Volume 253 — Illinois Reports

<p>Appear from the Circuit Court of Cook county, the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Statutes—statutes should be so construed, if possible, as to give all parts a meaning. Statutes should be so construed as to give all parts a reasonable meaning if it is possible to do so.</p> <p>2. Same—Mechanic’s Lien statute must receive strict construction. Mechanic’s liens exist only by virtue of statutes creating them and providing for their enforcement, and such statutes must be strictly construed with reference to the requirements on which the right to a lien depends.</p> <p>3. Mechanics’ mens—purpose of amendment of ipo5 of sections 1 and 7 of Mechanic’s Lien law. The purpose of the amendment of 1903 of sections 1 and 7 of the Mechanic’s Lien law was to permit a contractor to file one claim against separate buildings on lots which are not adjacent to or adjoining each other, provided the work was done or material furnished for all of such buildings under one entire contract.</p> <p>4. Same—purpose of requiring a claim to be filed within stated time. The purpose of the provision of the Mechanic’s Lien law requiring a claim for lien to be filed within a stated time is to notify third persons dealing with the property of the existence, nature and character of the lien as well as the times when the material was furnished and labor performed, thus enabling "them to determine from the claim itself whether it can be enforced.</p> <p>5. Same—when claim against buildings on non-adjacent lots must be filed. Where work is done and materials are furnished under one entire contract for buildings upon lots not adjoining or adjacent to each other the claim for lien must be filed within four months after the work is performed or the material is furnished for each of the buildings, and a claim for lien filed within four months after the completion of the last building is not good as to buildings on which the last work was done or materials furnished more than four months before the claim was filed, if the rights of third persons have intervened.</p> <p>6. Same—when claim for lien against several buildings cannot be enforced at all. A claim for lien against several buildings on lots not adjoining or adjacent, on which the work was done and materials were furnished under one entire contract, cannot be enforced at all, even though filed within four months after the completion of the last building, where the other buildings were completed and sold more than four months before the claim was filed, and where there is nothing in the claim from which it can be ascertained how the amount claimed’ for work and materials is to be apportioned among the several buildings.</p>

W. F. Cooper, Judge, presiding. This is an appeal from the decree of the superior court of Cook county sustaining a demurrer to and dismissing for want of equity an amended bill filed by the appellants, Louis S. Cohen and Anna Krasa, praying for specific performance of a written contract for the exchange of lands,' entered into by them with the appellees, Joseph Segal and Rose Segal.

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Assault and battery—information need not allege, in terms, that assault was unlawfully made. ■ An information charging the defendant with assault and battery is not fatally defective though it does not allege, in terms, that the assault was unlawfully made.</p>

<p>1. Names—middle initial is no part of name. A middle initial is no part of a name, and it will be presumed, after a lapse of many years and in the absence of proof to the contrary, that the person who attested a will as “David D. Malone” was the same person who testified as “D. M. Malone” at the time the will was admitted to probate in the county court.</p> <p>2. Wills —probate of a will cannot be attacked in a collateral proceeding. The probate of a will cannot be attacked in a collateral proceeding brought for the purpose of obtaining a construction of the will.</p> <p>3. Same—language used to cut dovfn fee to life estate must be clear and unequivocal. While a fee may be cut down by subsequent language used in the will, yet the language so relied upon must be clear and unequivocal.</p> <p>4. Same—when fee is not reduced to life estate by subseqiient language. Where the first clause of a will gives all the testator’s real estate to his wife, the second clause gives her all his personal property, and the last clause gives her all the rest and residue of the property, revokes former wills and appoints the wife executrix, concluding with the words, “so long as she remains my widdo,” such words do not reduce the widow’s fee to a life estate.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Martin M. GridlEy, Judge, presiding.</p>

<p>1. Drainage—an appeal from commissioners’ decision on objections to classification operates as a supersedeas. When an appeal is taken by a land owner to the county court from the decision of drainage commissioners upon the objections to the classification of the lands, the commissioners have no power to levy and collect the drainage assessment against the lands of such owner until the appeal is disposed of, though they may levy and collect the tax as to the lands of owners not appealing. (People v. Meyers, 124 Ill. 95, and People v. Grace, 237 id. 265, distinguished.)</p> <p>2. Same—decision of commissioners upon objections to classification is not final. Drainage commissioners have no lawful authority to tax the lands more than they are benefited nor more than their just proportion of the benefits, and the decision of the commissioners is not made final upon such questions but may be reviewed on appeal to the county court.</p> <p>3. Same—original classification fixed, by the commissioners is final as to owners not appealing. As to owners not appealing from the classification made by the commissioners such classification is the basis for the levying of the taxes against their lands, but as to land owners appealing to the county court the classification fixed by such court is final, and until such appeal is determined there is no basis for the levying of the tax against their lands.</p>

<p>1. Specific performance—a contract to convey land must describe the land so that it may be located. A contract to convey real estate will not be specifically enforced unless it describes the land with sufficient certainty to enable it to be located.</p> <p>2. Same—when contract does not sufficiently describe the land. A contract whereby the first party agrees, upon condition that he shall inherit, by will, the “lands or real estate now owned” by a certain person, to deed to the secopd party “one hundred (100) acres of said land or real estate situated in Fayette county, Illinois,” does not sufficiently describe the land, where there are six hundred acres of land in such county which are owned by the person referred to.</p>

<p>AppEae from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>1. Taxes—the amount levied under description “contingent expenses” must be small in proportion to total tax. To justify the levy of a tax by a county or a city under the description of “contingent expenses” the amount must be small in proportion to the total tax and be reasonable in view of the size and population of the municipality levying the tax, and the Supreme Court will take judicial notice of the size and population of such municipality where objection is made to the amount of the tax.</p> <p>2. Same—when a levy for “contingent expenses” is excessive. A tax levy by a county for “contingent expenses” in an amount equal to one-ninth of the total tax levied for all county purposes, and a like levy by a city in an amount equal to one-eighth of the total city tax, are excessive and cannot be sustained over an objection on that ground.</p> <p>3. Same—a certifícate stating no contingency at all will not support additional road tax. An additional road tax levied under section 14 of the Roads and Bridges act cannot be sustained where the certificate of the highway commissioners on which the tax is based does not show any contingency at all.</p> <p>4. Same—zvhen objection that amount due for taxes was not deposited before appeal, comes too late. An objection that the record does not show that the amount of the judgment for taxes was deposited before the appeal was perfected comes too late, where no motion was made to dismiss the appeal and the case was submitted to the court on its merits, without objection, for decision upon the errors assigned.</p>

<p>1. Dedication—prestmption that a deed was delivered on its date is rebuttable. The presumption that a deed was delivered on its date is one of fact, which is rebuttable and is overcome by the fact that after the date of the deed, but before it was recorded, the grantor, in acknowledging a plat, certified before the proper officer that he was then the owner of the land.</p> <p>2. Same—what fact goes merely to question whether plat was a statutory one. The fact that a deed conveying all of the premises included in a plat was ■ dated prior to the time the plat was acknowledged by the grantor, though the deed was not recorded until after the plat had been acknowledged, approved and recorded, goes merely to the question whether the plat was a statutory or common law plat.</p> <p>3. Same—offered dedication of strip for alley cannot be withdrawn after acceptance. If the purchaser of a platted tract of land immediately recognizes the plat by making conveyances with reference thereto he and his grantees are estopped to deny that the plat is at least a good common law plat, and if a strip of land shown thereon as a public alley is accepted by the city as a public alley, said purchaser cannot thereafter lawfully withdraw the dedication by conveying the strip to the owners of abutting lots.</p> <p>4. Same—strip need not be marked on plat as an alley in order to show intention to dedicate it. In order to show an intention to dedicate a strip of land for the use of the public as a street or alley it is not essential that the strip be so designated, in terms, on the plat, provided such intention is manifested by a consideration of the entire plat, including the figures thereon, the surrounding streets and alleys and their connection with the strip in question.</p> <p>5. Same—when it is presumed that all streets and alleys of a subdivision have been accepted. Acceptance of the streets and alleys shown on a common law plat may be express, as evidenced by ordinance or resolution, or may be implied from the acts of the city or the public by making improvements or by travel; and where it clearly appears that the principal streets and alleys of a subdivision have been accepted by the city by paving, putting in sidewalks, sewers and the like, it must be presumed that all the streets and alleys were accepted, in the absence of anything to show the acceptance was limited.</p> <p>6. Same—ordinance recognizing legal existence of alley is evidence of acceptance. An ordinance which recognizes the legal existence of an alley shown on a common law plat by authorizing an abutting owner to lay a track across the strip to connect with the tracks of a railroad company is evidence of an acceptance of the strip as a public alley.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.</p>

Appear from the Circuit Court of Livingston county, the Hon. George W. Patton, Judge, presiding. James Henry, a bachelor, departed this life testate, in Livingston county, on April 12, 1879, leaving Alexander Cupples, a nephew, him surviving, as his sole heir-at-law.

