Volume 255 — Illinois Reports

<p>1. Criminal law—what does not render interpreter incompetent. The fact that the interpreter secured to interpret the testimony of the prosecutrix in a rape case was distantly related to her is not ground for holding him incompetent as an interpreter, there being no claim that he was not qualified to correctly translate the questions and answers or that he did not fairly and honestly translate them.</p> <p>2. Same—prosecutrix may detail entire transaction, including fact of theft of her property. In a prosecution for rape the prosecutrix may detail the entire transaction with the defendants, and the fact that it appears from her testimony that while committing the assault upon her the defendants forcibly took away her money and property does not render the evidence improper, as disclosing an offense for which the defendants are not indicted. ,</p> <p>3. Same—the court may, in a proper case, call witnesses the prosecution does not wish to vouch for. In a criminal case the court may, on a proper showing, call and interrogate witnesses who the State’s attorney thinks should testify but is not willing to vouch for, in order that the State’s attorney may have the privilege of cross-examining the witnesses if he desires.</p> <p>4. Same—what punishment for rape is not excessive. Imprisonment for life is not an excessive punishment for three men who conspired together to induce a foreign girl, who could not speak English, to leave the waiting room of a depot under the belief that they were befriending her and follow them to a secluded place, where they brutally assaulted and raped her and stole her money.</p> <p>5. Same—jury should not fix the time and place of punishment of a minor defendant. Where two of the three defendants in a rape case are over twenty-one years of age but the third is under twenty-one, it is proper for the jury to fix the punishment of the adults at imprisonment in the penitentiary, but as to the minor the jury should not fix the term or place of punishment, but the court should sentence him to the State reformatory for an indefinite period.</p>

<p>Writ or Error to the Circuit Court of Christian county; the Hon. Robert B. Sitirley, Judge, presiding.</p>

<p>1. Drainage—rule where confirmation judgment is reversed and cause is remanded generally. Where a judgment confirming a drainage assessment is reversed and the cause is remanded by a general order, without any directions, the county court is bound to proceed in accordance with the statute and the law as declared in the opinion filed in the cause.</p> <p>2. Same—reversal does not affect■ the property of land owners who do not appeal. A judgment confirming a drainage assessment is a judgment in rem against the tracts of land severally, and an appeal or writ of error brings up nothing except the judgment against the lands of the persons appealing or suing out the writ.</p> <p>3. Same—the lands of persons not appealing are not to be reassessed on remandment. Where a judgment confirming a drainage assessment is reversed as to the lands of an objector and the cause is remanded, the only right or interest which he has when his lands are re-assessed under 'the statute is that the assessment shall not exceed the benefit to the land nor their proportionate share of the estimated cost of the work, and he cannot insist that the lands of other persons who did not appeal from the judgment shall be re-assessed.</p> <p>4. Same—what errors will be considered on second writ of error. Upon a second writ of error to review a judgment confirming a drainage assessment only alleged errors which are claimed to have arisen since the first writ of error will be considered, as a party cannot, on second writ or error, take advantage of any error which existed and might have been assigned on the former record.</p> <p>5. Same—effect of release of right of way in accordance with maps and plans. .A release by a land owner of the right of way over his land for the ditches of a drainage district in accordance with the maps, plans and profiles of the district has the same effect as though the maps, plans and profiles which were on file and had been approved by the court had been copied into the' release.</p> <p>6. Same—when land cannot be re-assessed merely by filing petition,Where, pending a writ of error by a land owner who has released a right of way for the ditches of the district, the ditches-are constructed partly within and partly outside of the right of way released, the lands of such owner cannot be re-assessed, upon remandment of the cause, until the district has acquired the land occupied by the ditches outside of the right of way released and determined the question of compensation and damages. (Vandalia Drainage District v. Railroad Co. 247 Ill. 114, and Vandalia Drainage District v. Hutchins, 252 id. 259, distinguished.)</p> <p>7. Same—right to compensation for land taken accrues at the time ditches are dug. The right to compensation for land taken for the ditches of a drainage district accrues at the time the ditches were dug and in favor of the person owning the land at that time.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Richard E. .Burke, Judge, presiding.</p>

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

<p>Tax deeds—holder of an invalid tax deed is not entitled to reimbursement out of condemnation money. The holder of an invalid tax deed is not entitled to reimbursement for the amount of money-paid for the tax title and subsequent taxes, out of the compensation awarded in a condemnation proceeding in which the entire property is taken for public use. (City of Chicago v. Pick, 251 111. 594, adhered to.)</p>

<p>Appear from the Circuit Court of White county; the Hon. W. H. Green, Judge, presiding.</p>

<p>1. EjSCTmSnt—plea of not guilty is not a denial that the defendants claim title or interest. A plea of not guilty in an action of ejectment brought under section 7 of the Ejectment act for unoccupied premises is not a denial that the defendants claim title to or an interest in the premises, as that issue is raised in actions of ejectment by filing a special plea verified by affidavit.</p> <p>2. Sams—zvhen court may direct a verdict for plaintiff under section 7 of Ejectment act. One wh'o acquires title to unoccupied premises to which other persons claim title or interest under tax deeds is not obliged to take possession and file a bill to remove the tax deeds as clouds but he may bring ejectment under section 7 of the Ejectment act, and if he proves title the court may direct a verdict in his favor as against the defendants, who file a plea of not guilty but do not dispute the title.</p>

<p>1. Partition—land taken by an executor in collecting note is part of the assets and not subject to partition. Where a testatrix leaves nothing but personal property, but the executor, in collecting a mortgage note, accepts a conveyance of the land in settlement, the land is part of the assets of the estate, for which he must account to the legatees in the probate court, and, as between him and the minor heirs of the legatees under the will, there can be no partition of the property.</p> <p>2. Executors and administrators—'when question of - executor’s accounts cannot be litigated. Where the executor of an estate consisting wholly of personal property takes a conveyance to himself, as “trustee,” in settlement of a mortgage note, it is proper for the executor, in order to enable him to convey a clear title, to go into a court of equity to correct the conveyance so that it will run to him as “executorand in such a proceeding questions relative to his accounts as executor cannot be gone into, although they may be proper subjects of litigation when the executor accounts to the probate court for the proceeds of the land.</p>

