Volume 250 — Illinois Reports

<p>1. Courts—a court has full control over its orders during the term. A court has full power and control over its judgments and orders during the term at which they were entered, and they may be modified or vacated, upon proper showing, as justice requires.</p> <p>2. Same—extent to which approval of an appeal bond deprives trial court of jurisdiction. The approval and filing of an appeal bond deprives the trial court of power to enter any further orders affecting the rights of the parties while the order approving the bond remains in force.</p> <p>3. Same—court may, at same term, set aside an order approving appeal bond, vacate judgment and grant a new trial. During the term at which an order approving an appeal bond is entered the trial court has power to set aside such order, and if the judgment appealed from was rendered at that term may vacate the judgment and grant a new trial. (Briggs v. Dunne, 163 Ill. 36, followed.)</p>

<p>1. Registration of title—copy of certified copy of abstract of title is not admissible. Section 18 of the Torrens law, authorizing the admission in evidence of abstracts of title, or certified copies thereof, made in the ordinary course of business by makers of abstracts, does not authorize the admission in evidence of an uncertified copy of a certified copy of an abstract.</p> <p>2. Same—when continuations of abstract are properly admitted in evidence. A continuation of an abstract is properly admitted in evidence in a title registration proceeding, where a witness testifies that it was made in the ordinary course of business, under his supervision, by the abstract-making company by whom he was employed, and that it was signed by him, as secretary of the company; so, also, is a continuation shown by a witness to have been made, under his supervision, in the recorder’s office in the usual course of business and signed by the recorder.</p> <p>3. Same—decree should not order registration of title in advance of reimbursement under tax deed. A decree in a proceeding to register title should not provide for the registration of title in advance of reimbursement to the holder of the tax deed set aside by the decree, even though the decree provides for the dismissal of the application if the reimbursement is not made' within thirty days from the entry of -the decree.</p>

<p>1. Constitutional law—matter of paying expenses of township election is within title of the City Elections act. A township election, so far as that part of the territory of the town within the boundaries of a city is concerned, is an election within the city, and the matter of providing for the expense of such election is within the title of the City Elections act.</p> <p>2. Same—sections p and 10 of article p of constitution do not refer to townships. Sections 9 and 10 of article 9 of the constitution, prohibiting the imposition of taxes upon a municipal corporation except by its corporate authorities and for its corporate purposes, do not refer to townships, as a township, like a county, is a public corporation, which exists only for public purposes con- - nected with the administration of the State government.</p> <p>3. Same—township and its revenues are subject to legislative control. A township, as well as its revenues, in the absence of express constitutional restriction, is subject to legislative control, so long as its property is not diverted from the use and objects for which it was given or obtained.</p> <p>4. Elections—the legislature has power to apportion expense of township election under City Elections act. The legislature has the power to apportion the expenses of a township election held under the provisions of the City Elections act among the township, county and city.</p> <p>5. Same—when township should pay judges and clerks of township election. Article 7 of the City Elections act requires the county to pay salaries of election commissioners and clerks and the city to pay the expenses incurred by the board of election commissioners; and while there is no express provision that the township shall pay the judges and clerks in a township election, yet it is proper for the township to pay them, unless, as in case of the election of township officers at a city election, there is some provision of the statute to the contrary.</p> <p>6. Same—a township is not liable for rent of polling places in city. Where a township election within the limits of a city, which includes a part of the township, is held under the City Elections act, the township is not liable for the rent of the polling places in the city or for printing and miscellaneous expenses occasioned by holding the election under that act.</p>

<p>1. Garnishment—jurisdiction in garnishment depends on the place of residence of garnishee. The question of the jurisdiction of the court in a garnishment proceeding depends upon the place of residence of the garnishee, where his creditor could maintain an action against him for the debt.</p> <p>2. Same—the effect where garnishment suits are begun in two States. Where garnishment suits are begun in courts of different States having concurrent jurisdiction the pendency of one suit can not be pleaded in bar of the other, but the recovery of a judgment and payment thereof in one suit, after a full disclosure of the pendency of the other 'and without collusion, will bar the other suit, regardless of which, suit was first begun.</p> <p>3. Same—when payment of an Illinois judgment bars foreign garnishment suit. Where a judgment is recovered in Illinois for wages exempt from garnishment before a judgment has been rendered in a garnishment suit in another State for the same debt, the payment of the Illinois judgment is a bar to the foreign suit, notwithstanding the latter suit was begun before the suit in Illinois was instituted.</p> <p>4. Same—when rule that court first acquiring jurisdiction may retain it does not apply. The rule that where courts have concurrent jurisdiction the one first acquiring jurisdiction may retain it does not apply where the courts are in different States, and in such case both suits may proceed until judgment is recovered in one suit, when it may then be set up in bar of the other.</p> <p>5. Same—effect where defendant appeals from Illinois judgment instead of paying it. Where a railroad company is sued before a justice of the peace in Illinois for wages exempt from garnishment and judgment is recovered against it before a judgment has been rendered by a justice of the peace in another State in a garnishment proceeding for the same debt, the company may pay the Illinois judgment and plead it in bar of the other suit; but if it elects to appeal to the circuit court and judgment is in the meantime recovered in the foreign State, the company is not entitled to pay the foreign judgment and rely upon it as a defense.</p> <p>6. Conflict of laws—State must enforce laws made for benefit of its citizens. It is the duty of the courts of a State to enforce within its borders laws made for the benefit of its citizens, such as a law exempting from garnishment wages due a wage earner residing in the State with his family.</p> <p>7. Same—when garnishee’s .payment of foreign judgment does not bar payment of Illinois judgment. By the service of garnishment summons in a foreign State the plaintiff acquires an inchoate lien upon the debt and the garnishee cannot thereafter make a voluntary payment, but the plaintiff’s right to a lien depends upon subsequently obtaining judgment; and if such judgment is not recovered until after a judgment has been recovered in Illinois for the same debt by a court of concurrent jurisdiction, the payment of the foreign judgment will not protect the garnishee against payment of the Illinois judgment.</p>

<p>1. Railroads—when electric road is not required to maintain fence at highway intersection. Section i of the act relating to the fencing and operation of railroads does not require that a fence be erected across a walk leading to a station platform of an electric railroad at the intersection of its right of way with a highway, where all other parts of the right of way are fenced and cattle-guards placed as required by law.</p> <p>2. Same—question whether use of a third rail is common law negligence is a question of fact. Whether the use by an electric railroad of a third rail charged with electricity is common law negligence under the circumstances shown in a particular case is a question of fact, upon which the finding of the Appellate Court is conclusive.</p>

<p>1. Deeds—when rule in Shelly’s case does not apply. The rule in Shelly’s case does not apply to a deed where the limitation over is not to' the heirs of the grantee but to the heirs of the grantor.</p> <p>2. Same—when deed conveys estate for grantor’s life. A deed conveying to the grantee, his heirs and assigns, certain described land, and containing, in the granting clause, a provision that the deed is to remain in force only during the lifetime of the grantor and that at her death the property shall revert to the grantor’s heirs, conveys to the grantee and his heirs and assigns only an estate for the life of the grantor.</p> <p>3. Limitations—what proof not sufficient to show ouster of co-tenants. Testimony by the defendants to a bill in chancery to the' effect ‘that since they went into possession of the land in controversy their possession had been exclusive and peaceable, that they exercised acts of ownership and claimed to own all the land, that they paid the taxes thereon regularly every year and that no person claimed the premises adversely, does not show an ouster of other tenants in common nor show a title by limitation.</p> <p>4. Same—a bond for a deed is not color of title. A bond for a deed is not color of title and will not support a title by adverse possession and payment of taxes for seven years.</p> <p>5. Equity—when bill should not be dismissed. Where the evidence in a proceeding in chancery to recover an interest in land fails to establish the complainants’ full claim but shows that they have some interest in the land the extent of which depends upon further proof, the bill should not be dismissed but an opportunity should, be given to supply the proof necessary to show their exact interests.</p>

<p>1. Highways—fences determine width of highway not laid out under the statute. Where a road is not originally laid out, under the statute, by the commissioners of highways, its width is to be determined by the fences built by owners on each side of the road, whether the road is claimed to exist by dedication or prescription.</p> <p>2. Same—whether owner dedicated strip between hedge fence and rail fence is a question of fact. Where a land owner plants a hedge several feet inside of a rail fence which separates his land from a road and subsequently removes the rail fence, the question whether he dedicated the strip between the hedge and the rail fence as a part of the road is a question of fact to be determined from all the facts and circumstances in the case, including the fact that hedge trimmings were allowed to accumulate thereon.</p> <p>3. Evidence—when alleged error in not admitting evidence is harmless. Alleged error in refusing to admit in evidence in a road obstruction case a certain order and a copy of a petition offered on the question of the width of the road is harmless where they could have no material influence on the result of the trial, the road not being one laid out under the statute, and the issue being whether a land owner, by removing the original rail fence after his hedge had grown, dedicated the strip between the fence and the hedge or suffered the public to acquire a prescriptive right therein.</p>

