Volume 252 — Illinois Reports

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

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.</p>

<p>Writ or Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>1. Pleading—where the statute requires certain matters to be pleaded other. matters need not be pleaded. Where a statute, by express enactment, provides what matters shall be pleaded other matters need not be pleaded.</p> <p>2. Same—declaration in. ejectment need not specify the character of the fee claimed. While the statute requires a declaration in ejectment to specify whether the plaintiff claims in fee, or for his own life or the life of another, or for a term of years, it does not require that the particular character of the fee claimed be specified. (Schumann v. Sprague, 189 Ill. 425, explained.) .</p> <p>3. Ejectment-—a mortgagee may recover under 'a declaration claiming the fee. A plaintiff in ejectment may recover under a declaration claiming the fee, which he supports by proof of a warranty deed absolute in form, notwithstanding the deed was taken in his name to secure a debt which is due and has not been paid.</p> <p>4. Same—proof that a deed was intended as a mortgage cannot be offered in defense. Proof that a deed was made to secure a debt cannot be offered as a defense in ejectment, but the defendant’s remedy in such case is in equity to enjoin the prosecution of the ejectment suit and show the true character of the instrument. (Finlon v. Clark, 118 Ill. 32, approved.)</p> <p>5. Same—effect where court of equity has declared deed to be a mortgage. After a deed has been declared by a court of equity to be a mortgage, the records of the chancery suit may be introduced to show that fact in an ejectment proceeding.</p> <p>6. Mortgages—as against the mortgagor the mortgagee owns the fee. The mortgagee, as against the mortgagor, is the owner of the fee and entitled to all the rights and remedies which the law gives to such owner.</p> <p>7. Res judicata—when a decree finding deed to be a mortgage does not bar recovery in ejectment. A decree enjoining the prosecution of an ejectment suit for ninety days upon the ground that the plaintiff’s deed was intended as a mortgage, and that the defendants should be allowed ninety days in which to pay the amount due, is no bar to recovery in the ejectment suit after the ninety days have expired, there being no proof that the money has been paid, as required by the decree.</p>

<p>Writ oE Error to the Circuit Court of Jefferson county; the Hon. William H. Green, Judge, presiding.</p>

<p>1. Wills—rule in Shelley’s case does not apply unless both estates are of same quality. The rule in Shelley’s case does not apply unless the freehold estate limited to the ancestor and the remainder to the heirs are of the same quality,—that is, both legal or both equitable estates.</p> <p>2. Same—duties of trustee are controlling as to quantity of estate which he takes. Where there is a devise, in terms, to a trustee, either with words of inheritance or (under section 13 of the Conveyance act) without such words, the devise is prima facie of a fee unless limited or restrained by other provisions of the will, and to determine whether the estate so devised is restrained or limited the nature of the trust and duties of the trustee are to be considered and are always controlling as to the quantity of estate which the trustee takes.</p> <p>3. Same—a trustee takes such an estate as the purposes of the trust require. If a trustee is required to collect and pay the rents of property for a definite period he' will take an estate for years; if he is charged with such duties for the life of an individual he will take an estate for the life of such person, and if his duties are of indefinite duration he will take the fee.</p> <p>4. Same—it is not necessary that there be a fortml devise to the trustee. It is not necessary that there be a formal devise to the trustee, but he will acquire an estate commensurate with the powers conferred and the purposes to be accomplished.</p> <p>5. Same—when trustee takes legal estate for life of life tenant. Where a will directs that the property be divided and that one-half of each share be set apart and conveyed to a trustee, to be held for the use and benefit of each child during his or her life and then to descend to his or her heirs, and requires the trustee, after paying the taxes and insurance and keeping the property in repair, to pay the rent to each child in person, quarterly, there being no further duties required, the trustee, when the conveyance to him is made, takes a legal estate for the life of the child, in trust for her for life, and a legal remainder passes under the will to those persons who answer the description of her heirs at her death.</p> <p>6. Same—word "descend,” used in will, may mean to pass, under the will. While the technical meaning of the word “descend” is to pass by inheritance by operation of law, yet it may be used in a will as meaning that the title shall pass by virtue of the will in the manner in which property descends without any conveyance, and as distinguished from a conveyance by grant.</p> <p>y. Same—construction of will cannot be made to depend upon stibsequent facts. The construction of a will cannot be made to depend upon subsequent facts or conditions arising many years after the will took effect, and the mere fact that it would have been better to have authorized a trustee to make long-term leases beyond the period of the active trust or to mortgage the property for making improvements, which would require the trustee to take the fee, does not warrant construing the will to that effect, where there is nothing to indicate such an intention.</p> <p>8. Same—what does not show an intention to vest trustee with fee. An expression in a will io the effect that the testator desired that the one-half of each child’s share which was to be set apart and conveyed to a trustee should be income-paying real estate, and that he believed such half would give each child a comfortable living if unfortunate in business, or otherwise, does not show an intention to give the trustee power to provide for a continuous income by making long-term leases or mortgaging the land, which would require him to hold the fee.</p>

<p>1. Judgments and decrees—a bill will lie to impeach a decree obtained by fraud. A court of chancery has power to entertain a bill to impeach a decree obtained by fraud, and if the allegations and proof are sufficient the decree may be vacated as a cloud upon the complainant’s title.</p> <p>2. Same—what constitutes fraud in obtaining a decree. If a complainant in a bill to quiet title has full knowledge of a claim of ownership and possession by a certain person to the premises involved but fails to make such person a party except under the description of unknown owners, there is such fraud upon the court in obtaining the decree as to render the decree void as to such person and open to collateral attack.</p> <p>3. Pleading—what must be alleged in a bill to impeach decree. A bill to impeach a decree for fraud need not set out all of the proceedings with the same certainty as is required in a bill of review, but it must set out such proceedings with sufficient certainty to enable the court to determine who were the parties, complainant and defendant, the nature of the proceeding and what constituted the alleged fraud.</p> <p>4. Same—when bill to impeach decree should set out decree in full. Where the complainant in a bill to impeach a decree claims that the decree was obtained by fraud, in that neither she nor her grantors were made parties except by the description of unknown owners, notwithstanding the complainant had full knowledge of their claim and possession, the bill should set out the decree in full and so much of the proceedings leading up to it as will show the full nature of the relief sought and upon what the court based its claim to have jurisdiction over the parties.</p> <p>5. Same—a court will not impeach a decree except upon clear proof. A court will not impeach a former decree or judgment and vacate the same except upon clear proof, and where the complainant claims that she was not a party to the former proceeding she must show by her bill such a state of facts as would have entitled her to a recovery in the former proceeding had she been a party.</p> <p>6. Same—bill should show whether rights of third parties have intervened. A bill to impeach a decree for fraud in obtaining it without making the complainant a party should show whether the rights of third parties have intervened, as in such case the lack of jurisdiction does not appear on the face of the record so as .to charge third persons with notice, but may be shown by clear extrinsic evidence if the rights of third parties have not intervened.</p> <p>7. Laches—general rule as to time for bringing bill to impeach decree—laches. The general rule is that a bill to impeach a decree for fraud can be brought only within the time allowed for the suing out of writs of error if the complainant is under no disability and is not ignorant of his rights.</p> <p>8. Same—when bill to impeach decree fails to show that complainant is not guilty of laches. A positive allegation that the complainant in a bill to impeach a decree entered six years before the bill was filed was ignorant of her rights until less than a year before filing the bill does not show that she is not guilty of laches, where it is not shown when the former decree was entered or that complainant acquired her interest before her grantors had knowledge of the former decree, although the bill alleges that her grantors did not have such knowledge until long after the decree was entered.</p>

