Volume 257 — Illinois Reports

Writ oe Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of LaSalle county; the Hon. Edgar EldrEdGE, Judge, presiding.

<p>Writ or Error to the Circuit Court of Hardin county; the Hon. E. E. Newlin, Judge, presiding.</p>

<p>1. Appeals and Errors—appeals in mandamus are controlled by lazos governing other civil cases. Appeals and writs of error in mandamus cases are to be prosecuted in Illinois in the same manner, on the same terms and with like effect as in other civil cases.</p> <p>2. Same—when appeal in mandamus lies to Appellate Court. An appeal from a judgment in a mandamus proceeding brought by highway commissioners to compel drainage commissioners to build a bridge, and, if necessary, to levy a tax to raise a fund for that purpose, should be taken to the Appellate Court, where neither the validity of a statute, a franchise, a freehold nor the revenue is involved, the question being whether the petitioner or the respondent is charged with the duty of building the bridge.</p>

<p>. Writ of Error to the Circuit Court of DeKalb county the Hon. Duane J. Carnes, Judge, presiding.</p>

<p>1. Wills—whether a remainder will be accelerated depends upon the intention of the testator. Whether a remainder will be accelerated depends upon the intention of the testator, which is to be determined from the will itself.</p> <p>2. Same—general rule as to acceleration of remainder. Where the taking effect, in possession, of the remainder is postponed only to- let in a prior life estate the remainder will be accelerated upon the extinguishment of the life estate even though the prior life tenant be still alive, but if the intention of the testator is that the remainder shall not take effect until the death of the prior life tenant the remainder will not be accelerated though the life tenant conveys the life estate to the remainder-man.</p> <p>3. Same—when a remainder is not accelerated. A remainder given in trust to the testator’s grand-daughter in case she survives the testator’s widow, who was given a life estate, and the testator’s daughter, who was given a life estate in trust after the death of her mother, is not accelerated by conveyances of the widow’s and daughter’s life estates to the grand-daughter, where the will provides that “no interest shall vest in any of the possible grantees of my said trustee until the happening of each and all of the several contingencies upon which my said trustee is to make a conveyance to them, respectively.”</p>

<p>1. Evidence—general rule as to admissibility of declarations to prove pedigree. As a general rule, before declarations of persons can be admitted to prove pedigree it must be established that the declarant is dead, that the declarations were made before the controversy arose, and that the declarant was related by blood or marriage to the family to which the declarations refer.</p> <p>2. Same—when proof of relationship must be made dehors the declaration. Proof of the relationship of the declarant must be made dehors the declaration before such hearsay can be admitted to prove pedigree, where an attempt is being made to establish through the declarant’s own statement a right, claimed to be derived through the declarant, to share in the property of the family or individual to which the declarant is claimed to be related.</p> <p>3. Same—when proof of relationship of declarant need not be first established. Where it is sought to reach the estate of the declarant herself and not to establish a right through her to the property of others, her declarations with reference to her family and kindred are admissible, even though the relationship is not shown by other evidence. (Cuddy v. Brown, 78 Ill. 415, followed.)</p> <p>4. Same—hearsay testimony as to pedigree is not confined to ancient facts. If the declarant is dead, her declarations as to pedigree are not, excluded by the fact that living members of the same family can be examined on the same point, as hearsay testimony as to pedigree is not secondary evidence and is not confined to ancient facts but extends also to recent facts. (Greenwood v. Spiller, 2 Scam. 502, criticised.)</p>

<p>1. Corporations—word "manufacturingused in the Revenue act, is not to be given a technical meaning. The word “manufacturing,” as used in the Revenue act, concerning the assessment of the capital stock of corporations organized purely for manufacturing purposes, is not to be given a technical meaning.</p> <p>2. Same—when process of manufacturing takes place. When- ' ever labor is bestowed upon an article which results in its assuming a new form, possessing new qualities or new combinations, the process of manufacturing has taken place, whether the thing produced be a small article of commerce or a structure such as a house, road or bridge.</p> <p>3. Taxes-—when a corporation must be regarded as organized purely for manufacturing purposes. A corporation organized to manufacture and deal in crushed stone, lime and cement must be regarded as organized purely for manufacturing purposes, even though it has power, under its charter, to build roads composed of sand, gravel or dirt, as it is not necessary, in order that a corporation may be regarded as a manufacturing corporation, that it must manufacture the materials it uses in constructing its product.</p>