<p>1. Criminal law—when prosecutor cannot be required to elect. If two or more offenses charged in an indictment grow out of one transaction and are of such a nature that the defendant may be found guilty of both, the prosecutor will not be required to elect for which offense he will prosecute, and he will only be required to do so when the offenses charged are distinct and do not arise out of the same transaction.</p> <p>2. Same—counts charging arson and burning goods to defraud insurance company may be joined. Counts charging arson may be joined in the same indictment with counts charging the burning of goods to defraud an insurance company where the two offenses grow out of one and the same transaction.</p> <p>3. Same—the trial judge must exercise discretion in examining witnesses. While it is not ordinarily good practice for the trial judge, in a criminal case, to examine the witnesses, it may, under some circumstances, be his duty to do so, but in discharging that duty he must exercise discretion and not assume the functions of an advocate.</p> <p>4. Same—State’s attorney Should rarely be permitted to cross-examine witnesses examined in chief by the court. The practice of allowing the State’s attorney to cross-examine witnesses who have been examined in chief by the court is not to be commended, and should not be indulged in unless it is shown that otherwise there may be a miscarriage of justice.</p> <p>5. Same—court must exercise great care in expressing opinions. Expressions of opinion by the trial judge in a criminal case are likely to have great weight with the jury, and great care must be observed by him to say nothing to the prejudice of either party.</p>

<p>1. Statute of Frauds—Statute of Frauds is for the prevention of frauds. A court of equity will not permit the Statute of Frauds to be used for the perpetration of a fraud, and will therefore enforce an oral contract which has so far been performed by one party that to permit its repudiation by the other would accomplish a fraud.</p> <p>2. Same—oral contract may be taken out of Statute of Frauds by part performance. An oral contract for the sale of real estate may be taken out of the Statute of Frauds by the payment of purchase money, the taking of possession and the making of lasting and valuable improvements; but these acts of performance must have been done by virtue of the contract sought to be enforced and for the purpose of performing it.</p> <p>3. Same—mere holding over by tenant is not a part performance of oral contract to convey. The mere continuance of possession by a tenant after the expiration of his lease is not a part performance of an oral contract by the lessor to convey the land; but the question whether such possession is under the contract or the lease is one of fact.</p> <p>4. Same—tenant not required to surrender possession to change its character. It is not .necessary that a tenant surrender possession upon the termination of his lease in order to change the character of his possession from lessee to that of a vendee under an oral contract of sale; but that question is to be determined from all the circumstances, including his expenditure of money in making improvements.</p> <p>5. Specific performance—bill need not aver that corporation’s contract was authorized. A bill for the specific enforcement of an oral contract made by a corporation for the sale of land need not allege that the contract was authorized by the board of directors, although the complainant must prove authority if it is denied by the defendants.</p> <p>6. Same—when the description in a contract is not indefinite. Where an oral contract for the conveyance by a lessor to a lessee of a certain portion of a tract of land owned by the lessor describes the tract to be sold as 427.5 three-thousandths of the said land, to be located in the south part thereof and to include the lessee’s temporary buildings and be bounded on the north by a line parallel with a designated street, the description is not indefinite, since the parallel line referred to must be the one which will have south of it 427.5 three-thousandths of the tract owned by the lessor.</p> <p>7. Same—bill need not allege that the complainant has not received anything else in lieu of deed. Where a bill for specific performance alleges that the defendant agreed to convey certain land to him as part payment for services performed, it is not necessary that the bill allege that complainant has not received anything else in lieu of the deed, as the allegation and proof as to such fact, if it exists, should come from the defendant.</p>

<p>1. Bills and notes—promissory note defined. A promissory-note may be defined as a written promise by one person to pay to another person named therein, or order, a fixed sum of money at all events and at a time specified therein or at a time which must certainly arrive; and this definition substantially meets the requirements of the Negotiable Instruments act of 1907.</p> <p>2. Same—provision for extension of time after maturity does not render note non-negotiable. A provision in a promissory note that “in case said note is not paid at maturity, that it is at the option of the holder hereof to extend, as he deems proper, the payment of the above note, and that said extension shall not in any manner release one or either of us from payment hereof,” does not render the note non-negotiable, as the negotiability of a note, for all practical purposes, ends when it is due.</p> <p>3. Same—when purchasers may maintain action in their own names. If a note is negotiable, the endorsement of the name of the payee on its back and its sale and delivery to purchasers authorizes such purchasers to maintain an action in their own names against the administrator of the deceased maker.</p> <p>4. Evidence—when genuineness of signature cannot be proved by comparison. The genuineness of a signature cannot be proved by comparison with other admittedly genuine handwriting or signatures which are not admissible in evidence for other purposes or not already a part of the record; but comparison may be made by the jury, with or without expert testimony, when other writings or signatures admitted to be genuine are already" in the case.</p> <p>5. Same—fact that signatures are exactly alike is evidence that one was traced. The fact that two signatures are exactly alike is evidence that one was traced or otherwise reproduced from the other or that both were reproduced from still another.</p> <p>6. Same—when evidence to show that signatures are fác similes is admissible. Where it is claimed by the administrator in a suit against him on a note that the signature of the deceased was forged, another note purporting to be signed by the deceased, and one payable to and purporting to bear an endorsement by him, may be introduced in evidence, together with the testimony of experts, to show that the three signatures are fac similes, without violating the rule against proving handwriting by comparison.</p> <p>7. Same—photographic copy of a note is admissible if proper foundation is laid. If a proper foundation is laid by showing that the original instrument, bearing a signature which is desired to be used in evidence, is in the files of a case in a court of another State and that permission to .withdraw the instrument has been denied and that it cannot be produced, a photographic copy, shown to be accurate, is admissible.</p> <p>8. Same—what .evidence not competent as tending to prove an admission that note was good. In an action against an administrator on a note purporting to be . signed by the intestate, evidence that the purchaser, at the time he was negotiating for the note, showed it to the defendant and his brother, who were sons of the supposed maker, and asked them if the note was all right and that they made no reply, is not admissible, as their statements or admissions would not be binding upon the other heirs-at-law.</p>

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

<p>1. Railroads—party owning farm land on both sides of railroad is entitled to a farm crossing. A person owning farm land on both sides of a railroad is entitled to a farm crossing, under the act relating to the fencing and operation 'of railroads, regardless of whether he purchased the land on one side after the railroad was constructed or what his motive was in buying the land.</p> <p>2. Same—whether land is farm land and is used in connection with other land are questions of fact. Whether a small tract of land on one side of a railroad is farm land used in connection with the owner’s farm on the other side, or whether it is an independent tract used separately from the other land, are questions of fact.</p> <p>3. Same—the rule where two parallel adjoining railroads pass through farm. Where two railroads parallel with and adjoining each other pass through a farm the farm adjoins each railroad though each part of the farm may not touch them both, and the owner of the farm is an adjoining land owner as to each railroad and is entitled to the benefit of. statute relating to farm crossings.</p> <p>4. Same—what does not excuse railroad company from putting in farm crossing. The fact that one of the two parallel adjoining railroads running through a farm is an electric railroad does not authorize the steam railroad to object to putting in a farm crossing upon the ground that the owner of the farm may not be able to compel the electric road to put in such crossing.</p> <p>5. Same—notice to railroad to put in farm crossing need not specify its precise location. The notice to a railroad company to put in a farm crossing should describe lands on which the crossing is to be built, but it is not necessary to state the precise place where the crossing shall be located, as neither the owner nor the company has an absolute right to determine such location irrespective of the interests of the other and the safety of the public.</p>

<p>1. Mortgages—sale under foreclosure decree is a sale of all the interest of every party. A sale of land under a decree of foreclosure is a sale of every interest in the land belonging to any party to the suit and discharges the land from every lien of such party, and all interests are merged in the certificate of purchase.</p> <p>2. Same—right of creditor to redeem does not depend upon any lien. The right of a judgment creditor to redeem from a foreclosure sale does not depend upon any lien on the property but exists solely by reason of section 20 of the act concerning judgments, decrees and executions.</p> <p>3. Same—creditor’s judgment may be in any county or court in the State. The only requirement of section 20 of the act concerning judgments, decrees and executions, which gives a creditor the right to redeem from a foreclosure sale, is that the creditor shall have a judgment upon which an execution is authorized to issue, and it may be in any county or any court in the State.</p> <p>4. Same—party may have right to redeem both as a party interested and as a judgment creditor. A party may have a right to redeem from a foreclosure sale both as a person interested in the premises under section 18, and as a judgment creditor under section 20, of the act concerning judgments, decrees and executions.</p> <p>5. Same—party to foreclosure suit may redeem as a judgment creditor. The fact that a person is a party to a decree foreclosing a mortgage does not prevent such person from redeeming from the foreclosure sale after’ twelve months and within fifteen months from the sale, provided he obtains a decree or judgment so as to bring himself within the terms of the statute.</p> <p>6. Ejectment—when the parties claiming under junior encumbrance cannot maintain ejectment. If the foreclosure of a first mortgage, the sale, redemption and subsequent conveyances are in conformity with the law, the title of the mortgagor and all other parties to the suit becomes vested in the grantees, and ejectment cannot be maintained against them by persons claiming through a junior mortgage.</p> <p>7. Judgments and decrees—finality of a foreclosure decree where unknown owner is notified by publication. Where a person is made a party to a foreclosure proceeding by publication as an unknown owner, the decree is for three years subject to the right of such person, under section 19 of the Chancery act, to appear and answer the bill, but, subject only to that right, the decree is final, and enforceable the same as if had on personal service.</p>