<p>1. Municipal corporations—privilege to use streets is not always a mere license. The privilege to use the streets of a city, when granted by ordinance, is not always a mere license revocable at the pleasure of the municipality granting it, for if the grant is for an adequate consideration and is accepted by the grantee the ordinance ceases to be a mere license and becomes a valid and binding contract; and the same result follows where a mere license is acted upon in a substantial manner before revocation, so that to revoke it would be inequitable.</p> <p>2. Same—city cannot, after granting portions of street to street railway, grant same portions to another. Although a city cannot grant the exclusive use of its streets to a street railway company, yet when it has granted the use of certain streets and specified the portion to be occupied by the street railway company, and the latter has accepted the grant and constructed its road according to the grant, the city cannot thereafter, during the continuance of the contract, grant the same portion of the street to another street railway company.</p> <p>3. Street railways—when a company has the right to exclude another company from its right of way. The fact that the city, when granting street railway privileges, reserves the right to grant the use of the tracks to any interurban company upon certain conditions specified in the grant, does not give the city the right to grant the use of the tracks to an interurban company upon different conditions, and the street railway company has the right to exclude the interurban company from the use of its tracks and the space occupied by its cars unless the interurban company complies with the conditions specified.</p> <p>4. Injunction-—when street railway company is entitled to relief by injunction. Where a street railway company has accepted and is complying with an ordinance authorizing it to lay and use double tracks, the inside rails of which are laid two feet from the center of the street, as required by the city, it has a right to enjoin an interurban company from laying its tracks- in such street with the inner rails three feet from the center of the street, thereby straddling the street railway tracks, even though the interurban company is acting under the purported authority of an ordinance.</p> <p>5. Same—when a bill for injunction cannot be dismissed. A bill for an injunction, even though injunction be the only relief sought, cannot be dismissed for want of equity upon the application for a temporary injunction unless the issues are joined and the whole case is submitted at that time. (Field v. Village of Western Springs, 181 Ill. 186, disapproved.)</p> <p>6. Parties—when city is not a necessary party to bill by street railway company for injunction. A city is not a necessary party to a bill by a street railway company to enjoin an interurban company from laying its tracks along the street in the portion of the street occupied by the street railway company’s tracks, even if the interurban company is acting under the purported authority of an ordinance.</p>

<p>1. Res judicata—determination of question by court of competent jurisdiction is binding upon the parties. When a court having jurisdiction decides a controversy the question involved is settled forever between the parties to the suit and persons in privity with them, and neither can again litigate with the other any fact or question actually or directly in issue which was passed upon and determined by the court.</p> <p>2. Same—fact that former adjudication was upon same question must be established. To give application to the doctrine of res judicata it must appear that the former adjudication was upon the same question presented in the subsequent suit, and if that fact does not appear from the record or decree in such suit it may be shown by extrinsic evidence.</p> <p>3. Same—certifícate of evidence is part of the decree and shows what issues were tried. The evidence in a chancery case may be preserved either by reciting the facts proved in the decree or by a certificate of evidence, and the certificate of evidence is part of the decree and shows what issues were tried.</p> <p>4. Same—when dismissal of a bill is conclusive against complainant’s claim of title. A dismissal on the merits, for want of equity, of a bill to remove .a cloud from title and quiet title in the complainant under his claim of ownership by adverse and exclusive possession of the land for twenty years is conclusive as between the parties that the complainant has no title, where the only issue presented was the nature of the complainant’s possession and whether it was adverse to the defendants.</p> <p>5. Same—when dismissal of bill cannot rest upon the ground of a remedy by ejectment. The dismissal, for want of equity, of a bill by one in possession of land to quiet title and remove a cloud cannot be said to rest upon the ground that the complainant had an adequate remedy at law by ejectment, since the- complainant, being in possession, could not bring an ejectment suit.</p> <p>6. Same—when the dismissal of a cross-bill is not res judicata against defendant’s title. Where a bill to quiet title and remove a cloud, filed by a person in possession of the land, is dismissed . for want of equity, the subsequent dismissal, on demurrer, of the cross-bill of a defendant who claims title from the government is not an adjudication that such defendant has no title, but such dismissal is proper because the defendant, not being in possession, would have a remedy at law by ejectment.</p> <p>7. Ejectment—when refusal to admit transcript of record of chancery suit in evidence is error. It is error, in an ejectment suit, to refuse to admit in evidence, at the instance of the plaintiff, the record of a former chancery suit brought by defendant against the plaintiff to remove a cloud and quiet title, where such record shows that the complainant’s claim of title by adverse possession was determined against him and that the defendant’s claim that the complainant held possession as lessee of defendant’s grantor was sustained.</p> <p>8. SamE'—tenant cannot dispute his landlord’s title. A tenant is estopped to dispute the title of his landlord or the landlord’s grantees, or to claim adversely to such title, without first surrendering possession; and if the fact of such tenancy is established in a chancery suit between the parties it is not necessary for the landlord, in a subsequent ejectment suit, to go back of the decree to prove title as against the tenant.</p>

<p>1. Taxes—board of review has pozucr to make original assessment. Under section 329 of the Revenue act (Hurd’s Stat. 1909, p. 1886,) the board of review may properly make an original assessment of omitted property in the same manner and subject to the same requirement as to notice that the assessor might make under sections 276 and 278 of said act.</p> <p>2. Same—notice to owner must precede assessment by board of reviezu. Notice to the owner that the board of review will make an assessment of omitted property must precede the making of the assessment, otherwise the assessment is illegal and cannot be made valid by giving a subsequent notice.</p> <p>3. Same—statute authorising board of review to assess omitted property is not invalid. The provision of section 329 of the Revenue act authorizing the board of review to make an assessment of omitted property is not unconstitutional upon the ground that it does" not specifically provide for notice to the owner, since the board has the same powers as the assessor has under sections 276 and 278 of said act, which sections, as construed in People v. National Box Co. 248 Ill. 141, provide for notice.</p>

<p>1. Appeals and Errors—when freehold is involved in proceeding to set aside lease as a cloud on title. A freehold is involved in a proceeding to set aside a lease as a cloud on title where the lease provides for a term which may last for an indefinite period, the term stated being for ten years, “and as much longer as said premises produce minerals of any kind in paying quantities.”</p> <p>2., Leases—when a lease is properly set aside as obtained by fraud. A lease giving the right to take minerals upon royalties is properly set aside as obtained by fraud where it is without mutuality, and the evidence shows that the lessees falsely represented themselves as trustees of persons having large capital, who would build a large plant on the land; that they were, in fact, trustees for no one and were without means, and that they never did anything under the lease, except to make a few tests, for some six years, when they assigned it for a nominal consideration.</p>

<p>Writ oe Error to the County Court of Lee county; the Hon. Robert H. Scott, Judge, presiding.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Earlin Q. Ball, Judge, presiding.</p>

<p>Appear from the Circuit Court of Cumberland county; the Hon. William B. Scholfield, Judge, presiding.</p>