Clair county; the Hon. George A. Crow, Judge, presiding. Charles Becker was Treasurer of the State of Illinois from January 14, 1889, to January 12, 1891, and Charles W. Pavey was Auditor of Public Accounts from January 14, 1889, to January 9, 1893.

<p>1. Elections—judgment of county court on contest of primary election is final. The only authority for contesting elections or nominations at a primary election is found in section 62 of the Primary Election act of 1910, and as such section provides that the judgment shall be final there is no right of appeal; nor is there a right to a writ of error, since an election contest is a statutory proceeding.</p> <p>2. Appeals and Errors—judgment in primary election contest is conclusive of court’s jurisdiction. The judgment of the county court in a proceeding to contest an election under the Primary Election law is conclusive of all questions involved, including the question whether the court had jurisdiction of the proceeding.</p>

<p>1. Speciae assessments—effect of striking objections to application for judgment from files. Striking the objections to an application for judgment and order of sale from the files and refusing to hear evidence in support of them amounts to holding that the facts stated therein constitute no legal objection to the application for judgment.</p> <p>2. Same—section 84 of Local Improvement act confers upon court the power formerly possessed by improvement board. Section 84 of the Local Improvement act confers upon the court wherein the assessment was confirmed the power to bind the city and the property owners by accepting the improvement as being constructed in accordance with the ordinance.</p> <p>3. Same—a hearing must be had under section 84 after notice given. Under section 84 of the Local Improvement act a hearing must be had upon the improvement board’s certificate after notice given, and the finding of the court as to the truth of the certificate is not subject to review.</p> <p>4. Same—assessment' is not delinquent until after improvement board’s certificate of completion is filed. A special assessment is not delinquent until after the improvement board’s certificate has been filed, and an application for judgment and order of sale can not be maintained until the provisions of section 84 have been complied with.</p> <p>5. Same—court must find that improvement does or does not comply with ordinance. Under section 84 of the Local Improvement act the court, upon the hearing on the improvement board’s certificate of completion, must find that the improvement does or does not conform to the requirements of the ordinance, and if it finds the statements of the certificate are not true, the board may file additional or supplemental petitions until the court is satisfied of the truth of the certificate.</p> <p>6. Same—court has no power to accept bond of contractor on the hearing under section 84. If the court, on the hearing under section 84 of the Local Improvement act, finds against the allegations of the certificate, it has no power to accept a bond of the contractor to do the work required to make the improvement conform to the ordinance, as the object of section 84 is to require performance before acceptance.</p> <p>7. Samé—when an objector may show, on application for sale, that improvement does not conform to ordinance. If the court, on the hearing under section 84, finds against the allegations of the certificate of completion but approves the certificate upon accepting a bond of the contractor to complete the work but without any further steps being taken by the improvement board or any finding that the improvement has been completed in accordance with the ordinance, property owners who filed objections on the hearing may show, on application for judgment and order of sale, that the contractor did not complete the improvement in accordance with the ordinance.</p>

<p>Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Charles B. CampbEEL, Judge, presiding.

<p>1. Parties—suit to recover from city road-tax money due the township may be brought by the board of highway commissioners. An action to recover from a city money raised by road and bridge taxes and belonging to a township is not improperly brought in the name of the board of highway commissioners, as the township is the beneficial plaintiff, and the recovery and satisfaction of a judgment will bar any other action on the same cause of action in the name of the town or any agent thereof.</p> <p>2. Same—when objection to right of nominal plaintiff to sue is waived. An objection that a suit to recover from a city money belonging to a township should have been brought in the name of the town or in the name of the township treasurer, instead of in the name of the board of highway commissioners of the township, is waived and cannot be insisted upon on appeal where it was not raised in the trial court.</p> <p>3. Constitutional law—when principle of uniformity of taxation is not violated. The principle of uniformity of taxation is not violated by the levying of taxes for similar purposes by overlapping municipalities.</p> <p>4. Same—sections is and 14 of Roads and Bridges act are not invalid. Sections 13 and 14 of the Roads and Bridges act, concerning the levy of taxes for road and bridge purposes, do not violate the constitutional principle of uniformity of taxation because no exception is made exempting from such taxes property in the township which is within the limits of a city or village and which is taxed to maintain streets and bridges therein.</p> <p>5. Same—an unconstitutional statute confers no rights and affords no protection. An unconstitutional statute confers no rights, imposes no duties and affords no protection, and in legal contemplation the situation is the same as though such statute had never been passed.</p> <p>6. Assumpsit—when assumpsit may be maintained although there is no privity of contract. The action of assumpsit, under the common counts for money had and received, is an appropriate remedy to enforce the equitable obligation arising from the receipt of money by one person which belongs to another and which in equity and justice should be returned; and although the action is in form ex contractu, the alleged contract is purely fictitious and the right of recovery is governed by principles of equity, and no privity of contract is necessary. (Trumbull v. Campbell, 3 Gilm. 502, Hall v. Carpen, 27 Ill. 386, and Carpen v. Hall, 29 id. 512, distinguished.)</p> <p>7. Same—when assumpsit will lie to recover from city money due township. Where a city has received from the collector of taxes money which it uses for its own purposes but which belongs to the township, an action of assumpsit for money had and received will lie against the city to recover such money, even though at the time the money was paid over to the city there was a law authorizing such payment, which was assumed to be valid but which was subsequently declared invalid.</p> <p>8. Same—zvhen city cannot raise question of legality of taxes. In an action of assumpsit against a city to recover money raised by taxation for road and bridge purposes and paid over by the collector to the city under the authority of a statute which was subsequently declared invalid, the city cannot raise the question that the certificate of levy was defective and the taxes illegally levied.</p> <p>9. Interest—when interest is not recoverable. Where money arising from road and bridge taxes is received and expended by a city in good faith, under the authority of a supposedly valid law, fhe mere fact that the township to which the money belongs brings suit to recover it after such law is declared invalid does not entitle the township to recover interest on the amount due.</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.

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

<p>1. Municipal corporations—object of constitutional prohibition against incurring indebtedness. The object of the prohibition of the constitution against incurring indebtedness is to protect the property of citizens from being burdened beyond five per cent of its value, as ascertained by the assessment for State and county taxes, with any indebtedness extending into the future; and any plan or scheme which has the effect of creating such a burden is prohibited by the constitution.</p> <p>2. Same—the prohibition against incurring indebtedness is not against the rate of tax. The constitutional prohibition against incurring indebtedness is not against the rate of tax and does not limit the rate of taxation by which.improvements may be made or the obligations of municipal corporations be met, but the prohibition is against voluntarily incurring an indebtedness in any manner or for any purpose, and it makes no difference under what guise the attempt is made or what form the proceeding takes.</p> <p>3. Same—legislature may authorise municipal corporations to levy taxes sufficient for all purposes. The legislature has power to authorize municipal corporations to raise money by taxation sufficient for the performance of all their duties, including the making of local improvements; and hence the mere fact that a city has reached the constitutional limit of indebtedness does not preclude it from levying taxes for any corporate purpose, within the limits fixed by the statute.</p> <p>4- Same—bonds to pay city’s share of cost of improvement are an indebtedness. The mere fact that a city is indebted to the constitutional limit is not ground for refusing confirmation of an assessment for an improvement to be paid for, in part, by general taxation, if it does not appear that the city has incurred any debt with respect to its share of the expense; but.the issuing of bonds payable in the future by general taxation is an incurring of indebtedness within the meaning of the constitution, and it makes no difference that the bonds are payable out of a special fund. (Jacksonville Railway Co. v. Jacksonville, 114 Ill. 562, distinguished.)</p> <p>5. Same—improvement bonds cannot be said to constitute benefits to property rather than indebtedness. The claim that improvement bonds paj^able in the future by general taxation do not constitute an indebtedness of the city because the whole city is to be regarded as a single district benefited by the improvement, in which all property is benefited in an equal ratio equivalent to the tax levy, cannot be sustained, since a general tax is against personal property and is collectible from the individual owners of such property, while benefits are chargeable only to real estate and must be collected from the property.</p> <p>6. Rehearing—parties must abide by facts presented when the case was submitted. If one party asserts as a fact that a city has issued bonds for its share of a special assessment and the statement is not denied by the other party and there is nothing in the record to show whether the statement is true or not, the court is justified in accepting the statement as true in rendering judgment, and the parties must abide by the judgment upon the facts as presented to the court when the case was submitted for decision.</p>