<p>1. Trusts—estate of trustee is commensurate with his powers. The estate of a trustee in the land which is the subject of the trust is commensurate with the powers conferred by the trust and the purposes to be effectuated by it.</p> <p>2. Same—when trustee takes the legal estate: Where a will devises real estate to a certain person as trustee, to have and to hold for the sole use and benefit of the testator’s daughter during her life and if she dies without children then for the use of the testator’s widow, if living, and at her death, there being neither child nor children of the daughter, the land to be equally divided among the testator’s brothers and sisters, the trustee takes the legal estate, whether for years, for life or in fee.</p> <p>3. Same—when new trustee takes legal title without conveyance from old trustee. Where the testator, in creating a trust in real estate requiring the trustee to hold the legal title, authorizes the named trustee to appoint a successor in trust, the successor so appointed derives his title and his "powers from the will, and no conveyance from the former trustee is necessary.</p> <p>4. Same—general rule as to appointing trustees and successors. The general rule in the appointment of trustees and their successors is, that any proper person may be appointed who is legally capable of executing the trust; but this rule does not give arbitrary power to a trustee to appoint as his successor a person unfit to execute the trust.</p> <p>5. Same—a court of equity may prevent abuse of the trustee’s power to appoint successor. Although the creator of a trust may give the trustee unlimited power to appoint a successor, yet the trustee must still exercise a sound discretion in making his selection, and a court of equity has power to exercise control over such discretion to prevent its abuse.</p> <p>6. Same—when trustee does not have unlimited power to appoint a successor. Under a provision of a will authorizing the named trustee to appoint as his successor “some suitable person to execute said trust” the trustee does not have unlimited power to choose a successor, and he should not appoint a person who is disliked by the cestuis que trustent and who is hostile to them, even though he may be legally capable of executing the trust.</p> <p>7. Same—contingent remainder-man should not ordinarily be appointed successor in trust. A contingent remainder-man should not ordinarily be appointed as trustee of the land in which such remainder exists, and where his appointment was opposed by the cestuis que trustent, who are the life tenants, he should be removed by a court of equity upon proper proceedings being instituted for that purpose.</p> <p>8. Same—court of equity will not ordinarily assume to exercise personal power of trustee. Where a power given to a trustee indicates special confidence in the trustee and may be exercised or not, according to his personal judgment and discretion, a court of equity will • not ordinarily assume to exercise the discretion, and the power will not ordinarily pass to a successor in trust appointed by the court.</p> <p>9. Same—when power of trustee to turn over management of property is personal. Power given by will to the trustee to turn over the management of the property to the cestui que trust for any period of time he may deem best will be regarded as based upon personal confidence in such trustee, where he was also appointed by the will as guardian of the cestui que trust, with full power and authority to manage her property.</p>

<p>1. Plats—plat referred to in deed becomes part of the conveyance. Where a deed refers to a plat of the lots or lands the plat becomes a part of the conveyance the same as though it had been copied into the deed, and in such case the plat is regarded as furnishing as true a description of the boundaries and dimensions of the lots as though the dimensions marked thereon were written upon the face of the deed.</p> <p>2. Same—fixed monuments mentioned in a deed or shown on plat control courses and distances. While courses, distances and dimensions contained in a deed, either directly incorporated therein or incorporated by reference to a plat, are presumed to be true and correct, yet natural or artificial monuments mentioned in the deed or shown upon the plat as descriptive of the subject of the conveyance will prevail over courses and distances.</p> <p>3. Same—when purchaser must ascertain where stakes are or were located. If there is any reference to stakes, either in the deed to the lots or on the plat to which the deed refers, the purchaser is bound to ascertain where the stakes are located, or, if they have been removed or have disappeared, where they were located.</p> <p>4. Same—when purchaser may rely upon plat as showing correct dimensions of lots. Where there is no statutory requirement that the boundaries of lots shall be marked by stakes and there is no reference to stakes in the deed or upon the plat to which the deed refers, the purchaser may assume that the dimensions marked upon the plat in figures are correct, in the absence of notice, either actual or by stakes or monuments visible above the ground, that there is a mistake in the plat.</p> <p>5. Sameffect of a re-survey after lots are sold according to original plat. Where a deed to lots refers to a plat which has the dimensions of the lots marked thereon, but there are no stakes or monuments mentioned in the deed or plat or visible above the ground, the purchaser takes title according to the dimensions as shown on the plat in the absence of actual notice that such dimensions are wrong, and such title passes to her grantee who takes - possession according to the original survey, even though there is then on record a second plat showing the lots to be smaller than they were shown to be by the original plat.</p>

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

<p>Information to disbar.</p>

<p>1. Limitations—acts of possession by persons between whom there is no privity cannot be joined. Privity of estate or title is necessary between successive disseizors to authorize the joining of their several possessions so as to make one continuous possession.</p> <p>2. Same—when several possessions will be joined and considered as one. Where one having title, by deed, to a lot or tract of land described in the deed also has enclosed with it and in his possession adjoining land to which he has no record title, if he conveys the land by the description in the deed and delivers with it, to his grantee, the possession of the entire entlosure, the continuity of possession is not broken and the tw'o possessions will be joined and considered as one.</p> <p>3. Same—title to premises not described does not depend upon the deed but upon possession. The title to premises in possession but not described in the deed does not depend upon the deed but upon possession, and hence the mere making of a deed will not pass title to land not described therein but enclosed with the land described, unless possession is delivered to the entire enclosure.</p> <p>4. Same—a paper transfer is not necessary to connect adverse possessions. The privity between two disseizors which will authorize the tacking of their possessions is not established by a mere deed from one to the other, but the deed is proper to be considered in determining whether possession of the land in the enclosure not described in the deed was taken at the same time as the possession of the land described therein.</p> <p>5. Same;—possessions may be tacked though deed to last disseisor is by a master in chancery. Where one in possession of a strip of land to which he has no title but which is enclosed with land to which he has title dies intestate, his estate is cast upon his heirs and his possession is transferred to them by operation of law, and if the heirs remain in possession until after a partition sale and then deliver possession to the purchaser, the possession of the heirs and their ancestor may be tacked to the possession of the purchaser, although his deed is made by the master in chancery in pursuance of the partition decree.</p> <p>6. Same—a transfer of possession may be proved by parol. A transfer of possession of premises from one disseizor to another need not be proved by deed but may be established by parol, as no deed is necessary to support a title by adverse possession where a party takes possession under a claim of ownership and holds the premises for the time required, under the statute, to complete the bar.</p> <p>7. Same—zvhat privity is required in order that possessions may be tacked. The privity required in order that several possessions may be tacked is that there must be a continuous possession by mutual consent, so that the possession of the true owner can not constructively intervene.</p>

Writ oE Error to the Branch “C” Appellate Court for the First District ;■—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.

