Volume 249 — Illinois Reports

<p>Auditor's certificate of appeal to review decision of Board of Review of Cook county.</p>

W. W. Duncan, Judge, presiding. The State’s attorney of Alexander county, in the name of the People, upon the relation of Frank E- Davis, by leave of court, filed an information in the nature of a quo warranto against Fred D. Nellis, who was acting as sheriff of said county, praying that he be ousted from said office.

<p>1. Executors and administrators—when administrator with the will annexed may file a petition to appoint trustee to sell land. Where a will requires the executors to sell the residue of the testator’s land not specifically devised and distribute the proceeds among named devisees, an administrator with the will annexed, who was appointed when the executors refused to act, may file a petition for the appointment of a trustee to make the sale, as he could not make it himself.</p> <p>2. Same—refusal of executors to act revokes their powers as trustees arising by virtue of executorship. Where the executors named in a will refuse to qualify, their powers as trustees, which devolve upon them by virtue of executorship, only, and not by express appointment as trustees, are revoked, and they have no power, jointly or severally, to sell real estate which the will directed should be sold by the executors.</p> <p>3. Courts—the circuit court cannot be deprived of jurisdiction over trusts. Under section 12 of article 6 of the constitution, providing that the circuit court shall have original jurisdiction of all cases in law and- equity, the jurisdiction of the circuit court over the matter of appointing a trustee to sell real estate where the executor or trustee named in the will refuses or is unable to act, can not be taken from it and vested exclusively in other courts.</p> <p>4. Same—extension of jurisdiction of cotmty court does not deprive circuit court of jurisdiction. The power of the legislature to confer upon the county court, under section 18 of article 6 of the constitution, “such other jurisdiction as "may be provided for by general law,” authorizes the legislature to give the county court jurisdiction over matters of which the circuit court has origirial jurisdiction but not to deprive the circuit court of jurisdiction.</p> <p>5. Same—jurisdiction of probate courts is a limited, one. The jurisdiction of probate courts in Illinois is limited by section 20 of article 6 of the constitution to the particular subjects therein named, and there is no general clause (as there is in section 18 relating to county courts) which authorizes the legislature to extend the jurisdiction of probate courts to subjects other than those specifically enumerated.</p> <p>6. Same—probate courts cannot be invested with jurisdiction over testamentary trusts. The administration of testamentary trusts, which embraces all trusts created by wills, including perpetual trusts for charitable uses, which are excluded from the operation of the rule against perpetuities by virtue of the statute of 43 Elizabeth, chap. 4, which is in force in Illinois, constitutes a well established branch of equity jurisdiction, and is in no sense a “probate matter” such as is contemplated by the provision of the constitution relating to probate courts.</p> <p>7. Constitutional law—act of 1909, conferring jurisdiction on probate 'and county courts over testamentary trusts, is invalid. The act of 1909, (Laws of 1909, p. 175,) to extend the jurisdiction of probate and county courts to include the administration of testamentary trusts, is unconstitutional in so far as such jurisdiction is conferred upon probate courts and cannot be sustained as to county courts, even though it would be valid if it applied to county courts alone, as it cannot be said the act would have been passed by the legislature had the probate courts not been included in its provisions.</p>

<p>1. Constitutional law—constitution places coal miners in a class by themselves. The constitution, by section 29 of article 4, places coal miners in a class by themselves by requiring the General Assembly to pass such laws as may be necessary for their protection, by providing for mine ventilation when required, and the construction of escapement shafts, or such other appliances as may secure safety in all coal mines.</p> <p>2. Same-—•word "appliances” used in constitution, includes all those things which will secure safety in coal mines. The word “appliances,” used in section 29 of article 4 of the constitution, includes anything applied or used as a means to an end, and embraces all those things which will secure safety in coal mines.</p> <p>3. Same—constitutional provision for safety of miners includes all physical conditions existing in mines. Section 29 of article 4 of the constitution, being intended to secure the safety of persons engaged in a perilous occupation, ought not to receive a narrow construction, and must be held to include all the physical conditions existing in mines.</p> <p>4. Same—section 18 of the Mines and Miners act is not¡ when properly construed, unconstitutional. The provision of section 18 of the Mines and Miners act requiring the mine examiner to conspicuously mark dangerous places and at once report his findings to the mine manager applies only to working places and their physical condition and does not include other things, and when so construed the provision is not unconstitutional.</p> <p>5. Mines—mine examiner not required to mark places in mine not working places. A violation of the provision of section 18 of the Mines and Miners act requiring the mine examiner to place a conspicuous mark in working places where dangerous conditions exist and to report his finding, is not established if the place where the dangerous condition existed was not intended as a working place and there is no evidence tending to show that it was or ever had been a working place or that anyone ever worked there.</p> <p>6. Same—building track six inches from rib on one side is not a violation of section 21. Building the track for hauling coal cars six inches from the rib on one side of a hauling road is not a violation of section 21 of the Mines and Miners act, where a clear space is left for a working place on the other side of more than the dimensions required and declared to be sufficient by section 21 of Mines and Miners act, as such section does not require a clear space of the statutory width to be left on both sides of the track.</p> <p>7. Same—under section si mine owner has option of leaving clear space or making places of refuge. Under section 21 of the Mines and Miners act a mine owner has the option of leaving a clear space of the statutory width of two and one-half feet between the track and the rib or of making places of refuge, and if a sufficiently clear space is left on one side of the track as a working place, it is not a violation of the statute to lay the track six inches from the rib on the other side.</p> <p>8. Same—when recovery cannot be had for want of places of refuge. A recovery cannot be had under the Mines and Miners act for want of places of refuge, even though section 21 of such act be construed to require places of refuge to be cut on one side of a track notwithstanding there is a clear space at least two and one-half feet wide on the other side, where the accident took place only about twenty feet from a main entry, as a place of refuge twenty yards from such entry is all that is required.</p> <p>9. Same—neglect of a duty unconnected with the accident can not be relied upon. A neglect of duty by a mine owner, whether willful or otherwise, cannot be relied upon as giving a right of recovery for an injury to a miner where such neglect of duty is not shown to have been in any way connected with the injury.</p> <p>10. Same—willful violation of the Mines and Miners act must be something more than mere negligence. The action given by the Mines and Miners act is for a willful violation of its provisions, which means a conscious violation thereof, as a conscious act or neglect is willful although there is no evil intent; but the statute requires something more than mere negligence such as would give a right of action under the usual relation of master and servant.</p> <p>11. Same—Mines and Miners act does not create a liability for mere negligence. The legislature, by virtue of the constitution, has specified certain things which must be done to secure safety in mines and has fixed a liability for a willful failure to do them, but it has not created or declared a liability of a mine operator for mere negligence, unmixed with any intention, either proved or properly inferred from the facts, not to do the things required.</p> <p>12. Evidence—proof that deceased left children of certain ages is competent in action by widow under the Mining act. The Mines and Miners act contemplates, in case of the killing of a miner who leaves a widow, that there be a recovery of the entire loss by the widow, and in an action by her under such act it is competent to prove that deceased left children, and the number and ages thereof.</p> <p>13. Same—evidence that place where accident occurred zvas not a working place is competent. In an action for the death of a miner, who was crushed between a car and the rib after coupling cars and signaling the driver to start, evidence is admissible to show that the side of the track where defendant was hurt was not a working place but that the working place was on the other side, where there was a clear space where the work, including the coupling of cars, was always done.</p>

<p>Appeal from the County Court of Wabash county; the Hon. J. A. Lopp, Judge, presiding.</p>

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

<p>1. Trusts—eqtiity may, in a proper case, enforce trust against property purchased zvith trust fund. A court of equity, in a proper case, will follow a trust fund and enforce the trust against any property in the hands of the trustee, or in the hands of' anyone who, with notice of the trust, has taken the title to the property ip which the fund has been invested.</p> <p>2. Same—evidence of existence of trust and investment of fund in property must be strong. To justify a court of equity in raising a resulting trust the evidence must clearly and unequivocally show that a trust existed and that the trust fund was used in the purchase of the property sought to be impressed with the trust, in full or for some distinct interest or aliquot part of the property.</p> <p>3. Same—a resulting trust does not spring from the contract of the parties. A resulting trust is not created by contract but by implication of law apart from the contract, and the trust must arise, if at all, at the time of the execution of the conveyance and when the legal title vested in the grantee.</p> <p>4. Same—when a court of equity is not justiñed in declaring a resulting trust. A court of equity is not justified in declaring a resulting trust in favor of two sons in property purchased by their mother in her name with money borrowed on certain property owned by her, which had previously been cleared of a mortgage by using a fund to which the sons claim to have contributed, where the evidence does not show what portion, if any, of the fund used to satisfy the mortgage was furnished by the sons but leaves it doubtful whether any of their contributions remained in the fund at the time it was so used.</p> <p>5. Same—when admissions of alleged trustee are entitled to but little zveight. Admissions by a mother that she and her sons “were all interested in the property” are. entitled to but little weight as establishing a resulting trust in favor of the sons, as ,there is a distinction between an admission by a holder of title that a third party’s money paid for the land and an admission that a third party is interested in it.</p> <p>6. Registration of titee—trial court is invested with discretion in taxing the examiner’s fees as costs. Under the provision of the Torrens law that the court may, in proper cases, direct the payment, in addition to the regular examiner’s fees, of such further fees by the applicant or any defendant as it may determine, the court is invested with a discretion in taxing such further fees as costs, even though they do not go to the examiner but to the county where the examination was had.</p>

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

<p>1. Equity—when fact that complainant has conveyed land does not deprive her of her standing in equity. Where the owner of the legal title to land, the railroad company seeking to condemn • the same and an intervening petitioner seeking to establish dower agree upon the price to be paid for the land, the money paid by the" company under such agreement takes the place of the land and is subject to the same burdens the land was under, and the fact that the owner conveys all her interest in the land to the company does not deprive her of her standing in equity to have the value of the dower ascertained and the fund freed from claim of dower.</p> <p>2. Dower—in Illinois a common law wife is entitled to dower. In Illinois every marriage is a marriage for all purposes and is attended with the same civil rights and obligations, and a common law wife is entitled to dower in all the lands of which her husband was seized during coverture, provided she has not joined in her husband’s conveyance thereof or released or barred her dower.</p> <p>3. Same—what instrument does not amount to release of dower. An instrument purporting to be a release of personal claims of a common law wife against her husband cannot be held to be a release of an inchoate right of dower, (which is not a personal claim against a husband,) particularly where the husband, by his answer to a bill for separate maintenance, sets up the instrument as evidence that no common law marriage relation existed between him and complainant and alleges that'the sole purpose of the agreement was to compensate complainant for her past relations with him.</p> <p>4. Same—dower need not be assigned to widow in each tract separately. Under the statute, dower need not be assigned to the widow in each tract separately, but may be allotted in a body out of one or more tracts of land, when it can be done without prejudice to the interest of any person interested in the premises.</p> <p>5. Same—estate of grantor is ultimately liable to make good his covenants of warranty. Where the grantor in a warranty deed describes himself as a bachelor, his estate is liable to make good his covenants of warranty in the event of a subsequent claim of dower in the premises by his common law wife.</p> <p>6. Same—when equity may transfer dower interest to lands of which the husband died seised. Where a person having a common law wife executes a warranty deed to land, describing himself as a bachelor, and the land passes to innocent purchasers by mesne conveyances containing full covenants of warranty, a court of equity, in a proceeding by the common law wife to assign dower in such land, may transfer the dower interest to- lands of which the husband died seized at his death, where his estate over and above his debts is sufficient for that purpose.</p>