<p>1. Appeals and errors—the Supreme Court has jurisdiction if construction of constitution is involved. Under section 118 of the Practice act appeals from and writs of error to city courts must be taken directly to the Supreme Court where the construction of a constitutional provision is involved.</p> <p>2. Same—hozo construction of provision of constitution arises. The construction of a constitutional provision usually arises out of comparison of such provision with a statute claimed to be in conflict therewith; but if the provision is self-executing the question of its construction generally arises when it is sought to apply the provision to a given state of facts.</p> <p>3. Same—when construction of provision of constitution is involved. Whether a given collection of abbreviations and letters entered by the clerk of the municipal court upon the record as a judgment of the court amounts to a judgment in the English language, as required by section 18 of the schedule of the constitution, is a question which involves a construction of such provision.</p> <p>4. Constitutional law—section 62 of Mtmicipal Court act is not in violation of section 18 of schedule of constitution. Section 62 of the Municipal Court act, which authorizes the chief justice of that court to prescribe abbreviated forms of entries of orders, is not of itself in violation of section 18 of the schedule of the constitution, requiring all judicial proceedings to be conducted and preserved in the English language, as such section 62 only authorizes the use of abbreviated forms and does not authorize the use of any other than the English language nor of unintelligible abbreviations.</p> <p>5. Same—section 18 of schedule of the constitution construed. Section 18 of the schedule of the constitution, providing that all judicial proceedings must be conducted and preserved in the English language, requires that the letters be formed into words which are known as a part of that language, and that those words be so used in connection with one another that they form sentences which convey some thought or meaning.</p> <p>6. Same—the constitution does not prohibit use of all abbreviations. There are some abbreviations of words which have become so well known and are so commonly used that they may be said to constitute a part of the English language within the meaning of section 18 of the schedule of the constitution.</p> <p>7. Same—taken entry of alleged judgment violates section 18 of schedule of the constitution. An alleged judgment entered as “Fndg deft G withh prem descr in complt; judg on fndg & c,” cannot be said to be in the English language, within the meaning of section 18 of the schedule of the constitution.</p> <p>8. Courts—rule as to the entry of judgment nunc pro tunc. A court has no right to enter a judgment nunc pro tunc at a subsequent term unless the judgment was in fact rendered at a previous term and was not entered of record through some fault, neglect or oversight; and in such case the fact that the court did give judgment at the previous term can only be proved by some memorial paper or minute in the case made at such former term.</p> <p>9. Same—when judgment cannot be entered. Judgments and records of courts cannot rest in parol or upon the recollection of the judge 'or any other person, and if there is no minute or memorial paper in the records of the court to show that judgment was, in fact, pronounced, no judgment can be entered.</p> <p>10. Same—when entry of a judgment nunc pro tunc cannot be upheld. A recital in an order of the municipal court of Chicago for the entry of a judgment nunc pro tunc, to the effect that the abbreviations and letters relied upon as the minute or memorial showing the judgment had been prescribed by the chief justice of that court as a sufficient abbreviated form for the judgment, can not be regarded by the Supreme Court as authorizing the entry of the judgment nunc pro tunc, where the entry relied upon is unintelligible in itself and the order of the chief justice prescribing the form is not introduced in evidence and preserved in the record by a bill of exceptions.</p>

<p>1. Wills—as to personal property a will is construed according to the laws of the testator’s domicile. As to personal property the will of a non-resident is to be construed according to the laws of the State where he resides.</p> <p>2. Same—rule that the testator’s expressed intention should be given effect is in force in New York and Illinois. The rule that the testator’s intention as expressed by him should be given effect, unless to do so would violate some established principle of law or rule of public policy, is in force both in New York and Illinois.</p> <p>3. Same—when a remainder is contingent. A clause of a will giving the residue of the testator’s property to his wife for life, “and upon her death to my children, [naming them,] share and share alike; and if either of said children [naming them] die leaving issue, either .before me or before my said wife, then the issue of the child so dying shall take the share which his, her or their parent would have taken if living at her death,” creates a contingent remainder in such children.</p> <p>4. Inheritance tax—the court should take the highest amount which in any contingency may become liable. In determining the amount of inheritance tax due under the Inheritance Tax law the court should take the highest amount which in any contingency would become liable to the tax; and if it is possible that upon the happening of the event which will vest a contingent remainder the entire remainder may go to one person, the court 'should compute the tax upon the entire remainder, less the statutory deduction the one remainder-man would be entitled to.</p>

<p>1. Practice—source of power of the Supreme Court to review judgments of Appellate Court by writ of certiorari. The power of the Supreme Court to issue a writ of certiorari to bring before it for review a judgment of the Appellate Court is derived from section 121 of the Practice act of 1909. (Laws of 1909, p. 304.)</p> <p>2. Same—ntle as to granting certificates of importance. Under the Practice act, as amended in 1909, the Appellate Court may grant a certificate of importance in any case, whether the judgment be for more or less than $1000, exclusive of costs.</p> <p>3. Same—the judgment must be for more than $1000 to be reviewable by certiorari. The Supreme Court cannot issue a writ of certiorari to review a judgment of the Appellate Court affirming 'a judgment in an action ex contractu or sounding in damages unless the judgment, exclusive of costs, exceeds $1000; and this is true notwithstanding the amount claimed by the pleadings exceeds $1000 and there was no trial of an issue of fact in the trial court.</p> <p>4.. Same—section 121 of the Practice act repeals portion of section 8 of the Appellate Court act. Section-121 of the Practice act, as amended in 1909, repeals that portion of section 8 of the Appellate Court act providing that in all actions where there was no trial of an issue of fact in the lower court appeals and writs of error shall lie from the Appellate Court to the Supreme Court if the amount claimed in the pleadings exceeds $1000.</p> <p>5. Same—how a judgment for costs may be reviewed. Under section 121 of the Practice act the only way in which a judgment for costs in an action ex contractu or sounding in damages, which has been affirmed by the Appellate Court, can he reviewed is upon a certificate of importance.</p>