<p>1. Constitutional law—constitutional objection not affecting the objector cannot be urged. An objection that section II of chapter 68 of the Revised Statutes, relating to husband and wife, is unconstitutional in so far as it applies to persons in the penitentiary, cannot be urged by a person who is not a member of that class and whose rights are in nowise affected by alleged infringement of the rights of members of such class.</p> <p>2. Same—rights and duties of husband and wife are subject to statutory enactment. Persons entering into the marriage relation assume duties and obligations in which the State is interested and which it may enforce, as it is essential to the welfare of society that the family shall be cared for and supported, its integrity be maintained and its members prevented from becoming objects of charity or a public charge.</p> <p>3. Same—section 11 of act concerning husband and wife imposes no new duties. Section 11 of the act concerning husband and wife, which makes the property of a husband or wife who abandons the other and moves to another State and remains away a year chargeable with the expenses of the family and the education of the children, imposes no new duties, as the law charges such expenses upon the property of both husband and wife though they remain in the State.</p> <p>4. Same—section 11 of the act concerning husband and wife is not unconstitutional. Section 11 of the act concerning husband and wife, which provides that where a husband or wife abandons the other and moves to another State and remains away a year his or her property shall be chargeable with the expenses of the family and the education of the children, is not unconstitutional.</p> <p>5. Words and phrases—words "suit” and "action” are, in general sense, synonymous. In a comprehensive sense and as a general rule the words “suit” and “action” are synonymous and are used interchangeably to mean any legal proceeding in a court for the enforcement of a right, and it is only where there is nothing requiring a different construction that the word “.action” can be limited to proceedings at law.</p> <p>6. Jurisdiction—section 11 of the act concerning husband and wife authorizes service of summons by publication. The proceeding contemplated by section 11 of the act concerning husband and wife is for the purpose of subjecting property within the jurisdiction of the court to the support and maintenance of the abandoned husband or wife and the family and not for the recovery of a personal judgment, and the service by publication under the Chancery act was the service intended by the requirement that “notice of the proceedings shall be given as in ordinary actions.”</p> <p>7. Husband and wife—the purpose of section 11 is not to take the property of one and give it to the other. The purpose of section 11 of the act concerning husband and wife is to authorize the abandoned spouse to manage, control, sell and encumber the property of the other as shall be necessary, in the judgment of the court, for the support and maintenance of the family and for the purpose of paying debts of the other or debts contracted for the support of the family, and it was not its purpose to take the property of the abandoning spouse and give it to the abandoned one.</p> <p>8. Same—court should ascertain, by hearing evidence, what is necessary for needs of abandoned spouse. In a proceeding by an abandoned spouse, under section 11 of the act concerning husband and wife, for authority to manage, encumber or sell the property of the other, the court must determine, by hearing evidence, what amount is needed and must make such orders as are necessary for the protection of the rights of both parties, and it is error to give the property to the abandoned spouse by authorizing her to sell or encumber it and receive the proceeds without restriction.</p> <p>9. Same—court should ascertain how much is necessary for a solicitor’s fee. A solicitor’s fee is a necessary expense in securing the rights of an abandoned spouse under section 11 of the act concerning husband and wife, and is to be classed as an expense incurred for the maintenance of the family, but it is the duty of the court to ascertain how much is necessary for that purpose.</p>

Writ or Error to the County Court of Pike county; the Hon. Paul F. Grote, Judge, presiding. This was a petition filed by the commissioners of Sny Island Levee Drainage District, under the provisions of section 37 of the Levee act, to levy an assessment of $250,-000 to provide funds with which to straighten and deepen the main channel of said drainage district.

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

<p>1. Drainage—right of land owners to join in objections to an application for judgment and order of sale. On an application for judgment and order of sale for a delinquent drainage assessment it is proper for the land owners to join in such objections as apply to all the lands, and unless it is apparent from the objections themselves, when considered in connection with the application, that confusion or embarrassment will result from permitting objectors to join, the objections should not be stricken from the files.</p> <p>2. Same—a fraudulent change of classification renders assessment invalid. A fraudulent change by the commissioners in the classification after it has been finally determined upon and before the assessment is made renders the assessment on the classification so fraudulently changed invalid, and the objection may be urged by the land owners jointly, on application for judgment and order of sale for the delinquent assessment. (Leonard v. Arnold, 244 Ill. 429, distinguished.)</p> <p>3. Same—objection that assessments are in excess of benefits may be made on application for judgment. Since the Farm Drainage act was amended, in 1901, by striking out section 27, the land owners have no opportunity to be heard with reference to the assessment until application is made for judgment and order of sale, and it is therefore proper, on such application, to raise the objection that the assessments are in excess of benefits, and as such objection affects each tract of land, even though not in the same proportion, the land owners may join in the objection, and upon the hearing the court should hear the proof on the question of benefits and sustain the objection as to any excess of the assessment above the benefits.</p> <p>4. Same—commissioners must find that amount levied is necessary. Before the farm drainage commissioners are authorized, under section 26 of the Farm Drainage act, to make out an assessment roll or tax list they must provide for the amount of the assessment by a resolution stating that the amount named is necessary ; and a failure of the commissioners to find that the amount levied is necessary to be raised by special assessment is a valid objection on application by the collector for judgment of sale.</p> <p>5. Same—what may be shown under an objection that land has never been legally included in district. Under an objection that none of the lands of the objectors in a certain county had ever been legally included within the district, which was organized in another county, the objectors cannot attack the corporate existence of the district, but they may show, if they can, such facts as will show a lack of jurisdiction in the drainage commissioners to levy any tax against the lands.</p> <p>6. Same—what action by commissioners does not have any effect upon the classification. Section 21 of the Farm Drainage act authorizes the commissioners, under certain conditions, to make a new classification, but the determination to make a new classification must be arrived at in a regular meeting of the commissioners and a record of it made and preserved; and any written statement by the commissioners, or a majority of them, that the classification made is not in accordance with justice and right does not affect the classification or the assessment.</p> <p>7. Same—the fact that those paying assessment admitted that classification was unjust cannot be proved. Land owners have a right to be heard as to the final adoption of the classification, but when the classification is once adopted it can be changed only by the commissioners in the manner pointed out by the statute; and the mere fact that the persons, or a majority of them, who paid the assessment without objection admitted that the classification was not in accordance with justice and right cannot be made the basis of an objection to the application for judgment.</p> <p>8. Same—objection that district has been absorbed can only be made in a direct proceeding. An objection that the drainage district has been absorbed by another district cannot be urged upon application for judgment and order of sale for a delinquent drainage assessment, as such objection goes to the corporate existence of the district and can only be made in a direct proceeding.</p> <p>9. Same—objection that proposed ditch does not have an adequate outlet is not valid. Land owners have a remedy, by mandamus, to compel drainage commissioners to provide outlets of ample capacity for the waters of the district, and hence an objection that the ditch has no adequate outlet is not' a valid one to urge on application for judgment and order of sale.</p> <p>10. Same—Farm Drainage act does not provide, for confirmation of assessment. An objection that a farm drainage assessment was never confirmed is not valid, as the Farm Drainage act does not provide for such confirmation, and if it is intended by such objection to raise the point that the assessment roll was not filed with the town clerk, as provided by the act, the objection should state that fact specifically.</p> <p>ii. Same—fact that delinquent list does not provide for collection of interest is not a valid objection. The fact that the county collector may not have included interest on the delinquent assessment does not furnish the land owners with a valid objection to the application for judgment and order of sale.</p>

<p>1. Ejectment—what does not destroy possession by a railroad company up to fence. Possession by a railroad company up to the fence erected with its consent between the right of way and the adjoining land is not destroyed by the fact that a tenant on the land farmed a part of the right of way by permission of the company, or by the fact that the section men did not mow the grass all the way to the fence.</p> <p>2. Same—possession of land is notice of the rights of the possessor. A non-resident land o'wner cannot say that he had no notice that a fence was built between his land and a railroad right of way where the resident agent who managed the land for the owner had such notice; but it is not necessary for a railroad company to give notice to a land owner in addition to the building of a fence, as the company’s possession is notice of its rights.</p> <p>3. Same—what does not constitute color of title. A condemnation judgment for a right of way sixty-six feet wide, containing 2.46 acres, across a certain described eighty-acre tract is not color of title, neither is a receipt for the money paid in satisfaction of the judgment, which does not describe the particular property and purport to convey title; but the judgment and receipt show the purchase of the right of way of the width described, and if the purchase is followed by uninterrupted and adverse possession of the right of way for twenty years the company will acquire title.</p> <p>4. Same—fact that the fee cannot be acquired by condemnation does not preclude acquiring title by limitation. The provision of the constitution that where property is taken by condemnation the fee shall remain in the owner subject to the use for which it was taken, does not prevent a railroad company from acquiring a title to land by adverse and uninterrupted possession for twenty years.</p> <p>3. Appeals and errors—when objection that plea was not verified comes too late. A cross-error based upon the fact that a plea in ejectment denying possession or claim of title was not verified cannot be considered where the case was tried on the pleadings as they stood, without any objection being made to the plea.</p> <p>6. Propositions oe law—the Practice act contemplates propositions based upon the evidence. The propositions of law contemplated by the Practice act are those stating rules of law based upon hypotheses of fact which the evidence tends to prove.</p>