<p>1. Taxes—county clerk must reduce taxes in accordance with statute. Under the amended Revenue law of 1909, (Laws of 1909, p. 323,) the county clerk must ascertain which taxing district or municipality has the highest aggregate per cent of tax levies which are subject to reduction under such law, and if such aggregate exceeds three per cent on the $100 of the assessed valuation oí taxable property he must reduce such rates as required by the statute.</p> <p>2. Same—objector is not required to show the extent to which a tax is illegal. In a proceeding by the county collector to collect taxes, if the objector proves that a greater tax has been levied than is authorized by statute the collector’s prima facie case as to such tax is overcome, and that the objector does not show the correct amount of such tax is no ground for sustaining it.</p> <p>3. Same—judgment cannot be rendered for taxes part of which are illegal. A judgment cannot be rendered for taxes, a part of which are shown to be illegal, unless the legal portion can be ascertained and separated from the illegal portion.</p> <p>4. Same—when judgment should be entered for the minimum county tax. Where an objector proves the aggregate tax rates of a certain taxing district, from which it appears that if such district had been used by the county clerk in reducing the taxes the county tax objected to would have been reduced below the forty-five cent minimum, it is proper to enter judgment for the county tax at the minimum rate of forty-five cents on the $100 even though such taxing district may not have been the one having the highest aggregate tax rates, as in either case the reduction of the county tax would bring it below the minimum county rate.</p>

<p>1. Taxes—additional road tax in town under labor system can not be authorized at special meeting. The additional road tax levy which may be made under section 119 of the Roads and Bridges act by a town under the labor system can only be authorized by a vote of the electors at the annual town meeting after notice is given as required by law, and not at a special town meeting.</p> <p>2. Same—when the Supreme Court cannot say that certificate for an additional road tax was not sufficient. Whether the county court erred in overruling an objection to an additional road tax attempted to be levied under section 14 of the Roads and Bridges act, which objection was based upon the ground that the certificate was not sufficient, cannot be determined by the Supreme Court where such certificate is not shown in the record or abstract.</p> <p>3. Same—a tax-payer who objects to sufficiency of certificate must show such insufficiency. Highway commissioners have authority, under section 14 of the Roads and Bridges act, to levy an additional tax by making a proper certificate and procuring the consent of the town auditors and assessor, and hence a tax-payer who objects to paying the tax upon the ground that the certificate is insufficient has the burden of showing such insufficiency.</p> <p>4. The objections to the county tax in this case, and the arguments of counsel in support thereof, are the lame as in the case of People v. Cairo, Vincennes and Chicago Railway Co. {ante, p. 97,) and under the authority of that case.the objections should have been sustained to the excess over forty-five cents on each $100.</p>

<p>1. Pleading—a party must stand by demurrer if he desires to have order overruling it reviewed. A party who desires to have an order overruling a demurrer reviewed must stand by his demurrer and not plead over.</p> <p>2. Same—Ming replication to a plea admits sufficiency of plea. Filing replications after a demurrer to a plea to an information in the nature of quo warranto is overruled is an admission of the sufficiency of the plea, in law, to bar a recovery on such information.</p> <p>3. Quo warranto—when demurrers are properly sustained to replications. Where the question raised by an information iri quo warranto, a plea thereto and a demurrer to the plea, is whether the defendant corporation had legal authority to act for the purposes named in its charter, replications which seek to present that question after the demurrer to the plea is overruled are bad and are open to demurrer.</p> <p>4. Same—when replications are not departures from case made by information. Where the original count in an information in the nature of quo warranto charges the defendant corporation with exercising, without warrant, the privilege of erecting and operating a building for certain purposes, replications to a plea setting up the defendant’s legal organization, which charge that the defendant has not kept books of account or afforded stockholders a reasonable opportunity to inspect the records and books, are not departures from the case made by the information.</p> <p>5. Same—what must be shown by plea to information in nature of quo warranto. The plea of a defendant to an information in the nature of quo warranto must not only show that it had the right to use the license or privilege questioned, but that it still has such right.</p> <p>6. Same—if any of several pleas to an information are good the defendant is entitled to judgment. If any of the several pleas to an amended count in an information in the nature of quo warranto are good the defendant is entitled to judgment as to such amended count.</p> <p>7. Corporations—right of a corporation to rent real estate not immediately needed. Where an amended count in an information in the nature of quo warranto charges the defendant corporation with being engaged in the business of owning and renting real estate, a plea setting up the incorporation of the defendant and averring that the defendant owns and operates a building in carrying on its business, and has rented, from time to time, a small part thereof not then needed for its purposes, presents a good defense, and a further averment that the defendant has a right to engage in the particular business may be rejected as surplusage.</p> <p>8. Same—what question as to corporate business cannot be determined on demurrer. Whether the operation of a building as an opera house and its operation for military purposes are two separate businesses is a question of fact and not of law, and can not be determined on demurrer.</p> <p>9. Same—a corporation authorised to carry on certain business may do so through a lessee. If the charter of a corporation authorizes it to engage in the business of conducting an opera house, the charter is complied with if the corporation carries on the business through a lessee.</p>

<p>1. Wills—fundamental rule is to ascertain and give effect to testator’s intention. The fundamental rule in construing a will is to ascertain the testator’s intention and give effect thereto if it can be done without violating some established rule of law, and to that end all parts of the will are to be considered and the different parts compared.</p> <p>2. Same—word “or” may be construed to mean “and.” In construing wills the word “or” may be construed to mean “and,” as where an estate is given to a devisee “or his heirs.”</p> <p>3. Same—when daughters are vested zuith fee upon the father’s death. Where a testatrix having a husband and two daughters devises a life estate in certain land to the husband with remainder in fee to the daughters at his death, and provides that if either daughter shall die without leaving a child or children the surviving daughter shall have the property, and “should both die without leaving legal child or children all this estate goes to the father or his heirs,” the words “or his heirs” should be construed “and his heirs,” and as so construed the daughters take the fee absolutely if they survive the father, and the latter and his heirs will not take the fee unless both daughters die before the father without leaving legal children. (Fifer v. Allen, 228 Ill. 507, distinguished.)</p>

<p>Writ op Error to the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. L. D. PuTerbaugh, Judge, presiding.</p>

<p>1. Constitutional law—power of legislature to exempt property from taxation is limited. The enumeration in section 3 of article 9 of the constitution of certain specified property which may be exempted from taxation is a limitation upon the power of the legislature to exempt any other property.</p> <p>2. Same—provision of Revenue act of ipop exempting property of schools is invalid. The provision of clause 1 of section 2 of the Revenue act of 1909, (Laws of 1909, p. 309,) exempting from taxation “all property of schools, including the real estate on which the schools are located, not leased by such schools or otherwise used with a view to profit,” is beyond the power of the legislature and unconstitutional.</p> <p>3. Same—provision of act of ipop exempting property used exclusively for schools and religious purposes is valid. Clause 2 of section 2 of the Revenue act of 1909, (Laws of 1909, p. 310,) which exempts from taxation “all property used exclusively for religious purposes or used exclusively for school and religious purposes,” etc., is within the power of the legislature, but in determining whether property comes within that provision the statute must be strictly construed and debatable questions be resolved against the exemption.</p> <p>4. Taxes—tax exemption cannot be made by judicial construction. Exemption of property from taxation cannot be made by judicial construction, and one claiming the benefit of a tax exemption statute must show clearly that his property is within the contemplation of the law.</p> <p>5. Same—a party claiming tax exemption must state facts and not mere conclusions. Upon an application to declare property exempt from taxation the applicant must present evidence of facts showing the uses to which the property is applied and bringing it clearly within the terms of the statute, and it is not sufficient to state, by affidavit, the conclusions of the affiant as to such uses.</p> <p>6. Same—taxing authorities must decide question of exemption from facts stated. The question whether property is exempt from taxation as property used exclusively for “religious purposes” or “school and religious purposes” must be determined by the taxing authorities from the facts stated, and unless facts are stated from which it can be seen that the use is a religious or school use within the meaning of the constitution, taking the words in their ordinary acceptance, the property cannot be held to be exempt.</p> <p>7. Same—what is a “religious purpose” as meant by the constitution. A “religious purpose,” as meant by the provision of the constitution concerning exemption from taxation, is a use of prop-, erty by a religious' society or body of persons as a stated place for public worship, Sunday schools and religious instruction.</p> <p>8. Same—what is a “school” within meaning of constitution. A “school,” within the meaning of the provision of the constitution exempting from taxation property used exclusively for “school purposes,” is a place where systematic instruction in useful branches is given by methods common to schools in the common acceptation of that word, as distinguished from what are called schools where instruction is given in dancing, riding, deportment and like things.</p> <p>9. Same—•status of property for taxation is fixed on the first day of April. The Revenue law fixes the first day of April in each year as determining the status of property for taxation, and provides that taxes upon real property, with penalties, interest and costs that shall accrue thereon, shall be a prior and first lien on such property from and including the first day of April in the year in which the taxes are levied, although the amount of taxes have not been determined on that' day.</p> <p>10. Same—Revenue act of 1909, exempting property from taxation, does not have retrospective operation. There is no language in the act of 1909, relating to the exemption of property from taxation, in force July 1, 1909, (Laws of 1909, p. 309,) which indicates that the act shall be given retrospective operation, and hence property which was not exempt from taxation under the law as it stood on April 1, 1909, cannot have the benefit of said act as respects taxes levied for that year.</p> <p>11. Statutes—intention to make an act retrospective must be clear. Retrospective laws, even though they might be valid, are looked upon with disfavor, and an intention that laws shall have such operation will not be declared by the courts unless it is manifested by most clear and unequivocal expressions.</p>

<p>1. Jurisdiction—when question of jurisdiction will be deemed to have been waived. If the subject matter of a suit is such that a court of chancery may take jurisdiction if certain conditions exist and no objection is raised in the trial court that the complainant should seek relief in some other tribunal, the defendant will be deemed to have waived the question of jurisdiction.</p> <p>2. Same—what does not show that the circuit court was wholly without jurisdiction. The fact that the circuit court may not have jurisdiction in every case to enjoin the probate of a will does not show that such court was wholly without jurisdiction to enter a decree enjoining the defendant from causing a certain will to be probated, where the bill, as abstracted, does not show the grounds alleged for equitable relief, and it is not shown that the jurisdiction of the circuit court was questioned in any way in that court.</p> <p>3. Appeals and Errors—when question of jurisdiction cannot be considered. The question of the jurisdiction of the circuit court of a bill in chancery cannot be considered by the Supreme Court where the plaintiff in error fails to file an abstract of record which shows the question of jurisdiction was raised in the trial court, or that the case was wholly foreign to chancery jurisdiction.</p> <p>4. Same—abstract of record must be sufficient to present error relied iipon. Rule 14 of the Supreme Court requires the abstract of record to be sufficient to fully present every error and exception relied upon, and if the errors assigned are not made to appear by the abstract of record the judgment or decree must be affirmed.</p>

<p>1. Taxes—what is the proper taxing district to be used as the standard for reducing rates. The taxing district having the highest aggregate of rates, exclusive of the rates mentioned in the act as not subject to reduction, is the taxing district to be used as the standard, under the amended Revenue law of 1909, in determining how much, if any, the rate shall be reduced.</p> <p>2. Same—what does not render invalid a tax levy for road and ditch damages. A tax to liquidate road and ditch damages, under section 15 of the Roads and Bridges act, is not necessarily rendered invalid because the certificate of the town clerk to the county clerk sets out a certain rate per cent to be levied instead of a. definite sum of money.</p> <p>3. Same—when certificate shows contingency under section 14 of Roads and Bridges act. A contingency, such as is contemplated by section 14 of the Roads and Bridges act, authorizing an additional tax, is established by a certificate showing that the tax was needed because of a “wash-out in the spring of 1909 on public road in Sugar creek bottom, * * * said road for a quarter of a mile being washed out by unusual floods occurring at that time and being such as could not be foreseen or guarded against.”</p> <p>4. Same—when certificate of road tax levy cannot be amended. The town clerk is required to transmit to the county clerk a certified copy of the certificate of the highway commissioners for the road and bridge tax, and if the certificate so transmitted appears to be the original or a duplicate, and not a copy, there can be no amendment thereof on application for judgment and order of sale.</p>