<p>1. Criminal law—bigamous marriage and subsequent cohabitation are distinct offenses. The offenses of a bigamous marriage and subsequent cohabitation are so far distinct that an indictment charging the bigamous marriage may be presented in the county where- such marriage took place and an indictment charging the unlawful cohabitation be presented where cohabitation took place.</p> <p>2. Same—a prosecution for unlawful cohabitation must be carried on where cohabitation took place. While it was within the power of the legislature to provide, in section 28 of the Criminal Code, that cohabitation under a bigamous marriage shall be punishable as bigamy, yet the prosecution for such offense must be begun and carried on where the cohabitation took place.</p> <p>3. Same—averment that lawful wife was alive when cohabitation with bigamous wife occurred is essential. Where a prosecution for bigamy is based upon the continued cohabitation under a bigamous marriage, it is essential that the indictment allege that the lawful wife was alive when such cohabitation took place, and an averment that she was alive when the bigamous marriage in another county took place is not sufficient. (Tucker v. People, 117 Ill. 88, disapproved.)</p> <p>4. Same—no presumption can be indulged to aid defective indictment. Failure of an indictment to aver that the defendant’s lawful wife was living when the cohabitation between the defendant and his bigamous wife occurred cannot be aided by any presumption as to the continuance of life of the lawful wife, who was averred to have been alive when the bigamous marriage took place in another county.</p>

<p>1. Evidence—parol evidence showing waiver of provision of a written contract does not vary the contract. An executory contract under seal cannot be modified by parol evidence so as to introduce any new element into the contract or add any new terms thereto, but parol evidence showing a waiver of some provision does not alter or modify the contract.</p> <p>2. Same—waiver of covenant in sealed contract may be shown by parol. A party for whose benefit a covenant is inserted in a written instrument may waive such covenant by parol agreement notwithstanding the instrument is under seal, and such waiver may be proved by oral testimony in a suit by the other party to enforce his rights under the written instrument.</p> <p>3. Ante-nuptial contracts—when heirs are estopped to say that contract should not be enforced. Where an ante-nuptial contract provides that the husband shall have the wife’s property absolutely if she predeceases him, and he covenants, among other things, to keep up a certain life insurance policy or its equivalent during the wife’s lifetime, the heirs of the wife are estopped, after her death, to insist upon a forfeiture of the contract because the covenant as to the insurance had not been kept by the husband, where the evidence clearly shows that the wife waived the performance of the covenant by insisting that the husband should not carry any insurance.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.</p>

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

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

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

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

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

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

Appear from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.

<p>1. Criminal law—a motion for separate trial is addressed to sound discretion of court. A motion for the separate trial of certain defendants in a criminal case is addressed to the sound discretion of the trial court, and a denial of the motion will not be reviewed unless it is clear that the trial court abused its discretion.</p> <p>2. Same—value of confessions as evidence depends upon circumstances under which they were made. The value of confessions as evidence depends upon the circumstances under which they were made, and it is for the jury to say, in view of such circumstances, what weight they are entitled to.</p> <p>3. Same—when confessions are admissible. Oral statements in a foreign language, written down in English by one police officer in the presence of another, both of whom were fellow-countrymen and understood the language of the declarants, who signed the confession after it had been translated to them, sentence by sentence, are admissible in evidence where the declarants do not deny that the statements were voluntarily made, although they claim they were not correctly transcribed or translated to them.</p> <p>4. Same—jury must decide whether confessions or testimony are true. Where the testimony of defendants in a criminal case is in conflict with their confessions and affidavits made before the trial, it is for the jury to determine which to believe.</p> <p>5. Same—when co-conspirators are guilty of murder. Persons who conspire together to do an unlawful act, which includes an assault upon the person of another, must be presumed to have intended to use whatever means may appear to be necessary to overcome such person’s resistance in order to enable them to carry out their design, and if one of their number kills such person in the assault upon him all the conspirators are guilty of murder.</p>

<p>1. Practice—when bill of exceptions in the municipal court is signed in time. If one extension of sixty days’ time to file a bill of exceptions in a municipal court case of the first class is properly allowed and the bill is signed and sealed by the judge within such sixty days the bill is signed and sealed within the time required by section 38 of the Municipal Court act.</p> <p>2. Same—party cannot be prejudiced by delay of judge in signing bill of exceptions. If a bill of exceptions is presented to the trial judge at such time that it can be filed within the prescribed time if signed and sealed, the party will not be prejudiced by the neglect or delay of the judge to sign the’ bill until after the prescribed time.</p> <p>3. Same—when bill of exceptions may be .filed nunc pro tunc as of the date of presentation. If a bill of exceptions is presented within the time lawfully extended by the court and that fact is shown on the bill itself, it may be filed nunc pro tunc as of the date of presentation, within a reasonable time after the bill is actually signed by the judge.</p> <p>4. Same—failure to Me bill of exceptions nunc pro tunc is not ground for a motion to strike. If a bill of exceptions is presented within the extension of time lawfully granted by the court and the date of presentation appea’rs on the bill, the trial judge, upon signing the bill, should date it as of the date of presentation, and an order should be obtained to file it nunc pro tunc as of that date, but a failure to do so is a mere irregularity and is not good ground for a motion to strike the bill from the files.</p> <p>5. Bankruptcy—the receiver and marshal take possession of bankrupt’s property for same purpose. The receiver in bankruptcy and the marshal take possession of the bankrupt’s property for substantially the same purpose, and while the language prescribed by the Bankruptcy act for the bonds to be given in the respective instances differs in some respects, the bonds are given for the same purpose and are to be given the same interpretation.</p> <p>6. Same—when recovery may be had on petitioning creditor’s bond when petition is dismissed. Where a receiver in bankruptcy is appointed and a bond is given which is conditioned in the language required by section 69a of the Bankruptcy act, relating to bonds given when the marshal takes possession of the property, a recovery of damages and costs may be had on such bond, under section 30 of said act, when the petition is subsequently dismissed, even though the seizure by the receiver is not proven to have been wrongfully obtained.</p> <p>7. Same—dismissal of the petition shows that receiver’s seizure was wrongfully obtained. Construing together sections 30 and 69a of the national Bankruptcy act, the words “wrongfully obtained,” used in section 69a, must be held to include the securing of the order of seizure if the petition is thereafter dismissed, and it must therefore be held that a receiver’s seizure is wrongfully obtained, if the petition is dismissed, even though the bankruptcy court had jurisdiction to enter the order and it was not obtained through fraud or with malice and without probable cause.</p> <p>8. Same—allowance of damages by bankruptcy court is not a condition precedent to recovery on bond. An allowance of damages by the bankruptcy court upon the dismissal of the petition, as provided in section 30 of the Bankruptcy act, is not a condition precedent to a recovery by the bankrupt upon a bond conditioned in the language of section 69a of such act, as the remedy provided by said section 30 is a cumulative one.</p> <p>9. Same—wrongful detention of property by receiver after corporation has made an assignment is a damage. The wrongful detention of property by a receiver in bankruptcy for more than a year after the corporation defendant made a voluntary assignment for its creditors is a damage to the corporation within the meaning of a bond conditioned in the language of section 69a of the Bankruptcy act notwithstanding the making of the assignment, as any property remaining in the assignee’s hands after the debts of the corporation are paid must be returned to it.</p>

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

Thomas G. Windes, Judge, presiding. This is an appeal from a decree entered by the circuit court of Cook county denying the relief prayed in the original and supplemental bills filed by the Commissioners of Lincoln Park, appellants, and granting relief to appellee, Fahrney, upon his cross-bill. The original bill was filed by the appellants in 1897 against John Lewis Cochran, then the owner of blocks 1, 8, 9, 16, 17 and 21, in Cochran’s addition to Edgewater, city of Chicago.