<p>1. Ejectment—practice in ejectment, when not altered by statute, is the same as at common law. The practice and procedure and all the incidents of the trial in an action of ejectment are the same as. at common law when not altered by statute.</p> <p>2. Same—award of statutory new trial wipes out the verdict. The award of the statutory new trial in an ejectment wipes out the verdict so that no judgment can be rendered upon it, and when followed by a voluntary non-suit the whole action and all of its parts are annulled.</p> <p>3. Same—the plaintiff may dismiss suit after judgment in his favor is reversed. Where a judgment in favor of the plaintiff in ejectment is reversed by the Supreme Court and the cause is remanded the plaintiff may dismiss the suit upon payment of costs, and the defendants cannot insist upon another trial even though the decision of the Supreme Court was upon the merits of the case.</p> <p>4. Same—rules governing dismissal of actions in general apply to ejectment suits. "Unless otherwise provided by statute, the rules governing the dismissal or discontinuance of actions in general, as well as the rules controlling the entry of a non-suit, apply to actions of ejectment.</p>

<p>1. Judgments and decrees—court cannot set aside final decree at a subsequent term. A decree registering title after a full hearing of the cause is a final decree, and after the adjournment of the term the court loses jurisdiction of the cause, and has no power, at a subsequent term, to vacate or set aside the decree except as to matters of form or for clerical errors or misprisions of the clerk in writing up the decree.</p> <p>2. Same—when decree registering title is not without jurisdiction. Where a petition to register title avers that the petitioner owns the premises in fee and the .defendant admits, in writing, the averments of the petition, the court has jurisdiction to determine the question of title, and if it finds the averments of the petition are true and decrees that the title in fee be registered in the petitioner the decree is binding though erroneous, and it can not be set aside at a subsequent term on a cross-petition by the defendant.</p>

Writ op Error to the Branch “B” Appellate Court for the Eirst District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.

<p>Writ oe Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Eminent domain—when question of the necessity for taking land is not a judicial one. Whether the land sought to be condemned by a railroad company in elevating its tracks, as required by ordinance, is actually needed by such company is a question which the courts will not undertake to determine unless there is a clear abuse of the company’s power.</p> <p>2. Same—what does not show abuse of a company’s power to condemn. The facts that the petitioner, in elevating its tracks, is providing for more tracks than it needs at present and that it is building its embankment with sloping sides instead of retaining walls do not show that the company is abusing its power in seeking to condemn land to provide room for the slopes.</p> <p>3. The main questions here involved are decided in the case of Chicago and Western Indiana Railroad Co. v. Heidenreich, 254 111. 231, and are controlled by that decision.</p>

<p>1. Constitutional law—purpose of provision'against amending a law by reference to its title, only. Section 13 of article 4 of the constitution, providing that “no law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in. the new act,” was intended to enable the meaning of an enactment directly amending a prior statute to be ascertained by an examination of the enactment itself.</p> <p>2. Same—when constitution is violated by adding new section. The act of 1911, (Laws of 1911, p. 170,) which purports to add section 30 to the Police Pension Fund act, directly amends section 3 of said Pension Fund act without inserting said section in the new act, and is therefore invalid as in express violation of section 13 of article 4 of the constitution.</p> <p>3. Same—title of Police Pension Fund act is broad enough to authorize provisions for pensioning police matrons. The title of the Police Pension Fund act authorizes the creation of a police pension fund for the payment of a pension to any person connected with the police department whom the legislature may consider entitled thereto, and is broad enough to authorize provisions for the pensioning of police matrons.</p> <p>4. Same—when a new section may be added without inserting act amended. A new section, which is not really an amendment of the act to which it is added but relates to a different condition from that covered by the original act, may be added to the act by reference to the title without inserting the provisions of the act in the added section.</p> <p>5. Same—character of an act not determined by its title, alone. The character of an act as an amendment must be determined not by its title, alone, but by its effect upon existing laws and an examination and comparison of its provisions with prior laws which are left in force.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.</p>

Writ oE Error to the Branch “B” Appellate Court for the Eirst District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.

<p>Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding.</p>

<p>1. Contracts'—contract to sell land must be binding upon both parties. To constitute a valid executory contract for the sale of land the promises of the parties .must be concurrent and obligatory, so that both parties will be bound.</p> <p>2. Same—proposed purchaser need not sign contract but must accept it by some overt act. While it is' not necessary that the party to whom the written offer to sell land is made shall sign the contract, yet he must accept it by some overt act before the obligations of the contract will become binding upon both parties, and his mere mental intention to accept is not sufficient.</p> <p>3. Same—offer to sell land may be withdrawn before acceptance. Where a written proposition to sell land is made without the payment of a consideration, it may be withdrawn at any time before acceptance.</p> <p>4. Specific performance—when contract cannot be enforced. A written executory contract for the sale of land cannot be specifically enforced though signed by the proposed vendor, where the latter withdrew the offer and refused to carry out the contract before the proposed vendee had done anything in the way of accepting the contract which would have bound him to a performance thereof at the suit of the proposed vendor.</p>

<p>Appear from the Circuit Court of Cook county; the Hon. CharrEs M. Waricer, Judge, presiding.</p>

Henry E. Burgess, Judge, presiding. This was a petition filed by the appellant district against the appellee district in the county court of Mercer county, where said districts were organized, under the provisions of an act entitled “An act to require drainage districts lying above a lower drainage district, or emptying into a lower drainage district, whether such districts be organized under the same or different drainage laws of this State to pay to the lower drainage…

<p>1. Criminal law—an indictment for burglary need not always describe premises in language of statute. In an indictment for burglary it is not always essential that the premises be described in the precise words found in section 36 of the Criminal Code, which defines the offense.</p> <p>2. Sams—indictment may allege burglary of certain person’s room in a hotel. An indictment charging that the accused entered, with burglarious intent, “the certain building, to-wit, the room of Elizabeth Scharf in the Morrison Hotel there situate,” on its face describes a place which may be burglarized, as a room in a hotel may, under certain circumstances, be the “dwelling” of the occupant.</p> <p>3. Sams—plea of guilty may be entered though counts charge different offenses. The fact that certain counts charge the accused with burglary and others with receiving stolen property, (the same property being described in all the counts,) does not preclude the entry of a plea of guilty to both counts, and the court, under such plea, may find the accused guilty of the offense the evidence shows he committed. (Tobin v. People, 104 111. 565, distinguished.)</p> <p>4. Sams—punishment fixed by a verdict may be considered in determining offense of which accused is convicted. If different counts charge different crimes and there is a verdict of guilty, generally, the punishment fixed by the verdict may be considered in determining the offense of which the accused was convicted.</p>