<p>1. Wiles—contestant must overcome prima facie case in favor of validity of will. The testimony of the subscribing witnesses as to the sanity of the testator is sufficient to make out a prima facie case in support of the validity of the will, and the contestant is then required to show the contrary.</p> <p>2. Same—the usual test in determining capacity to make a 'will. The usual test of the capacity of a person to make a will is whether he is capable of understanding the effect and consequences of his act at the time the will is executed, and the evidence must clearly preponderate to the contrary to justify setting aside the will.</p> <p>3. Same—what tends to iveaken testimony that testator was of unsound mind. Testimony that the testator was of unsound mind is weakened by the fact that the witnesses employed him as their physician after they had observed the actions on which they based their opinions, and in the case of two witnesses, both divorced wives of the testator, that they married him notwithstanding the actions they observed.</p> <p>4. Same—when conversatjons between the testator and attorney are not privileged. In a proceeding by a daughter to contest her father’s will, conversations between the testator and his attorney with reference to drawing the will and testator’s attitude toward his daughter are not incompetent, as privileged communications.</p> <p>5. Same—-declarations of a testator are competent to prove his state of mind. The declarations of a testator are competent, in a proceeding to contest his will, to show the state of his mind but not to prove the facts stated.</p> <p>6. Same—what admissible as tending to show testator’s state of mind. A declaration by the testator that he. had received a letter from his daughter's husband forbidding him to communicate with her for reasons given, which letter is also introduced in evidence, is, when taken in connection with the facts that he had previously made two other wills substantially disinheriting the daughter, and had given her mother, the testator’s divorced wife, a considerable sum of money, admissible to show his attitude toward the daughter and his reason for making the will as he did.</p> <p>7. Same—certified transcript of record in probate court cannot be contradicted by parol. In a proceeding to contest a will the certified transcript of the evidence of the subscribing witnesses in the probate court cannot be contradicted by testimony to the effect that the statement in the record that the evidence of the subscribing witnesses was heard in open court was untrue.</p> <p>8. Same—fact of suicide is not evidence, per se, of insanity. The fact that the testator committed suicide the day after he made his will cannot be regarded as proof, per se, of insanity, but it is only a fact to be considered with the other facts in the case in determining that question.</p> <p>9. Instructions—one who fails to ask for particular instruction cannot complain that it was not given. One who fails to ask for an instruction upon some particular view of the case cannot complain that no such instruction was given, even though it would have been proper to have given it.</p> <p>10. Same—fact that testator committed suicide need not he referred to in each instruction. The fact that the testator committed suicide the day after he executed his will does not require that each instruction in a proceeding to contest the will shall refer to that fact.</p> <p>11. Appeals and errors—party cannot complain of self-imposed injury. Alleged injury from the want of the testimony of a certain witness must be regarded as self-imposed and not subject to complaint in a court of review where the objection, which was made to the competency of the witness, was withdrawn while he was in the court room and no reason is shown why his testimony could not have been thereafter given.</p>

<p>1. Statutes—effect of amendment of statute by subsequent act. An amendment of a statute by a subsequent act operates precisely as if the subject matter in the amendment had been incorporated in the prior act at the time of its adoption.</p> <p>2. Same—doctrine of ejusdem generis is applied only as an aid in ascertaining the legislative intent. The doctrine of ejusdem generis can only be used as an aid in determining the legislative intent, and it will not control or confine tire meaning of the statute to narrower limits than the legislature intended'.</p> <p>3. Elections—sections p? and p8 ,of the Election law should be construed together. In ascertaining the jurisdiction of the county court in election contest cases, section 97 of the Election law, as amended in 1895, and section 98, must be read and given effect together, and the words used should be given their ordinary meaning.</p> <p>4. Same—county court has jurisdiction to hear contest of election of park district trustees. Under the language “all other officers for the contesting -of whose election no provision is made,” used in section 98 of the Election law, the county court has jurisdiction to hear a contest of an election for trustees of a pleasure driveway and park district.</p> <p>5. Same—trustees of park district do not have power of village board of trustees over contested elections. The power of a village board of trustees to determine contests of election of its own members exists by reason of the provisions of the Cities and Villages act that the city council shall be judge of the election of its own members and that village boards shall have the powers of city councils in cities not exceeding a certain population, but there is no ground for extending such power to the trustees of a pleasure driveway and park district under the language of section 12 of the Park act of 1893, providing for the establishment of such districts.</p> <p>6. Same—section p8 of the Election law applies to officers of municipal or quasi municipal corporation. The provision of section 98 of the Election law providing that the county court shall have jurisdiction of a contest of the election of certain officers “and all other officers for the contest of whose election no provision is made,” must be read “all other like officers,” etc., and extends to the officers of any public corporation, municipal or quasi municipal, for the contest of whose election no provision is made.</p>

<p>1. Taxes—when additional road tax levy by town under labor system is invalid. Section 119 of the Roads and Bridges act authorizes a town under the labor system to authorize, by a vote of the electors, the levy of an additional road tax, not exceeding twenty-five cents on each $100 valuation, “for the purpose of constructing or repairing roads and bridges,” and an additional levy is invalid where there is nothing to show that' it was voted by the electors for such purposes, but only that it was “for a larger amount of money as shown by the records."</p> <p>2. Same—vahen certificate should be returned by supervisors to highway commissioners. If the certificate of the commissioners of highways in a town under the labor system does not show any authority for the additional road tax attempted to be levied, the board of supervisors should refer th.e' certificate back to the commissioners for correction or it should be disregarded by the county clerk in extending the taxes.</p> <p>3. The objections made in this case to the county tax, city tax and town tax are the same as those made in People v. Chicago and Eastern Illinois Railroad Co. 248 Ill. 596, and are there disposed of.</p>

<p>Writ of Error to the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>1. Taxes-—failure to comply with substantial requirements of statute vitiates tax. A failure to comply with the substantial requirements of the statute is not a mere irregularity but an omission which vitiates the tax.</p> <p>2. Same—petition for County aid should show that cost of each bridge will exceed rate fixed by statute. A petition by a township for county aid in building bridges must show that the cost of building or repairing each bridge for which the aid is asked will exceed the rate fixed by section 19 of the Roads and Bridges act, authorizing county aid.</p> <p>3. Same—when petition for county aid is sufficient—when insufficient. A petition by a township asking county aid for the construction and repair of several bridges is sufficient if it specifies that the cost of building or repairing each bridge will,exceed the rate fixed by law, but if it fails to specify that fact it is insufficient, as county aid is not authorized merely because the aggregate cost of building or repairing several bridges will exceed that rate.</p> <p>4. Same—county tax levy for "bridges” includes building new bridges, repairing old ones and building approaches. A county tax levy for “bridges” is broad enough to include the building of new bridges, the repair of old ones and the building of approaches or abutments, and such levy need not be subdivided to show how much is to be used for each of such purposes.</p> <p>5. Same—valid and invalid portions of tax should be separated, if possible. If possible, the valid and invalid portions of a tax should be separated and the objections sustained as to the invalid portions and overruled as to the others; and in case of a county tax levy for “bridges,” based upon petitions by the townships for county aid, if a part of the petitions are sufficient the portion of the levy based thereon should be sustained, even though the portion based upon the insufficient petitions must fail.</p> <p>6. Same—appropriation of money does not require the money to be on hand. A county tax levy for bridges is not invalid because a resolution by the county board for issuing Warrants to pay certain expenses connected with the building of the bridges, against funds theretofore “appropriated” for that purpose, showed that there was no money in the county treasury at that time, as it is not essential to the validity of an appropriation that the funds to meet the same be on hand.</p>

<p>1. TaxES'—additional road tax is not intended for ordinary repairs or work. The additional road tax which is authorized by section 14 of the Roads and Bridges act to be raised in view of a contingency is not intended for ordinary road and bridge expenses but for something that does not occur in the ordinary course of events, and the mere fact that roads and bridges may become out of repair from “excessive rains and washes” is not sufficient to authorize such tax.</p> <p>2. Same—town cannot levy road tax under ■labor system after voting to adopt the cash system. After a township has voted upon and adopted the cash system of levying taxes for road purposes it has no power to levy a tax under the labor system, as the two systems are distinct.</p> <p>3. Same—statutory rate of road tax in force when tax is extended controls. The amendment of section 119 of the Roads and Bridges act, which went into effect July 1, 1909, and which reduces the road and bridge tax rate from forty cents to twenty-five cents, must be followed by the county clerk when extending taxes after July 1, notwithstanding the highway commissioners levied such tax at the rate of forty cents before July 1, which they had power to do by the law then in force.</p> <p>4. Same—■"sanitary tax” is subject to reduction. A tax levied by a sanitary district and designated a “sanitary tax” is not necessarily a “levee tax,” within the meaning of the amended Revenue law of 1909, and is subject to reduction under the provisions of that act. (People v. Chicago and Alton Railroad Co. 248 Ill. 417, followed.)</p>

<p>Appeal from the County Court of Montgomery county, the Hon. John L. Dryer, Judge, presiding.</p>

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

<p>Appeal from the County Court of Montgomery county; the Hon. John L. Dryer, Judge, presiding.</p>

Frank L. Hooper, Judge, presiding. This was an action of debt commenced in the name of the People, for the use of the State Board of Health, against J. A. Wilson, before a justice of the peace in Kankakee county, for the violation of paragraph 12 of chapter 91, (Hurd’s Stat. 1909, p. 1474,) which reads as follows : “That any itinerant vendor of any drug, nostrum, ointment or appliance of any kind intended for the treatment of diseases or injury, who shall, by writing or…

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

<p>1. Constitutional law—legislature may form classes for the purpose of police regulation. The legislature has power to form classes for the purpose of police regulation, provided it does not discriminate between persons in the same situation.</p> <p>2. Same—act of 1907, to protect persons in construction and repair of buildings, is a police measure. The act of 1907, which provides for the protection and safety of persons in and about the construction, repairing, alteration or removal of buildings, bridges, viaducts and other structures, (Laws of 1907, p. 312,) is an exercise of the police power by the legislature.</p> <p>3. Same—courts should .sustain constitutionality of statiites unless they are clearly invalid. In determining the constitutionality of statutes it is the duty of courts to sustain them, except in cases of clear necessity and where they are in plain and obvious conflict with the constitution.</p> <p>4. Same—it is not to bp assumed that the legislature intended to exceed its constitutional authority. While it is the duty of courts to hold an act invalid which is clearly in violation of the constitution, yet it is not to be assumed, in construing a statute, that the legislature intended to exceed its constitutional authority.</p> <p>5. Same—section 7 of act of ipop, relating to protection of persons in buildings being built or repaired, is not invalid. Section 7 of the act of 1907 (Laws of 1907, p. 314,) is not invalid upon the alleged ground that it applies where hoisting apparatus is used in the construction of buildings but not where it is used in repairing buildings, and. imposes a liability upon contractors and owners in case of buildings being constructed which is not imposed upon them where buildings are being repaired, as said section will not admit of such an interpretation but must be held to apply both to buildings being constructed and to those being repaired, in which hoisting apparatus for material is used.</p> <p>6. Negligence—section 7 of act of ipoy, for protection of persons in buildings being constructed or repaired, construed. In view of the entire act of 1907, (Laws of 1907, p. 312,) the provision of section 7 requiring that openings through which materials are conveyed by hoisting apparatus or elevating machines shall be fended by substantial barriers, applies not only to buildings being constructed but also to buildings being repaired, although it mentions only buildings in course of construction.</p> <p>7. Same—the act of 1907 applies alike to buildings being constructed and those being repaired or altered. The purpose of the act of 1907 (Laws of 1907, p. 312,) is to provide the same protection for workmen against injuries while engaged in repairing, altering or removing a building as in constructing one, notwithstanding sections 2, 3, 6 and 7 make no specific mention of buildings being repaired, altered or removed.</p> <p>8. Same—when ozuner of building is liable, under section 7 of act of 1907, for failure to comply with its provisions. Section 7 of the act of 1907 (Laws of 1907, p. 314,) imposes upon both the contractor and the owner the duty of complying with the provisions of such section so far as the civil liability is concerned, but where the owner lets the contracts for the various kinds of work to different contractors and never parts with the control or supervision of the building to any contractor, but retains control and supervision through his agent, the architect, he is subject to the civil liabilities provided by the act for a failure to comply with the requirements of said section.</p> <p>9. Same—an architect in owner’s employ is not an independent contractor. An architect who does business for the owner of a building continually, and who prepares plans for' a particular building and superintends the construction thereof by the different contractors to whom he has let the contracts for the various kirids of work, and issue's vouchers from time to time, superintending the work throughout, for which he receives the customary compensation paid in such cases, is not an independent contractor.</p> <p>10. Same—purpose of section 7 of act of ipoj, requiring barriers to be placed around floor openings. The purpose of section 7 of the act of 1907, requiring a barrier to be erected around a floor opening through which materials are hoisted by apparatus, is to protect all persons walking on the floor of the building from falling into the opening, except those engaged in unloading material, and if the barrier is unnecessarily placed so far from the opening that workmen must go between the barrier and the opening to perform their work, said section is not complied with.</p> <p>11. Evidence—when evidence as to number and ages of children left by decedent is admissible. In an action by the widow for a willful violation of the provisions of the act relating to the protection of persons in and about buildings being constructed or repaired, it is not error to admit evidence showing that the decedent left children surviving, and the number and ages thereof. (Jones & Adams Co. v. George, 227 Ill. 64, distinguished.)</p>