<p>■ i. Taxes—the board of election commissioners have power to draw warrants on county treasury in certain cases. An item of county tax “for warrants of the board of election commissioners” is a proper item where there is a city in the county having such a board, as sections 4, 5 and $ of article 7 of the City Elections law provide for the payment of the expenses of general county and .State elections in such city, and require the election commissioners to audit the claims therefor and draw warrants on the county treasury.</p> <p>2. Same—when all expenses of elections need not be included in one item of county tax. Where there is a city in the county which has adopted the City Elections law it is not improper for the county tax levy to specify an- item for “election expenses” and another item “for warrants of the board of election commissioners,” since the expenses of general county and State elections held in the city are paid on warrants drawn by the election commissioners, whereas the election expenses for the county outside of the city are audited and paid by the board of supervisors.</p> <p>3. Same—item.“for warrants of board of election commissioners” applies only to election expenses. An item in a county tax levy “for warrants of the board of election commissioners” can apply only to the expenses of general county and State elections held in the city, as the salaries of the clerk and members of the board are paid by the county on the warrant of the county judge, and the expenses of the board, other than salaries, are paid by the city on the warrant of the county judge.</p> <p>4. Same—when a levy for “salary, clerk hire and expenses of county treasurer” is proper. An item of a county tax levy “for salary, clerk hire and expenses of the county treasurer” is not improper in a county where- the county treasurer is ex officio supervisor of special assessments at a fixed compensation, even though the treasurer’s salary must be paid from the fees of his office; nor is such item illegal because it groups “salary, clerk hire and expenses” and levies a gross sum for those purposes. -</p> <p>5. Same—what items of a county tax levy are not sufficiently deñnite. Items in a county tax levy “for county farm, $25,000,” “for county jail, $15,000,” “for workhouse, $1200,” and “for court house, $35,000,” are not sufficiently definite to satisfy the statute, since they do not disclose whether the money is needed to buy grounds and buildings, or to improve buildings, or for the general running expenses of the several institutions; items for “salaries of county appointees” and “for other salaries” are also too general.</p> <p>6. Same—a county levy “for State institutions” is not illegal. An item of a county tax levy “for State institutions” is not illegal upon the alleged ground that there is no law making the county liable to contribute to the support of State institutions, where it is manifest the item was intended for the support and maintenance of insane paupers of the county in the State hospitals for insane.</p> <p>7. Same—item of county levy “for assessments” is too general. An item of a county tax levy “for assessments” cannot be sustained as having been intended to cover the necessary expense of revising assessments of the county, where there is nothing in the levy to indicate that the item was for that purpose.</p> <p>8. Same-—item of county levy “for fees of county officers” may be sustained. An item of a county tax levy “for fees of county officers,” when taken in connection with the statute providing for fees which must, in the first instance, be paid by the county to certain county officers and. applied by the latter to the payment of their salaries, is sufficiently definite to give the tax-payer information as to the purpose of the levy.</p> <p>9. Same—when an item of county levy for “bridges” is proper. An item of a county tax levy for “bridges,” which is intended for the purpose of raising a fund to meet such calls for county aid to townships as may be made under proper petitions, must be sustained, where the only objection is that the term “bridges” is not sufficiently definite, as that term fairly includes the building of new bridges, the repair of old ones and the building of approaches or abutments. (People v. Chicago and Northwestern Railway Co. 249 Ill. 170, distinguished.)</p> <p>10. Same—when item “for sundry and general expenses” will be sustained. An item of a county tax levy of $1000 “for sundry and general expenses, the exact nature of which cannot be ascertained in advance,” will be sustained where the county making the levy is a large and populous county, as the validity of such a levy depends upon the amount levied, considered in connection with the size of the levying municipality.</p> <p>11. Same—an item of county levy “for stenographer’s fees,” is not improper. An item of a county tax levy of $150 “for stenographer’s fees” is not improper.</p> <p>12. Same—when an appropriation ordinance is not invalid as amending a void ordinance. Where a second appropriation ordinance, which is complete in itself, is published in the manner and within the time required by law, it is valid notwithstanding it states in its title that it is an ordinance to amend a former appropriation ordinance which for want of publication had not become effective, as such statement may be rejected as surplusage.</p> <p>13. Same—statute fixing the time for passing an appropriation ordinance does not include sanitary districts. Paragraph 89 of the Cities and Villages act, (which is section 2 of article 7 of said act,) requiring the appropriation ordinance to be passed in the first quarter of each fiscal year, refers only to cities and villages, and does not include other municipal corporations, such as sanitary districts, which have power to levy taxes.</p> <p>14. Same—section 121 of the Revenue act, concerning county taxes, does not apply to sanitary districts. Section 121 of the Revenue act, requiring the county board, annually, at its September session, to determine the amount of taxes to be raised for county purposes and requiring the several purposes to be stated separately, has no application to a sanitary district.</p> <p>15. Same—time when a tax levy ordinance of sanitary district must be passed. Section 17 of the Sanitary-District act, which is the only limitation in regard to the levying of taxes by such districts, requires the taxes to be levied by an ordinance specifying the purposes of the levy and requires a certified copy to be filed with the county clerk before the second Tuesday in August, hence there is no requirement as to when the ordinance shall be passed, if passed in time to permit the copy to be filed as required.</p> <p>16. Same—fact that bonds are payable in one year does not justify treating tax to pay them as a levy for current expenses. The fact that bonds to pay which a tax is levied by a sanitary district are payable in one year does not justify treating the tax as a tax for current expenses and subjecting it to a reduction under the amended Revenue law, as there is nothing to prevent a municipal corporation, acting in good' faith, from borrowing money for one year and issuing bonds therefor, there being no question of exceeding the constitutional limit of indebtedness involved.</p> <p>17. Same—court cannot change tax levy from one purpose to another. The fact that a tax levy by a sanitary district to pay bonded indebtedness and interest may.be illegal, as being a mere shift or device to prevent a reduction under the amended Revenue law, would not authorize the court to change the levy as made by the ordinance to a levy for current expenses or any other purpose.</p> <p>18. Same—what action by sanitary district trustees is not subject to review. If the board of trustees of a sanitary district, acting in good faith, deem it more advisable to borrow money for one year and issue bonds therefor than to issue tax-anticipation warrants or contract for work, to be paid for as the taxes are collected, the exercise of their judgment in that regard is not subject to review by the courts, provided their action is not unlawful.</p> <p>19. Counties—compensation of treasurer as supervisor of assessments is an earning of the office. The amount fixed by section 2 of the act of 1898 as compensation to the county treasurer for his work as supervisor of assessments is an earning of the office, the same as any other fees and commissions, and when paid by the county must be applied, like other earnings, to the payment of the salary fixed by the county board for the office of county treasurer. «</p>

<p>Writ or Error to the County Court of Union county; the Hon. Monroe C. Crawford, Judge, presiding.</p>

<p>1. Practice—Supreme Court can only review final judgments of the Appellate Court. Only those judgments of the Appellate Court which are final are subject to review by the Supreme Court under section 121 of the Practice act.</p> <p>2. Same—judgment reversing and remanding is not final judgment. A judgment of the Appellate Court reversing the judgment of the trial court and remanding the cause for a new trial is not a final judgment which the Supreme Court may review, even though it may settle one issue in the case so far as the trial court and the Appellate Court are concerned, if there are other issues to be determined on the new trial. (International Bank v. Jenkins, 104 Ill. 143, and Mitchell v. King, 187 id. 452, distinguished.)</p>

<p>1. Witnesses—extent to which husband of a deceased grantor may testify as to delivery of the deed. The husband of a deceased grantor cannot testify to any of her statements or conversations for the purpose of showing delivery of the deed, but he may testify to the acts which he witnessed with reference to such delivery.</p> <p>2. Deeds—question of delivery of deed is a mixed question of law and fact. Whether a deed was delivered so as to take effect as a present conveyance of the title is a mixed question of law and fact, to be determined from a consideration of the words and acts of the parties in connection with the circumstances surrounding the transaction.</p> <p>3. Same—mere placing of a deed in hamds of grantee is not necessarily a delivery. The mere placing of a deed in the hands of the grantee does not necessarily constitute a delivery, but the question is whether the deed was then intended by the parties to take effect according to its terms.</p> <p>4. Same—what acts conclusively show that deed was not intended to operate immediately. The facts that the grantor in a voluntary conveyance in the form of a statutory warranty deed containing no restrictions did not want the deed recorded until her death, and that after handing the deed to the grantee she took possession of it again and kept it under her control until her death, paying the taxes on the property and keeping it in repair and requiring the grantee to pay rent, conclusively show that the parties did not intend the deed should immediately become operative.</p> <p>5. Same—fact that grantor intended deed to become operative at her death is not sufficient. The fact that the grantor in a statutory warranty deed to her daughter intended the deed to become operative at her death does not make the deed effective even though it is a voluntary conveyance, where there is no delivery before that time with the present intention of passing the title according to the terms of the deed.</p> <p>6. Same—when retention of a deed and control of property by grantor are inconsistent with delivery. Where a deed is a statutory warranty deed without any reservation of a life estate in the grantor, the facts that the grantor, after handing the deed to the grantee, takes possession of it again and retains control of it and the property until her death, paying taxes and keeping up repairs and requiring the grantee to pay rent, are inconsistent with the vesting of title in the grantee according to the terms of the deed.</p> <p>7. Parties—bill to set aside deed should make all persons parties who are entitled to share in the land. A bill to set aside a deed should make all persons entitled to share in the land, in the event the deed is set aside, parties to the suit, in order that the decree rendered may be binding upon all interests.</p>