<p>Writ oe Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.</p>

<p>1. Joint tenancy—joint tenancy of husband and wife is same as any other joint tenancy. Since the passage of the Married Woman’s act the common law rule that a deed to husband and wife created in them a tenancy by the entirety, which could not be severed by a conveyance by one of them to a stranger, has ceased to be the law in Illinois, and a joint tenancy of husband and wife is now governed by the rules applicable to other joint tenancies.</p> <p>2. Same—joint tenancy of husband and wife is severed when one conveys his or her interest to a stranger. A joint tenancy, even though the joint tenants are husband and wife, is severed when one joint tenant conveys or mortgages his or her interest to a stranger. (Mette v. Feltgen, 148 Ill. 357, explained.)</p> <p>3. Same—deed of one joint tenant not joined in by the other is not void. A deed by the wife conveying to a stranger her interest in property in which she and her husband were joint tenants is not void because the deed was not joined in by the husband.</p>

<p>1. Appeals and errors—when a constitutional question is involved. Where the trial court, in an action under the Mines and Miners act, construes sections 16 and 18 of said act as applying to certain conditions and renders judgment against the defendant which violates its constitutional rights if the statute cannot constitutionally be given such construction, a constitutional question' is involved and Supreme Court has jurisdiction of a direct appeal.</p> <p>2. Practice—when motion for new trial is not necessary. The weight of the evidence in an action at law cannot be questioned on appeal in the absence of a motion for new trial, but a motion to direct a verdict raises only the legal question whether there is any evidence legally tending to sustain the verdict, and the court’s action on such motion is presented for review though no motion for new trial is made.</p> <p>3. Mines—the Mines and Miners act was passed in obedience to constitutional mandate. The Mines and Miners act was passed in obedience to the mandate of section 29 of article 4 of the constitution, which recognizes the dangerous character of the occupation of miners and requires legislation specially for their protection, and the Mines and Miners act must therefore be liberally construed.</p> <p>4. Same—it is only physical conditions which make a working place unsafe which must be marked. Under section 18 of the Mines and Miners act, concerning the examination of mines, it is only physical conditions which make a working place dangerous that the mine examiner is required to observe and mark. (Dunham v. Black Diamond Coal Co. 239 Ill. 457, and Spring Valley Coal Co. v. Greig, 226 id. 511, explained.)</p> <p>5. Same—when section 18 of the Mines and Miners act does not apply. Alleged defects in the rope haulage system in a mine, consisting of broken balance wheels, worn friction blocks and defective drums, do not affect the physical condition of the working place of a trip-hauler several hundred feet from such machinery, and they are not, as to such trip-hauler, among the dangerous conditions which the mine examiner must observe and mark.</p> <p>6. Same—statute does not expressly require mine examiners to examine machinery. The statute expressly requires mine examiners to be competent to examine the ventilation of a mine and the condition of the working places, but it does not require them to know anything about, or be competent to. examine, engines, machinery or other apparatus, nor does it expressly require them to make an examination thereof.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>1. Appeals and errors—when appeal will lie from ejectment judgment as to one of lots involved. Where an ejectment suit is for the possession of two separate and distinct lots and the questions of title are entirely independent of each other, an appeal will lie from a judgment against the plaintiffs as to one of the lots.</p> <p>2. Ejectment—vendee’s performance of contract of purchase is a defense to ejectment. In ejectment, where the plaintiff relies upon and proves a legal title, proof that the defendant has entered into possession under a contract of purchase and that he has performed his part of the contract presents a complete defense.</p> <p>3. Same—proof of existence of contract is essential to defense based upon its performance. Proof of the existence of the contract of purchase is essential to a defense based upon possession thereunder and performance of its terms, and proof which merely raises an inference of the existence of a contract, the terms of which are entirely unknown, is not sufficient to defeat a recovery by the plaintiff upon the strength of his proven legal title..</p> <p>4. Same—when plaintiff is not required to show breach of contract of purchase. In ejectment, where the plaintiff proves a clear legal title and the defendants offer proof which, at most, merely raises an inference that there was some sort of a contract under which possession was taken, the plaintiff is not required to prove that there was such a contract and then show its terms and a breach thereof. (Rowland v. Fischer, 30 Ill. 224, explained.)</p> <p>5. Same—when proof of payment of taxes is not admissible. In ejectment, where the plaintiff has proved legal title, proof that the person under whom the defendants claim paid the taxes on the land from a certain year until his death is not admissible, where there is no color of title, no claim under any limitation law, or any evidence of a contract under which he was to pay the taxes.</p> <p>6. Same—adjudging all the costs against one party is not apportioning them. The power of the court to apportion the costs where the plaintiff in ejectment recovers only a part of the land sued for does not justify adjudging all the costs against the plaintiff in such a case, as adjudging all the costs against one party is not apportioning them.</p>

<p>1. Appeals and Errors—when freehold is involved though the will does not expressly devise real estate. A freehold is involved on appeal from an order of the circuit court admitting to probate a will rejected by the probate court but making no order as to the will admitted to probate by the probate court, even though the will admitted to probate by the circuit court merely devises the property of the testator without mentioning real estate, where real estate is devised by the other will and it may be fairly inferred from the record that the testator owned real estate at his death.</p> <p>2. Wills—what is sufficient request by testator to attest will. It is not necessary that the testator shall by his own words either acknowledge his signature or request the attestation of the witnesses, and if persons are brought to him by a third party with the statement, in his presence, that they have been brought for the purpose of witnessing his will, and he then executes the will, which is signed by them as witnesses in his presence, his assent may be inferred unless there is other evidence leading to a different conclusion.</p> <p>3. Same—testimony showing that testator zvas physically unable to sign will is competent on probate. On application for probate, testimony describing the condition of the testator’s hands, the extent to which they were swollen and the position and flexibility or stiffness of his fingers is competent to contradict the testimony of the subscribing witnesses that the testator signed the will in their presence; but testimony of nurses and others that in their judgment he could not hold a pen and pencil,1 though they had not seen him try, is properly rejected. (Stuke v. Glaser, 223 Ill. 316, distinguished.)</p> <p>4. Evidence—when examination tending to show that zvitness has made contradictory statements should be allowed. Where a witness who has testified that the testator assented, by spoken words, to the witnessing of the will, is asked, on cross-examination, if he did riot, in a conversation with a named person at a specified time and place, state that the testator never said or did an> thing to indicate his assent, it is error for the court to refuse to allow the witness to answer and to refuse to allow the person with whom the alleged conversation was had to be interrogated ' with reference thereto.</p> <p>5. Same—rule as to proving signature by comparison with signature admitted to be'genuine. The genuineness of a signature cannot be proved by comparison with a signature or other writings admitted to be genuine where such signature or other writings are not a part of the record and are not in evidence in the case; but where such signature or other writings are already in evidence in the case, comparison may be made by the jury and by experts testifying to the jury.</p>