<p>1. Pleading—there is no inflexible rule for determining whether a bill is multifarious—reason for rule. The reason for the rule against multifariousness in a bill in chancery is to avoid the inconvenience to the defendant of being compelled to present unnecessary defenses or to complicate his defense by combining matters which have no necessary connection with each other; but there is no inflexible rule for determining whether a bill is multifarious.</p> <p>2. Same—when bill to contest will need not be limited to that issue, only. If it is necessary to the right of a complainant to contest a will that a certain settlement agreement made by her be first set aside, she may combine both subjects for relief in one bill and require the two issues to be passed upon, notwithstanding the parties are entitled to a jury trial upon the issue of the validity of the will. (Calkins v. Calkins, 229 Ill. 68, and Tagert v. Fletcher, 232 id. 197, distinguished.)</p> <p>3. Same—when failure to include necessary parties is not failure to invoke jurisdiction. While the statute authorizing the contest of a will in chancery not only confers jurisdiction but prescribes the time within which such jurisdiction is to be invoked, yet if a bill is filed within the time limited and some of the necessary parties are made defendants, the failure to bring in all the necessary parties until after the time for invoking the jurisdiction has expired is not a failure to invoke such jurisdiction.</p> <p>4. Wills—court may invoke its general equity powers when necessary to the exercise of its statutory jurisdiction. While the jurisdiction of a court of equity to entertain a bill to contest a will is statutory and does not justify the exercise of the court’s general chancery powers by administering relief as to matters not necessary to the contest of wills, yet the court may exercise its general equity powers where it is necessary to do so in order to enable it to exercise the jurisdiction conferred by the statute.</p> <p>5. Same—when failure to make executors parties within a year does not bar bill to contest will. If a bill is filed to contest á will within the year allowed by law and all persons who are necessary parties are made defendants except the executors, who were made parties as individuals but not as executors, the failure to make the latter parties as executors until after the expiration of the year .does not bar the action.</p> <p>6. Fraud—it is not sufficient to allege fraud generally. To impeach a transaction for fraud it is not sufficient to allege fraud generally, but the complaining party must state in his pleading the specific acts or facts relied upon as establishing the fraud.</p> <p>7. Same—when transaction may be set aside though misrepresentation is as to a matter of law. Where a fiduciary relation exists between parties to a transaction a court of equity may, in a proper case, set aside the transaction on the ground that such relation exists, whether the misrepresentations made were misrepresentations of fact or law.</p> <p>8. Same—representation by executors as to amotmt of personal estate is one of fact. An averment that the executors of an estate, in order to induce the complainant to make a settlement agreement and not contest the will, represented that the personal estate of the testator amounted to a certain sum when they, in -fact, knew it to be much more, may be regarded, in view of the fiduciary relation, as being a sufficient averment of fraud to require an answer.</p> <p>9. Same—averment that the executors represented they had authority from heirs is an averment of fact. An averment that the executors,- when they induced the complainant to execute a settlement agreement, represented that they had authority to, and did, represent all the heirs and that the heirs would all sign the agreement, when, in fact, they had no authority to represent a certain heir, who refused to sign it, is an averment of fact and a sufficient allegation of fraud, when considered with the other averments, to require an answer.</p> <p>10. The court construes the bill filed in this case, and holds that it is not multifarious, that the allegations of fraud are sufficient to require an answer, and that the court erred in sustaining demurrers and dismissing the bill.</p>

Writ or Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. George W. Patton, Judge, presiding.

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

<p>1. Drainage—authority of district to assess city for benefits to streets and alleys. Section 55 of the Levee act, as amended in 1909, (Laws of 1909, p. 193,) ' confers express authority upon a levee drainage district to make an assessment against a city on account of benefits to its streets and alleys within such district, and the confirmation of such assessment amounts to a judgment against the city. (City of Joliet v. Spring Creek Drainage District, 222 Ill. 441, explained.)</p> <p>2. Same—a city has power to levy tax to pay drainage assessment for benefits to streets—marldamus. Authority to levy and collect a tax to pay a levee drainage assessment for benefits to the streets and alleys o’f a city is conferred by sections 2 and 3 of. article % of the Cities and Villages act, and the drainage district may, by mandamus, compel the city to exercise such authority.</p> <p>3. Same—what is not a valid objection to levee drainage assessment against city. The fact that the Levee act has not provided a method for the levy and collection by a city of a tax to meet a drainage assessment for benefits to the streets and alleys of the city, nor designated the particular fund out of which the assessment shall be paid, is not a valid objection to such assessment.</p> <p>4. Same—drainage assessments cannot be made a lien except upon property benefited. Under the constitution the authority of the legislature to authorize the making of drainage improvements by special assessment is limited .to property within the district which is benefited by the improvement, and sucia assessments can not be made a personal liability of the owners of the property against which the assessments are made.</p> <p>5. Same—provision of Levee act making drainage assessment a lien on property of railroad is invalid. The second proviso to section 55 of Levee act, as amended in 1909, (Laws of 1909, p. 193,) in so far as it attempts to create a lien upon all the property of railroads for the payment of drainage assessments against railroad' property, and which provides that executions may issue as upon a judgment and have a like lien upon the personal property of the railroad, is unconstitutional and void, but its invalidity does not affect the remainder of that section nor the other portions of the act.</p> <p>6. Same—sections ifb and 18 of Levee act, as amended, are valid in so far as they provide a method for ascertaining benefits. Sections i yb and 18 of the Levee act, as amended in 1909, in so far as they provide a method for ascertaining benefits where no question of damages is involved, are not in contravention of section 13 of article 2 and section 14 of article 11 of the constitution, which relate exclusively to the talcing or damaging of property for public use, and which contain no limitation upon the power of the legislature to provide methods for ascertaining the benefits to property assessed for drainage improvements. (Wabash Railroad Co. v. Coon Run Drainage District, 194 Ill. 310, distinguished.)</p> <p>y. Same—section iyb of Levee act does not require jury to assess an arbitrary sum, regardless of beneñts. Section iyb of the Levee act, as amended in 1909, does not, by requiring the jury to return a verdict which shall produce the total sum of the estimated cost of the proposed work and the proceedings incident to the same, require the jury to assess an arbitrary sum regardless of benefits, since the word “shall,” as so used, may properly be given the meaning of “may,” and is a directory and not a mandatory provision.</p> <p>8. Same—jury cannot assess total amount of estimated cost unless the beneñts equal or exceed such sum. Section iyb of the Levee act, as amended in 1909, when properly construed, authorizes the jury to return a verdict which shall equal the total sum of the estimated cost of the proposed work and the proceedings incident to the same only when the benefits to the lands in the district shall equal or exceed such sum.</p> <p>9. Same—assessment cannot be levied to pay past indebtedness of district. An assessment cannot be made by levee drainage commissioners to pay past indebtedness, and if any portion of the assessment is made for such purpose it is to that extent null and void; but if the county court, in its order granting the prayer of the petition, finds that the assessment is made for the payment of future obligations and not for obligations previously incurred, it will be presumed, in the absence of a bill of exceptions, that the evidence heard by the court justified such finding.</p> <p>10. Same—district has no authority to incur liabilities or debts in excess of funds on hand. Drainage commissioners, in letting the contracts for the initial construction of the improvement, have no power to contract for any work in excess of that which can be paid for out of the original assessment, and as to any excess the contracts are ultra vires and void and cannot be enforced either against the contractors or the district, nor can a subsequent assessment be levied to pay for such excess.</p> <p>11. Same—when assessment is not invalid as for past indebtedness. Drainage commissioners have a right, in contracting for excavation and concrete work by the cubic yard, to contract for as many cubic yards as can be paid for, at the contract price, out of the funds on hand, and hence if it appears that at the time an additional assessment is asked for the contractors have not completed more work than can be paid, for out of the funds the district then has on hand, the additional assessment is not levied to pay past indebtedness though it is to be used to pay for completing the work.</p> <p>12. Same—real estate purchased by commissioners may be considered in estimating fund on hand. In determining whether the liabilities of a levee drainage district exceed the funds it has on hand from the original assessment at the time a petition for an additional assessment is filed, it is proper to add to the available assets of the district the fair value of land to which the district obtained title when purchasing the right of way for its ditch, even though the land is not necessary for any purpose of the district and though the commissioners may not have had power to acquire it.</p> <p>13. Same—fact that expenditure for a certain purpose exceeds amount estimated therefor is not a wrongful diversion. Under section 37 of the Levee act the commissioners are authorized to use the money arising from the collection of the assessments for any legitimate purpose of the district under the direction and supervision of the court, and the fact that the commissioners expend for certain purposes more than the sum which was specified in the estimate for such purposes does not constitute a wrongful diversion of the fund. (Vandalia Drainage District v. Hutchins, 234 Ill. 31, distinguished.)</p> <p>14. Same—a drainage district has implied powers essential to carry out the poivers granted. A drainage district necessarily possesses the implied powers necessary to carry out the express powers granted.</p> <p>15. Same—all expenses of district must be paid out of money collected by a special assessment. The only method provided by statute by which a drainage district can acquire funds is by assessment upon the lands in the district, and all expenses which the district is authorized to incur must therefore be paid out of money collected by this method.</p> <p>16. Same—commissioners may include in estimate a sum for collecting delinquent assessments. In estimating the amount necessary to be raised by a drainage assessment the commissioners have a right to consider the probable expense of collecting delinquent assessments in the manner provided by law, and may include a sum for that purpose in their estimate of the amount necessary to be raised by an additional assessment to complete the work and pay all incidental expenses.</p> <p>17. Same—parties desiring accounts of the commissioners to be more specifically itemized should apply to court. Parties to a proceeding for an additional drainage assessment who desire the commissioners’ accounts of their receipts and expenditures to be more specifically itemized should request the court to require the commissioners to file a more specific account, and in the absence of such a request" they cannot complain, on appeal, that the accounts filed were not itemized as required by law.</p> <p>18. Same—court’s findings of fact upon granting prayer of petition are binding unless modified before confirmation. A finding by the court, in its order granting the prayer of a petition for an additional assessment, that the assessment is made to pay future obligations is merely interlocutory and subject to be modified or vacated before the entry of the judgment of confirmation, but until modified or set aside it is binding upon the parties; and the court cannot be required to re-try the question at some subsequent stage in the proceedings, in absence of any showing of good cause why objection was not interposed and evidence presented at the hearing on the petition. (Ahrens v. Drainage District, 170 Ill. 262, and Vandalia Drainage District v. Hutchins, 234 id. 31, distinguished.)</p> <p>19. Same—court does not lose jurisdiction of proceeding upon sustaining objections to assessment roll. Upon sustaining objections to an assessment roll and vacating and setting aside the assessment against all the lands of the district the county court does not lose jurisdiction of the proceeding but may grant leave to the petitioner to file a new assessment roll. (Claussen Park Drainage District v. Daily, 239 Ill. 428, distinguished.)</p> <p>20. Same—land owners of a district may act as commissioners under amendment of ipop. Under the Levee act, as amended in 1909, it is not now a valid objection to a levee drainage assessment that the commissioners are owners of lands in the district which are assessed for the-work. (Meredosia Lake Drainage District v. Evemeyer, 244 Ill. 115, adhered to.)</p> <p>21. Same—the constitution does not limit drainage assessment to lands. The constitutional amendment of 1878, authorizing the enactment of drainage legislation, does not limit such legislation to special assessments for drainage purposes upon land or real estate but authorizes special assessments upon property benefited.</p> <p>22. Same—constitution authorizes legislature to make a street railway liable to drainage assessment. A street railway is “property” within the meaning of the drainage amendment to the constitution, and the legislature has the same authority to provide that street railways shall be subject to drainage assessment as it has to authorize the special assessment of a street railway for the purpose of a local improvement.</p> <p>23. Same—section 55 of Levee act authorizes assessment of a street railway. Section 55 of the Levee act, as amended in 1885, authorizing a drainage assessment to be levied against the property of “any public or corporate road or railroad” benefited by the construction of ditches, drains or levees, authorizes the assessment of a street railway within the district for its just share of the benefits to be derived from the work of the district.</p> <p>24. Same—every owner of assessed property is injured by the omission of property liable to assessment. Every person whose property is assessed for benefits from a drainage improvement is injured by the omission to assess other property liable to assessment, and he is entitled to prove, upon application for a judgment confirming the assessment, that property omitted from assessment will be benefited.</p> <p>25. Same—Levee act does not authorize assessment of property of telegraph, telephone and gas companies. The language of the Levee act does not authorize the levy of a drainage assessment against the pdles, wires, pipes, fixtures and other like property of telegraph, telephone, electric light and gas companies.</p> <p>26. Same—railroad company cannot object that district has not obtained consent of highzvay authorities to do its work. A railroad company has no standing to obj ect to a levee drainage assessment upon the ground that the district has not obtained permission from the highway commissioners to construct its ditch and walls in and upon a certain highway.</p> <p>27. Same—verdict of jury as to benefits is entitled to weight given the verdict in a condemnation case. Where the jury, in a proceeding by a levee drainage district to levy an additional assessment, has heard the evidence and viewed the premises, its verdict fixing the amount of benefits is entitled to as much weight in a court of review as a verdict in a condemnation case, and will not be set aside solely because the testimony of the witnesses preponderates in favor of the appellant.</p> <p>28. Statutes—when word "shall” may be construed to mean "may.” The word “shall,” when used in a statute, may be held to be directory, merely, and as being synonymous with “may,” where such a construction is rendered necessary by the evident intention of the legislature and no right or benefit to anyone depends upon its being given an imperative meaning.</p>