<p>1. Labor unions—employee may quit service of employer unless bound by contract. Any employee, unless bound by contract, may quit the service of his employer for any reason or for no reason, and his right to do so cannot be abridged or taken away by any act of the legislature nor is it subject to control by the courts, as it is guaranteed by the thirteenth amendment to the Federal constitution.</p> <p>2. Same—when employee does not commit actionable wrong in procuring another’s discharge. Any employee may refuse to work with another employee who is for any reason objectionable to him, provided his refusal does not violate his contract with his employer, and he does not commit an actionable wrong against the other employee by merely notifying the employer that he will not work with such employee, even though the latter is thereupon discharged by his employer.</p> <p>3. Same—officers of labor union act as agents for the members. The purpose of organizing labor unions is to enable employees who become members to negotiate matters arising between them and their employers through the intermediation of officers and committees of the union, and if duly authorized by the employees to adjust a controversy between them and their employer, the union and its officers and committees are merely acting in the matter as agents of the employees.</p> <p>4. Same—members of a union may authorise officers to notify employer of their demands. No contract rights being involved, members of a labor union have the legal right to inform their employer that they will quit his employ, singly or in a body, if certain employees who are objectionable to them are not discharged, and they may authorize the officers of the unión to communicate such information to the employer, and the officers in so doing, and in reporting the result of the conference, commit no actionable wrong.</p> <p>5. Same—when employees cannot enjoin calling of a strike. Non-union employees cannot maintain a bill to enjoin the officers of a labor union from calling a strike in accordance with a previous vote of the members of the union, not bound by contract, who are co-employees of the complainants, even though the purpose of the strike is to compel complainants to join the union or be discharged from their employment, and the bill alleges that complainants will be irreparably injured if discharged and that the defendants are financially unable to respond in damages.</p>

<p>1. Appeals and Errors—a joint appeal requires a joint bond. Where a joint appeal is prayed and allowed all of the appellants must sign the appeal bond or the appeal will be dismissed on motion of appellee.</p> <p>2. Same—when new bond cannot be Med. Where a joint appeal is prayed and allowed but all of the appellants do not sign the bond, the defect is not such a one as may be cured by the filing of a new bond in the Supreme Court, signed by all of the appellants. (Hammond v. People, 164 Ill. 455, overruled.)</p> <p>3. Same—trial court cannot authorise a several bond on joint appeal. After a joint appeal is prayed and allowed the trial court cannot lawfully order that a bond signed by one of the appellants, with sufficient surety, be accepted in lieu of a joint bond.</p>

<p>Taxes—what is necessary to sustain objection to school district tax for building purposes. Where the levies of school district taxes for building purposes are in proper form, one objecting to such taxes on application of the collector for judgment must show that no building was done, that none was contemplated or authorized, and that no building bonds and bills were due and unpaid.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Richard E. Burice, Judge, presiding.</p>

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

<p>1. Winns—when widow is not required to elect to take under will or relinquish title to her own land. Where a testator devises the “home farm” and certain personal property to his wife for life upon the express provision that she accept the devise in lieu of dower, the wife, by accepting the devise, does not thereby relinquish her title to eighty acres of land belonging to her, which was included in the description of the home farm in the will.</p> <p>2. Real property-—-purchaser is chargeable with notice of what the records disclose. A purchaser of land is chargeable with notice of all that an examination of the records would disclose as to the condition of the title.</p>

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

<p>Appeals and errors—when finding by Appellate Court is conclusive against recovery for a personal injury. A finding by the Appellate Court, in its judgment reversing a judgment in a personal injury case, that the defendant was not guilty of the negligence charged against it is conclusive of that fact so far as the Supreme Court is concerned, and as there could be no recovery under such circumstances the judgment of reversal is proper.</p>

<p>Contracts—a contract to devise or convey property must be absolute in its terms. A contract, made without adequate consideration, to devise or convey farm land provided the promisee would make a success of farming it and no unknown cause should turn up to prevent, is too vague and uncertain to be capable of specific enforcement if the promisor fails to make the devise or conveyance, and is not such a contract as will bar the right of the promisor’s widow to take half of the land, under the statute, after renouncing the will of her husband, which devised the land to the promisee, there being no acts on her part constituting an estoppel.</p>

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

<p>1. Illegal contracts—•parties to an illegal contract who are in pari delicto are without remedy. Parties to an illegal agreement who are in pari delicto are without remedy against each other so far as property rights are concerned, and the law will refuse to lend its aid to either of them.</p> <p>2. Same—a void marriage may be annulled though parties are in pari delicto. Where both parties to a proposed marriage know that the intended husband has not been divorced from his former wife for the period he is prohibited by statute from marrying again the marriage is void, and as the State is interested the marriage will be annulled even though the parties are in pari delicto; but their property rights will be left as the parties have made them.</p> <p>3. Same—when parties to a void marriage are in pari delicto. Where a man transfers to a woman, pending his divorce proceeding, a part of his property to gain her consent to marry him and conveys his real estate to induce her to keep her promise, and they enter into the marriage relation at a time they both know it is prohibited by a statute which makes his act a felony, both parties are in pari delicto, notwithstanding the woman’s motive in the whole transaction was to obtain the man’s property and then rid herself of him.</p>

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

<p>Writ or Error to the Superior Court of Cook county; the Hon. M. M. GridlEy, Judge, presiding.</p>

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

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

<p>1. Negligence—right of action for damages for wrongful killing of another is statutory. At common law no right of action existed for the recovery of damages for negligent injury resulting in death of the person injured, but such right of action is statutory.</p> <p>2. Same—when an action for damages for wrongful death can not be brought in Illinois. Under section 2 of the Injuries act no action can be brought in Illinois to recover damages for the negligent killing of a person where both the injury and the death occurred in another State, even though the action is based upon a statute of the State where the injury and death occurred.</p> <p>3. Constitutional law—section 2 of the Injuries act is not unconstitutional. Section 2 of the Injuries act, although so construed as to prohibit a suit for damages in Illinois where both the injury and death occurred in another State even though the action is based on the statute of the latter State, does not violate the provisions of section 1 and paragraph 1 of section 2 of article 4 of the Federal constitution; nor is it in violation of section 19 of the bill of rights of the constitution of Illinois.</p> <p>4. Conflict of laws—the statutes of a State have no extraterritorial force. Statutes are without force beyond the jurisdiction of the State which enacts them, and can have no extra-territorial effect except under the principles of comity.</p> <p>5. Same—laws of other States will not be enforced if contrary to the policy of the forum. A statute giving a right of action will not be enforced by the courts of another State if it is contrary to the policy of the latter State, and where the policy of the State has been expressed in a statute such policy must prevail.</p> <p>6. Same—each State determines the jurisdiction of its courts. Each State, subject to the restrictions of the Federal constitution, determines for itself the limits of the jurisdiction of its courts, the character of the controversies that shall be heard in them, and to what extent its courts shall hear and decide transitory actions where the cause of action has arisen in another State.</p>

<p>1. Appeals and Errors—argument is presumed to include all objections relied upon. Where an argument is presented to the Supreme .Court which purports to state the objections to the judgment or decree and the rules of law which are alleged to have been violated, it will be presumed that the argument includes all objections relied upon.</p> <p>2. Costs—when it is not error to apportion costs. It is not error to apportion the costs between the complainant and the defendant upon setting aside a sheriff’s deed, even though no tender was made before the bill was filed, where the sale was set aside for want of demand for payment and other irregularities, coupled with gross inadequacy of price, and where the defendant acquired the deed with full notice of complainant’s rights, and had therefore no absolute right to reimbursement although the court provided therefor in its decree. ■</p>

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

<p>Appeal from the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Duane J. Carnes, Judge, presiding.</p>

Writ oE Error to the Appellate Court for the Fourth District;—heard in that court on writ of error to the County Court of White county; the Hon. K. C. Ronalds, Judge, presiding.