<p>1. Special assessments—extent to which the court’s order approving certificate of completion is conclusive. The order of the county court, under section 84 of the Local Improvement act, approving the certificate made by the board of local improvements concerning the completion and acceptance of the work, is conclusive only as to the fact that the improvement is constructed in substantial compliance with the ordinance.</p> <p>2. Same—void ordinance is subject to direct or collateral attack. If the ordinance providing for a special assessment is void the court is without jurisdiction to confirm the assessment, and all proceedings based upon the ordinance are void and open to direct or collateral attack.</p> <p>3. Same—ordinance cannot rightfully include the cost of paving street railroad right of way. While a contract between a city and a street railway company providing that the company shall pave the portion of the street occupied by its tracks is in force the city has no power to provide, by ordinance, for the paving of such strip by special assessment, whether the cost is assessed against the property owners or is embraced in a separate item as public benefits, to be paid by the city in case the company refuses to perform its contract.</p> <p>4. Same—city cannot change character of improvement after ordinance is passed. Whether the paving of a portion of a street occupied by street railway tracks shall be done by the company under its agreement, which is in force, or by the city cannot be determined by the city after the passage of the ordinance providing for the paving of the street' by special assessment but which provides that the cost of paving the strip in question, which is made a separate item, shall be assessed as public benefits, to be paid by the city in case the company refuses to perform its contract.</p> <p>5. Same—when a supplemental ordinance is unauthorized. A city is without authority, by a supplemental ordinance in a special assessment proceeding, to relieve from taxation any property benefited, by assessing against a part of the property benefited, and the general public, the entire cost of the improvement.</p> <p>6. Same—total public benefits is part of cost of improvement. The total public benefits assessed must be considered as a part of the entire cost of the improvement in ascertaining the amount to be abated proportionately to the public and the property owners, in case of a surplus.</p>

<p>1. Drainage—token parties cannot rely on objection that meetings to organize district were held outside its limits. Land owners who participate in the organization of a drainage district can not, after standing by until assessments are levied, the contract is let and large expenditures are incurred, attack the organization of the district upon the ground that the meetings of the highway commissioners to organize the district, in which they participated, were held outside the limits of the district.</p> <p>2. Same—when land owners cannot question election of drainage commissioners. Land owners who participate in the election of drainage commissioners and recognize its validity by thereafter taking part in the organization of the district and the subsequent proceedings, cannot, after the work is practically completed, attack the election of the commissioners upon the ground that the law under which the election was held had then been repealed, particularly where the law was re-enacted at a later period and the commissioners elected thereunder.</p> <p>3. Quo warranto—not every departure from law in organizing drainage district will warrant judgment of ouster. Not every departure from the law in the organization and conduct of a drainage district or the use of its franchises will justify an order, in a quo warranto proceeding, ousting the commissioners from office.</p> <p>4. Same-—remedy by information in quo warranto is not a matter of absolute right. The remedy by an information in the nature of quo warranto is not a matter of absolute right, and if the interest of the People is merely nominal the court may decline to enter a judgment of ouster upon the ground of acquiescence or unreasonable delay by the persons complaining or from considerations of public interest or convenience.</p>

<p>1. Quo warranto—the court is vested with wide discretion in matter of granting or denying leave to file an information. Upon application for leave to file an information in the nature of quo warranto for the redress of the private wrongs of the relators the court is vested with a wide discretion, and may consider the necessity for filing the information and circumstances or facts showing to the court that the relators have been guilty of laches in applying for relief.</p> <p>2. Same—court may deny leave to Me information if there has been prejudicial delay by relators. Upon application for leave to file an information in the nature of quo warranto to redress private wrongs, if the relators have not acted in apt time and the respondents have expended money or incurred liabilities which might have been saved by prompt action, the court may, in its discretion, deny leave to file the information without considering the matters set up in the information.</p> <p>3. Drainage—when judgment denying leave to Me information in quo warranto will be sustained. A judgment denying leave to file an information in the nature of quo warranto against the commissioners of a drainage district will be sustained on appeal where the relators have allowed nearly four years to elapse since the district was organized, during which time much work was done'and money expended, before attacking the organization of the district upon grounds they might have availed themselves of by proper objection at the time the district was organized.</p>

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

<p>1. Master and servant—injured child has right of action for damages though the statute does not expressly so state. Where a child under the age specified in the act of 1903, relating to the employment of children, is employed in violation of the statute and is injured, he has a right of action for damages against the employer even though the statute does not expressly so provide. (Strafford v. Republic Iron Co. 238 Ill. 371, adhered to.)</p> <p>2. Same—child not estopped by false statement as to his age. A child under the age specified by the act prohibiting the employment of children in certain occupations cannot, by making a false statement as to his age, render lawful his employment in violation of the statute, and he is not on that ground estopped from maintaining an action against his employer for damages in case he is injured. (American Car Co. v. Armentraut, 214 Ill. 509, followed.)</p> <p>3. Constitutional law—section 11 of the Child Labor law of 1903 is not invalid as fixing age limit of boys too high. Section 11 of the act concerning the employment of children in hazardous occupations is not, in fixing the age limit of boys who may enter certain occupations at sixteen years, invalid upon the ground that a boy sixteen years old should be held to have arrived at the age of discretion and be allowed to choose his occupation and exercise his right of contract with reference thereto without restraint.</p> <p>4. Same—the fact that liability for damages is not expressed in title does not render section 11 of Child Labor law invalid. The right of an injured child, employed in violation of section 11 of the act of 1903, to maintain an action for damages against his employer arises under the statute by implication, and a construction which authorizes the maintenance of such action does not render section 11 of the act unconstitutional upon the ground that a new liability is created by such section which is not expressed in the title of the act.</p>

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

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. L. D. Puterbaugh, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding.</p>

<p>1. Indictment—what allegation includes element of want of authority to alter mortgage. An allegation in an indictment that the defendant falsely and feloniously altered and changed a chattel mortgage necessarily includes the element of a want of lawful authority to make the alteration.</p> <p>2. Same—when indictment in language of statute, is sufficient. If the language of the statute creating an offense is readily understood, an indictment charging such offense in the language of the statute is sufficient.</p> <p>3. Evidence—contents of lost record may be proved by verbal testimony. The contents of a lost or destroyed record may be proved by verbal testimony, like any other writing; and the mere fact that an uncertified copy of the record of a chattel mortgage, contained in the lost docket of a justice of the peace, is used in evidence before the master in a foreclosure proceeding, does not restrict the People, in a prosecution for falsely altering the mortgage, to the use of such copy to prove the docket record.</p> <p>4. Same—court may permit party to call attention of witness to his testimony if he seems forgetful. Where a witness seems to have suddenly become remarkably forgetful about matters he has already testified to, the court may, in its discretion, permit the party calling the witness to direct his attention to his former testimony concerning the matters, either to refresh his memory or awaken his conscience.</p> <p>5. Instructions—it is not error to state the law to the fury in the language of the law. It is proper, in a criminal prosecution for falsely altering a mortgage, to give an instruction repeating the language of sections 8 and 9 of division 2 of the Criminal Code, declaring what constitutes an offense and by what means intention is manifested, as it is not error to give the jury the law in the language of the law itself.</p> <p>6. Same—when an instruction as to considering interest of defendant is not incorrect. An instruction advising the jury that the interest of the defendant in the trial is a matter to be properly taken into consideration in weighing his testimony is not incorrect, where it does not authorize the jury to disregard his testimony or that of any other witness.</p> <p>7. Same—when an instruction as to proof of guilt by circumstances is not incorrect. An instruction in a Criminal case stating that while the jury must be convinced of the guilt of the defendant beyond a reasonable doubt, from the evidence, the proof need not be the direct evidence of persons who saw the offense committed, but that the acts constituting the crime may be proved by circumstances, is not incorrect. (Otmer v. People, 76 Ill. 149, distinguished.)</p> <p>8. Same—mere redundance of instructions not relating to any fact is not ground for reversal. A mere redundance of instructions upon the subject of reasonable doubt, or other matters not' relating to any fact, is not ground for reversal.</p> <p>9. Same—when venue of a crime is sufficiently proved. In a prosecution for falsely altering a chattel mortgage after its execution, proof that the mortgage was made in the county where the prosecution is had and that the defendant attempted to collect it there and instituted a foreclosure proceeding for that purpose, justifies the inference that such county was the place of forgery.</p> <p>10. Same—when failure of People to prove want of authority to alter mortgage is not material. Failure of the People to prove want of authority to alter a chattel mortgage after its execution is not material, where the defendant testified that he made the alteration before the mortgage was executed and never claimed he made it afterwards.</p> <p>11. Same—when the verdict will not be disturbed on the facts. Where the guilt or innocence of the accused depends upon the credibility of the witnesses the verdict of the jury will not be disturbed by the court of review on the facts, if there is no controlling fact or circumstance from which that court is able to say that the verdict is wrong.</p>

<p>1. Constitutional law—act to punish frauds in practice of law is within its title. The act “to prevent and punish frauds in the practice of law,” (Hurd’s Stat. 1909, p. 775,) reasonably embraces the punishment of persons residing in this State who hold themselves out as entitled to practice law when they have no right to do so, and the provisions of the act are therefore within its title.</p> <p>2. Same—act to punish frauds in the practice of law is not special legislation. The fact that the act to prevent and punish frauds in the practice of law applies only to persons residing in this State who hold themselves out as entitled to practice law without being licensed to practice in the courts of this State does not render the act unconstitutional as special legislation.</p> <p>3. Criminal law—when information is sufficient. An information charging a statutory offense in the language of the statute is sufficient if the statute itself sufficiently defines the offense.</p> <p>4. Same—when party is guilty of fraud in the practice of law. A resident of Illinois who, having no right to practice law, maintains an office where he makes collections, draws conveyances, examines abstracts, negotiates loans and advises parties of their legal rights, styling himself “Collection Attorney” and forming connections with collection agencies, is guilty of a violation of the act to prevent and punish frauds in the practice of law, though he does not try cases in courts of record.</p> <p>5. Same—what does not prevent violation of an act to prevent frauds in the practice of law. Where an office and office force are maintained by a resident of Illinois who is engaged in the law business without being admitted to the bar, he cannot escape the penalty of the act to prevent and punish frauds in the practice of law by styling himself “Collection Attorney,” or using some other word before “attorney” which would indicate to the public that he was specializing in some particular branch of the law.</p>

<p>1. Criminal law—indictment for robbery need not accurately describe article taken. The gist of the offense of robbery is the force or intimidation and the taking from the person of another, against his will, of a thing of value belonging to him or in his custody, and it is not essential that the indictment shall accurately describe the article taken.</p> <p>2. Same—an indictment for robbery describing article taken as “one pin of the value of $400” is sufficient. An indictment for robbery which describes the article taken as “one pin of the value of $400” is sufficient to sustain a conviction under evidence describing the article taken as a “diamond stud,” or a “stud solitaire with a screw” or “spiral.”</p>

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

<p>Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding.</p>

<p>Writ of Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.</p>

<p>Writ of Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.</p>

Writ of Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.