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

<p>1. Wiias—a legacy is not a charge against real estate %mless made so by will. A legacy is not a charge against real estate unless made so by the will, and if the personal estate is insufficient to pay it the legacy must abate.</p> <p>2. Sams—will must evidence an intention to charge real estate with payment of legacy. The intention of the testator to charge real estate with the payment of a legacy must be evidenced by the will itself, either by express words or necessary implication, and if there is no ambiguity in the language of the will, extrinsic circumstances cannot be considered to show an intention to charge a legacy upon real estate contrary to the intention appearing from the language used.</p> <p>3. Sams—direction to pay legacy “in due course of administration” does not charge real estate. A direction that a legacy be paid “in due course of administration” refers to the time the legacy is to be paid and does not charge the payment thereof upon real estate.</p> <p>4. Sams—when a legacy is not a charge upon real estate. A legacy to be paid “in due course of administration” is not a charge upon real estate where there is no express language to that effect in the will and no residuary clause, and where the testator left considerable personal estate, though not enough, after paying the debts of the estate, to pay the legacy in full; and in such case there is no authority for selling real estate, testate or intestate, to pay the legacy.</p>

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

<p>1. Drainage—Levee act in force when cause is remanded controls further proceedings. The Levee act, as amended in 1909, requiring all assessments of benefits or damages to be by a jury, must control proceedings had after such act is in force, against property of objectors who succeeded in obtaining a Reversal of the confirmation judgment entered before such act took effect, notwithstanding a portion of the same assessment against other property was made by commissioners.</p> <p>2. Same—the court may proceed under original petition though judgment of confirmation is reversed. The fact that the objections of certain property owners to a drainage assessment are sustained by the Supreme Court, which reverses the judgment of confirmation and remands the cause, with directions to spread the assessment under the law as then existing, does not deprive the trial court of jurisdiction to proceed further under the original petition for the assessment. (Claussen Park Drainage District v. Daily, 239 Ill. 428, and Spring Creek Drainage District v. Elgin, Joliet and Eastern Railway Co. 249 id. 260, explained.)</p> <p>3. Same—appeal or writ of error as to one piece of property does not invalidate proceedings as to other lands. Under the Levee act an appeal or writ of error as to one or more pieces of land against which a drainage assessment has been confirmed does not impair or invalidate the organization of the district, or any of its proceedings, as to the other lands.</p>

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

<p>1. Constitutional law—law authorising the organisation of municipal corporations must be available to all citizens similarly situated. If the power exists in the legislature to authorize the organization of a municipal corporation for the preservation of forests, it is essential to a valid exercise of such power that benefits of the law shall be available to all citizens similarly situated.</p> <p>2. Same—Forest Preserve act of 1909 is invalid. The provisions of the Forest Preserve act of 1909 prohibiting the creation of more than one district in a county, requiring the district to be composed of contiguous territory and leaving the question of annexing new territory to the will of the voters in territory adjoining the district, give to the inhabitants of the district first organized special privileges denied to other inhabitants of the county and render the act invalid; and the validity of the act is not aided by the fact that the first district organized may include an entire county. (Wilson v. Trustees, 133 Ill. 443, and Owners of Lands v. People, 113 id. 296, distinguished.)</p> <p>3. Elections—when election to create forest preserve district is illegal. Under the provisions of the Forest Preserve act of 1909, even conceding that the preliminary steps for the organization of a district could be taken before voting upon the adoption of the act and an election be then held, at which both the proposition to adopt the act and the proposition to create the district could be voted upon at the same time, an election cannot be sustained where the voters in parts of the county voted only upon the question of the adoption of the act, whereas the voters in other parts voted upon both questions.</p> <p>4. Same—election to organise under referendum statute is not analogous to election to organize under the Cities and Villages act. An election to organize a municipal corporation under a referendum statute is not analogous to an election to organize unincorporated territory into a city or village under the general Cities and Villages act, as the Cities and Villages act is not a referendum statute and the only vote required is upon the organization.</p>

<p>Writ of Error to the Circuit Court of Montgomery county; the Hon. A. M. Rose, Judge, presiding.</p>

<p>Writ os Error to the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>1. Special assessments—what objections cannot be made on application for judgment and order of sale. On an application for judgment and order of sale for a delinquent special assessment no objection can be made which could have been raised on the application for judgment of confirmation unless such objection goes to the jurisdiction to enter the judgment of confirmation; and the lack of jurisdiction must appear upon the face of the record.</p> <p>2. Same—what matters do not go to jurisdiction to confirm an assessment. The facts that the record of the confirmation proceedings does not show that an affidavit had been filed showing service of notice of the passage of a sidewalk ordinance or that the property owners were given forty days in which to build the walks cannot be urged for the first time on application for judgment and order of sale, as such matters do not go to the jurisdiction of the court to determine the question whether or not the assessment should be confirmed.</p> <p>3. Same—conclusiveness of confirmation judgment is the same although it is rendered by default. The fact that a confirmation judgment is rendered by default, after notice, does not affect the conclusiveness of such judgment as to objections which might have been urged in the proceeding for confirmation.</p>

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Richard M. Skinner, Judge, presiding.

<p>1. Appeals and errors—only parties to a suit may appeal, but a writ of error is not so limited. Only parties to a suit may appeal, as that is a privilege conferred by statute and is only given to the parties, but a writ of error is not so limited in its application, and, being a new suit, may be prosecuted as a matter of right in civil cases by anyone who is a party or privy to the record, or who is injured by the judgment or is competent to release error.</p> <p>2. Mandamus—Mandamus act contemplates that rights of all persons interested shall be adjudicated in one suit. The purpose of the provision of the Mandamus act authorizing the court to require any person to be made a defendant who claims or appears to the court to have an interest in the subject matter, is to have the rights of all persons having or claiming an interest in the subject matter adjudicated in one proceeding.</p> <p>3. Same—when policemen may sue out writ of error to reverse mandamus judgment. Police officers who were originally made defendants to a mandamus suit but against whom the petition was dismissed by an order entered nunc pro tunc as of the day the judgment ordering the writ as prayed was rendered are entitled to a writ of error to reverse such judgment, even though the judgment would not be res judicata as to their rights and interests, where the effect of the judgment is a decision that their appointment is illegal, as in such case they will be directly benefited by a reversal. (Winstanley v. People, 92 Ill. 402, distinguished.)</p>

<p>1. Municipal corporations—ordinances must not be in conflict with general laws of the State. Municipal ordinances must be in harmony with the general laws of the State and in case of a conflict the ordinance must give way, but the mere fact that the State has legislated upon a subject does not necessarily deprive a city of power to deal with the subject by ordinance.</p> <p>2. Same—Pure Pood law did not deprive cities of police power over sale of adulterated foods. The passage of the Pure Food law of 1907 did not deprive cities and villages of the power given by the provisions of article 5 of the Cities and Villages act to regulate the sale of impure or adulterated food by ordinances not inconsistent with such statute, and the fact that an ordinance attaches a less penalty than the statute does not amount to such a repugnancy between the two as invalidates the ordinance.</p> <p>•3. Same—police regulations of a city may differ from those of State. Police regulations enacted by a city under a general grant of power may differ from those of the State upon the same subject, provided they are not inconsistent therewith.</p>

<p>Appeal from the County Court of Piatt county; the Hon. Elim J. HawbakEr, Judge, presiding.</p>

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

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

<p>Forgery—altering marginal figures of a check to correspond •with written amotmt is not forgery. Altering the marginal figures of a check to make them correspond with the amount expressed in written words which are not ambiguous or uncertain is not forgery, as the written words, under section 17 of the Negotiable Instrument act of 1907, control the amount of the check, and the alteration does not change the legal effect of the instrument.</p>