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

<p>Appear from the County Court of Massac county; the Hon. W. F. Smith, Judge, presiding.</p>

<p>1. Wiles—a will is not void because no provision is made for minor child. The fact that the testator makes no provision for his minor child is not, of itself, ground for holding the will void, even though the law casts upon a parent, while living, the burden of supporting his minor children.</p> <p>2. Same—inequality of distribution of estate does not impair validity of will. The fact that the testator gives the bulk of his estate to two of his sons, gives small legacies to his two daughters and makes no provision for one minor son does not impair the validity of the will, but is only a circumstance to be considered by the jury in passing upon the questions of undue influence and mental capacity.</p> <p>3. Same—when charge of undue influence is not sustained. A charge of undue influence by the two sons of the testator, who were the chief beneficiaries of the will, is not sustained by the mere fact of the unequal distribution of the estate, coupled with proof of an alleged declaration of the testator to the effect that the two boys were trying to get him to leave his property to them, where the evidence shows that he went with a neighbor to an attorney’s office and executed the will, and that no one but the testator, the neighbor and the attorney were present.</p> <p>4. Same—when alleged declaration of devisee is not admissible. Where the two sons of the testator are the chief beneficiaries of the will, their interest being in common and not joint, an alleged declaration of one of them to the effect that they had induced the testator to make a will and leave them his farm is not admissible, upon the question of undue influence, to conclude the other devisee.</p> <p>5. Same—expert opinion based upon hearing part of the testimony is not admissible. It is proper for the court to refuse to allow an expert medical witness to give his opinion as to the testator’s condition of mind, based upon the portion of the testimony in the case which he heard.</p> <p>6. The court reviews the evidence in this case, and holds that it sufficiently establishes that the testator was of sound mind when the will in question was executed, and that, though much addicted to the use of intoxicating liquor, he was not intoxicated when he made the will.</p>

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

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

<p>1. Wills—various provisions should be so construed, if possible, that all may stand. In construing a will the court should consider the whole scope and plans of the testator and compare its provisions, construing them, if possible, so that all may stand.</p> <p>2. Same—the sentences of paragraph should be construed together. The sentences of a paragraph of a will should be construed together and not as entirely independent of each other.</p> <p>■3. Same—active trust is not executed by the Statute of Uses. Where the trustee has active duties to perform the trust is not a passive one and is not executed by the Statute of Uses.</p> <p>4. Same—when a will makes but one bequest in trust. A will bequeathing the residue of the testator’s estate to his children in equal shares, except as to a named married daughter, “and as to her share it is my will that her said equal share shall be paid over and placed in control of my son Mathias Kerber, as her trustee, for her, and I hereby give and bequeath to my said son Mathias Kerber, as trustee for the said Anna Leary, one equal undivided share of my estate, * * * to be by him held for her as her trustee, and collect rents and profits thereof and to pay the same over to her during her natural life, free from any act or control of her said husband,” etc., bequeaths but one share to the daughter and creates a spendthrift trust as to that.</p>

<p>1. Default—when new process is not necessary after amendment of bill. No new process is necessary where a bill is amended after the order for default is entered, provided the amendment is purely formal or immaterial, and in such case the court may proceed as though no amendment had been made.</p> <p>2. Same—when an amendment of a divorce bill is immaterial. Where a bill is for divorce, alimony and an injunction to prevent the defendant from interfering with the complainant’s business, and there is no issue as to any dispute between the parties as to the ownership of real estate, an amendment, after default, which merely avers that complainant is the owner of a one-half interest in certain described real estate is immaterial and should be disregarded by the court in entering the decree.</p> <p>3. Divorce—what provision of a divorce decree is erroneous. Where, after default in a suit for divorce, an immaterial amendment is made which avers the complainant’s ownership of certain property about which it is not claimed by the bill there is any controversy, the court, in entering the decree for divorce, should not make a finding that the complainant is the owner of the property and that the defendant be divested of all interest therein; but such finding does not invalidate the provision of the decree, granting the divorce.</p>

<p>1. Appeals and errors—suing out of writ of error is the bringing of a new suit. The suing out of a writ of error is, in effect, the bringing of a new suit, in which the defendants below are the plaintiffs and the plaintiffs below the defendants.</p> <p>2. Same—party in contempt of court below cannot prosecute a writ of error. A defendant to a proceeding to declare a child a dependent, who is in contempt of court for taking the child and leaving the jurisdiction of the court, cannot, until purged of such contempt, prosecute a writ of error to review the decree in such proceeding; but the other defendants whose rights are affected may prosecute the writ and use her name, the procedure being the same as though she had refused to join in prosecuting the writ or assigning errors.</p>

<p>Auditor’s certificate of appeal to review the decision of the board of review of Jersey county.</p>

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

<p>1. Criminal law—when record contains sufficient showing of arraignment and plea. A record showing that the defendants on a specified date appeared in person and by counsel, that each was furnished with a copy of the indictment, list of witnesses and jurors, and that they entered pleas of not guilty and announced they were ready for trial, whereupon a jury was called, contains a sufficient showing of arraignment' and plea.</p> <p>2. Same—when indictment charges conspiracy to defraud, and not a felony. A count which charges the defendants with conspiring to defraud an insurance company by burning insured household goods, does not, by reason of the fact that it contains an averment that they consummated the offense which they conspired to commit, become a count charging the offense of maliciously burning insured property with intent to defraud the insurer, but is a count charging a conspiracy to defraud.</p> <p>3. Same—burning insured goods to injure insurer is a distinct offense from arson. The offense of maliciously burning insured buildings or goods with intent to injure the insurer is a separate and distinct offense from arson, and under an indictment charging the malicious burning of insured household goods with intent to injure the insurer it is error for instructions to denominate the crime as arson and to authorize a conviction if but a part of the building was burned.</p>