<p>1. Trusts—a resulting trust, does-not arise out of contract. A resulting trust does not arise out of contract but arises by implication, of law where the necessary facts exist.</p> <p>2. Same—-express trust need not be declared by trustee in any particular form. It is not necessary that an express trust shall be declared by the trustee in any particular form or that a writing be framed for the purpose of declaring the trust, but such declaration may be found in letters, memoranda or writings of the most informal nature.</p> <p>3. Same—express trust may be declared by answer in chancery signed by trustee. An express trust may be declared by an answer in chancery signed by the party who in law is entitled to declare it, but the terms of the trust must be gathered from the whole answer as it stands.</p> <p>4. Same—no particular form of words is necessary to create a trust. No particular form of words is necessary to create a trust, and if the writing states a definite subject and object it is not necessary that every element required to constitute it be expressed iñ detail, as parol evidence is admissible to make clear the details.</p> <p>5. Same—-question whether there is an equitable conversion depends upon terms of trust. Ordinarily an essential requisite for an equitable conversion is an absolute expression that the land shall be sold, and an equitable conversion does not exist where the terms of the trust do not make it imperative that the land be sold but make its sale dependent upon the agreement of certain parties as to the time and price.</p> <p>6. Same—if duration of trust is doubtful, equity may be asked to terminate it. If the duration of a trust is doubtful it is proper to call upon a court of equity to terminate it, as a trust will not be continued merely for the benefit of the trustee.</p> <p>7. Same—when beneficiaries are entitled to have a trust terminated. When the purposes of a trust have been accomplished and the trustee holds the property in simple trust, the beneficiaries having the absolute equitable ownership, the beneficiaries are entitled to have the trust terminated; and the same rule applies if it becomes impossible to carry out the trust.</p> <p>8. Same—a trustee is not entitled to compensation unless there is some provision for it. A trustee is not entitled to compensation for personal attention or loss of time, in the absence of some provision of the statute or in the instrument creating the trust authorizing such compensation.</p> <p>9. Same—when trustee is not entitled to an allowance for attorney’s fees. A trustee is not entitled to an allowance for an amount paid by her to an attorney for services, where it appears such attorney was one of the beneficiaries and that he had agreed to furnish his services without compensation.</p> <p>10. Partition—when bill for partition and accounting will lie. A bill against a trustee for an accounting and for partition of the land among the beneficiaries will lie where the beneficiaries have the absolute equitable title to the land as tenants in common and the purposes of the trust have been' accomplished.</p> <p>11. Fiduciary relations—when assignment to former attorney is properly set aside. A beneficiary who has acted as the attorney in the affairs of a trust estate owes to another beneficiary from whom he is about to purchase her interest the duty of disclosing to her his knowledge as to the value of such interest, and the assignment should be set aside if he fails to prove perfect good faith upon his part and that he paid a fair price for such interest.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. A. O. Marshall, Judge, presiding.

<p>1. Constitutional law—doubts as to. constitutionality of statute are resolved in its favor. All-doubts or uncertainties as to the constitutionality of an act must be resolved in its favor.</p> <p>.2. Same—provision for an appeal is germane to act concerning jurisdiction of court. A provision for an appeal or writ of error is germane to and within the title of an act conferring jurisdiction upon a court.</p> <p>3. Same—section 3 of act of 1909, giving circuit courts concurrent jurisdiction in drainage cases, is valid. Section 3 of the act of 1909, (Laws of 1909, p. 171,) giving circuit courts concurrent jurisdiction with county courts in drainage proceedings, is not invalid because it provides for an appeal to the Supreme Court whereas no mention is made of such appeal in the title, as the provision for an appeal is germane to and within the title.</p> <p>4. Drainage—dissolution of district is within the act of 1909. The act of 1909, conferring upon circuit courts concurrent jurisdiction with county courts in drainage proceedings, was intended to, and does, embrace proceedings for the dissolution of drainage districts under the act of 1889.</p> <p>5. Same—appeal from order of county court denying petition to dissolve district lies to Supreme Court. Under the act of 1909 an appeal from an order of the county court denying a petition to dissolve a drainage district lies to the Supreme Court, and the circuit court has no jurisdiction to entertain such appeal. (Myers v. Newcomb Drainage District, 245 Ill. 140, explained.)</p>

<p>1. Deeds—no particular form is essential to constitute delivery. While delivery and acceptance are essential to render a deed operative as a conveyance, no particular form or ceremony is required.</p> <p>2. Same—delivery may be by acts or words, or both. A delivery may be by acts without words or words without acts, or by both acts and words, and anything which clearly manifests the intention of the grantor that the deed shall presently become operative and effectual, that he loses control over it and the grantee is to become possessed of the estate, constitutes sufficient delivery.</p> <p>3. Same—intention with which acts are done is the test. The test in each case is the intention with which the act or acts relied on as the equivalent or substitute for a formal delivery were done, and each case must therefore be judged by its own circumstances.</p> <p>4. Same—what is essential in case of ordinary deed of bargain and sale. In the case of an ordinary deed of bargain and sale it is indispensable, whatever means may be adopted to accomplish delivery, that the deed pass beyond the control and dominion of the grantor, and there must also, in such case, be an acceptance by the grantee, and the mere recording of a deed of bargain and sale without the grantee’s consent does not constitute either delivery or acceptance.</p> <p>5. Same—law presumes more in favor of delivery of voluntary conveyance. A deed of voluntary settlement, if fairly made, is binding upon the grantor unless there is clear proof that he never parted with or intended to part with the possession of the deed, and the deed will be regarded as delivered although he retains it, unless there are other circumstances to show that it was not intended to be absolute.</p> <p>6. Same—acceptance by grantee is presumed in case of voluntary conveyance. If the grantee knows of the execution of a voluntary conveyance an acceptance will be presumed, in the absence of other proof, on account of the beneficial nature of the gift.</p> <p>7. Same—actual delivery to and acceptance by infant grantee in voluntary conveyance is unnecessary. In case of a voluntary conveyance to an infant grantee actual delivery and acceptance is unnecessary, nor is it necessary that the infant have knowledge of the conveyance; and it is the duty of the court to declare an acceptance for him where the conveyance is beneficial.</p> <p>8. Same—recording of voluntary conveyance to infant grantee is prima facie evidence of delivery. In case of a deed of voluntary settlement the intention of the grantor to presently vest title in the grantee is of more importance than the manual possession of the deed, and in the case of an infant grantee the recording of the deed by the grantor, or at his direction, is prima facie evidence of a delivery.</p> <p>9. Same—grantor’s retention of deed not inconsistent with delivery where life estate is reserved. Where the grantor reserves a life estate in the property and its possession and control, the retention of the deed by him is not inconsistent with the idea that delivery was intended and that the deed is presently operative as a conveyance of the future estate, which is to vest in possession at the termination of the life estate. ;</p> <p>10. Same—when deed is operative. A voluntary conveyance of land to the grantor’s daughter and her minor children, which is subject to the dower of the grantor’s wife and provides that possession shall be given at his death, is operative as a conveyance even though the grantor refused to deliver the deed after it was recorded but kept it in his possession until a few days before his death, when he gave it, with other papers, to his sons, where the evidence shows he regarded the conveyance as operative and believed the title had passed beyond his control.</p> <p>11. Same—effect of possession and payment of taxes by grantor, who has a life estate. Where the grantor in a deed of voluntary settlement reserves a life estate, his possession of the deed and his possession of the property and payment of taxes are referable to the life estate and are not inconsistent with the title of the grantees.</p>