<p>1. Partition—what admission by complainant does not bar a right to partition. The admission by the complainant in a bill for partition of an allegation in the answer that at the time of the filing of the bill there was a judgment of record in the circuit court which had not been set aside, vacated or annulled, “and which judgment was an adjudication of the rights of complainant in this cause in the said real property complainant seeks to have partitioned,” does not, of itself, show any bar to the relief sought.</p> <p>2. Same—when co-tenant is entitled to demand partition notwithstanding agreement. A co-tenant who has agreed with the others that one of their number shall be authorized to sell the real estate not later than a specified date is entitled to file a bill for partition if the land is not sold by the time agreed upon.</p> <p>3. Same—moral wrong in refusing to be bound by verbal contract does not raise an estoppel. Moral wrong on the part of a co-tenant in refusing to be bound by an oral contract authorizing one of the co-tenants to sell the land does not raise an estoppel against her right to demand partition after the time for making the sale has expired, notwithstanding her refusal to be so bound prevented the making of the sale within the time set by contract.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding.</p>

<p>Writ or Error to the Municipal Court of Chicago; the Hon. Hosea W. WELLS, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Rode Island county; the Hon. William H. Gest, Judge, presiding.</p>

Appear from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, 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. William N. Gem-mill, Judge, presiding.</p>

<p>1. Taxes—highway commissioners cannot levy a tax to build bridge necessitated by new drainage ditch. Highway commissioners cannot levy a tax to build a bridge necessitated by the construction of a drainage district ditch even though the drainage district is organized under the Levee act, which contains no provision compelling districts to build bridges made necessary by their ditches, as no statutory provision is required to compel the restoration of a highway; nor has the legislature power to authorize the levy of a road and bridge tax upon the tax-payers of the town for the benefit of a drainage district where the ditch is artificial.</p> <p>2. Same—when levies for city and village purposes cannot be sustained. The rule that a small sum which will reasonably cover such expenses of a city or village as cannot be classified may be levied under the description of contingent or miscellaneous expenses or incidentals, cannot be applied to sustain city taxes “for the fund known as the general fund for general city purposes, $1097.40,” and “consolidated, $1824,” or village taxes “for general fund, $1250,” and “for general fund, $500,” as such descriptions do not satisfy the provision of section x of article 8 of the Cities and Villages act requiring the tax levy ordinance to specify in detail the purposes for which the appropriations are made and the sum appropriated for each purpose.</p>

<p>This case is controlled by the decision in People v. Wabash Railroad Co. (ante, p. 316.)</p>

<p>Appeal from the County Court of Lee county; the Hon. Robert H. Scott, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Douglas county; the Hón. Solon Philbricic, Judge, presiding.</p>

<p>Information to disbar.</p>

<p>Appeal from the County Court of Saline county; the Hon. K. C. Ronalds, Judge, presiding.</p>

<p>Writ of Error to the Municipal Court of Chicago; the Hon. Edwin- K. Walker, Judge, presiding.</p>

<p>1. Taxes—highway commissioners’ certificate must state what the contingency is requiring additional road tax. To authorize an additional road tax under section 14 of the Roads and Bridges act the highway commissioners’ certificate must state that the tax is required for a contingency and must state what the contingency is.</p> <p>2. Same—what is not a contingency authorizing an additional road tax. The “contingency” contemplated by section 14 of the Roads and Bridges act is .some unusual or extraordinary event that does not happen regularly in the ordinary course of events, and a certificate stating that an additional tax is needed “in view of the contingency and emergency” that two certain roads, one mile in length, “need to be stoned and macadamed and certain bridges repaired and certain culverts constructed,” does not show such a contingency as is contemplated.</p>

<p>1. Special assessments—no presumption can be indulged in aid of jurisdiction of court. In special assessment proceedings, where the property of a citizen may be taken upon notice by publication and without personal notice to the property owner, no presumption can be indulged in support of the jurisdiction of the court where the proceedings are had but the proceedings must be in strict conformity to the statute; and this must be made to appear upon the face of the record of the proceedings.</p> <p>2. Same—court is without jurisdiction if certificate of publication is invalid. If the certificate of publication in a special assessment proceeding is not made by the publisher or his authorized agent the certificate is invalid, and the court is without jurisdiction to confirm the assessment over a specific objection to such jurisdiction, made under a special appearance.</p> <p>3. Same—secretary of a newspaper corporation has no implied authority to make a certificate of publication. The secretary of a newspaper corporation has no implied authority, by virtue of his office, alone, to make a certificate of publication for such company.</p>

<p>Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>Appeal from the County Court of Williamson county; the Hon. W. F. Slater, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. F. D. Ramsay, ’ Judge, presiding.</p>

<p>Appeal from the County Court of Edgar county; the Hon. .Dan V. Dayton, Judge, presiding.</p>

<p>1. Wills—wife of executor named in a will is an incompetent witness. The wife of the executor named in a will is not a competent subscribing witness, and if there is but one other subscribing witness the will is invalid and cannot be probated, even though the person named as executor executes a written renunciation. (Fearn v. Postlethwaite, 240 Ill. 626, adhered to.)</p> <p>2. Same—when an objection to competency of subscribing witnesses is made in apt time. An objection to the competency of the wife of the executor as a .subscribing witness is made in apt time where it is urged before she testified and at intervals during her testimony, which the court admitted subject to the objection but without ruling thereon until after her testimony was given, when the objection was sustained and the testimony stricken out.</p> <p>3. Same—amendment of ipu to section 8 of Wills act is not retroactive. Section 8 of the Wills act, as amended in 1911, making the husband or wife of any devisee or beneficiary competent to witness the will, cannot be given retroactive effect notwithstanding the language of the act, since to apply the act to wills which have become effective by the death of the testator before the act took effect would be to disturb- the vested rights of devisees and heirs, which attach at the time of the testator’s death.</p> <p>4. Same—will invalid when testator dies cannot be validated by subsequent statute. A will which is invalid at the time testator dies cannot be made valid by a statute passed subsequent thereto.</p>

<p>1. Taxes—drainage record is the only legal evidence of action of copipvissioners. The record which the statute requires to be kept of the proceedings of farm drainage commissioners is the only legal evidence of their actions.</p> <p>2. Same—official action shown by drainage record is presumed to have been within limits of district. Official action shown by the record of farm drainage commissioners will be presumed to have been within the limits of the district where the record is silent upon the point, and the burden of showing the contrary, in a proceeding to collect the drainage assessment, is upon the party raising the objection.</p>

<p>1. Practice—when no exception is necessary. Whether the proof in a suit to enjoin the obstruction of a street corresponds with the allegations of the bill is a question of law, and no exception to the master’s report is necessary to raise such question. (Dorn v. Farr, 179 Ill. 110, and Thornton v. Commonwealth Doan Ass’n, 181 id. 456, distinguished.)</p> <p>"2. Dedication—a dedication may be by parol. A dedication of a street to the public may be evidenced by acts and declarations without any writing, and so far as an agreement concerns the dedication of a street to the public it is not affected by the Statute of Frauds.</p> <p>3. Same—what tends to prove dedication of street. Proof that the grantor, when selling a tract of land, verbally agreed, for an independent consideration, to leave a strip of adjoining land open for a public street, and that such strip was left open, was fenced on both sides and graded and used by the public, tends to show a dedication to the public, and there is such performance and change of situation of the parties as takes the contract out of the Statute of Frauds. (Schneider v. Sulzer, 212 Ill. 87, distinguished.)</p>

Writ oE Error to the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. This was an action of ejectment commenced by the defendant -in error in the circuit court of Cook county against the plaintiff in error to recover in fee certain premises situated in the city of Chicago.