<p>1. Municipal corporations—when the Statute of Limitations does not run against a city. The Statute of Limitations does not run against a municipality with respect to property held by it for the use of the public at large.</p> <p>2. Same—a city official cannot bind city by permitting building to be placed in street. A city official who gives a permit to a lot owner to move a building thereon, which encroaches upon land which the lot owner knows is included in a street, cannot bind the city nor give any right to the lot owner against the city, even though such official may have had knowledge of the encroachment.</p> <p>3. Judgments and decrees—decree as to title is binding upon party succeeding to complainant’s title. One who succeeds to the title of the complainant in a burnt records proceeding is in privity with him, and his acknowledgment of the title to a strip of the land as being in the public, in the petition filed by him, and the decree in accordance therewith, are binding upon them both.</p> <p>4. Evidenat;—when deed is not within rule excluding declarations of grantor tending to impeach title. Where the owner of a lot deeds a strip thereof for a street and thereafter conveys the remainder of the lot, excepting such, strip, a subsequent deed by him to the municipality conveying such strip in confirmation of the former deed is evidence of title in the city, and is admissible against one who has succeeded to the title to the other portion of the lot, even though her grantor made a deed to the lot with a warranty against his own acts, only, and without having any claim of title to the strip embraced within the street.</p> <p>5. Injunction—what not ground for enjoining city from taking possession of strip of land for street. Where the owner of a lot knows she has no title to a strip thereof which has been deeded for a street, and has successfully resisted a special assessment on such strip upon the ground that she did not own it, the fact that she has been permitted by a city official to occupy the strip with a building which she moved onto the lot furnishes no reason, on the ground of estoppel or otherwise, why the city should be enjoined from taking possession of the strip.</p>

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

<p>Writ or Error to the County Court of Lawrence county; the Hon. Jasper A. Benson, Judge, presiding.</p>

<p>1. Constitutional law—when.a statute does not deny a party equal protection of the laws. A statute does not deny to a party -the equal protection of the laws unless he is thereby treated differently from others in the same situation.</p> <p>2. Same—what is not a violation of prohibition against taking private'propei'ty for public use. One who voluntarily enters into a contract with a city to construct a local improvement for a specified sum, to be paid in accordance with the provisions of the Local Improvement act, including the provisions of sections 73 and 83 of said act, which are contained in the contract, cannot be said to be deprived of his property for public use without just compensation or without due process of law because the board of local improvements refuses to certify that the improvement has been completed in accordance with the ordinance.</p> <p>3. Same—sections 73 and 83 of Local Improvement act do not require party to make contracts except at his own free will. Sections 73 and 83 of the Local Improvement act, relating to the terms upon which contracts for local improvements to be paid for by special assessment must be made, do not require anyone to enter into such contracts except at his own free will.</p> <p>4. Special assessments—a contractor for a local improvement may resort to mandamus to secure his rights. A contractor for a local improvement may by mandamus or injunction compel a city to levy and collect a valid special assessment, and if the work has been completed under the direction and to the satisfaction of the board of local improvements, he may by mandamus compel the board to certify its acceptance of the work.</p> <p>5. Same—when city is not liable at suit of contractor for local improvement. Where a contract for the construction of a local improvement contains the -provisions of sections 73 and 83 of the Local Improvement act, the city is not liable for the contract price in an action on the case based upon the neglect and refusal of the board of local improvements to certify its acceptance of the improvement, as the city’s only duty is to make and collect an assessment for the benefit of the contractor.</p>

<p>Taxes—when property owners cannot appeal from order denying judgment of sale. An order of the county court sustaining one of the objections of the property owners and denying judgment and order of sale for a delinquent special assessment, the ground of the objection sústained being that the application for judgment was prematurely made, is a judgment in favor of the property owners, and they cannot appeal therefrom on the ground that the court overruled their other objections because they could not at that time be adjudicated.</p>