<p>1. Practice—when filing affidavit and claim of set-off in the municipal court is unauthorized. Under the rules of the municipal court of Chicago a defendant in a case of the fourth class must file his affidavit and claim of set-off with his appearance unless the court extends the time for filing it, and if he files the affidavit and claim without complying with the rule, neither the court nor the plaintiff is required to notice them in any way.</p> <p>2. Same—when plaintiff in municipal court is not in default for want of affidavit of merits of defense. Under the rules of the municipal court of Chicago a plaintiff is required to file an affidavit of merits of defense to a claim of set-off within such time as the court may order, and he is therefore not in default for want of such affidavit before the court has made an order fixing the time for filing it.</p> <p>3. Same—effect of denial of a motion to strike claim of set-off from files. The denial of a motion by the plaintiff to strike defendant’s affidavit and claim of set-off from the files because they were not filed with his appearance or by any leave of court is equivalent to an order then made extending the time for filing such affidavit and claim and is within the discretion of the court.</p> <p>4. Same—court has no power to enter judgment without hearing because party is in contempt. There is no statute authorizing a court, because a plaintiff has refused to obey an order to produce books, to strike his pleadings from the files and enter a judgment for the defendant for the full amount of his claim of set-off without any proof whatever.</p> <p>5. Constitutional law—constitution requires inquiry before judgment. The constitutional guaranty of due process of law, without which no person may be deprived of his property, requires inquiry before judgment and hearing before condemnation; and while the contumacy of a party in disobeying an order of the court may justify his punishment for contempt, it does not justify depriving him of his civil rights or taking his property and giving it to another.</p> <p>6. Evidence—purpose of section p of Evidence act, concerning order to produce books and papers. Section 9 of the Evidence act, authorizing a court to enter orders to produce books and writings in a party’s possession, provides a summary way of obtaining written evidence pertinent to the issue, but such power cannot be used to procure a general investigation of the accounts or business of a party or of any transaction not material to the issue.</p> <p>7. Same—when an order requiring plaintiff to produce books is unauthorized. An order requiring the plaintiff in a fourth-class case in the municipal court of Chicago to produce certain books and writings is unauthorized, where the evidence contained therein is pertinent only as to the defendant’s claim of set-off, which at the time was not an issue in the case because the affidavit and claim, having been filed without leave and without authority of law, could not lawfully be considered by the court.</p> <p>8. Same—court cannot create any presumption of fact where party refuses to produce books. It is the province of the legislature to prescribe rules of evidence, and it is not within the power of the court, in the absence of any statute, to create a presumption of fact that the books which a party refuses to produce would, if produced, present evidence against him, and on the strength of such presumption strike his pleadings from the files and enter judgment for the opposite party’s claim without any proof.</p> <p>9. Courts-—issues in the municipal court cannot be enlarged by oral claims or affidavits. While the Municipal Court act has abolished formal pleadings in fourth-class cases, still the law requires the filing of statements of claim and of set-off for the purpose of forming an issue, to which the parties are to be confined in their evidence and which cannot be changed by oral claims or affidavits.</p>

<p>1. Special assessments—a valid ordinance is the foundation of every special assessment. The foundation of every special assessment is a valid ordinance specifically describing the nature, character and locality of the proposed improvement, and no valid assessment can be predicated upon an ordinance which omits from its terms essential features of the improvement.</p> <p>2. Same-—description should enable a property owner to know what the improvement is. An ordinance for a special assessment must so describe the improvement that property owners may know what the improvement is, and, in case of a sidewalk ordinance, so that he may do the work himself if he desires to avail himself of the right given him for that purpose by the ordinance.</p> <p>3. Same—sidewalk ordinance should provide for necessary retaining wall or embankment. If the construction of a sidewalk in front of certain property at the grade required will put the walk nine feet above the surface of the property and require the construction of either a retaining wall or embankment to retain the fill, the ordinance should provide for such wall or embankment and specify its character, and if the ordinance makes no such provision it is defective and will not authorize judgment of confirmation against the property.</p>

<p>Criminal law-—when judgment sentencing prisoner under the Parole law is erroneous. One convicted, under section 53 of division 1 of the Criminal Code, of the crime of cruelty to a child, which is punishable by fine or imprisonment in the penitentiary not exceeding five years, there being no minimum term of imprisonment fixed, cannot lawfully be sentenced under the Parole law. (People v. Hartsig, 249 Ill. 348, followed.)</p>

<p>1. Criminal law—when it must he presumed that court advised defendant of effect of plea of guilty. Where the bill of exceptions does not purport to show what the court said to the defendant at the time a plea of guilty was entered, but the record merely states that the defendant “was fully advised by the court of the effect of rendering said plea,” it must be presumed, in support of such recital, that the court discharged its duty in that regard.</p> <p>2. Same—court should permit plea of guilty to he withdrawn if entered under clear misapprehension. In the exercise of its sound legal discretion the court may vacate a judgment on a plea of guilty and permit the plea to be withdrawn, and it should do so where it appears that the plea was entered unadvisedly or through misapprehension, in consequence of misrepresentation by counsel. (Krolage v. People, 224 Ill. 456, followed.)</p>

<p>1. Jurisdiction-—the probate court may determine equities on petition to sell land for debts. Under section 101 of the Administration act the county or probate court, on petition by an administratrix to sell land to pay debts, may determine the question whether a quit-claim deed to the widow from one of the heirs is valid as against an attaching creditor of the heir.</p> <p>2. Same—a freehold is involved where real estate attached is claimed by a third person. Where the issue, on petition to.sell land to pay debts of the estate, is whether a quit-claim deed to the widow from an heir, conveying part of the land, is valid as against an attachment levied by a creditor of the heir on his interest in such land, a freehold is involved and the Supreme Court has direct appellate jurisdiction.</p> <p>, 3. Debtor and creditor—creditor attacking deed as in fraud of his rights must prove that he is a creditor. One who answers a petition by an administratrix to sell land to pay debts and seeks to have a quit-claim deed by an heir to the widow set aside as in fraud of his rights as a creditor, must prove that he was, in fact, a creditor of the grantor at the time the quit-claim deed was made.</p> <p>4. Same—when attachment affidavit and papers do not prove that plaintiff is a creditor. As against a person not a party to the suit, an attachment affidavit and other papers and proceedings in an attachment suit do not prove the existence of an indebtedness or that the plaintiff in the attachment suit was a creditor of the defendant, and unless the fact of the indebtedness is otherwise proved the attachment plaintiff has no standing as a creditor to have a deed to such third person from the attachment defendant set aside.</p> <p>5. Same—when decree refusing to set aside deed is correct. A decree of the probate court refusing to set aside a quit-claim deed to the widow from an heir as in fraud of the rights of an attaching creditor of the heir is correct, where there is no proof of any fraudulent intent, either as to grantor or grantee, nor that the grantor was insolvent when he made the deed, which was based upon ample consideration.</p>

<p>1. Nuisances—when public nuisance cannot be abated at suit of private individual. A public nuisance cannot be abated at the suit of a private person but only in an action by or in the name of the People, unless the nuisance causes such person a special and particular injury distinct from that suffered by him in common with the public at large.</p> <p>2. Same—what is meant by injury to the public. Injury to the public, as that term is used with reference to the abating of nuisances, means such an injury as hinders or excludes all persons alike from the enjoyment of a common right; but the question whether a person has suffered special injury different from the public injury is not determined by whether he alone has suffered injury or whether others in the vicinity have also been injured.</p> <p>3. Same—what does not affect right of person to maintain bill to abate nuisance. If an individual has suffered special damage to his property from a public nuisance his right to maintain a bill to enjoin its continuance is not affected by the mere "fact that the property of others in the vicinity is injured from the same cause.</p> <p>4. Same—what allegations show special damage from conducting unlicensed dram-shop. A bill seeking to enjoin the conducting of an unlicensed dram-shop (which the statute declares to be a public nuisance) makes a cpse of special injury which alleges that the rental value of complainant’s building, which is used for stores and flats, is greatly depreciated by the dram-shop being conducted in the same block, and that complainant is thereby compelled to rent to a class of tenants containing a greater per cent of persons who fail to pay rent than the class he could get if the dram-shop were not conducted there.</p> <p>5. Dram-shops—when license to keep a dram-shop is invalid. A dram-shop license is invalid which is issued without complying with the terms of an ordinance requiring the application to be signed by a specified proportion of the property owners within the territory fixed by the ordinance. ,</p> <p>-6. Same—property owners on both streets must sign petition where dram-shop has a corner entrance. Where the main entrance of a dram-shop located on a corner lot is diagonally across the corner of the building, so that it is as much on one street as the other, the signatures of property owners on both streets must be obtained under an ordinance requiring the signatures of a specified portion of the property owners on each side of the street in the block where the dram-shop has its main entrance.</p> <p>7. Same—one person cannot operate dram-shop under another person’s license. Neither under paragraph 4 of the Dram-shop act nor section 1332 of the ordinances of the city of Chicago is it lawful for one person to own, maintain and conduct a dram-shop under a license issued to and in the name of another person.</p> <p>8. Same—the Chicago ordinance dividing license year into two periods is not unlawfril. Section 1340 of the Chicago ordinances, which divides the license year into two periods of six months each and permits licenses to be issued for each period for $500 license fee in advance, but which authorizes the issuing of a license for the full year for $1000 in advance, with provisions for issuing licenses for unexpired portions of the year or periods, is not in conflict with paragraph 3 of the Dram-shop statute.</p>