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

<p>1. Locai, option—purpose of Local Option act. The purpose of the Local Option law is to give the voters of each political subdivision, whether large or small and whether a town, precinct, city or village, an opportunity to make such political subdivision anti-saloon territory, and if the vote results in favor of making the political subdivision anti-saloon territory it becomes such territory throughout its entire extent.</p> <p>2. Same—Local Option act confers no affirmative authority to issue licenses. The Local Option law confers no affirmative authority to issue licenses for the sale of intoxicating liquor and does not purport to authorize such sales, and no vote that can be taken thereunder will, of itself, authorize the traffic or the issuance of licenses, but municipal legislation authorizing the licenses, fixing the fees and regulating the traffic is necessary.</p> <p>3. Same-—effect where town containing a city votes to become anti-saloon territory. Where a town containing a city votes to become anti-saloon territory, the voters of the city may nevertheless vote upon the proposition to also become anti-saloon territory; but even though the vote in the city is against the proposition, there still remains the prohibition created by the result of the township election.</p> <p>4. Same—effect where a township votes to cease being anti-saloon territory. Where a township, and a city within the township, have each voted to become anti-saloon territory but the township subsequently votes against the proposition to continue to be anti-saloon territory, the township vote does not make the city saloon territory nor authorize the issuance of licenses or the sale of intoxicating liquor in such city.</p> <p>5. Same—the vote to cease being anti-saloon territory revives ordinances formerly in force. Where a city, incorporated town or village becomes anti-saloon territory and afterwards the legal voters decide that it shall not continue to be anti-saloon territory, all ordinances either restricting, regulating or prohibiting the sale of intoxicating liquor, as well as for issuing saloon licenses, again become operative.</p> <p>6. Same—a vote to cease to be anti-saloon territory does not repeal prohibitive ordinances. If there are ordinances in force prohibiting the issuance of dram-shop licenses at the time a city becomes anti-saloon territory, a vote to cease to be anti-saloon territory does not repeal such ordinances but merely authorizes their repeal and passage of an ordinance authorizing licenses to issue.</p> <p>7. Same—General Assembly had power to pass Local Option law. It was within the discretion of the General Assembly, in the exercise of the police power for the protection of the health, morals and safety of the people, to enact the Local Option law, and the only function of the courts is to apply the law as made.</p> <p>8. Nuisances—places where liquor is sold in violation of the Local Option act are nuisances. Under section 38 of the Local Option act all places where intoxicating liquor is sold in violation of any provision of the act are declared to be common nuisances and may be abated as such, and the legislature having declared such places to xbe nuisances, its determination is final.</p> <p>9. Same—the jurisdiction of equity to enjoin nuisances is of ancient origin. The jurisdiction of a court of equity to enjoin nuisances is of ancient origin, and no statute is necessary to confer such jurisdiction but it would require a statute to destroy it.</p> <p>10. Same—equity has jurisdiction to enjoin a public nuisance though offender is amenable to criminal law. A court of equity has jurisdiction to abate a public nuisance even though the offenders are amenable to the criminal law and though no property rights are involved in the litigation, as the public health, safety and morals are on a plane above mere pecuniary damages, although not susceptible of measurement in money.</p> <p>11. Same—criminal prosecution is not a complete and adequate remedy. A criminal prosecution which can only dispose of an existing nuisance and cannot prevent a renewal of the nuisance, for which a new prosecution must be brought, is not regarded as a complete and adequate remedy for wrong inflicted upon the public.</p> <p>12. Same—what question is to be considered on information to abate public nuisance. A court of equity has jurisdiction to abate a public nuisance upon an information filed by the Attorney General or other public officer charged with the duty of seeing that the laws are enforced and the public protected, and the question to be considered in each case is whether the facts stated are such as call for the exercise of the jurisdiction.</p> <p>13. Same—when equity may properly decline to exercise jurisdiction to abate nuisance. Although no set of rules can be formulated which will control every case, it may be said, generally, that a court of" equity may properly decline to exercise its jurisdiction to abate a public nuisance where the public officials are discharging their duties in enforcing the laws and ordinary methods are effective ■ in compelling obedience to statutes forbidding the creation and maintenance of nuisances.</p> <p>14. Same—when equity properly exercises jurisdiction to abate public nuisance. A court of equity properly takes jurisdiction to abate a public nuisance consisting of a place where intoxicating liquor is sold in violation of the Local Option law, where the use of such place for the illegal sales of liquor has continued for a long time openly and notoriously and with the express consent of the city authorities, and where the county judge has refused to issue warrants for the offenders and grand juries refused to hear witnesses, thus preventing the abatement of the nuisance by ordinary means.</p>

<p>1. Pleading—effect where defendant answers after overruling of demurrer. A defendant, by answering, waives the right to assign error on the overruling of his demurrer to the bill; but upon the final consideration of the whole case, if it appears that the complainant is not entitled to the relief sought, the defendant may have the benefit of the same point raised by the demurrer.</p> <p>2. Same—failure to deny allegation in bill is not an admission of its truth. The failure of the answer to deny an allegation in the bill or supplemental bill is not an admission of the truth of the allegation and does not dispense with the necessity of the complainant proving the allegation.</p> <p>3. Principal and agent—agent cannot deal in the subject of the agency on his own account. Agents are held to the strictest fairness and integrity, and in equity an agent is disabled from dealing in the matter of the agency on his own account, and will be compelled to transfer the benefit of his contract to his principal.</p> <p>4. Same—agent must account for profit to himself from violation of his duty. Any personal benefit obtained by an agent in violation of his duty will be held to inure to the benefit of the principal, and if the agent makes any profit to himself by virtue of his position he must account therefor as for a trust.</p> <p>5. Same—when the rule that one who seeks to rescind must rescind in toto does not apply. In a suit to compel the defendant to surrender unauthorized profits which he had gained while acting as agent for the complainant in a land trade, the rule that one who seeks to rescind a contract must rescind in toto has no application, and the complainant is not required to rescind the entire transaction and offer to return the land to the party from whom he obtained it.</p> <p>6. Same—principal electing to take benefit of agent’s transaction must take it as it was made. If the principal elects to take the benefit of a transaction by his agent in violation of duty he must take it as made, and if the agent was obliged to pay an illegal charge to cover usury on the loan he made to carry out the transaction, he is entitled, on the accounting with the principal, to a credit for such illegal payments.</p>

