Inter-State Commerce act is valid. Section 20 of the. Inter-State Commerce act, as amended by the act of June 29, 1906, in so far as it makes the initial common carrier liable for the safe transportation of property from the point of its receipt to the point of its delivery and prohibits the carrier from limiting such liability, is a valid law and is paramount to the State laws in cases of inter-State shipment.</p> <p>4. Same—■jurisdiction of the Federal courts of actions against carrier for damages is not exclusive. The proper courts of the several States have jurisdiction of an action by a shipper against the carrier to enforce the liability of the carrier for damage to an inter-State shipment occurring beyond its line, although the Federal courts have concurrent jurisdiction where the amount in dispute, exclusive of interest and costs, exceeds the sum of $2000.</p> <p>5. Same—presumption where a shipment is received for transportation. Where a carrier receives a shipment for transportation over a route designated by the shipper, it is presumed, in the absence of anything appearing to the contrary, that the routing was over lines with which the carrier had theretofore made its own arrangement and rate.</p> <p>6. Same—right to contract is subject to reasonable regulation by Congress. While the right to contract is a property right within the meaning of the Federal constitution, it is nevertheless subject to such reasonable regulations, restrictions and conditions as Congress may, under the constitution, impose.</p> <p>7. Same—Congress has power to make initial carrier liable for damages beyond its line. Congress has power, under the interState commerce clause of the Federal constitution, to require a carrier engaged in inter-State commerce to furnish the shipper a bill of lading to the destination of a shipment which it had accepted and to make the initial carrier primarily liable for damage to such shipment although the damage occurs beyond its own line.</p>

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

<p>1. Wills—rule of construction in determining whether a less estate is limited by express ivords. In determining whether a fee simple estate of inheritance devised by a will is limited to a less estate by express words, it is a rule of construction that an" estate given by one clause of a will cannot be cut down or taken away by a subsequenUclause except by clear and unambiguous terms.</p> <p>2. Same—courts are averse to construing a gift over so as to divest property already vested in possession. Courts are averse to construing a gift over in such a manner as to divest property already vested in possession, and will not do so unless the words of the will require such a construction.</p> <p>3. Same—when a substitutionary gift should be limited to remainder. Unless an intention to the' contrary is clearly expressed, a substitutionary gift to one of the testator’s daughters in case the other daughter should die without leaving a living heir of her body should be limited to lands in which a remainder was devised to the latter daughter after the life estate of her mother, and not as extending to lands the title to which had vested in such daughter in possession at the death of the testator under a previous clause in the will devising the same to her specifically, in language sufficient to create a fee simple estate.</p>

<p>Appeal from the County Court of Moultrie county; the Hon. T. N. CoEER, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.</p>

<p>1. Inheritance tax—when transfer of real estate is subject to inheritance tax. Under the Inheritance Tax law of 1895, if the actual intention of the parties to a deed is that possession or enjoyment of the land shall be postponed until after the grantor’s death the transfer will be subject to an inheritance tax, if otherwise within the terms of the act, even though such intention is not expressed in writing.</p> <p>2. Same—a gift made in contemplation of death is subject to inheritance tax. A gift, though absolute and followed by possession and enjoyment of the property in the dotior’s lifetime, is subject to the Inheritance Tax law if it was made in contemplation of death, even though there was no intent to evade paying the tax.</p> <p>3. Same—when contemplation of death must be the impelling motive for transfers or gifts. Where transfers and gifts of property take effect in possession and enjoyment during the lifetime of the grantor, they are not subject to an inheritance tax unless the grantor’s contemplation of death was the impelling motive which caused him to make them.</p> <p>4. Same—when transfers and gifts are not subject to an inheritance tax. Where one transfers his property to a person not related to him in any way, as consideration for a contract for the care of his afflicted daughter, and the property is-taken possession of by the transferee, who begins and completes the performance of her contract during the grantor’s lifetime, the transfers and gifts are not subject to an inheritance tax as having been made in contemplation of death, even though the grantor may have expected his daughter to outlive him and intended by his contract to make provision for her future in that event.</p>