<p>1. Criminal law-—specific intent is the gist of charge of assault with intent to murder. In a prosecution for an assault with intent to murder or with intent to commit some other felony, the specific intent charged is the gist of the offense and must be proved as alleged.</p> <p>2. Same—an intent to kill is specific though in the alternative. An assault to murder may be complete where it is shown that the assailant, with the present ability to destroy life or do great bodily harm, draws a dangerous weapon on another and threatens to kill him if he does not immediately comply with some unlawful condition or demand.</p> <p>3. Same—when an assault with intent to murder is complete. The fact that the assailant, who has presented a deadly weapon and threatened to kill another if the latter does not comply with an unlawful demand, suspends his purpose to give the victim an opportunity to comply with such demand, does not prevent the offense of assault with intent to kill from being complete.</p> <p>4. Same—when guilt must be. determined the same as though the threat to kill was hot accompanied by any demand. Where a violent assault with a dangerous and deadly weapon is made upon a person in the peace of the people and a threat to destroy his life is made unless he complies with an unlawful demand, the guilt or innocence of the assailant must be determined precisely as though no unlawful demand had been made.</p> <p>5. Same—when evidence of conversations with persons other than defendants is admissible. In a prosecution against members of a labor union for an assault with intent to murder the prosecuting witness in an attack upon members of another labor union to which the prosecuting witness belonged, if the evidence fairly tends to show that certain persons other than the defendants were members of the attacking party, it is not error to allow the prosecuting witness to testify that such persons, a few days before the attack occurred, had visited the place where the attack was made, and he may testify as to what was then said concerning the matter of his membership in the union.</p> <p>’ 6. Same—when a conviction will be sustained notwithstanding evidence tending to establish an alibi. A conviction for assault with intent to murder will be sustained even though there is evidence tending to establish an alibi as to one of the defendants, where such evidence is controverted and the verdict is not clearly contrary to the weight of the evidence upon such matter.</p>

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

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

<p>Appeals and errors—decision of court upon motions must be shown by bill of exceptions. The ruling of the trial court upon motions cannot be considered on appeal unless preserved, together with an exception thereto, in the bill ■ of exceptions, and it is immaterial and of no legal effect that the recitals in the orders entered by the clerk show exceptions.</p>

Charles A. McDonald, Judge, presiding. Levi Moore died May 3, 1906, leaving a will executed on March 20, 1900. At the time of his death he was the owner of real estate and personal property.

<p>1. Homestead—when question where widow lives is not material. If the widow is given, in lieu of dower, the entire estate in the homestead premises until the youngest child attains majority, at which time the remainder is to go to a certain person provided he will make specified payments to the widow and others and allow the widow the use of two rooms in the house, it is immaterial where the widow lives during the minority of the youngest child or during the time when it is uncertain whether the person named to take the remainder will accept the devise subject to the conditions, as she is entitled to enjoy the premises in person or rent the same during that time.</p> <p>2. Same—when homestead right of widow attaches. Where a will gives the entire estate in the homestead premises to the widow until the youngest child attains majority, at which time the remainder is to go to a certain son if he will pay the widow a specified sum per month and allow her the use of two rooms in the house, but no other disposition is made of the remainder, the remainder becomes intestate estate when the person designated refuses to accept the devise, and the homestead right of the widow thereupon attaches to the property and she is entitled to such estate unless she subsequently abandons the premises.</p>

<p>Appeal from the County Court of Monroe county; the Hon. Wirriam P. Green, Judge, presiding.</p>

<p>1. Jurisdiction—jurisdiction of the subject matter cannot be conferred by consent of parties. A judgment rendered without jurisdiction of the subject matter, even by the consent of the parties, is void and may be disregarded.</p> <p>2. Drainage—under section 58 of the Levee act a proceeding to annex lands must be in court where the district was organised. Section 58 of the Devee act contemplates but two proceedings for the annexation, of lands,-—one before a justice of the peace and the other in the county court where the district was organized,— and does not authorize a proceeding in another county court even though the land annexed lies in such county.</p> <p>3. Same-—fact that district may be sued in either county where land lies does not affect jurisdiction under section 58. The fact that a drainage district embracing lands lying in two counties may be sued in either county has nothing to do with the special jurisdiction of a proceeding to annex lands under section 58 of the Levee act. (Mason and Tazewell Drainage District v. Griffin, 134 Ill. 330, distinguished.)</p> <p>4. Same-—-what is not a proper replication in quo warranto. In a quo warranto proceeding against the commissioners of a drainage district embracing lands in two counties, the questions whether any work has been done or the plans have been changed to the injury of the land owners are not good grounds for a replication to a plea setting up the organization of the district and the order of annexation of the lands of the relators.</p>

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

<p>1. Trespass—when party is guilty of trespass. One who cuts down trees the stumps of which stand partly upon his lot and partly upon the lot of another person, who had forbidden the cutting, is guilty of trespass, even though he cut down the trees in order to move to his lot a house which stood upon the other person’s lot and which the latter had sold to the former with the understanding that it would be moved off the lot in some other direction not requiring the cutting of the trees, the purchaser at that time not owning the adjoining lot.</p> <p>2. New triae—what necessary to justify granting new trial for newly discovered evidence. To justify granting a new trial upon the ground of newly discovered evidence the evidence must be of a conclusive nature, and it must appear that there was no lack of diligence to discover the evidence before the trial was had.</p>

Writ of Error to the Appellate Court for the Third District;;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.

<p>Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>Appear from the County Court of Cook county; the Hon. David T. Smirry, Judge, presiding.</p>

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

<p>Appeal from the County Court of Logan county; the Hon. James T. Hoblit, Judge, presiding.</p>

<p>1. Bonds—laches in asserting breach of State officer’s bond is not imputable to State. Laches or unreasonable delay on the part of State officers in asserting a breach of a State Treasurer’s bond is not imputable to the State when acting in its character of a sovereign.</p> <p>2. Same—what may be required of creditor by surety. In the absence of any statutory provision, all that a surety has a right to require of his creditor is that no affirmative act shall be done that' will operate to his prejudice.</p> <p>3. Public oepicErs—when the State is not estopped to declare breach of State Treasurer’s bond. The circumstances under which the State may be estopped are such, only, as render the application of the doctrine necessary to remedy serious mischief to individuals, and the mere fact that State officers for many years fail to d’eclare a breach of a State Treasurer’s bond does not estop the State from subsequently declaring it.</p> <p>4. Same—State Treasurer’s reports to Governor are not stated accounts. There are no constitutional or statutory provisions authorizing the Governor to settle and adjust the accounts of the State Treasurer, and the latter’s reports to the Governor, which do not disclose illegal payments of money to such State Treasurer without any appropriation therefor having been made by the legislature, are not stated accounts which are conclusive upon the State. (State v. Illinois Central Railroad Co. 246 Ill. 188, distinguished.)</p> <p>5. Same—State Treasurer’s settlements with taxing districts do not bind the State. The Staté Treasurer’s settlements with taxing districts, relating to money of the State, have no effect upon the rights of the State with reference thereto.</p> <p>6. Same—•when an erroneous construction cannot be held to be correct though followed by many officials. If a provision of the constitution or a statute is clear and unambiguous, an erroneous construction thereof cannot be held to be correct by reason of the number of public officials who have followed such erroneous construction or the length of time such construction has remained unquestioned. (Whittemore v. People, 227 Ill. 453, adhered to.)</p> <p>7. Same—what does not release surety on a State Treasurer’s bond. The facts that no suits were brought against certain of the solvent sureties on a State-Treasurer’s bond during their lifetime and that the claims against their estates are barred by the Statute of Limitations do not release a co-surety from a liability, which is otherwise enforceable, for a breach of such State Treasurer’s bond.</p> <p>8. Constitutional law—when parties cannot raise a constitutional question. In a proceeding to establish a claim against the estate of a surety on a State Treasurer’s bond for money raised by taxation which the State Treasurer illegally paid to himself without any appropriation, the executors of the surety’s estate cannot raise the question that the act under which the money was collected is unconstitutional, as courts will not entertain objections to the constitutionality of an act urged by persons whose rights have not been affected.</p>

Writ oe Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. W. B>. SchoeeiEEd, Judg-e, presiding.