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

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Fulton county; the Hon. Robert J. Grier, Judge, presiding. This was a petition filed March 13, 1909, by Harvey H. Atherton, as administrator de bonis non of the estate of William Hughes, deceased, in the circuit court of Fulton county, for an order to sell real estate to pay debts.

<p>1. Deeds—mere existence of fiduciary relation does not justify setting aside deeds. The. existence of a fiduciary relation between the grantor and grantee is not, of itself, ground for setting aside the deeds, where they were not procured through improper means or their execution attended with any circumstance of oppression or overreaching on the part of the grantee.</p> <p>2. Same—when deeds will not be set aside for zvant of capacity to make them. Deeds will not be set aside, in equity, upon the ground that the grantor was without capacity to make them, where the evidence shows that while the grantor was not as strong, mentally, as the average person, he was competent to and did transact the usual and ordinary business of a farmer, buying and selling personal property and borrowing money, and on several occasions testifying in court.</p> <p>3. Laches—right to relief, in equity, is not dependent upon the lapse of any fixed period of time. Where it is necessary to prevent fraud or great hardship, courts of equity will grant relief even after the Statute of Limitations applicable to actions at law has run; but in other cases, in order to accomplish the proper result, relief, in equity, may be denied though the period of limitation for actions at law has not expired.</p> <p>4. Same—when relief by way of setting aside deeds is properly denied. Relief, by way of setting aside deeds, is properly denied where the evidence establishes that the grantor and grantee were brothers; that the grantor was involved in domestic and financial difficulties and required the aid of the grantee, who, as business adviser and attorney, assisted in settling such difficulties; that the consideration for the. deeds was all the land was worth at that time and that no fraud or imposition was practiced upon the grantor, who for more than ten years after the déeds were made, (during which time the grantee’s receipts and papers were destroyed by fire,) accepted the monthly payments from the grantee, which constituted part of the consideration for the deeds.</p>

<p>1. Judgments and decrees—when an order of county court approving sale by surviving partner does not bind heirs. An order of the county court approving a sale by a surviving partner to herself of the partnership property is not binding upon the heirs of the deceased partner, who were not parties to the proceeding in the county court and had no knowledge of the order until long after the term at which it was entered.</p> <p>2. Trusts—equity has jurisdiction to set aside sale by trustee to himself. A trustee has no right, under the law, to become a purchaser at his own sale, and if a resort to deceit is had to effect the sale then the sale becomes fraudulent in fact, and in either case a court of equity has jurisdiction to set it aside.</p> <p>3. Same—what does not defeat right of beneficiary to have sale set aside. The fact that a third person is used as a means to effect the transfer to the trustee of title to property which he has held in trust does not defeat the right of the cestui que trust to have the sale set aside.</p>

<p>■ Writ op Error to the Circuit Court of Kane county; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. P. W. Gallagher, Judge, presiding.</p>

<p>1. Deeds—equity will not reform deed made without consideration. If a grantor attempts to make a deed without any valuable consideration and the conveyance is so imperfectly drawn as not to accomplish the grantor’s purpose, a court of equity will not lend its aid to make the gift perfect by reforming the deed.</p> <p>2. Same—when only question is whether there was a valuable consideration. Where it is clear from the evidence under a bill to reform a deed that the grantor intended to include certain lots in his conveyance, which were omitted from the description in the deed through the mistake of the scrivener, the only legal question as to the right of the complainant to relief is whether there was a valuable consideration for the conveyance.</p> <p>3. Same—when rendition of services by sister to brother is valuable consideration. Even though services rendered by one member of a family to another while residing together are presumed to be gratuitous, yet if a deed is executed to the member rendering such services, not as a gift to her by the grantor but to compensate her for the services rendered to the grantor and other members of the family, the deed, when executed, constitutes a contract for which there is a valuable consideration, and a court of equity may reform a clear mistake in the deed, even though there was no express contract for compensation before the deed was executed.</p>

<p>Writ of Error to the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>Writ or Error to the Appellate Court for the Third District;—heard in that Court on appeal from the Circuit Court of Shelby county; the Hon. James C. McBride, Judge, presiding.</p>

<p>1. Municipal corporations—water rates fixed by ordinance must be just and reasonable. Under the act of 1891 (Laws of 1891, p. 85,) the maximum rate fixed by ordinance to be charged by any individual, company or corporation authorized to supply water to a city and its inhabitants must be just and reasonable, and the question whether such rate is reasonable or unreasonable may be reviewed and determined by the circuit court.</p> <p>2. Same—water rate fixed by ordinance is presumed to be reasonable—burden of proof. Where a city council has exercised its judgment and fixed a maximum rate to be charged for water such rate must be presumed to be just and reasonable, as it is required to be by the statute; and if the water company, in a bill to enjoin the enforcement of the water-rate ordinance, alleges the rate to be unjust and unreasonable, it has the burden of proving that fact.</p> <p>3. Same—when watei- company must prove unreasonableness of water rate by showing actual results. Where the water-rate ordinance, the enforcement of which is sought to be enjoined, has been in force a sufficient length of time before the proofs are closed to enable the complainant company to prove actual results by showing earnings and expenses such proof should be made, and the question of the reasonableness of the rates should not be left to be determined from opinions and probabilities, in connection with facts existing when the ordinance was passed.</p> <p>4. Same—what does not estop a water company from insisting that water rate is too low. The fact that a water company brings a suit against a city to collect a water bill at the rate which the city has itself fixed by ordinance does not estop the company from insisting the rate is unreasonably low and should not be enforced.</p>

<p>1. Registration of title—what is not sufficient proof that abstracts of title zuere made in ordinary course of business. To authorize admission of abstracts of title in evidence under the provisions of the Torrens law it must be proved that they were made by makers of abstracts in the ordinary course of business, and the mere testimony of a witness that he knew the signatures and that they were those of persons or firms engaged in making abstracts, and that in his opinion, which was based solely on the appearance of the abstracts, they were made in the ordinary course of business, is not sufficient proof of that fact.</p> <p>2. Appeals and errors—judgment of affirmance is conclusive that there were no errors—effect where decree is affirmed in part. A judgment of affirmance by the Supreme Court is forever conclusive upon the parties that there was no error in the judgment or decree, not only as to objections actually made but as to all others that might have been made; and where a decree in equity is affirmed in part and reversed in part the same rule applies so far as the portion affirmed is concerned, and it cannot thereafter be impeached for error in the proceeding.</p> <p>3. Same—a party is presumed to urge all objections he has on first appeal. Where a case is determined by the Supreme Court on its merits, it will be presumed the appellant or plaintiff in error has no objections to urge against the record except those which he presents, and if any errors existed which were not presented he will not be permitted to urge them on a second appeal, which, in such cases, brings up nothing except proceedings subsequent to the remandment; and the court will take judicial notice of its own record to ascertain the facts.</p> <p>4. Same—parties are concluded by questions decided though reversal is on other grounds. If the court does not consider or decide questions raised by the appellant or plaintiff in error by his assignments of error and brief and argument and the judgment is reversed on other grounds, he is not concluded as to such questions on second appeal; but as to questions which were presented and decided, or which it was necessary to consider and which the court did consider, the judgment of the Supreme Court is conclusive upon the parties upon second appeal, even though the reversal was upon other grounds.</p> <p>5. Same—when objections are waived. Objections to the constitutionality of a statute and to the provisions of the decree which were not presented and argued by the appellant on his first appeal, although they existed, if at all, at that time, must be regarded as waived and cannot be urged by him upon appeal from a second decree, which is in precisely the same form as the decree which was reversed on the first appeal.</p> <p>6. Tax deeds—it cannot be presumed that sale was advertised to take place on certain date. A tax deed is invalid where there is no evidence that the day on which the precept was made and on which the sale opened was the day on which the sale was advertised, as, even if it could be presumed that the officer having the duty in charge complied with the law and advertised the sale, it cannot be presumed that he advertised it for a particular day.</p>