<p>1. Amusement parks—the proprietor must see that devices of concessioners are reasonably safe. Where space in an amusement park is granted for conducting attractions for the amusement of the public, for witnessing which an admission fee is charged by the concessioner and divided with the owner, there is such unanimity of authority between the proprietor and concessioner that the proprietor assumes an obligation that the devices and attractions shall be reasonably safe for the purposes for which the public is invited to use them.</p> <p>2. Same—question whether it was negligence to maintain chute as only exit from building is for the jury. Whether it was negligence to construct and maintain a metal chute as the only means of exit from a building used as an amusement device, and down which patrons of the attraction were required to slide, is a question for the jury in an action by a patron who was injured in descending the chute, which was eighteen feet above the ground at the top and inclined at an angle of about forty degrees.</p> <p>3. Whether the defendant was guilty of negligence in permitting the construction and maintenance of the device by which the plaintiff was injured, and whether the plaintiff was guilty of contributory negligence, are held, under the evidence in this case, to be questions of fact properly submitted to the jury and conclusively settled by the judgment of the Appellate .Court.</p>

<p>Homestead—the rule where heirs seek to compel vacation of homestead property worth more than $1000. Where heirs or devisees seek to compel the surviving husband or wife to vacate homestead property which is indivisible and which exceeds $1000 in value, a court of equity should require them to pay $1000 to the person entitled to the homestead estate. (Powell v. Powell, 247 Ill. 432, followed.)</p>

Writ oe Error to the Appellate Court for the Eirst District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.

<p>1. Wills—natural heirs will not be disinherited by dubious zuords. Natural heirs will not be disinherited by dubious and ambiguous words used by the testator in the will.</p> <p>2. Same—word “or” is ordinarily used as a disjunctive word. While the word “or” may sometimes be read as “and,” it is ordinarily used as a disjunctive word, and will be so treated unless it appears to be contrary to the testator’s intention.</p> <p>3. Same—devise to “brothers and sisters or their heirs” construed. Where a testator, having no children and having made provision for his wife, gives the residue of his property to his “brothers and sisters or their heirs,” the devise will be held to include the heirs of a deceased brother and sister whose deaths had taken place before the testator executed his will, where such construction carries out the apparent scheme of the testator, viewed in the light of the surrounding circumstances, and there is nothing to indicate a contrary intention.</p>

<p>1. Municipal corporations—what is not a track elevation ordinance. An ordinance prohibiting a corporation from running cars on any track on the surface of a street across an intersecting street where the track parallels an elevated railroad and any rail of the track is within fifteen feet of the end of any abutment wall of a bridge which carries the elevated tracks across such intersecting street, is not a track elevation ordinance.</p> <p>2. Same—ordinance which has become void for non-acceptance has no force for any purpose. Where an ordinance requiring a street railway company to elevate its tracks provides that it shall be null and void if not accepted by the company within a specified time, a failure of the company to accept the ordinance within that time renders the ordinance void, and it has no more force for any purpose than though it had never been passed.</p> <p>3. Same—grant of use of streets is not mere license. A grant, by ordinance, of the use of a street by a street railway company, when based upon adequate consideration and accepted and acted upon by the company by building the road in compliance with the ordinance, is not a mere license revocable at the pleasure of the municipal corporation, but is a contract binding not only upon the municipal corporation which passed the ordinance, but also upon the one which subsequently annexes the territory.</p> <p>4. Same—-city cannot, under guise of regulation, deprive street railway company of its property. A city has the right, in the exercise of its police power, to regulate the use of a street railway company’s tracks and cars in a reasonable manner, but it cannot, under the guise of regulation, deprive the company of its property or of any of its essential rights acquired under its contract whereby the tracks were laid.</p> <p>5. Same—power to regulate lawful business does not authorize its prohibition. The right of a city, in the exercise of its police power, to regulate any business or the use of property does not amount to power to prohibit the conducting of a lawful business or to suppress entirely the use of the property.</p> <p>6. Same—city cannot, by mere declaration, establish that the operation of a railroad is a nuisance. The public welfare demands that there should not be a discontinuance of the operation of an authorized railroad, and where a railroad is authorized by ordinance and constructed in accordance therewith, the city cannot, by a mere declaration, establish that the operation of the railroad is a nuisance.</p> <p>7. Same—fad that crossings are dangerous does not authorize deprivation of use of street. The fact that the crossings of a duly authorized street railway company have become dangerous by reason of the elevation of the tracks of a parallel steam railroad does not empower the city, under the guise of regulation, to deprive the company of its right to use the street under the ordinance authorizing the construction and operation of the road.</p> <p>8. Same—when ordinance concerning operation of street cars is invalid. Where a street railway company, under authority of an ordinance, has constructed a double-track surface railway over the portion of a street specified in the ordinance, a subsequent ordinance prohibiting the running of surface cars across any intersecting street where the track parallels an elevated railroad and is within fifteen feet of the abutment of any bridge carrying the elevated tracks across such intersecting street is invalid as to such company if its effect is to deprive the company of the entire use of one of its tracks and compel it to operate a single-track railway.</p>

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

<p>1. Special assessments—an assessment roll is prima facie evidence of amount of benefits. The assessment roll is prima facie evidence that the property is benefited to the extent of the assessment, on the true legal theory.</p> <p>2. Same—basis of assessment is the enhanced market value of the property. The basis of a special assessment is the enhanced market value of property, and the benefit or detriment to the occupant of the premises in his business cannot determine that question, though it may be proper for consideration in determining it.</p> <p>3. Same—what does not show that sidewalk will be a detriment instead of a benefit.. The fact that the property along which a sidewalk is to be built is used for heavy manufacturing purposes, and that there are several crossings for teams which will be interfered with and be likely to cause injury to pedestrians, who will be attracted in greater numbers if the sidewalk is built, does not show that the sidewalk will be a detriment and not a benefit.</p>