<p>Appear from the Superior Court of Cook county; the Hon. Theodore BrEntano, Judge, presiding.</p>

<p>1. Wills—it is not essential that testatrix actually see the witnesses sign. If the attesting witnesses sign the will at a place within the scope of the vision of the testatrix, and where, considering her position and state of health at the time, she might have seen the signing if she so desired, the will is sufficiently attested in her presence even though she may not have actually seen the witnesses sign.</p> <p>2. Evidence—when a photograph of scene of attestation is not admissible. In a will contest case, where the contestant claims the will was signed at a table so far behind the testatrix that she could •not have seen the attesting witnesses sign, a photograph of the room, taken some four weeks after the death of the testatrix, with the furniture arranged by a person who was present at the attestation of the will, assisted by the contestant, who would be sole heir to the property if the will were set aside, is not admissible.</p>

Appear from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.

<p>1. Special assessments—resolution need not describe improvement with the particularity required in ordinance. The resolution' of the board of local improvements (which must include the estimate of the engineer) need not describe the improvement with the particularity required in the ordinance, and it is not necessary that the ordinance itself shall set out every detail.</p> <p>2. Same—inclusion, in estimate, of work not needed does not render entire proceeding void. The fact that the engineer’s estimate calls for a gross sum for “adjusting sewer man-holes and catch-basins and constructing and connecting catch-basin inlets,” whereas there are, in fact, no sewer man-holes to be adjusted, does riot render the entire proceeding void, as such matter is a mere minor detail not materially affecting the improvement.</p> <p>3. Same—fact that item of estimate is too high is not a valid objection. The fact that an item of the engineer’s estimate is too high is not an objection which may be urged against the confirmation of the assessment in the absence of fraud or mistake in the making of such estimate, as property owners, after the improvement is completed, cannot be compelled to pay more than its actual cost.</p>

<p>1. Winns—the entire will must be taken into consideration. In construing a will the entire will must be taken into consideration, and a construction should not be adopted which will, without reason, eliminate a large portion of the instrument.</p> <p>2. Same—when will should be construed as creating trust estate in widow and not an absolute fee. Even though the first paragraph of a will, standing alone, vests the iftidow with an absolute fee, yet if a subsequent paragraph clearly shows that the testator’s intention was to create a trust estate for the benefit of the widow and his children, including those by a former wife, the will should be construed as creating such trust estate and not as giving the widow an absolute fee.</p>

<p>1. Contracts—construction of words “on or before." A written contract for the conveyance of property subject to an encumbrance “due on or before two years,” means that the encumbrance will mature in two years but may be paid at any time before maturity or at maturity; and under such contract, if the encumbrance is by its terms due before the two years, it is the duty of the proposed vendor to secure an extension, so that the encumbrance will not mature before two years from the date of the contract.</p> <p>2. Specific performance—complainant not entitled to specific performance if he is in default himself. A complainant who has failed to comply with his contract to obtain an extension of time on an encumbrance upon the property is not in a position to demand specific performance.</p> <p>3. Same—a contract must be fair and free from misrepresentation. Before a court of equity will decree specific performance of a contract the terms of the agreement must be clearly shown, and the contract must have been entered into fairly and understandingly and without material misrepresentation.</p>

<p>1. Taxes—stahite does not authorize Ming of original tax levy ordinance with county clerk. Section 1 of article 8 of the Cities and Villages act provides for the filing of a certified copy of the tax levy ordinance in the office of the county clerk, and the filing of the original tax levy ordinance in the office of the county clerk does not authorize him to extend the taxes.</p> <p>2. Same—when tax levy ordinance Med with county clerk can not be shown to be a copy. If the paper filed in the office of the county clerk purports to be the original tax levy ordinance and not a copy thereof, it cannot be amended, upon application for judgment and order of sale, by permitting the village clerk to testify that the paper was a copy and to add his certificate to the paper to that effect.</p>

<p>Writ op Error to the Municipal Court of Chicago; the Hon. John R. Cavprly, Judge, presiding.</p>

<p>1. Special assessments—item of engineer’s estimate for “lawful expenses” is proper. An item of the engineer’s estimate reading, “six per cent for lawful expenses, $3625.50,” is not insufficient because not expressly limited to the cost of making, levying and collecting the assessment, as section 10 of the Local Improvement act requires a statement in the estimate that it does not exceed the probable cost of the improvement and lawful expenses attending the same.</p> <p>2. Same—effect where estimate contains the item “six per cent for lawful expenses.” Where the engineer’s estimate contains an item of “six per cent for lawful expenses,” followed by the amount, it is still discretionary with the city council to provide by the ordinance that some sum, not exceeding six per cent of the assessment, shall be applied toward the payment of the cost of making and collecting it.</p> <p>3. Same—section 53 of Local Improvement act means that all interests in land needed must'be acquired. Section 53 of the Local Improvement act, providing that no special assessment shall be levied for any local improvement until the land necessary therefor shall be acquired and in possession of the municipality, is not complied with by acquiring the right of one who has a mere easement in the land, but means that all rights and interests therein shall be acquired, so that the municipality shall have an absolute right not only to construct but to maintain the improvement.</p> <p>4. Same—city must acquire right from owners of the fee to lay sewer in a highway. Assuming that the highway commissioners may, so.far as the rights of the public are concerned, consent to the construction by a city of a sewer in a highway outside of the corporate limits of the city, it is still necessary, under section 53 of the Local Improvement act, that the city shall obtain the consent of the owners of the fee. (Cochran v. Village of Park Ridge, 138 Ill. 295, distinguished.)</p> <p>5. Same—what does not amount to joint use of improvement by city and town. The fact that the grant by highway commissioners to a city of 'the right to construct a sewer in a highway beyond the corporate limits of the city is conditioned upon the construction by the city of a certain number of catch-basins for the benefit of the highway does not render the improvement one for the joint use of the city and town, and the improvement does not, by reason of such condition, cease to be a local improvement.</p> <p>6. Same—when court should not adopt opinions of witnesses as to benefits. It is error for the court, in determining the question of benefits in a sewer assessment proceeding, to base its judgment on opinions of the witnesses for petitioner made without regard to existing conditions or the location of the land, it being the opinion of such witnesses that two .pieces of property were benefited the same by a sewer which drained one and did not drain the other, and that lands which were high and well drained were benefited the same as low lands at times partially submerged.</p>

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

<p>1. Special assessments—void ordinance will not support new assessment for completed work. Where the estimate of cost of an improvement exceeds $100,000, the publication of the ordinance, as required by section 11 of the Local Improvement act, is essential to the validity of the ordinance, and if such section is not complied with the ordinance is void as to the property of obj ectors and will not support a new assessment against such property for completed work, under section 58 of said act.</p> <p>2. Same—when judgment is res judicata as to the validity of ordinance. A judgment dismissing a petition for confirmation as to the property of the objectors upon the ground that the ordinance was not published as required by section 11 of the Local Improvement act is, until reversed, res judicata, as between the parties, that the ordinance is void, notwithstanding the judgment contains the statement that the ordinance is “defective and insufficient for the purpose of said assessment,” and such judgment is a bar to any attempt by the city to spread an assessment against the property which is based upon such ordinance.</p>