<p>■ i. Mechanics' liens—when waiver of lien is available to the owner of a building. Where a building contractor executes to a trust company, which is the owner’s agent for selling her bonds and accounting to her for the proceeds, a waiver of “any and all lien or right of lien” when the contractor shall have received a stipulated sum, the waiver is available to the owner of the building, whether the contractor receives such sum from the trust company or directly from the owner.</p> <p>2. Same—a general waiver of lien must be enforced as made. While a waiver of lien for a clearly expressed special purpose will be confined by the courts to the purpose intended, yet where a general waiver is executed and there is -nothing in the context to show a contrary intention, there is nothing left for the court to do but enforce the contract as the parties have made it.</p> <p>3. Same—mechanics’ liens exist only by virtue of statutes—such statutes must be strictly construed. Mechanics’ liens were not recognized by the common law nor allowed in equity, independently of statutes, but they exist only by virtue of statutes creating them and providing a method for their enforcement, and such statutes must be strictly construed with reference to all requirements upon which the right to a lien depends.</p> <p>4. Same—prior to the act of ipo¡ no personal decree was authorised where lien was not established. Prior to the amendatory act of 1903, concerning mechanics’ liens, there was no authority for the entry of a personal decree against the owner for the amount found to be due the contractor in case the latter failed to establish his right to a lien, .and such act was intended to give the court power to enter a personal decree under circumstances where no such power existed before.</p> <p>5. Same—constitutionality of laws establishing Kens for labor and materials is well established. The constitutionality of statutes authorizing liens in favor of persons whose labor and material have enhanced the value of real estate is well established, but the courts are inclined to limit such statutes to the creation of the liens and to appropriate means of enforcing them.</p> <p>6. Trial by jury—the right to trial by jury cannot be taken away, directly or indirectly. The right to trial by jury with respect to matters wherein such right existed at the time the constitution was adopted cannot be taken away, directly or indirectly, by transferring the jurisdiction to try purely legal cases to a court of chancery, where; according to usual practice, juries are not demandable as a matter of right.</p> <p>7. Same—the complainants waiver of jury by invoking aid of equity does not bind defendant. A party who invokes the jurisdiction of a court of equity thereby waives his right to demand a jury, but his action in that respect cannot deprive the defendant of his right to a jury trial if he is otherwise entitled thereto.</p> <p>8. Same—jury trial is not a matter of right in a chancery proceeding unless given by statute. Unless given by statute a jury trial is not a matter of right in a chancery proceeding, although the chancellor may submit an issue to a jury in any proceeding before him; but he is not required to do so in the absence of a statute, and his refusal cannot be assigned as error.</p> <p>9. Same—trial of feigned issue in chancery is not equivalent to a trial by jury. The trial of a feigned issue in a chancery proceeding is not equivalent to a trial by jury at law, as the verdict is merely advisory, and error committed in rulings on evidence or instructions in such case is of no consequence, if upon the whole record it appears that the decree was the result of the independent judgment of the chancellor upon the evidence.</p> <p>10. Constitutional law—constitutional provision as to a jury trial does not apply to trial of issues of fact in equitable actions. The constitutional provision relating to a jury trial does not apply to the trial of issues of fact in equitable actions, since, if it did, a court of equity would be compelled to grant a jury trial, when demanded, in all cases where the same issue would be triable by a jury in a common law action.</p> <p>11. Same—constitution guarantees a jury trial wherein the verdict is not merely advisory. Under the constitution a party is entitled, as of right, to a trial by jury according to the course of the common law and to a verdict which is -not merely advisory but is binding upon the court upon controverted questions of fact, and the question whether the right to a. jury trial exists in any given case depends upon the nature of the controversy rather than upon the form of action.</p> <p>12. Same—provision of Mechanic’s Lien act authorising a personal decree is invalid. The provision of section 13 of the Mechanic’s Lien act of 1903, (Laws of 1903, p. 236,) authorizing the court, in case it finds in any proceeding in chancery that no right to a lien exists, to render judgment as at law against the owner for the amount the contractor is entitled to, together with costs, in the discretion of the court, is unconstitutional, as being special legislation and as depriving a defendant of the right to trial by jury.</p>

<p>1. Judicial sales—vested remainder is subject to sale but contingent remainder is not. A vested remainder is subject to sale on execution issued on a judgment against the remainder-men, but a contingent remainder is not subject to such sale and a purchaser thereof acquires no title.</p> <p>2. Deeds—rule in Shelly’s case applies in Illinois only to fees simple. The rule in Shelly’s case applies, in Illinois, only to estates in fee simple and not to estates tail, and hence in Illinois a conveyance to one for life with remainder to the heirs of his body operates according to its terms, and the first taker has a life estate, only.</p> <p>3. Same—section 6 of Conveyance act does not apply where first taker has a life estate, only. Section 6 of the Conveyance act abolishes estates tail and with them the rule in Shelly’s case as applied to such estates; but said section has no application where there is a grant of a life estate and the remainder is not granted to the heirs of the life tenant in fee tail.</p> <p>4. Same—technical words are presumed to be used technically. Technical words are presumed to be used technically and words of definite legal signification are to be understood as used in their definite legal sense, unless the contrary appears upon the face of the instrument.</p> <p>5. Same—when words “heirs of the body” are words of purchase. The words “heirs of the body” are words of purchase where they are limited by the words “their heirs and assigns,” and as so limited they do not indicate descendants of the life tenant who are to take in succession, from generation to generation, but only the individuals who may be her heirs at her decease, and who themselves become ancestors from whom the succession is to be derived and from whom an estate in fee simple will descend.</p> <p>6. Same—the word “heirs” is a technical word of definite legal significance. The word “heirs” is a technical word having definite legal significance, and, when uncontrolled and unexplained by the context, must be interpreted according to its technical import, as denoting the persons appointed by law to succeed to real estate in case of intestacy.</p> <p>7. Same—when the words “heirs of the body” denote lineal descendants. The words “heirs' of the body” denote a limited class of heirs restricted to lineal descendants, and must be given their definite legal meaning where there are no words in the instrument which in any way limit or qualify them.</p> <p>8. Same—remainder to heirs or heirs of the body of living person is a contingent remainder. A conveyance of a present estate to the heirs or heirs of the body of a living person is void for uncertainty, because those who will take as heirs of a person cannot be known until his death; but a future estate may be limited to persons not ascertained or in existence if there is a present particular estate to support the remainder and the grantee will be in existence when the time arrives to enjoy the estate; such estate, however, is a contingent remainder.</p> <p>9. Same—when remainder is not granted either in fee simple or fee tail. A remainder “to the heirs of the body” of the life tenant, “their heirs and assigns,” is not granted to the heirs of the life tenant either in fee simple or fee tail, because it is not granted to the general heirs as it would be if in fee simple, but to a restricted class, who, instead of taking in fee tail, take in fee simple.</p> <p>10. Same—deed construed as creating a contingent remainder. A deed in which the granting and habendum clauses are identical, which grants the land described to “Franklin B. Hoppin and Sarah Hoppin, his wife, for and during their natural lives and for and during the life of the survivor of them, and at the death of the survivor of them to the heirs of the body of the said Sarah Hop-pin, their heirs and assigns,” creates a remainder in the heirs of the body of Sarah Hoppin, which is contingent during her life.</p> <p>11. Same—proper construction of section 6 of Conveyance act. Section 6 of the Conveyance act applies to conveyances which by the common law would have created an estate tail, and in such qase the first tenant becomes seized of a life estate, only, and the remainder vests in the person or persons who are in the class of persons to whom the estate may first pass on the death of the first grantee, as soon as such person or persons come into being.</p> <p>12. Same—what is necessary to justify construing grant to the heirs of a living person to mean children. A grant to the heirs of a living person may be construed as meaning children, provided there are expressions used in connection with the technical words which clearly indicate that they are not used technically.</p>

<p>1. Practice—what is “good and sufficient cause” for trying a case out of its order is for the court. What is “good and sufficient cause” for trying a case out of the order in which it is docketed is not defined by the statute but must be determined by the trial court, in the first instance, in the exercise of a sound legal discretion, which will be presumed by a court of review to have been properly exercised in the absence of a showing to the contrary.</p> <p>2. Same—what is not a sufficient showing that court abused its discretion in trying case out of order. An abuse of the trial court’s discretion in trying a case out of its order is not established by an affidavit showing that the case was advanced over several hundred cases but which fails to show that the defendants were not as well prepared to try the case then as though it had been tried later, the only argument being that they might have obtained a compromise if the case had not been tried until it was reached in regular order.</p> <p>3. Ejectment—statute concerning new trial upon payment of costs applies only to trial court. The statute which provides for the vacation of judgments in ejectment cases upon payment of the costs applies only to the trial court and has no reference to judgments rendered by the Supreme Court.</p> <p>4. Res judicata-—rule that party cannot assign successive errors on same record applies to ejectment suits. The rule that a party who fails to assign an error existing in the record at the time a first appeal is taken is estopped to assign such error upon a second appeal on the same record applies to ejectment suits.</p> <p>5. Same—when judgment of Supreme Court is res judicata on the second appeal in ejectment. Where the Supreme Court, in its opinion, on an appeal from a judgment in ejectment on a directed verdict for the plaintiff, finds there are no errors justifying a reversal but one, which was eliminated on the second trial of the case on the same pleadings and evidence, resulting in a like directed verdict and judgment, the judgment on the first appeal is conclusive against all errors assigned or which might have been assigned on the first appeal, including the directing of the verdict. (Ogden v. Larrabee, 70 Ill. 510, and Smyth v. Neff, 123 id. 310, followed.)</p> <p>6. Same—zvhen former judgment cannot be held conclusive of sufficiency of affidavit. The sufficiency of an affidavit for the introduction of secondary evidence of deeds in a new trial of an ejectment case cannot be held to be settled by the judgment on appeal in the former suit, where there is nothing from which it can be determined whether the language of the affidavit used on the last trial was the same as that of the one used on the first trial.</p> <p>7. Affidavits—when affidavit for secondary evidence is in substantial compliance with statute. An affidavit for the introduction of secondary evidence of a deed, which states, among other things, that the instruments he desires to use are “not in the power of affiant to produce and use on the trial of the above entitled cause,” is in substantial compliance with that portion of section 36 of the Conveyance act requiring a statement that the instrument is “not in the power of the party wishing to use it on the trial of any such cause.” (Nixon v. Cobleigh, 52 Ill. 387, followed.)</p>

<p>1. Jurisdiction—when recital of a decree must be accepted as true. Where the decree in a proceeding by an administrator to sell land to pay debts finds that each of the minor children (naming them) was personally served with summons more than ten days before the term, such recital must be accepted as true even though the summons in the record does not show proper service, where there was ample time to have issued and served another summons ten days before the first day of the term at which the decree was rendered and there is nothing in the record to show that this was not done.</p> <p>2. Infants—right of infant to Me bill to impeach a decree. A decree rendered against a minor may be attacked by him by an original bill for "fraud or errors appearing on the face of the decree, and the bill may be filed by the infant during his minority or within the period for prosecuting a writ of error after attaining his majority; and this right extends to all cases where the rights of innocent third parties will not be affected, and is not limited to cases involving jurisdictional questions.</p> <p>3. Same—extent of infant’s right to impeach decree. Where the rights of innocent third parties have not intervened and the subject matter of the original decree against a minor is in the hands of persons who were parties to the suit or in privity with ^uch parties, a bill may be filed by such minor for the purpose of setting aside such decree for fraud or for any error which appears on the face of the proceedings for which such decree would be reversed by a court of review.</p> <p>4. Same—when suit by minors must be determined as though questions were presented 011 writ of error. A bill by minors to impeach a decree ordering a sale of lands by an administrator must be treated the same as though the original decree were being reviewed by writ of error, where the only parties interested who were not parties to the original proceeding are a purchaser pendente lite and another person who acquired an interest in the land by paying a mortgage thereon but who does not occupy the position of an innocent purchaser.</p> <p>5. Judicial sales—purchaser has a right to rely upon decree of court having jurisdiction. A purchaser at a judicial sale who was not a party to the record has a right to rely upon the decree if the court had jurisdiction, and he will be protected against any errors or irregularities in the proceeding anterior to the sale.</p> <p>6. Same—real estate may be sold to pay widow’s award. The widow’s award is a preferred claim against the estate of her deceased husband, and if there is a deficiency of personal assets the real estate may be sold to pay the award.</p> <p>7. Same—heir takes real estate subject to its being sold for intestate’s debts. The lands of an intestate are held subject to the payment of his debts, and while the title descends to the heir, his estate is defeasible and liable to be defeated by an administrator’s sale if there is a deficiency of personal assets.</p> <p>8. Same—homestead estate is not subject to sale to pay debts. Upon the death of a householder intestate the fee of the homestead premises descends to his children subject to the widow’s right of dower and homestead and to the right of the children to occupy the homestead jointly with the widow until they, respectively, attain their majority, and it is error to decree a sale of the premises to pay the widow’s award without protecting the homestead interest of the children.</p> <p>9. Same—what is not ground for relief against decree of sale. Error in decreeing a sale of homestead premises without protecting the homestead interest of the minor children is not ground for setting aside the decree, where such children wait until they have attained majority and their homestead interest is extinguished before filing their bill.</p> <p>10. Lis pendens—one purchasing after bill is Hied takes subject to decree. One purchasing land after the filing of a bill to set aside a decree ordering a sale of the lands by an administrator holds his title subject to any interest that may be ultimately established in the parties as the result of the litigation.</p>