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

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding.</p>

<p>1. Drainage—sufficiency of proceedings to annex land cannot be inquired into in an assessment proceeding. The order of the county court annexing lands to a levee district is a final, appealable order, and the sufficiency of the complaint and of the proceeding to annex the lands cannot be inquired into in the proceeding to assess the lands annexed.</p> <p>2. Same—what should be stated in an assessment roll against annexed lands. The assessment roll against lands annexed to a levee district should state the purpose for which the assessment is made, and if the purpose is to require the annexed lands to contribute their proportionate share of the cost of the improvement, the actual cost of the work if completed, or the estimated cost if uncompleted, should be given.</p> <p>3. Same—how annexed lands should be assessed. If the purpose of assessing annexed lands is to require them to pay their proportionate share of the cost of the improvement the jury should be instructed to consider the whole district, including the annexed lands, as a unit, and assess the annexed lands proportionately on the basis of the actual or estimated cost, as the case may be, to the whole district, without reference to the original assessment, and the amount thus raised should be rebated, in proper proportion, to the lands originally assessed.</p> <p>4. Same—dnnexed lands not concerned with original assessment. In the proceeding to assess annexed lands the question whether the original assessment was properly or improperly made is not material, as the annexed lands can only be required to pay their just proportion of the cost of the improvement, without regard to the assessment against any particular tract or tracts in the original proceeding.</p> <p>5. Same—what does not show that specifications tend to restrict competition. The fact that the specifications for a drainage improvement provide that the work is to be done by a dredgeboat does not, of itself, show that such requirement tends to restrict competition and create a monopoly.</p> <p>6. Same—fact that original estimate was not itemised is not fatal. Any defense which owners of lands in the original district could have made to the assessment of their lands is available to the owners of annexed lands in a proceeding to assess them their proportionate share of the cost, but the failure of the commissioners to itemize the original estimate is not such a defense.</p> <p>7. Same—commissioners are not held strictly to several items of estimate. Drainage commissioners are not held strictly to the several items of the estimate of the cost of the work, but may, under the direction or approval of the court, use’ the money secured by the assessment for any one or all of the purposes specified in the estimate.</p>

<p>Appear from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Franklin county; the Hon. W. H. Green, Judge, presiding.</p>

<p>Writ oe Error to the Branch “B” Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, 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 LaSalle county; the Hon. S. C. Stough, Judge, presiding. The defendant in error brought his action on the case against the plaintiff in error in the circuit court of LaSalle county to recover for personal injury.

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

<p>1. Constitutional law—section 62 of the Municipal Court act is not unconstitutional. Section 62 of the Municipal Court act, which authorizes the chief justice of the municipal court to prepare abbreviated forms in which judgments of that court may be entered, is not invalid. (Stein v. Meyers, 253 111. 199, followed.)</p> <p>2. Judgments and decrees—invalid judgment does not create a lien against land. An alleged judgment of the municipal court of Chicago entered in unintelligible abbreviations of words is not sufficient to create a lien upon real estate, even though execution is issued thereon and part of the amount due is paid.</p> <p>3. Same—when alleged judgment lien may be removed as cloud without showing it was unjust. If a judgment is invalid and insufficient to create a lien against land at the time the judgment debtor was declared a bankrupt and at the time the land was sold by the trustee in bankruptcy, the purchaser from the trustee is entitled to have the alleged judgment lien removed as a cloud upon his title without showing that the judgment was unjust and without paying the same, as he has a right to rely upon the records and purchase accordingly.</p>

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Logan comity; the Hon. T. M. Harris, Judge, presiding.

<p>1. Taxes—State board cannot assess capital stock of mercantile corporations. Capital stock of manufacturing and mercantile corporations is subject to taxation since clause 4 of section 1 of the Revenue act of 1905 was held unconstitutional, but as the State Board of Equalization is prohibited from assessing the capital stock of such corporations the assessment must be made by the local assessor.</p> <p>2. Same—when a corporation is a mercantile corporation. A corporation organized to buy and sell stocks and bonds of other companies and to guarantee such stocks and bonds is a mercantile corporation, within the meaning of the Revenue law.</p> <p>3. Words and phrases—the word “mercantile” defined. The word “mercantile,” in its ordinary acceptation, means “pertaining to the business of merchants,” and is concerned with trade or the buying and selling of commodities.</p> <p>4. Same—the word "commodities” includes stocks and bonds. With the possible exception of animals, the word “commodities” includes all movable chattels which are objects of commerce, including the stocks and bonds of corporations.</p>

<p>-1. Limitations—when grantee is in position of tenant in common in possession. A husband who before the death of his wife is in possession of her land as her agent, and who, five days after her death, without having surrendered possession, receives a deed from two heirs of the wife purporting to convey the entire title to the land, is in the position of a tenant in common in possession at the time of receiving the conveyance, and his possession is therefore for the benefit of all co-tenants.</p> <p>2. Same—what possession does not operate as a disseizin. The fact that a tenant in common, who was in possession at the time of receiving a conveyance from certain co-tenants purporting to convey the entire title, appropriates the rents, pays the taxes and makes improvements but not of an extensive character, does not amount to a disseizin of his co-tenants and notice that he claims adversely to them.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.</p>

<p>1. Deeds—when want of mental capacity by grantor is not marterial. Whether the grantor had sufficient mental capacity at the time of the excution of a deed is not a material inquiry in a proceeding to set the deed aside, where the grantor concedes by her bill that after her mental powers were restored she was informed of the deed and acquiesced therein.</p> <p>2. Same—when equity has jurisdiction to set aside a deed. A court of equity has jurisdiction to set aside a deed at the suit of the grantor where the consideration therefor was an agreement by the grantee to support and maintain the grantor and her husband during their lives, and the grantee, after receiving the conveyance, has refused to perform the agreement.</p> <p>3. Statute oe Frauds—statute must be pleaded to be available as a defense. Defendants to a bill to set aside a deed upon the ground that they have failed to keep their agreement to support the grantor, cannot urge the defense that the agreement .was not in writing and signed by them, where they have not pleaded the Statute of Frauds.</p>

Writ oe Error to the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.

<p>1. Criminal law—State is not bound by mere, hearsay testimony of the deceased. In a murder trial, declarations of the deceased several days before the killing cannot be used by the accused except by way of impeachment, as the State is not bound by the mere hearsay testimony of the deceased.</p> <p>2. Same—accused may prove any fact tending to show that another person committed the crime. In a murder trial, where the evidence is entirely circumstantial, the accused may prove any fact or circumstance tending "to show that the crime was committed by another person, but if the offered evidence is too remote in point of time it is not reversible error to deny it admission.</p> <p>3. Same—when giving instruction is error. Where the evidence in a murder trial is wholly circumstantial, and there is no evidence as to where the defendants were at the time of the crime except their own testimony that they were at other places than the scene of the crime, it is error to give an instruction which is open to the criticism that it assumes defendants were present at the killing and were the two men who were seen running away.</p> <p>4. Same-—if facts a/re disputed, instructions should not assume their existence. In a criminal case, where the facts are controverted and the evidence is conflicting, it is error for the trial court to instruct the jury that certain of the controverted facts are true.</p> <p>5. Same—the instructions must be substantially accurate if the evidence of guilt is doubtful. Where the evidence of guilt is not such that all honest minds must reach the same conclusion, the accused is entitled to have the evidence passed upon by a jury which has been instructed with substantial accuracy, and error in the instructions may in such case be ground for reversal.</p> <p>6. Same—defendants are entitled to have their explanations of their whereabouts considered by jury. In a murder trial, where the evidence is entirely circumstantial, the defendants are entitled to have their explanations of their whereabouts on the night of the crime considered by the jury for what they are worth, even though they may not be very satisfactory.</p> <p>7. Same—what may be ground for a new trial. Affidavits of witnesses that they were mistaken in testifying that the house of ill-fame where one defendant testified he stayed on the night of the killing was closed up at that time, may, under the circumstances, be ground for granting a new trial.</p>