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

<p>1. Municipal corporations—legislative powers of municipal corporations are strictly construed. The legislative powers of municipal corporations are strictly construed, and if there is any fair and reasonable doubt as to the existence of a power,' the doubt must be resolved against the municipality claiming the right to exercise it and the power be held not to exist.</p> <p>2. Same—construction of words "fraudulent devices and practices¡’ in clause 45 of paragraph 62 of the Cities and Villages act. The words “all fraudulent devices and practices,” used in clause 45 of paragraph 62 of the Cities and Villages act, must, under the rule of ejusdem generis, be held to refer to devices and practices which involve an element of chance and which are similar to the things designated by the particular preceding words “gaming and gambling houses and lotteries,” and do not refer to palmistry, card reading, astrology, spirit mediumship or fortune telling.</p> <p>3. Same—section 1988 of Chicago municipal code is invalid. Section 1988 of the Chicago municipal code, which imposes a penalty for obtaining money by fraudulent devices and practices in the name of or by means of spirit mediumship, palmistry, card reading, astrology, seership, or like crafty sciences, or fortunetelling of any kind, is not authorized by clause 45 of paragraph 62 of the Cities and Villages act, and is invalid.</p> <p>4. Statutes—when rule of ejusdem generis 'must be applied. The rule that where general words in a statute follow particular and specific words the general words must be construed to include only things of the same kind as those indicated by the particular and specific words, must be applied unless there is something in the statute or its context requiring the contrary.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bernreuter, Judge, presiding.</p>

George Bedford, Judge, presiding. ■This was an application for judgment and order of sale in the county court of Grundy county against the property of the appellant for the following taxes levied for the* year 1911: Additional road and bridge tax for the town of Eelix, $123.12; additional road and bridge tax for the town of Braceville, $319.19; school tax for building purposes, school district No. 80, $279.14; and school tax for building purposes, school district No. 74,…

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

<p>Appear from the Circuit Court of Cook county; the Hon. Richard S. TuThirr, Judge, presiding.</p>

<p>1. Winns—extrinsic evidence is not admissible to modify the language of a will. Where the language of a will is obscure or doubtful, the circumstances surrounding the testator at the time the instrument was executed^may be shown.for the purpose of identifying the subjects or objects of the testator’s bounty but not for the purpose of changing or modifying the language of the will.</p> <p>2. Same—object of construction of a will. The object of the construction of a will is to ascertain the intention which the testator has expressed in the language of the will and not one which he may be supposed to have had in his mind but has not expressed, and evidence of surrounding circumstances cannot be resorted to to import into the will an intention which is not there expressed.</p> <p>3. Same—language having a settled technical meaning must be so construed. Where the language used in a will has a well settled technical meaning it must be given such meaning in construing the will, unless it clearly appears from the context that the words were not used in that sense.</p> <p>4. Same—when the word “heirs” cannot be given meaning of “children.” The word “heirs,” used in a clause of a will, cannot be construed as meaning “children” merely because the same word may not have been used with strict accuracy in the other clauses, where it was not used inappropriately in any of the clauses.</p> <p>5- Same—when daughter takes a fee simple under the rule in Shelley’s case. Under the rule in Shelley’s case a devise of land to the testator’s daughter, “to have -and to hold the same during her natural life, and at her decease the same shall fall to her heirs,” passes a fee simple title to the daughter, where there is nothing in the will to show that the word “heirs” was not used in its technical sense.</p>

<p>Appeal from 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. Mancha BruggemeyER, Judge, presiding.</p>

<p>1. Jurisdiction—when parties cannot complain, on appeal, of the insufficiency of notice by publication. Defendants to a suit for partition and to cancel tax deeds as clouds, who are personally served with summons and appear, answer the bill and participate in the hearing before the master in chancery and before the court, cannot complain, on appeal, that the court did not have jurisdiction of the persons made parties as unknown owners because'the certificate of publication was insufficient.</p> <p>2. Costs—when holders of tax deeds cannot complain that they are charged with large portion of costs. Where the holders of invalid tax deeds refuse a tender, made in open court, of a sufficient amount to reimburse them for all' proper expenditures and persist in obstructing the complainants in their efforts to partition the property, with no better title than such tax deeds, which were admittedly invalid as to part of the lots, and with no title whatever to the other lots, they cannot complain that they are charged with such portion of the costs as are occasioned by their conduct.</p> <p>3. Same—when the deposit of gross sum for all holders of tax titles is a sufficient tender. Where the owner of land files a bill for partition and to remove as clouds the tax deeds and conveyances based thereon, and deposits in court a sufficient sum of money to reimburse all of the defendants holding any interest under the tax deeds, he should be relieved from any subsequent costs made by such defendants in attempting to adjust their conflicting claims to the reimbursement fund.</p> <p>4. Same—a master in chancery’s fees for taking testimony are not limited to oral testimony. The word “testimony,” as used in section 20 of the Fees and Salaries act, allowing a master in chancery fifteen cents per hundred words “for taking and reporting testimony under order of court,” is used with the meaning of “evidence,” and includes documentary evidence introduced before him on the hearing, as well as oral testimony.</p> <p>5. Statutes—words of a statute should be given their popular meaning. Where words having both a technical and a popular meaning are used in a statute courts should accord to them their popular meaning, unless the nature of the subject indicates or the context suggests that they were used in their technical sense.</p>