<p>Writ or Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Franklin county; the Hon. J. R. Creighton, Judge, presiding.</p>

<p>1. Courts—a motion to vacate judgment stays final judgment until motion is overruled. A motion to vacate a judgment, made during the term at which a judgment is entered, operates to stay-final judgment until the motion is overruled, and the court has jurisdiction to act upon and decide the motion at a subsequent term.</p> <p>2. Same—bill of exceptions may be tendered and signed after judgment becomes final. Where a motion to vacate a judgment and for a new trial is finally overruled the judgment becomes final and a bill of exceptions can then be tendered to be signed by the judge, as it cannot be known until the motion is overruled that a bill of exceptions will be necessary.</p> <p>3. Same—municipal court has power over its judgments for thirty days. For thirty days after a judgment is entered by the municipal court of Chicago that court has the same power over such judgment as the circuit court has during the term at which it renders a judgment, and the parties have the same rights.</p> <p>4. Same—municipal court judgment does not become final until motion to vacate is disposed of. If a motion to vacate a judgment of the municipal court is made within thirty days from the entry of the judgment such judgment does not become final until the motion is disposed of, even though a new trial is not asked for in the motion.</p> <p>5. Same—when it is not improper to allow exception to denial of motion for new trial. If a motion for new trial is overruled and judgment entered by the municipal court in the defendant’s absence, so that no exception could be taken, it is not improper, upon subsequently denying a motion to vacate the judgment, tó allow an exception to the denial of the motion for new trial.</p> <p>6. Practice—party who makes no objection to form of action cannot complain on appeal. Where the defendant to an action of assumpsit in the municipal court makes no objection to the form of action he cannot complain thereof in a court of review even though the case was tried upon different and inconsistent theories, sometimes as an action for assumpsit on the contract and sometimes as an action on the case for fraud and deceit.</p> <p>7. Same—disregard of forms of action does not justify disregard of substantive rights. Disregard by the parties of legitimate methods of stating a cause of action does not justify the courts in paying no regard to the substantive rights of the parties.</p> <p>8. Fraud—alleged fraud must concern an existing fact or facts. If an action is for fraud and deceit the fraud and misrepresentation must be concerning an existing fact or facts, and a mere promise to perform an act, though accompanied at the time with an intention not to perform it, is not such a representation as can be made the ground of action.</p> <p>9. Contracts—written contract is presumed to embody all the agreements of the parties. In an action upon a written contract it is presumed the contract contains the whole of the agreement and that all previous conversations concerning the matter are merged in the written agreement, and hence there can be no recovery of damages for breach of a promise which is not a part of the contract.</p> <p>10. Evidence—when representations by alleged agent are improperly proven. It is error to permit the plaintiff in a suit to recover damages for loss in a property trade with the defendant to testify that the broker who brought the trade proposition to him said he had been sent by the defendant and to state what the broker said the defendant had represented to him about the property, there being no proof of any authority of the broker to act for the defendant or make any representations.</p>

<p>1. Municipal corporations—ordinance passed in pursuance of express power will not be held unreasonable. An ordinance passed by a municipal corporation in pursuance of express legislative authority will not be held invalid by the courts as being unreasonable.</p> <p>2. Same—city has express authority to regulate piling of lumber within fire limits. Under clause 93 of section 1 of article 5 of the Cities and Villages act a city has express power to pass an ordinance to regulate lumber yards and the piling of lumber within the fire limits.</p> <p>. 3. Same—the fact that lumber-piling ordinance is not expressly limited to fire limits does not render it invalid. The fact that an ordinance prohibiting the piling of lumber within one hundred feet of any previously erected residence is not, by its terms, confined to the fire limits is not ground for holding the ordinance invalid in case the violation occurs within the fire limits, even though it might - be invalid as to violations occurring outside of such limits.</p> <p>4. Same—ordinance is not invalid because it does not apply if residence has not been built. The fact that an ordinance against piling lumber for storage or drying within one hundred feet of a residence does not apply to cases where the residence is built after the lumber is piled does not render the ordinance invalid for unjust discrimination, as the difference between vacant property and property already occupied by a residence is, in view of the object of the ordinance, a reasonable classification.</p>

<p>1. Deeds—what provision is a condition subsequent. A clause in a deed for a railroad right of way which provides that if the grantee shall fail to construct, build and continuously operate its proposed railway within two years between specified points then the land shall revert back and become the property of the grantors without re-payment of the consideration, is a condition subsequent.</p> <p>2. Same—a court of equity does not favor forfeiture. While a court of equity will enforce a forfeiture in a clear case yet it is not, favored, and if the enforcement of a forfeiture for non-compliance with a condition subsequent will work great injustice and hardship to the grantee and the grantor may be compensated in damages, the forfeiture will not be enforced.</p> <p>3. Same—when failure to completely perform condition within time specified does not justify a forfeiture. Failure of a railroad company to have its line completed and in continuous operation until some two months after the time provided for in the deed to the right of way does not justify a forfeiture, where the company attempted in good faith to comply with the condition on time, and where a forfeiture will result in great hardship and loss to the company and is 'not essential to preserve the grantor’s rights or prevent serious injury to him.</p> <p>4. Equity—a coicrt of equity has power to relieve against forfeiture. Where compensation for the breach of conditions in a deed can be made in money, a court of equity may relieve the grantee against forfeiture and require the grantor to accept reasonable compensation in money.</p> <p>5. Same—when damages may be proved without a cross-bill. Where an interurban railway company files a bill in equity to enjoin the prosecution of an ejectment suit and the forfeiture of a deed to right of way, and the defendant in his answer claims that he has been damaged by the company’s failure to build farm crossings, fences and culverts, as required by the deed, the court may hear evidence of such damage without the filing of a cross-bill.</p> <p>6. Evidence—what is not proper proof of damage. Testimony of witnesses that a land owner would be damaged $10 a year by reason of a railroad company’s failure to properly construct a right of way fence, $60 a year by reason of a farm crossing not being in proper condition and $30 a year for want of a proper drainage outlet, without stating the facts upon which such opinions are based, is not proper proof of damages from those causes.</p>

<p>1. Taxes—the right to enjoy exemption from taxation must be established by clear proof. The right to enjoy exemption from taxation can only be established by direct proof of all the facts necessary to authorize the exemption.</p> <p>2. Same—when credits belonging to a school are not exempt. Credits consisting of bonds and secured notes belonging to a school and representing money derived from tuition, board and other income of the school, not including donations for a particular purpose, are not exempt from taxation as property of a school not used with a view to profit, even though it is stipulated that the income is used for the maintenance of the school and the benefit of its students.</p> <p>3. Same—fund donated to school to establish free scholarships is exempt from taxation. A fund donated to a school for the purpose of establishing free scholarships, which fund must be kept invested and the principal thereof intact, the income only being used for the restricted purpose specified by the donor, is exempt from taxation as property of the school not used with a view to profit.</p> <p>4. Same-—when penalty should not be imposed for failure to file schedule. Where the failure of a tax-payer to file a schedule of property subject to taxation is not the result of any attempt at concealment but from an honest belief that such property is exempt from taxation under the law, the penalty provided for by section 19 of the Revenue law should not be added.</p>

<p>1. Appeals and Errors—questions not raised in trial court are deemed zvaived. The question of the right of a complainant to file a bill to remove a cloud because the land was neither vacant nor in his possession will be deemed waived if not raised in trial court.</p> <p>2. Deeds—when delivery of deed from father to infant son is presumed. Delivery of a deed from a father to his minor son will be presumed where the deed, which was beneficial to the child, was recorded by the father even though he retained it in his possession, as his possession, in such case, is in accordance with his duty as a parent to accept and preserve the deed for the child.</p> <p>3. Same—equity will not aid grantor to set aside deed made in fraud of creditors. Equity will" not aid a grantor in setting aside a deed which he executed for the purpose of placing the property beyond the reach of his creditors.</p> <p>4. Same—rule where the description of land can apply to tzuo tracts. Where the description in a deed may refer to two tracts of land, one of which was not owned by the grantor, it will be presumed that he intended to convey the tract which he owned.</p> <p>5. Same—a deed having two descriptions should be construed most strongly dgainst the grantor. A deed containing two descriptions should be construed most strongly against the grantor and in favor of the grantee.</p> <p>6. Same—description in a deed construed. A description in a deed conveying “the north-east quarter and the undivided seven-eighths of the north-west quarter of the north-west quarter of section 15,” described' as seventy-five' acres, more or less, will be held to mean “the north-east quarter of the north-west quarter and the undivided seven-eighths of the north-west quarter of the northwest quarter,” that being the land owned by the grantor, who did not own any land in the north-east quarter of the section.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding.</p>

<p>1. Evidence—when complainant may testify though defendants are claiming as heirs. The complainant in a bill for specific performance of a verbal contract relating to land is not competent to testify generally in the case where the defendants are claiming as heirs of the deceased promisor; but he is competent, under the exception in the statute, to testify to the same conversations and transactions given in evidence by the defendants and may deny that he had any such conversation as the defendants testify to.</p> <p>2. Specific performance—oral contract relating to land must he clearly proved. An oral contract that one party shall have the other’s land at the latter’s death must be clearly proved and no doubt must be left as to its terms; but a court of review is not warranted in rejecting the testimony of witnesses who testified that they were present at times when the contract was stated between the parties, merely because such witnesses gave extravagant opinions as to the value of the promisee’s services to the promisor.</p> <p>3. Contracts-—declarations of one party in absence of the other are not binding on the latter. If there is an oral contract between parties whereby one party is to have the other’s land at the latter’s death, declarations of the latter in the former’s absence, inconsistent with the contract, are not binding upon the former.</p>

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

<p>1. Deeds—impairment of memory by reason of old age does not, of itself, show want of capacity. Impairment of the grantor’s memory by reason of old age does not, of itself, show a want of power to comprehend the transaction and to dispose of the property, and is not ground for setting aside the deed as against a preponderance of the evidence in favor of her ability to know and comprehend the nature of her act in making the deed.</p> <p>2. Same—when deed will not be set aside for undue infiuence. Undue influence, such as will avoid a deed, must go to the extent of depriving the grantor of free agency and must have been operating when the deed was made, and such influence cannot be said to exist where the grantee was not present when the deed was made, and there is no evidence to show that the idea did not originate entirely with the grantor or that the grantee exercised any influence over her at any time, other than would naturally flow from his kindness to the grantor in her times of need.</p>

<p>Information to disbar.</p>

<p>1. Constitutional law—it is no objection that title of act is more comprehensive than the act itself. The purpose of section 13 of article 4 of the constitution is to prevent the incorporation in an act of matters not fairly embraced in its title, and it is no objection that the title is more comprehensive than the act itself, provided it is not misleading or deceptive.</p> <p>2. Same—Parole law not invalid because title does not mention crimes excepted. The Parole law is not in violation of section 13 of'article 4 of the constitution because the title does not indicate that any crimes are to be excepted from the operation of the act, whereas the body of the act excepts the crimes of treason, murder, rape and kidnaping.</p> <p>3. Same—what is meant by “legislative power.” The term “legislative power,” as used in section 1 of article 4 of the constitution, means the power to enact laws for the regulation of future</p> <p>. conduct, rights and controversies, and does not mean that every action of the incumbents of offices created by the legislature must be expressly prescribed by law.</p> <p>4. Same—it is competent for the legislature to authorise boards created by it to formulate rules. It is not a violation of the provision of the constitution vesting the legislative power in the General Assembly to authorize boards created by the legislature to formulate rules for the performance of their duties and the exercise of their powers, in order to carry out the objects for which the boards were created.</p> <p>5. Same—the Parole law does not delegate legislative power to board of pardons. The powers granted by the Parole law to the board of pardons with reference to making rules and enforcing the same are not legislative powers within the meaning of the constitution, but are merely such powers as the legislature might lawfully confer. (George v. People, 167 Ill. 447, and People v. Joyce, 246 id. 124, adhered to.)</p>