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

<p>1. Elections—contestant may, by amendment, add new points to his petition. An election contest, under the present statute, is to all intents and purposes a chancery proceeding, and it is proper for the court, after the answer is filed, to allow the- contestant to amend his petition by adding new points of contest.</p> <p>2. Same—when candidates on other tickets need not be made parties. In a contest between the republican and democratic candidates for a county office, candidates for the office on other tickets are not necessary parties if it appears from the petition and answer that their rights cannot be affected by a re-count.</p> <p>3. Same—marks on ballots made by judges in counting them do not destroy the force of ballots. Judges and clerks of election should not place marks upon the face or back of the ballots when counting them, but the fact that they do so does not destroy the force of the ballots as marked by the voters.</p> <p>4. Same—mark similar in form to the capital letter “T” is a cross. Where the mark in the circle or square is similar in form to the capital letter “T,” there is a sufficient intersection of the lines to regard the mark as a cross.</p> <p>5. Same—fact that crosses are dim is not ground for rejecting ballots. The fact that the crosses on certain ballots are dim, having the appearance of being made by pressing the pencil very lightly on the paper or using a pencil in which the lead was broken, is not ground for rejecting the ballots.</p> <p>6. Same—mark resembling the letter “O” cannot be treated as a cross. A ballot having a mark in the circle at the head of one ticket resembling ¿he letter “O” cannot be counted as a vote for the candidates on that ticket.</p> <p>7. Same—a pencil line through name-of candidate strikes him off. Where a pencil line is drawn horizontally through the names of the candidates for sheriff on two tickets the ballot cannot be counted for either candidate, even though there is a cross in the circle on one of the tickets.</p> <p>8. Same—what is a distinguishing mark is largely a question of fact. The law forbids the placing of a mark upon a ballot which will enable it to be identified as cast by a particular voter, but the question whether a given mark is or is not distinguishing is largely a question of fact.</p> <p>9. Same—dim crosses on back of ballot are not distinguishing marks. Dim crosses, made with a blunt instrument, on the back of a ballot having no mark on its face except a cross in the circle at the head of one of the tickets are not distinguishing marks.</p> <p>10. Same—crosses placed after certain names are distinguishing marks. Crosses, marked with a lead pencil, after the names of a certain candidate for representative and a candidate for county treasurer must be treated as distinguishing marks.</p> <p>11. Same—what must be treated as distinguishing mark. The word “Jofe,” written on the back of a ballot instead of the initials of any judge, must be treated as a distinguishing mark, even though it is claimed that the nickname of one of the judges was “Joed,” where such judge testified that the writing was not his.</p> <p>12. Same—when imperfectly printed ballot cannot be counted. A ballot so imperfectly printed that a part of the circle and squares on the first ticket is left off cannot be counted for a candidate on that ticket, where the part of the square left opposite his name is so • small that the voter’s cross does not intersect within it.</p> <p>13. Same—ballot having cross in circle but entire ticket crossed out cannot be counted. A ballot having a cross in the democratic circle and a large pencil cross the whole length of the democratic ticket, there being no other marks, cannot be counted as a vote for any candidate on the ticket.</p> <p>14. Same—what is not ground for rejecting a ballot. A ballot properly marked for a candidate on one ticket should be counted for him although the voter made a large cross on another ticket erasing all of that ticket but the first eight names, in front of which he had marked crosses, where he afterwards attempted to erase all of the crosses on that ticket, including the large cross.</p> <p>15. Same—erasure of a line in circle with moistened finger is not a distinguishing mark. A ballot marked with a cross in the republican circle and with crosses in the squares before the names of certain republican and democratic candidates should not be rejected as having a distinguishing mark because a single line was marked in the democratic circle, which the voter apparently attempted to erase with a moistened finger.</p> <p>16. Same—when marks on back of a ballot are distinguishing marks. A ballot having a colored cross in the democratic circle and no other marks on its face but having a colored cross at the left of the county clerk’s name on the back of the ballot and the names of two candidates for other offices written with a colored pencil, must be rejected as bearing distinguishing marks.</p> <p>17. Same—letter written after initials of judge with a different colored pencil is a distinguishing mark. Tire letter "D” written after the initials of the judge on the back of a ballot and with a different colored pencil is a distinguishing mark, where judges of the election testify that they do not know how it came to be on the ballot.</p> <p>18. Same—erasures by filling entire square or circle with pencil marks are not distinguishing marks. Pencil marks blackening the entire square or circle, in an attempt to thus erase crosses made by mistake in such square or circle, are not distinguishing marks.</p> <p>19. Same—when torn ballot should be counted. A ballot having a piece torn off of one corner but leaving enough to show that it was marked for a certain candidate should be counted for him, where one of the judges testifies when the ballots were counted the torn piece was still attached to the ballot and that when put in place the cross in front of such candidate’s name was complete.</p> <p>20. Same—when torn ballot cannot be counted. A ballot torn into three pieces cannot be counted, where all the facts and circumstances tend to show that the ballot was intact when given to the voter and that it was torn by the voter himself; nor can a ballot be counted which in some unexplained way has both upper corners torn off, including all of the circle of the first ticket, though there is a cross in the circle of the second ticket.</p> <p>21. Same—absence of initials of judge is fatal. The initials of the judge on the back of a ballot are for the purpose of identifying the ballot as a legal ballot, and ballots having no initials of a judge endorsed thereon cannot be counted.</p> <p>' 22. Same—ballots are the best evidence if properly preserved. The ballots are the best evidence of the result of the election if it appears that they have been preserved in the manner and by the proper officers required by law.</p> <p>23. Same—when judges’ returns cannot be taken as conclusive. The judges’ returns cannot be taken as conclusive of the result of an election, even though the ballots may be discredited, where the tally sheets show erasures of several tallies for the defeated candidate and the ballots about which there is no controversy entitle him to several more votes than were given him by the returns.</p> <p>24. Same—rule where both ballots and returns are discredited. Where the evidence discredits both the ballots and the returns, the true result must be determined by a consideration of both and of all the surrounding facts and circumstances.</p> <p>25. Same—fraud in an election may be shown by circumstantial evidence. Fraud in the conduct of an election may, and must frequently, be shown by circumstantial evidence.</p> <p>26. Same—when the entire district need not be thrown out. If from the proof it can be ascertained how the voters marked their ballots so that they can be counted, 'or if the honest votes can be separated from the dishonest votes and the returns purged, the entire district need not be thrown out because of fraud.</p> <p>27. Same—what evidence shows fraud. The fact that twenty ballots from one district are marked with two kinds of pencils, in connection with their peculiar marking, and the facts that the district was the one last counted, that the result of the election elsewhere was known, and that several unauthorized persons handled the ballots during the count without any attempt being made to prevent them from doing so, establish fraud and show that the ballots were tampered with.</p> <p>28. Same—when black pencil crosses should be ignored. Where the marks made by the voter with the blue pencil furnished him show that he voted for a certain candidate the ballots should be counted for such candidate, even though there are crosses marked with a black pencil before the name of another candidate for the same office, where the evidence tends strongly to show that the black crosses were not made by the voter but by some other person, probably during the canvass of the vote.</p> <p>29. Same—when ballot cannot be counted for either candidate. A ballot not marked in the circle but having blue pencil crosses before the names of the candidates for several offices on the republican ticket and a black pencil cross before the name of the republican candidate for sheriff, there being no vote for any candidate on the democratic ticket, cannot be counted as a vote for either the republican or democratic candidate for sheriff, where the black cross was not made by the voter.</p> <p>30. Same—when a ballot should be counted though evidently tampered with. A ballot marked with a blue pencil cross in the republican circle and having no mark to indicate a vote for the democratic candidate for sheriff should be counted for the republican candidate for sheriff, although some person other than the voter has made a black pencil cross in the square opposite such candidate’s name.</p> <p>31. Same—ballot cannot be counted for either candidate if it is marked, by mistake, for both. Where a ballot is marked for both the republican and democratic candidates for sheriff in such a manner as to show that it was merely a mistake of the voter and not the result of tampering with the ballot, the ballot cannot be counted for either candidate.</p>

<p>Appeals and errors—the record should show affirmatively that guardian ad litem was appointed for minor. A decree rendered in accordance with the prayer of a bill to cancel, as a cloud on complainants’ title, an alleged misdescription of land in a will must be reversed where the record fails to show affirmatively the appointment of a guardian ad litem for a certain minor, to whom the will devises the remainder in fee in the lands covered by the description sought to be corrected, his claim being, therefore, directly adverse to the claim of complainants.</p>

<p>Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.</p>

Writ of Error to the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. On February 15, 1911, the plaintiff in error filed a petition in the superior court of Cook county praying for a writ of mandamus to place his name upon the roster of police patrolmen of the city of Chicago and upon the payroll and to certify his name for payment of his salary as such police patrolman.

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding. Defendant in error was employed by plaintiff in error in its steel mills in Joliet. While engaged in the line of his employment he was seriously injured and brought this suit to recover damages, charging in his declaration that said injuries resulted from the negligence of plaintiff in error.

<p>1. Constitutional law-—an act which would render a public school law ineffectual would be invalid. It is the constitutional duty of the General Assembly to provide a thorough and efficient system of free schools whereby the children of the State may receive a good common school education, and any act of the legislature which would make inoperative or render ineffectual laws adopted for the establishment and maintenance of an efficient system of free schools would be invalid.</p> <p>2. Same—the State has right to regulate price of school books. The State has the right to regulate the adoption and price of text books used in the public schools, and while the possibility that publishers may not comply with the law may go to the question of the wisdom of .the law, it does not go to its constitutionality and is not ground for holding such law invalid.</p> <p>3. Same—the legislature may require licensing of public school text books. Requiring the licensing of all public school text books offered for sale in the State is a provision in aid of the power of the State to regulate the adoption and price of such books, and in enacting such provision the legislature has the right to assume that the publishers will comply therewith.</p> <p>4. Same—publishers cannot, by defying School Text-book law, render it invalid. The legislature cannot compel publishers of public school text books to license their books but it may make the licensing of such books a condition precedent to the right to sell them in the State, and the publishers cannot, by defying the law, render it invalid, even though their action may result in temporarily closing the schools.</p> <p>5- Same—School Text-book law requires licensing of all text books used in public schools. The effect of the School Text-book law of 1909 is to require the licensing of all text books used in the public schools and not merely a part of such books.</p> <p>6. Same—fixing maximum price for part of text books and not for all is not a discrimination. The fixing by the School Textbook law of 1909 of a maximum price for a part of the text books offered for sale in the public schools but not for all is not such an unreasonable classification or discrimination as renders the act unconstitutional.</p> <p>7. Same—School Text-book law of 1909 is invalid because of provision for advertising for bids. Section 6 of the School Textbook law of 1909, requiring school boards, before adopting text books, to advertise for bids by publishing a notice in one or more newspapers of general circulation “published in the district,” means in a newspaper first issued or printed in the district and not elsewhere, and as such provision is impossible of performance it is invalid, and as it is inseparable from the remainder of the act the entire act is invalid.</p> <p>8. Same—classification of school districts, based upon whether or not a newspaper is published there, would be invalid. Section 6 of the School Text-book law of 1909 was not intended to classify school districts of the State upon the basis of whether or not a newspaper of general circulation is published therein, nor would such a classification be valid were it intended to be made.</p> <p>9. Notice—what is meant by a newspaper of general circulation. A newspaper is of general circulation when it circulates among all classes and is not confined to a particular class or calling in the community.</p>

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

Richard S. Tuthill, Judge, presiding. This was a bill in chancery filed by the National Safe Deposit Company, the appellant, against William H. Stead, Attorney General, Andrew Russel, State Treasurer, and Walter K. Lincoln, inheritance tax attorney, the appellees, in the circuit court of Cook county, to restrain said officers from enforcing against the appellant, and all other corporations, firms and individuals similarly situated and who are engaged in the business of…

<p>Writ of Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.</p>

Writ of Error to the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Defendant in error, James D. Wallace, as trustee, filed a bill in the superior court of Cook county, at the November term, 1909, to construe the last will and testament of Samuel G. Spaulding, deceased.