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

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

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

<p>1. Registration oe title—objection that sufficient preliminary proof has not been made should be made when evidence is offered. An objection that sufficient preliminary proof has not been made to authorize, the admission of abstracts of title in evidence under section 18 of the Torrens law should be made orally when they are offered, and it is not proper practice to merely object generally, and subsequently file written objections against their admission.</p> <p>2. The decision in Bjork v. Glos, 256 Ill, 447, controls the determination of other questions raised in this case.</p>

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

<p>1. Wills—when remainder is contingent. Where the residue of testator’s property is devised to a trustee to hold for a period of ten years after the death of the widow and at the expiration of such period the property to descend to and be divided among the testator’s named children, “their heirs or the survivors of them, equally, share and share alike, the children or descendants of a deceased child, if any, taking the share-of the parent or ancestor,” etc., the remainder is contingent, as the persons to take cannot be known until the expiration of the trust. (Spengler v. Kuhn, 212 Ill. 186, followed.)</p> <p>2. Same—when estate of trustee is a freehold estate. Where a will vests in a trustee, subject to a life estate in the homestead, the title to all of the testator’s real estate until the full term of ten years from the death of the testator’s wife shall have elapsed, the estate in the trustee is a freehold estate, and being a freehold estate at its creation it does not lose its character as such at the subsequent death of the testator’s-wife.</p> <p>3. Debtor and creditor—a contingent remainder is not subject to sale under execution. A contingent remainder is not such an estate as can be sold on execution, and the purchaser at such sale acquires no title.</p>