<p>Appeal from the Circuit Court of Lee county; the Hon. O. E. Heard, Judge, presiding.</p>

<p>1. Railroads—a city may pass ordinance requiring fences for protection of persons. If clause 26 of section 1 of article 5 of the Cities and Villages act were th$ only authority for the passage by a city of an ordinance requiring railroad companies to fence their tracks such an ordinance would have to be construed as applying only to fences for the purpose of turning stock, as the liability imposed by such clause is the same as that existing under the general laws of the State; but clause 27 of the same section supplements clause 26 and authorizes an ordinance requiring a fence as a protection to persons.</p> <p>2. Same—when an ordinance requiring fences is intended, for the protection of persons.. An ordinance containing in one section provisions with reference to lighting tracks, the speed of trains, the erection, maintenance and operation of gates, bells and safety appliances as well as substantial walls or fences, but containing no provisions as to cattle-guards, cannot be construed as merely requiring walls or fences to keep stock from getting on the track, but must be construed as requiring them for the protection of persons as well as property.</p> <p>3. Negligence—when neglect to maintain fences is proximate cause of accident. If it can reasonably be concluded from the evidence that the accident would not probably have happened except for the failure of a railroad company to fence its tracks, it follows that the neglect to fence is the proximate cause of the accident, unless some other disconnected cause, which could not have been foreseen by the exercise of ordinary care, has intervened.</p> <p>4. Same—when question of proximate cause is for the jury. If the facts and circumstances proven are such that men of ordinary judgment might reasonably arrive at different conclusions as to whether the presence of the fence which the defendant railroad company was required by ordinance to erect would have prevented the injury to the plaintiff, who was a boy ten years and eight months old, the question is one which must be submitted to the jury; and the age of the boy is one of the circumstances to be considered by the jury in determining that question.</p> <p>5. Same—what not essential to render negligent act the proximate cause of injury. To ’render a negligent act the proximate cause of an injury it is not essential that the particular injurious consequences and the precise manner of their infliction be such as could have reasonably been foreseen, and it is sufficient if the consequences follow in unbroken sequence, without any intervening cause, if at the time of the negligence the wrongdoer might by the exercise of ordinary care have foreseen that some injury might result from his act. '</p>

<p>1. Eminent domain—property already devoted to public use cannot, in general, be condemned for different public use. Property already devoted to a public use cannot be condemned for a different public use unless there is express or implied statutory authority therefor.</p> <p>2. Same—grant of power to condemn property under the Local Improvement act is general. The grant of power to a city to appropriate property under the Local Improvement act is general, and the same rule of construction is applicable to it as applies to the general grant of the power of eminent domain to railroad corporations under the Railroads act.</p> <p>3. Special assessments—a city has no power to take land of a public library to widen street. Neither the general power of a city to open, widen or alter its streets or other public grounds nor the power to appropriate land under the Local Improvement act authorizes a city, for the purpose of widening a street, to take land already devoted to public use as a public library.</p> <p>4. Same—citizen and tax-payer may object to confirmation of assessment requiring taking of land of public library. A citizen and tax-payer of the city, even though not a party to the proceeding, may appear and object to the confirmation of a special assessment for the purpose of widening a street by taking a strip of land from the abutting property, which includes land already devoted to public use as a public library, the title to which is held by the trustees of the library, who are not objecting.</p> <p>5. Same—when petition must be dismissed. If the city has no power to take a portion of the land required to widen a street, as provided in the improvement ordinance, the petition must be dismissed, regardless of any power the city may have to provide by another ordinance for a different improvement.</p>

<p>Appeal from the County Court of Jo Daviess county;' the Hon. John C. Boevers, Judge, presiding.</p>

<p>Appeal from the County Court of Hancock county; the Hon. J. Arthur Baird, Judge, presiding.</p>

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

<p>1. Wills—when testator has sufficient mental capacity to make a will. Proof that the testator was weakened by disease and his mind, until aroused, partially dormant, does not show that he did not have sufficient mental capacity to make the will, where it is shown that at that time his mind was clear, that he talked an hour with his attorney, telling him the number of acres of land and the amount of personal property he owned, stating how he purchased the land, mentioning his children in the order of their birth as the objects of his bounty, stating how he wanted the property divided between his wife and children, and otherwise exhibiting discriminating judgment.</p> <p>2. Same—mere fact that the testator was about to die when he made his will does not invalidate it. The mere fact that the testator was sick and about to die when he made his will does not invalidate it, and if he has sufficient mental capacity to comprehend the nature and character of his property and the objects of his bounty, and understands the business in which he is engaged, he has sufficient mental capacity to make the will.</p>

<p>Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding.</p>

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

<p>Appeal from the Circuit -Court of Iroquois county; the Hon. Prank L. Hooper, Judge, presiding.</p>

<p>1. Dower—when dower is barred under section 15 of Dower act. Barring of dower under section 15 of the Dower act is not limited to cases where there is difficulty between husband and wife and an alienation and one elopes with another person and commits adultery, but applies also where a husband or wife leaves the other and commits adultery, unless the offense is subsequently condoned and the parties again dwell together.</p> <p>2. Same—what makes a prima facie case barring dower under section 15 of the Dower act. Proof that the husband left his wife several years before she died and that they never dwelt together again; that the husband, a few days after his wife’s death,' was living in a lodging house with another woman to whom he was not then married, and that such woman had been introduced by him as his wife before his wife’s death, makes a prima facie case which will bar dower under section 15 of the Dower act, where the husband, although having full opportunity, does not meet or overcome the prima facie case in any way.</p>

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

<p>1. Grain inspection—expense of grain inspection is a proper charge upon funds of the State. The constitution imposes upon the legislature the duty of passing laws for the inspection of grain, and such an inspection is the exercise of the police power, and the expense thereof is a proper charge upon the funds of the State.</p> <p>2. Same—fees for grain inspection belong to the State. The fees paid for grain inspection do not belong to the chief grain inspector and deputy inspectors, for while they are paid compensation for service rendered, the service is the service of the State and the fees received belong to the State.</p> <p>3. Same—grain inspection department is part of the State government. The grain inspection department of the State is a part of the State government and its receipts are a part of the public money of the State.</p> <p>4. Same—fact that grain inspection fees must be kept in special fund does not make them any the less public money. Even though it may be that grain inspection fees can be used only for the purpose of paying the expenses of the grain inspection department and that they must be kept in a separate fund, still they belong to the State, and can only be paid out in accordance with the laws governing the expenditure of the money of the State.</p> <p>5. Same—act of ipil, requiring public money to be paid into State treasury, applies to grain inspection fees. • The act of 1911, (Laws of 1911, p. 429,) requiring fees received by certain officers, boards and commissions to be paid into the State treasury and to be thereafter withdrawn only upon the warrant of the Auditor of Public Accounts pursuant to legislative appropriation, applies to grain inspection fees, notwithstanding the act of 1871 provides for their disbursement without any legislative appropriation. (People v. Harper, 91 Ill. 357, explained.)</p> <p>6. Constitutional law—act of zpzz, requiring public moneys to be paid into State treasury, is valid. The act of 1911, (Laws of 1911, p. 429,) requiring fees received by the officers, boards and commissions therein named to be paid into the State treasury and thereafter drawn out only on the State Auditor’s warrant pursuant to legislative appropriation, is not invalid as applied to grain inspection fees, as the act is merely declaratory of a duty which has existed ever since the Grain Inspection law was enacted.</p> <p>7. Same—title of act need not mention acts indirectly affected by it. Where an act does not purport to be an amendatory act and only indirectly affects any other statute, it is not necessary that the title of such act shall mention any of the statutes which will be indirectly affected by it.</p> <p>8. Same—fact that amount appropriated for grain inspection is insufficient does not render act of ipzz invalid. The fact that the amount appropriated by the legislature for the expenses of the grain inspection department may not be sufficient to enable the department to render as complete service as is required, and that the efficiency of the Grain Inspection law is thereby impaired, does not render unconstitutional the act of 1911, requiring grain inspection fees to be paid into the State treasury and withdrawn only in pursuance of legislative appropriation.</p>

<p>x. Constitutional law—Union Label law is not unconstitutional. While a registered label of a union or association is not strictly a trade-mark, yet the legislature may lawfully provide for the registration of such a label and protect its use, and the act of 1891, (Hurd’s Stat. 1909, p. 2249,) providing for the" registration of a union label and for protection in its use, is not invalid.</p> <p>2. Criminal law—what constitutes a fatal variance in prosecution for violation of Union Label law. Where the information charges that the union label infringed was the registered label of a certain association but the proof shows that it was the registered label of another association there is a fatal variance; and such variance is not cured by taking leave to amend the information, if the amendment is not, in fact, made.</p> <p>3. Same—what is not a violation of Union Label law. The fact that a person who has no right to use a certain registered union label takes a contract calling for a commodity bearing such label and sub-lets the contract to a person having a right to use such label does not constitute a violation of the Union Label law of 1891, there being no provision in the contract against sub-letting, and no bad faith or intention on the part of the contractor, by subterfuge or otherwise, to use or display such label unlawfully.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Woodford county; the Hon. George W. Patton, Judge, presiding.