<p>1. Taxes—when a certificate sufficiently complies with vote to levy tax to construct “gravel roads.” Where the petition, notice of election and the vote is for levying a tax to construct “gravel roads,” a certificate of the highway commissioners levying a tax for constructing “hard roads” and referring to the vote upon the proposition is sufficient to sustain the tax, as a gravel road is a hard road. (People v. Kankakee and Seneca Railroad Co. 248 Ill. 114, explained.)</p> <p>2. Same—copy of certificate of levy filed before taxes are extended is filed in time. Where a certificate of levy is made in duplicate each paper is an original, and the filing of one of them with the county clerk does not satisfy the statute requiring the filing of a certified copy, but the paper so filed may be withdrawn and a certified copy filed in its place before the tax is extended thereon.</p> <p>3. Same—when county clerk may put file-mark upon copy of a certificate of levy, on application for judgment. If a certified copy of the certificate of levy of a tax to construct gravel roads is filed with the county clerk before the tax is extended but the clerk neglects to put his file-mark thereon, the court may, upon application for judgment and order of sale, permit the file-mark to be put on. nunc pro tunc as of the day the copy was, in fact, filed.</p> <p>4. Same-—hard road tax may be levied from year to year during period. While a levy for the full period for which a tax to construct hard roads is voted is not improper, yet there is no reason why levies cannot be made from year to year during such time.</p> <p>5. SamE:—fact that town clerk copies certificate of levy in wrong book does not defeat tax. The fact that the town clerk copies the certificate of levy of a hard roads tax in the town clerk’s record instead of the highway commissioners’ record does not defeat the tax.</p> <p>6. Same—when complaint that method of proving proceedings was wrong cannot be made on appeal. Where no objection is made in the trial court as to the method of proving what was done at the meeting of the highway commissioners at which a certificate of levy was made, complaint cannot be made, on appeal, that such method was wrong.</p>

<p>1. Benefit societies—construction of member’s contract is a question for the court. The application for a benefit certificate, the physician’s examination, the by-laws of the society and the certificate are all to be considered as the contract between the society and the member, and their meaning and construction are questions to be determined by the court.</p> <p>2. Same—question as to diseases of applicant’s relatives construed. The question, “Have either of your parents, or any of your uncles, aunts, brothers or sisters, or other blood relatives, been afflicted with consumption, scrofula, cancer, insanity, epilepsy, gout, rheumatism, or any other hereditary disease?” does not mean that the diseases specified must have been hereditary, but is intended to require the applicant to state whether any of the relatives mentioned have been afflicted with any of the diseases specified, or any disease not specified which is hereditary.</p> <p>3. Same—when false answer bars recovery. Where the undisputed evidence shows that one brother and one first cousin of the insured, who resided in the same city with the insured, died of consumption, there can be no recovery on a benefit certificate issued on an application containing a negative answer to the question whether any of the brothers or other blood relatives of the insured had ever been afflicted with consumption “or any other hereditary disease,” there being no evidence tending to impeach the application, which was the basis of the certificate, nor to. show that the insured did not give the answer therein contained.</p>

<p>Appear from the Circuit Court of Coles county; the Hon. W. B. SchorEiERD, Judge, presiding.</p>

<p>Practice—fact that validity of an ordinance of quasi municipal corporation is involved does not give Supreme Court jurisdiction. The provision of the present Practice act authorizing a direct review by the Supreme Court of a proceeding in which the trial judge certifies that the validity of a “municipal ordinance” is involved was intended to include only city or village ordinances, and not the ordinances and resolutions of quasi municipal corporations, such as sanitary districts and the like.</p>

John Gibbons, Judge, presiding. Ann Clary, on November 19, 1910, filed in the circuit court of Cook county a bill to set aside several conveyances of certain real estate and for other relief. The bill was dismissed upon demurrer for want of equity, and the complainant appealed.

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

Writ oe Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.

<p>1. Estoppee—fraudulent intention not essential to doctrine of estoppel. A fraudulent intention is not essential to the doctrine of estoppel, and it is enough if a fraudulent effect would follow if a party were allowed to set up a claim inconsistent with his former declarations and conduct.</p> <p>2. Same—an estoppel may arise from silence as well as from words. Estoppel may arise from silence as well as words where there is a duty to speak and the party upon whom the duty rests has an opportunity to speak, but, knowing the facts, keeps silent.</p> <p>3. Same—party seeing another about to infringe his right should assert it. It is the duty of a person having a right, to assert the same when he sees another about to commit an act infringing such right, and he cannot, by his silence-, induce or encourage the commission of the act and then be heard to complain.</p> <p>4. Same—when owner of land is estopped to complain that he was not made party to road proceeding. One who owns land under an unrecorded deed from his father is estopped to complain that he was not made a party to a proceeding to open a road through the land, where he knew the commissioners were deceived by the records in making his father a party but made no disclosure of the facts, though having frequent opportunity to do so.</p> <p>5. Notice—when party in possession by tenant must assert his title. Where one owning land in possession of a tenant conveys the land to his son by a deed which is not put on record, and the land remains in possession of the tenant, the father continuing to act as. landlord and agent, there is no such outward change of ownership as relieves the son of the duty of asserting his ownership when he sees that highway commissioners, in proceeding to open a road, have been deceived by the records into the belief that the ownership of the land is in the father.</p>

<p>1. Special assessments—when finding that ordinance was not unreasonable will be upheld. A finding that a sidewalk ordinance is not unreasonable in requiring cement walks instead of cinder walks will be upheld on appeal, where, though the evidence is conflicting, its weight is not clearly contrary to the finding.</p> <p>2. Same—a sidewalk assessment is spread on basis of benefits. Under the Local Improvement act an assessment for the construction of sidewalks should be spread according to benefits, without regard to the number of feet fronting on the proposed improvement; and the fact that inside lots may fhus be compelled to bear part of the burden of constructing the walks along corner lots is not a valid objection, if the inside lots are not assessed more than they are benefited nor more than their proportionate share of the cost of the improvement.</p> <p>3. Same—lots benefited may be assessed though previously assessed for other walks. The fact that certain lots in the district where a system of sidewalks is to be constructed already have sidewalks in front of them for which they have been assessed and which are not to be replaced by the proposed improvement, does not preclude their being assessed if they, in fact, receive additional benefits from the construction of other sidewalks in the district.</p> <p>4. Same—the fact that owners cannot construct walks does not preclude assessment of lots. The fact that lot owners cannot relieve their lots from the assessment by constructing the walks, as permitted by the statute, because the walks in front of their property are already constructed, does not relieve their lots from liability to an assessment for the benefits they will receive from the construction of the other sidewalks in the locality.</p> <p>5. Same—public hearing is necessary if sidewalk ordinance requires construction of berme. A berme of earth is not a part of a cement sidewalk, and if the ordinance requires the construction of a berme as well as the sidewalk the improvement is not one for sidewalks, only, but is one which requires a public hearing.</p> <p>6. Same—benefits ca/nnot be assessed for part of improvement not described in ordinance. If the ordinance for the construction of sidewalks around a certain addition fails to provide for the intersections at the corners of such addition no assessment therefor can be made, even though made as public benefits and though the estimate for the total number of square feet of sidewalk to be constructed included such intersections, which were also treated as part of the improvement in spreading the assessment.</p>

<p>Writ oE Error to the Municipal Court of Chicago; the Lion. 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. Julian W. Mack, Judge, presiding. Patrick J. Sexton died October 28, 1903. He left a last will and testament, which was executed July 26, 1902. It was admitted to probate December 1, 1903.

<p>Writ op Error to the County Court of Adams county; the Hon. Lyman McCarl, Judge, presiding.</p>