<p>Appeal from the Circuit Court of Wayne county; the Hon. J. R. Creighton, Judge, presiding.</p>

<p>1. Wills—the punctuation or paragraphing of a will does not ordinarily control its meaning. The punctuation or paragraphing of a will will not ordinarily be permitted to control its meaning, but every part of the will must be considered in relation to every other part.</p> <p>2. Same—when residuary clause is not limited to personal estate. A residuary clause will not be limited to personal estate even though a prior clause, considered by itself, may devise a fee simple in the real estate, where it appears from a consideration of the entire will that a life estate, only, was intended to be devised in both real and personal property.</p> <p>3. Same—fact that clause uses words “rents” and “estate” indicates an intention to include real estate. A clause in a joint will giving all the ■ personal property to the survivor, “who also shall have the entire benefit of all incomes, rents, interests, etc., of the estate left to said survivor to be used by him or her as the case may be free and undisturbed during his or her natural life,” refers both to real and personal property and limits to a life estate a prior devise of the real estate to such survivor.</p>

<p>1. Taxes—town may levy small sum for contingent expenses. A town may levy a small sum for “contingent expenses” without specifying the purposes of the tax with any greater particularity, and if the, only objection to such tax is that the items going to make up the total amount are not specified, there being no claim that the amount is excessive, the objection is properly overruled.</p> <p>2. Same—electors cannot levy tax to pay outstanding claims against town. The statute does not authorize the electors at a town meeting to levy taxes to pay outstanding charges and claims against the town, and as the electors derive their taxing powers solely from the statute, any tax levied by them for a purpose not authorized is void.</p> <p>3. Same—when hoard of town auditors must audit claim. The action of the electors at a town meeting in providing for the building of a town hall and for the payment of the indebtedness therefor in three yearly installments creates a charge against the town and exhausts the power of the electors, and it is then the duty of the board of town auditors each year to audit an installment of the claim and certify the same to the town clerk, to be included by him in the amount certified by him to the county clerk to be raised by taxation.</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. Lockwood Honore, Judge, presiding.</p>

<p>1. Practice—motion to dismiss, made in open court, need not be in writing. A motion to dismiss the petition, made on the hearing of a special assessment proceeding, need not be in writing.</p> <p>2. Special assessments—when provision of section 48, concerning waiver of further controversy, does not apply. The provision of section 48 of the Local Improvement act that an order overruling legal objections shall not be deemed a final disposition of the case unless the “objectors shall waive further controversy as to the remaining question upon the. record,” was not intended to refer to the disposition of objections to a special assessment for benefits which are a part of a condemnation proceeding, as such a proceeding is governed by sections 13 to 32 of said act.</p> <p>3. Same—question of benefits in condemnation proceeding may be heard by the court if jury is waived. Where property is sought to be assessed for benefits to aid in paying for property condemned by a city for a local improvement, the question of benefits may be tried by the court if a jury is waived.</p> <p>4. Same—section 14 requires only the copy of the condemnation ordinance to be attached to petition. Section 14 of the Local Improvement act, relating to the filing of a petition to assess benefits to pay for property condemned for the purpose of a local improvement, requires a copy of the condemnation ordinance to be attached to the petition but does not require a copy of the improvement ordinance to be also attached.</p> <p>5. Same—question whether improvement ordinance is valid is raised when it is introduced in condemnation proceeding. When the ordinance providing for the construction of a local improvement requiring the condemnation of land is introduced in evidence in the proceeding to ascertain the compensation and assess benefits attending the condemnation of the land, the question whether the improvement ordinance is valid is properly raised.</p> <p>6. Same—what objections cannot be raised in a condemnation proceeding. Where, so far as appears from the record in a proceeding to ascertain compensation and assess benefits for the condemnation of land required for sewage purification works, the city has by valid ordinance made provision for the construction of the improvement and that no further action on the part of the city will be required before the improvement is constructed, objections that property will not be benefited by reason of defects in the improvement as described in the ordinance cannot be raised.</p>

<p>1. Deeds—when a deed from zvife to husband is not without consideration. A deed executed by a wife to her husband upon his agreeing to pay certain amounts to her children by a former husband when they, respectively, become of age, which agreement is carried out by him by executing notes for such amounts and paying the notes when due, is not without consideration, and a court of equity has jurisdiction to correct a mutual mistake of description in the deed.</p> <p>2. Same—when the deed is presttmed to have been delivered. Where a husband has in his possession, after his wife’s death, a duly executed and recorded deed conveying certain land to him, and produces the deed for the purpose of having it corrected by a court of equity, it is presumed the deed was delivered, and clear and convincing evidence is required to overcome such presumption.</p> <p>3. Same—execution of a deed is proved by\ notary’s certificate. The execution of a deed is sufficiently proved by the certificate of acknowledgment of the notary public which is regular in form.</p> <p>4. Laches—laches 'not impzited to person in peaceable possession of land. Laches is not to be imputed to one in peaceable possession of land under a deed because of delay in resorting to a court of equity to correct a mutual mistake in the description of the premises conveyed.</p> <p>5. Costs—costs in chancery case rest within the discretion of the court. The awarding of costs in a chancery case is a matter of discretion with the court, and it cannot be said to be an abuse of such discretion to require the defendant to pay one-half the costs, where' he presented no substantial defense to the bill.</p>

<p>1. Commons of Kaskaskia—power to authorise sale of lands is in the State, only. The title to the commons of. Kaskaskia is in the inhabitants of the Parish of the Immaculate Conception of Kaskaskia, in trust for the use of the inhabitants, but the power to authorize a sale of the lands rests in the State. (Stead v. Commons of Kaskaskia, 243 Ill. 239, followed.)</p> <p>2. Same—management of the common property is determined by the majority. All authoritative acts in the management of the commons of Kaskaskia must be sanctioned by the will of the majority, but it is immaterial whether such will be manifested by ballot or petition, as both methods are appropriate and one is as effective as the other.</p> <p>3. Same—petition of the majority is binding upon the minority. •A petition by the majority of the inhabitants of the island of Kaskaskia, addressed to the legislatureoand asking for the enactment of a certain law relating to the management of the common property, is an assent binding upon all other inhabitants, whether the policy of the law requested is wise or unwise.</p> <p>4. Same—interest of inhabitant depends upon his being a member of the community. Each inhabitant of the island of Kaskaskia has the right to enjoy, in common with the other inhabitants, the common property so long as he remains a member of the community, but he cannot sell his right nor does it descend to his heirs, and if he removes from the community his right is lost.</p> <p>5. Same—effect of act of ipop, authorising sale of commons of Kaskaskia. The only effect of the act of 1909, (Laws of 1909, p. 425,) authorizing the sale of the commons of Kaskaskia, so far as the common property is concerned, is to provide for the conversion of land into securities, leaving unaffected the right of éach inhabitant to the benefit of the income of the securities for the support of the schools, to the same extent it was enjoyed before the act was passed.</p> <p>6. Constitutional law—act of ipop, authorising sale of commons of Kaskaskia, is valid. The act of 1909, (Laws of 1909, p. 425,) authorizing the Governor to appoint commissioners to sell the commons of Kaskaskia for the purpose of raising a fund, the income of which is to be used for the support of the schools of the island, is not invalid upon the ground that it deprives the inhabitants of their property without due process of law.</p> <p>7. Same—constitution does not prohibit all special legislation concerning schools. The provision of section 22 of article 4 of the constitution, that no special or local law shall be passed providing for the management of schools, is expressly restricted to the subject of the management of common schools and has no reference to a law passed for the support or establishment of schools.</p> <p>8. Same—the act of 1909, authorising sale of the commons of Kaskaskia, is not invalid as prohibited special legislation. The act of 1909, (Laws of 1909, p. 425,) authorizing the sale of the commons of Kaskaskia and the investment of the proceeds in interest-bearing securities, the income of which is to be used for the schools of the island of Kaskaskia, is not invalid as a special law providing for the management of schools, within the meaning of section 22 of article 4 of the constitution.</p>

<p>Writ or Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>x. Criminal law—it is the' province of the jury to determine the credibility of witnesses. It is the special province of the jury to determine the credibility of witnesses in a criminal case, and a court of review will not interfere with the verdict, as not being sustained by the proof, unless it is clearly wrong.</p> <p>2. Same—when alleged newly discovered evidence not ground for new trial. Alleged newly discovered evidence which is merely cumulative and impeaching, or which relates to matters of which the defendant must have had knowledge before the trial but about which he then said nothing, is not ground for new trial.</p> <p>3. Appeals and errors—abstract should show rulings and exception concerning matters complained of. If error is assigned on the admission and rejection of evidence, the abstract of record should show rulings of the court and objections and exceptions concerning the evidence complained of.</p>

<p>1. Wills—the law favors the vesting of estates at earliest possible moment. Estates devised will be held to vest at’ the death of the testator unless some later time for their vesting is clearly expressed by words of the will or is necessarily implied therefrom.</p> <p>2. Same—remainder is vested if there is a fixed right of future enjoyment in a person in being. A "remainder is vested where there is a right of present enjoyment or a fixed right to a future enjoyment in a determinate person after the prior estate ends.</p> <p>3. Same—a remainder may be vested subject to being divested on condition. An estate may be vested and a clause added introducing a condition upon the happening of which it will be divested.</p> <p>4. Same—a remainder is vested where postponement of enjoyment is merely to let in prior estate. Where the enjoyment of the remainder is postponed merely for the purpose of letting in a prior estate the remainder is vested.</p> <p>5. Same—testator is presumed to have intended to dispose of his entire estate. A testator is presumed to have intended by his will to dispose of his entire estate and not to die intestate as to any part thereof.</p> <p>6. Same—when the interest of beneficiaries is vested. Where a will creates a trust, to continue during the joint lives of the testator’s wife and sister, or the survivor of them, and at the end of that period the trust estate to go, belong to and immediately be divided in absolute ownership among ten named beneficiaries who were in being at the testator’s death, the interest of the beneficiaries vests at the testator’s death, there being no survivorship clause as to the beneficiaries, the only provision being, that if any of them died- before their interest vested in them, their children, if any, should take the parents’ share, as the latter provision is referable as well to their dying before the testator as after.</p> <p>7. Same—what does not render remainder contingent. A remainder to ten named persons after the termination of the preceding life estate is not rendered contingent by a provision that if any of them are minors at the time the estate vests in them the trust shall continue as to the interest of such minors until they attain their majority.</p> <p>8. Same—when renunciation by widow accelerates remainder. Where an estate is devised in trust for the joinf lives of the widow and sister of the testator, or the survivor of them, with remainder to named beneficiaries, the postponement of enjoyment of the remainder being merely to let in the estates of the widow and sister, renunciation by the widow of the provisions of the will accelerates the remainder, and upon the death of the sister the remainder-men are entitled to the enjoyment of their estates.</p>

<p>1. Elections—a proceeding to contest election is purely statutory. A proceeding to contest an election is purely statutory, and in the absence of a statute conferring jurisdiction the courts are without power to entertain such a proceeding.</p> <p>2. Same—the county court has no jurisdiction to hear contest of election on a hard roads proposition. The jurisdiction of the county court to hear election contests is limited to contests of the election of officers, and does not include an election upon the proposition to levy a special tax to build a hard road.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.</p>

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