<p>1. Notices—effect of failure of clerk to put file-mark on notice. Failure of the clerk of the board of school trustees to place his file-mark upon the notice of appeal provided for in section 55 of the School law does not defeat the right of appeal if the notice was, in fact, filed within the timé required by law.</p> <p>2; Schools—boards of trustees not required to make a record of .their findings as to jurisdiction. If the boards of trustees had, in fact, jurisdiction to consider a petition, under section 46 of the School law, to create a new district from territory belonging to two or more districts, their action is not invalid although they did not make a record of their findings as to whether the requirements necessary to give them jurisdiction had been complied with.</p> <p>3. Same—decision of boards of trustees as to jurisdiction is not conclusive upon county superintendent. Whether boards of trustees have jurisdiction to consider a petition to create a new school district depends upon whether the requirements of the statute have been complied with and not upon what the boards decide as to that question, and their decision that they have or do not have jurisdiction is not binding upon the county superintendent oh appeal.</p> <p>4. Same—county superintendent may investigate question of jurisdiction of boards of trustees. Under the statute making it the duty of the county superintendent, on appeal from the decision of boards of trustees on a petition to- create a new district, “to investigate the case,” etc., the county superintendent is authorized to investigate and determine whether the requirements of the statute were complied with before the presentation of the petition to the trustees, notwithstanding the statute makes the fact of the action of the trustees on the petition prima facie evidence that such requirements were complied with.</p> <p>5. Same—when petition sufficiently shows that proposed 'district has at least ten fanñlies residing in it. A petition to the boards of trustees' of school districts which states that the proposed district “will not have less than ten families residing in it,” etc., should not be construed as referring to some indefinite future time, but as meaning that the district as proposed to be created has not less than ten families residing in it. (Carrico v. People, 123 Ill. 198, distinguished.)</p>

<p>1. Municipal corporations—city has power to pass track elevation ordinance. A city has authority, under its police power, to pass an ordinance requiring the elevation of railroad tracks within its limits, and, having the power, the city council is limited in its exercise only to the extent that the ordinance be reasonable.</p> <p>2. Same—whether or not an ordinance is reasonable is question for the courts. Where power is given to a city council to legislate on any subject, though the details of legislation may be left to the discretion of the council, such discretion must be reasonably exercised, and if the ordinance passed is claimed to be unreasonable, the courts have power to determine that question and declare the ordinance invalid on that ground.</p> <p>3. Same—a track elevation ordinance is a legislative act even though it may become a contract. In maintaining and controlling the use of its streets and alleys and the maintenance and operation of railroads upon and over them a city exercises’ a governmental function, and an ordinance granting authority for such purpose and fixing the rights and liabilities of the railroad companies is a legislative act, even though .it may by the act of the railroad companies also become a contract.</p> <p>4. Same—equity will not interfere with a city’s discretionary power over streets unless such discretion is abused. A city may do anything with its streets not- incompatible with the end for which streets are established, and a court of equity has no jurisdiction to interfere with an exercise of a city’s discretionary power in regard to its streets unless it is being unreasonably exercised.</p> <p>5. Same—track elevation ordinance not invalid because not the best that might be devised. It is not essential to the validity of a track elevation ordinance that the plan for elevating the tracks, making subways and securing, protecting and preserving the public safety shall be the best that could be devised, and it is sufficient if it is not unreasonable, even though some other plan might be considered a better one.</p> <p>6. Same—ordinance cannot be impeached by inquiry into motives of members of city council. An ordinance passed by a city council, in the exercise of the legislative powers conferred upon it, for the purposes of police regulation or municipal government, cannot he impeached by an inquiry into the motives of the members of the city council, and if the ordinance is within the legislative power of the council, courts -cannot declare it invalid on account of improper motives which induced its passage.</p> <p>7. Injunction—equity will not enjoin track elevation improvement because the complainant sustains a special injury. A court of equity will not enjoin the prosecution of a track elevation improvement upon the ground the complainant has sustained a special injury respecting the depreciation in value of his business and property due to such improvement, since if he has sustained a special injury such as entitles him to damages he may recover them in a court of law.</p>

<p>Appeal from the County Court of Morgan county; the Hon. F. E. Baldwin, Judge, presiding.</p>

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

<p>1. Trial—same rule applies as to directing verdict in will case as applies in a suit at law. The question presented by a motion to exclude the evidence for the contestant in a will case and to direct a verdict finding the instrument to be the last will and testament of the decedent is whether there is any evidence fairly tending to prove the contestant’s bill, and it is not the province of the trial court to weigh the evidence and determine its preponderance.</p> <p>2. Same— on a motion to direct a verdict the question of preponderance of evidence does not arise. On a motion to direct a verdict neither the trial court, in the first instance, nor the court of review, has anything to do with the questions of the preponderance of the evidence or the credibility of witnesses.</p> <p>3. Wills—when court should not direct verdict for defendants in a will contest case. If there is some evidence tending to show that the decedent, during the year when he made his will and up to the time of his death, was' insane, the court must submit the case to the jury, even though none of the witnesses who testified for the contestant were present at the execution of the will, or able to swear, from personal observation, what the condition of the testator’s mind was at that particular time.</p>