<p>1. Limitations—tax deed is good color of title if obtained in-good faith. A tax deed regular in form is good color of title, within the meaning of section 6 of the Limitation act, if obtained in good faith, and good faith on the part of the holder of color of title is presumed until overcome by proof.</p> <p>2. Same—-outstanding title acquired by co-tenant in possession inures to benefit of all. A tenant in common in possession cannot acquire color of title by procuring an outstanding title for his own exclusive benefit but the title so acquired inures to the benefit of all the co-tenants.</p> <p>3. Same—co-tenant cannot assert a title acquired at tax sale. One co-tenant cannot assert against another a title acquired by purchase at a tax sale for taxes imposed upon the property during their common ownership thereof, and the fact that one co-tenant permits the land to be sold for taxes and subsequently purchases the title based on such sale is evidence of bad faith on his part.</p> <p>4. Same—purchase by agent of co-tenant is the same as a purchase by the principal. A purchase of land at a tax sale by an agent of one of the co-tenants of the land hal- no effect different from a purchase by the co-tenant himself.</p> <p>5. Same—when holder of tax deed does not hold in good faith. Where one in charge of land as agent of one co-tenant permits the land to be sold for taxes and purchases at the tax sale for his principal’s benefit but because of the principal’s death assigns the certificate of purchase to another co-tenant, who takes out a tax deed, the latter co-tenant cannot, as against the others, rely upon her tax deed as color of title obtained in good faith.</p> <p>6. Same—a will, to constitute color of title, must describe the land. A devise of all the lands belonging to the testator in this State will, by such general description, pass to the devisee title to all such lands belonging to the testator at the time of his death, but such devise is too general to constitute color of title under the Limitation act.</p> <p>7. Same—what is necessary to constitute a disseisin. To constitute a disseizin there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import will impart information and give notice to the co-tenants that an adverse possession and actual disseizin are intended to be asserted against them.</p> <p>8. Same—possession and payment of taxes do not, alone, bar rights of co-tenant. Mere possession and payment of taxes by one co-tenant, however long continued, will not constitute a bar as against the other co-tenants, but there must, in addition, be acts of the co-tenant in possession which are so overt, notorious and unequivocal as to show adverse possession as against the others.</p> <p>g. Same—a co-tenant has burden of proving disseisin. A co-tenant who asserts a disseizin of the others has the burden of establishing, by a preponderance of the evidence, that her possession was hostile, actual, visible, notorious, exclusive, continuous and under claim of title, as it is essential, in order to start the running of the Statute of Limitations against co-tenants, that they be in some way given notice that an adverse possession and actual disseizin are intended.</p> <p>10. Laches—knowledge is an inherent element of laches. It is an inherent element of laches that the parties sought to be charged therewith have knowledge of the facts, and it is only when the delay is accompanied by some other element rendering it inequitable to permit the owner to assert his title that laches will be held to bar his rights before the Statute of Limitations has run.</p> <p>11. Same—when party does not occupy position of an innocent third party. One who obtains land by devise from a co-tenant thereof, and who not only pays no consideration therefor but receives more in rents than she expends upon the land for improvements and taxes, does not occupy the position of an innocent third party when asserting laches against the claims of other co-tenants.</p>

<p>1 1. Constitutional law—constitution limits territorial jurisdiction of city courts. The territorial jurisdiction of a city court for the service of original process is limited by the constitution to the corporate limits of the city where such court is located.</p> <p>2. Same-—territorial jurisdiction of municipal court of Chicago is the same as of other city courts. Section 1 of article 6 of the constitution is the authority for the creation of the municipal court of Chicago, and the word “jurisdiction,” as used in section 34 of article 4, concerning the jurisdiction of the municipal court of Chicago, refers to a jurisdiction other than territorial jurisdiction.</p> <p>3. Same—paragraph 6 of section 28 of Municipal Court act is invalid. Paragraph 6 of section 28 of the Municipal Court act, in so far as it purports to extend the territorial jurisdiction of-the municipal court of Chicago for service of original process beyond the territorial limits of the city, is invalid</p> <p>4. Process—when summons is original process. A summons issued by the municipal court of Chicago, in an action in personam, for service on a defendant not residing within the territorial limits of the city of Chicago is original process notwithstanding summons has been served upon another defendant residing within the city, and a service of the summons upon the non-resident defendant beyond the territorial limits of the city is void.</p> <p>5- Practice—when court should allow motion to dismiss suit. Where it is made to appear to the municipal court of Chicago, on motion supported by affidavit, that one defendant to an action in personam in that court is not a resident of the city and has never been served with process within the limits of the city, the suit as to such defendant should be dismissed.</p> <p>6. Same—when appearance of party by attorney is an implied admission of jurisdiction. It is only in cases where objection to the jurisdiction must be taken by plea that there is an implied admission of jurisdiction by appearance of a party by his attorney.</p>

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

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

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Macoupin county; the Hon. Robert B. Shir-LEy, Judge, presiding.

<p>1. Building lines—parties who violate building line restriction cannot compel others to observe it. Property owners who erect buildings having walls, bay windows and swell fronts extending beyond the established building line have no standing in equity to enjoin another property owner from erecting his building in greater disregard of such line. (Curtis v. Rubin, 244 111. 88, followed.)</p> <p>2. Same—when a court of equity will decline to enforce building restriction. Where the construction of an elevated railroad through a block has virtually destroyed the value of adjoining lots as residence property, equity will decline to enforce a building line restriction but will leave the parties to their action at law.</p>

<p>1. Deeds—mere fact that grantor comprehends that he is making a deed is not sufficient. The mental strength necessary to sustain a deed must be such as to enable the grantor, in dealing with his property, to understand and protect his own interests, and it is not sufficient that he merely comprehends that he is making a deed.</p> <p>2. Trusts—when equity will raise a trust by construction. Where one obtains the legal title to property by virtue of a confidential relation and influence, under such circumstances that he ought not, in equity and good conscience, to be permitted to retain it, a court of equity will raise a trust by construction, and will require the execution of the trust in such a manner as to protect the rights of the real parties in interest.</p> <p>3. Same—the term “fiduciary or confidential relation” is a comprehensive one. The term “fiduciary or confidential relation” is a comprehensive one, and such relation exists whenever influence is acquired and abused or confidence is reposed and betrayed.</p>