<p>1. Wills—what evidence is immaterial upon issue of undue influence. In a suit to contest a will, where one of the grounds is undue influence by the chief beneficiary, evidence tending to show the relations of the chief beneficiary with the husband of the testatrix, or how he .treated him, or whether he sought to obtain or did obtain property from him, is irrelevant and immaterial.</p> <p>2. Same—right of contestant to prove conversations with testatrix. The contestant is entitled to prove declarations of the testatrix, so far as they are relevant to the question of her mental capacity, although they occurred in conversations, and, necessarily, may prove so much of the conversations as will enable the jury to understand the declaration.</p> <p>3. Same—when testimony as to what witness said to testatrix is properly excluded. In a will contest case, where improper relations between the testatrix and the chief beneficiary are alleged in support of the charge of undue influence, it is proper to exclude a statement by a physician to the effect that when the testatrix told him her daughter was charging her with such improper conduct he said to her to pay no attention to it—that everybody knew it was false.</p> <p>4. Same—general rule as to proving conversations. Where one party proves a part of a conversation the other party has a right to all- that was said at the same time concerning the same subject, since it may qualify or explain what has been testified to; and if a party proves what was said by the adverse party to the suit as evidence against him, such adverse party has a right to prove all that was said by him in the same conversation, provided, only, it relates to the subject matter of the suit.</p> <p>5. Same—what testimony by physician is competent. In a will contest case, where illicit relations between the testatrix and the chief beneficiary are alleged in support of a charge of undue influence, a physician who had attended the testatrix for a period of fifteen years and was familiar with her physical condition may testify that during all that period her condition was such as to render it very improbable, if not impossible, for her to have committed the acts alleged.</p> <p>6. Same—when conversation between testatrix and attorney is not privileged. The fact that a witness has transacted business for the testatrix as her attorney does not preclude his testifying to her mental capacity, and if it is sought to prove by him anything concerning the testamentary disposition of her property, her conversation on that matter, if otherwise competent, should not be excluded as a privileged communication.</p> <p>7. Same—instruction authorizing recovery if evidence preponderates slightly is not applicable to will contest case. In ordinary cases, where a mere preponderance of. the evidence is sufficient, it is not error to give an instruction authorizing a recovery if the evidence preponderates in favor of the plaintiff or complainant, although but slightly; but the rule is otherwise in a will contest case where mental incapacity is charged, as in such case there is the presumption of sanity, which the law raises in favor of every person and which cannot be disregarded.</p> <p>8. Same—declarations of testatrix not admissible to show fraud or undue influence. Declarations of the testatrix are not admissible to show that the will was executed under duress or undue influence or to show fraud, but they may be proved where they tend to show her mental condition at the time of the execution of the will, or so near to the time that the same state of affairs must have existed.</p> <p>9. Same—when objection that instruction is based upon incompetent evidence cannot be urged. If no objection is made to the introduction of incompetent evidence, it cannot be urged, on appeal, that an instruction was based upon the hypothesis of fact which such incompetent evidence tended to prove.</p> <p>10. Same—instructions giving particular force to testimony of certain witnesses are improper. Instructions are erroneous which call attention to particular witnesses or single out a fact and give it undue prominence and controlling effect in the case.</p> <p>11. Same—effect of illicit relations between testatrix and chief beneficiary. The existence of illicit relations between the testatrix and the chief beneficiary does not raise any presumption of undue influence unless other improper influence is shown to have been exerted to induce the making of the will, in which case the illicit relations may be considered, with the other facts, in determining whether the influence was undue.</p>

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Cass county; the Hon. Harry HigbEE, Judge, presiding.

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

<p>1. Appears and errors—when no certificate of evidence is necessary. Where all of the correspondence which is relied upon as showing an agent’s authority to make a contract of sale is set out in a bill for specific performance and the answer thereto, such correspondence becomes a part of the record without a certificate of evidence; and the .rule that where a bill is dismissed for want of equity appellant must preserve the evidence, by certificate, in order to show that the bill was improperly dismissed does not apply.</p> <p>2. Principar and agent—what does not axithorise agent to enter into a contract. A letter from the owner of real estate to an agent with whom the property had been listed, saying that if the agent’s proposed customer will pay the price stipulated “I will sell” the property, and directing the papers, in case of a sale, to be made out by a certain trust company, “to whom I will give the necessary instructions if you make the sale,” etc., does not confer authority upon the agent to make a contract of sale which will bind the owner. (Jones v. Howard, 234 Ill. 404, followed; Hedrick v. Donovan, 248 id. 479, distinguished.)</p>

<p>1. Payment—when law presumes payment of debt. The law presumes, until the contrary is shown, that a debt which for a period of over twenty years has been due and unclaimed by the creditor and unrecognized by the debtor has been paid.</p> <p>2. Same—when presumption of payment must obtain in a suit at law. Where the last payment under the terms of a contract for the purchase of land has been due for over twenty years, during which time the purchaser has been in the exclusive possession of the land without any claim by the vendor or his heirs that the purchase money has not been paid or any recognition by the purchaser of the debt as existing, it will be presumed, in an action for the purchase money or in an action of ejectment, that the purchase money has been paid.</p> <p>3. Burnt records—bare legal title cannot be established under the Burnt Records act. If the holder of the legal title to land has sold the land and the purchase money has been paid he is not entitled to have the title established in a Burnt Records proceeding, but in such case the purchaser may, under a cross-petition and proof of payment of the purchase money, have his title established.</p> <p>4. Same—presumption of payment from lapse of time applies as a defense to Burnt Records proceeding. Where the last payment under a contract for the purchase of land has been due for more than twenty years, during which time the purchaser has been in the exclusive possession of the land without any claim by the vendor or his heir that the purchase money has not been paid or any recognition by the purchaser that the debt exists, it will be presumed, in a proceeding under the Burnt Records act by the heir of the vendor, that the purchase money has all been paid and that the purchaser is entitled to a deed, and unless the petitioner rebuts this presumption he cannot have his title established.</p>

<p>Appeal from the Circuit Court of Fulton comity; the Hon. R. J. Grier, Judge, presiding.</p>

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

<p>1. Wiles—section 13 of Conveyances act removes necessity for using words of inheritance. Since the enactment of section 13 of the Conveyances act it has not been necessary to use words of inheritance in order to convey or devise a fee simple estate.</p> <p>2. Same—when devise over will not take effect. If there is a devise simpliciter to one person and in case he should die (which is inevitable) to another, the time of death referred to is before the death of the testator, and if the first devisee survives the testator he takes an estate in fee and the devise over never takes effect; but if the devise over refers to death connected with a contingency which may or may not happen, the time of death referred to is at any time under the conditions named, either before or after the testator’s death, and the mere fact that the first devisee survives the testator does not vest the fee simple in him.</p> <p>3. Same—when will creates only a life estate with a contingent remainder. A devise to the testator’s wife for life and after her death to the testator’s son and daughter in equal shares, “and in case of their death then to their children, only, and if no children are left by them, then the survivor of my children shall inherit the other’s,” creates in the son and daughter a life estate after the death of the testator’s wife, with remainder to those children of the son and daughter who may survive their' parents; and if either life tenant digs leaving no children then the surviving life tenant takes the entire life estate, and the children of such survivor, if any there be, will take the whole estate in fee, but if no children survive either life tenant then the fee becomes intestate estate.</p>

<p>1. Res judicata—all members of public are represented where real party in interest is the People. Where no private rights are involved the right to maintain a bill to enjoin a public nuisance is in the public, acting through the Attorney General or State’s attorney, and in such a proceeding all individuals constituting the public are regarded as represented and will be bound by the decree.</p> <p>2. Same-—when difference in relators does not make a difference in parties. The fact that citizens who are the relators in a mandamus proceeding to compel city officials to remove an alleged obstruction in a street are not the same citizens who were relators in a prior chancery proceeding to enjoin the continuance of the same obstruction does not constitute such a difference in parties as affects the binding force of the former decree.</p> <p>3. Same—fact that former proceeding was in chancery while later proceeding is at law is not material. A final decree on the merits in chancery is as conclusive as a judgment at law, and is available as a former adjudication whether the subsequent suit is at law or in chancery.</p> <p>4. Same—the doctrine of former adjudication .is not limited to questions actually decided. The doctrine of former adjudication is not limited to questions actually decided, but extends to all grounds of recovery or defense which then existed and might have been presented and adjudicated.</p> <p>5. Same—decree on the merits, upon demurrer, is available as an adjudication. While a judgment or decree upon demurrer for a defective pleading is not a bar to a subsequent suit in which the cause of action is well pleaded, yet if the decision is upon the merits of a cause of action or defense it will bar a subsequent suit on the same facts, even though it was rendered on a general demurrer.</p> <p>6. 'Same—correct practice where answer does not correctly set out the former proceeding relied upon. If the answer to a mandamus petition erroneously describes the proceeding relied upon as a former adjudication as having been a bill in equity the petitioner should plead and not demur to the answer, as a court of review, on demurrer, will look only to the allegation of the answer to determine the character of the former proceeding.</p> <p>y. Sam®—when former decree is a bar to subsequent mandamus suit. A decree dismissing on the merits, upon general demurrer, a bill by the State’s attorney in the name of the People, on the relation of certain citizens, to enjoin the continuance of an alleged obstruction in the street, is a bar to a subsequent mandamus suit against the same defendants by the People, on the relation of other citizens, upon substantially the same facts, to compel the removal of the same obstruction.</p>