Writ oe Error to the Superior Court of Cook county; the Hon. Earein Q. Baee, Judge, presiding. On August 17, 1905, Charles W. Colehour filed a bill in the superior court of Cook county against the South Park Commissioners, Edward Roby, Carrie M. Colehour and Azel P. Hatch. The bill was amended, additional parties were made, Hatch died and his administrator was substituted in his place. The defendants answered and the cause was put at issue by the filing of replications.

■Writ op Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.

<p>1. Appeals and errors—when a freehold is involved in action on the case. In an action by a land owner against a sanitary district for damages to the land from overflow, if the defendant by its plea denies the plaintiff’s allegation of ownership and the question of ownership is proved and determined a freehold is involved, notwithstanding the defendant, on appeal, concedes the question of title and does not desire to further contest that point.</p> <p>2. Damages-—when all damages from permanent structure can not be recovered in one suit. Where the continuance and operation of a permanent structure is not necessarily injurious to land but may or may not be so, according to the manner of its operation and the action of the forces of nature, only the injury sustained before beginning the suit can be compensated in that suit.</p> <p>3. Same—permanency of the injury, and not the permanency of the cause, is the test—limitations. It is the permanency of the injury, and not merely the permanency Of the structure causing the injury, which is the test in determining whether damages for all time to come may be recovered in one action; and it is the injury which is the cause of action, and the Statute of Limitations does not begin to run until the cause of action accrues.</p> <p>4. Same-—when injury is not necessarily of a permanent character. Where a declaration charges that since the construction and operation of the channel of a sanitary district the lands of the plaintiff have been subject to more and greater overflow than before, and that such overflow is intermittent and recurrent, the injury cannot be said to be of such a permanent character as requires the plaintiff to recover all damages in one suit, and as fixes the time the channel was opened as the time when the Statute of Limitations began to run. (Suehr v. Sanitary District, 242 Ill. 496, distinguished.)</p> <p>5. Same—measure of damages in case of permanent injury to realty. In case of a permanent injury to realty the measure of damages is the difference between the value of the land before the injury and its value afterward; but such is not the rule where the injury is not permanent, and in such case the measure of damages is the actual loss sustained during the continuance of the injury.</p> <p>6. Same—when rule applicable to shade and ornamental trees does not apply. The rule that where fruit or ornamental trees are destroyed by the flooding of lands the measure of damages is the diminished value of the land does not apply where the trees destroyed are ordinary forest trees having a value for lumber, which can be readily ascertained and proven.</p> <p>7. Same—when plaintiff may prove value of timber, destroyed and yearly value of pasture lands. In an action against a sanitary district for damages to lands of the plaintiff alleged to be flooded intermittently and recurrently, the plaintiff may prove the value of the timber destroyed and the value, per acre, of the pasture lands for each of the five years during the continuance of the injury and preceding the commencement of the suit.</p> <p>8. Sanitary districts—when a sanitary district is liable for damage from overflow. If, by reason of the flow of waters from a sanitary district channel into a connecting river, lands are overflowed and injured the district is liable to the owner of such lands, irrespective of whether the district has been guilty of any negligent act in the management of the waters of the drainage channel.</p> <p>9. Same—fact that flood contributed to injury does not defeat recovery from sanitary district. The fact that an unusual flood occurring after the opening of the channel of a sanitary district may have contributed to the destruction of the timber on plaintiff’s land does not defeat a recovery from the defendant sanitary district, where the evidence shows with equal conclusiveness that the timber would not have been destroyed but for the subsequent intermittent overflow of the lands, caused by the discharge of water from the defendant district’s channel.</p> <p>10. Same—extent to which statute authorising work is a protection. If the act or work authorized by the legislature is done or constructed within the scope of the power granted, the grant operates as a protection against indictment or suit for any injury which is a necessary and probable result thereof; but beyond such probable consequences the legislative authority is no protection.</p> <p>11. Same—when giving instructions not based on evidence will not reverse. Giving instructions authorizing a recovery against a sanitary district if it has been guilty of negligence in the management of the waters of the channel is not ground for reversal even though there is no evidence of negligence, where the district is liable irrespective of the question of negligence and there is a count in the declaration alleging such liability.</p> <p>12. Same—when recovery of attorneys’ fees is authorised. An action against a sanitary district to recover damages for timber killed and the loss of the use of pasture land caused by the intermittent and recurrent overflow of the land is for damages to real estate, within the meaning of section 19 of the Sanitary District act, and the plaintiff is entitled to recover his attorneys’ fees.</p>

<p>1. Constitutional law—a party is not only entitled to notice but also to a hearing. Under the due process of law provision of the constitution a party is not only entitled to notice of a proceeding against him but is also entitled to be heard in his defense.</p> <p>2. Judgments and decrees—when judgment is merely the arbitrary edict of the judge. A judgment pronounced without any judicial determination of the facts which alone can support such a judgment is merely the arbitrary edict of the judge, and is as much wanting in due process of law as though the party against whom it was rendered had not been served with legal process.</p> <p>3. Same—what is not a denial of due process of law. The fact that the Supreme Court, in affirming a decree entering judgment on an arbitrator’s award and dismissing cross-bills to impeach the award, disposed of the contentions against the validity of the award upon the ground that they presented questions upon which the parties were, foreclosed by their agreement to arbitrate, does not amount to a denial of a hearing upon such matters, such as would render the original decree void under the due process of law provision of the constitution.</p> <p>4. Equity—when cross-bill cannot be sustained as a bill of review for newly discovered evidence. A cross-bill in a creditor’s bill proceeding cannot be sustained as a bill of review for newly discovered evidence where the cross-bill is not sworn to, and there is no affidavit filed'with the bill, or any other showing made, that the cross-complainants have any new evidence to present, the only claim being that the matter of accounting was not fully gone into in the original suit.</p> <p>5. Same—when bill of review for error apparent on face of record cannot be maintained. A cross-bill in a creditor’s bill proceeding cannot be sustained as a bill of review for errors apparent on the face of the record of the original proceeding, where such record has already been reviewed arid the decree affirmed by an appellate tribunal.</p> <p>6. Same—when court will not inquire whether former decree was just and equitable. Where a bill is filed to carry into execution a former decree which is incomplete or defective to such an extent that it cannot be executed without a further decree curing the defect and making it complete, the court will inquire whether-the former decree is just and equitable; but this rule has no application to decrees that are complete and free from any inherent defect which prevents their execution.</p> <p>7. Sams—court will not open issvies upon filing a creditor’s bill to remove fraudulent conveyances. Upon the filing of a creditor’s bill to set aside an alleged fraudulent conveyance and subject the property to the payment of a decree which is complete and final, the court will not open up the issues which were tried in the original proceeding and re-try them.</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>

Writ op Error to the Appellate Court for the First District ;■—heard in that court on appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.