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

<p>1. Forcible detainer—the action of forcible entry and detainer is a possessory action, only. The action of forcible entry and detainer is a summary statutory proceeding for restoring to the possession of land a person who is wrongfully kept out or has been wrongfully deprived of the possession in the particular cases mentioned in the statute; but such action is possessory, only, and the question of title cannot be tried.</p> <p>2. Same—when possession of defendants is subject to a foreclosure decree. Parties going into possession of premises under a receiver appointed in a foreclosure proceeding and whose agreement with the mortgagor was made after he was served with process, acquire their interest during the pendency of the suit and take subject to its determination, and are, within the meaning of the statute, parties to the decree.</p> <p>3. Same—-what necessary before forcible detainer suit can be abated by pendency of a chancery proceeding. Before a forcible detainer suit can be abated by the pendency of a chancery proceeding it must appear that the causes of action in the two proceedings are identical.</p> <p>4. Same—when pendency of an injunction suit does not delay prosecution of forcible detainer. Where, after the redemption of premises by a judgment creditor, a bill is filed by the persons in possession of the premises to enjoin a sale under such judgment creditor’s execution, and, after denial of the injunction, the sale is had, the redemption money paid to the persons entitled thereto, and a cross-bill is filed in the injunction suit setting up such matters and praying that the cross-complainant be decreed to be the legal owner of the premises and entitled to immediate possession but stating no ground of equitable jurisdiction or any reason for equitable relief, (being without force as a basis for asking any independent action of the court but only as a defense to the bill,) the pendency of the injunction suit, with the cross-bill, furnishes no ground for delaying the prosecution of a forcible detainer suit by the cross-complainant.</p> <p>5. Same—when purchaser at sheriff’s sale is entitled to maintain forcible detainer action. One who purchases at a sheriff’s sale under an agreement that the person advancing the larger portion of the money shall be given a first mortgage and that another shall be given a deed subject to the mortgage holds title as trustee for both parties, and, pending the carrying out of the agreement, and in the absence of any agreement to the contrary, he is entitled to the possession of the premises and may maintain an action of forcible detainer against third parties in possession.</p> <p>6. Constitutional law—fact that a statute has been unquestioned for many years may be considered. The fact that certain sections of a statute have been a part of the statutes of the State for many years without their validity ever being questioned does not establish their constitutionality, but such fact may be taken into consideration as indicating that an alleged discrimination which it is complained they make is not so clearly arbitrary and unreasonable as to have no just basis for existence.</p> <p>7. Same—statutory provisions for redemption are not invalid. The provisions of sections 18 to 24 of the act concerning judgments, decrees and executions, which control the subject of redemption from judicial sales, are not unconstitutional for discriminating between judgment creditors and other creditors, as the fact that a creditor has a judgment which may be enforced by execution constitutes a valid basis for the distinction.</p> <p>8. Same—fact that redemption law applies principle of priority of time does not render it invalid. It is a recognized principle that where equities are equal the first in time is first in right, and the application of this principle to the rights of judgment creditors by the sections of the statute concerning redemption from judicial sales does not render such sections unconstitutional.</p> <p>9. Same—redemption law is not invalid because of provisions concerning interest. The fixing of the rate of interest, if any limit is to be fixed, is .within the legislative power, and the fixing of a different rate of interest for redemption from judicial sales- from that borne by judgments or accounts is not an unreasonable discrimination, such as renders the statutory provisions for redemption invalid.</p> <p>10. Redemption—defendants have burden of showing that formal judgment zvas fraudulent. In a forcible detainer proceeding by the purchaser at an execution sale under a redemption based upon a formal judgment, the defendants have the burden of proving their claim that the judgment is fraudulent and not based upon a valid indebtedness.</p> <p>11. Same—time when judgment was recovered is not material. The words “any judgment creditor,” used in the statute with reference to the right to redeem from a judicial sale, means any creditor having a judgment upon which execution may. issue at the time he seeks to redeem, without regard to the time when the judgment was recovered.</p>

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

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

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

<p>Appeal from the Circuit Court of Union county; the Hon. William N. Butler, Judge, presiding.</p>

<p>Appeal from the County Court of Grundy county; the Hon. George Bedeord, Judge, presiding.</p>

<p>1. Drainage—when verdict of a jury will not be set aside as contrary to the weight of evidence. The verdict of the jury upon the question of benefits and damages in a proceeding to levy an additional levee drainage assessment will not be set aside as against the weight of the evidence, even though the evidence is conflicting, where there is evidence tending to sustain the verdict and where the jury viewed the premises and returned a verdict showing a conscientious performance of its duty.</p> <p>2. Same—when drainage case cannot be said to have been tried upon wrong theory. The jury trial upon the question of damages and benefits in a proceeding to levy an additional levee drainage assessment cannot be said to have been erroneously tried upon the theory that the jury could consider all benefits which the land had derived from previous work, where all of the instructions for the objectors limit the consideration of benefits to those flowing from the proposed additional work, and there is nothing in the record to show that any contrary view was held by the court or followed by the jury.</p> <p>3. Same—what may be proved as tending to show necessity for proposed improvement. The question for the jury in a proceeding to levy an additional levee drainage assessment is whether the condition of the lands at the time of the filing of the petition for the additional assessment was such that they would be benefited by the proposed improvement, and as bearing upon that question it may be shown that after constructing the original ditches, and before filing of the petition for the additional assessment, the lands were wet, marshy and subject to overflow and that crops were impaired or destroyed because of insufficient drainage facilities.</p> <p>4. Same—order directing commissioners to make additional assessment is merely interlocutory. An order of the county court directing levee drainage commissioners, upon their own petition, to make an additional assessment is merely interlocutory, and may be set aside by the court at any time before final judgment confirming the assessment roll.</p> <p>5. Same—what does not present any question of effect of condemnation judgments. In a proceeding to levy an additional levee drainage - assessment, proof of certain condemnation petitions filed by the commissioners under a vacated order of the court to make another assessment does not present for review any question of the effect of the condemnation judgments, as a bar or otherwise, where there is nothing in the record to show that any such judgments were ever entered.</p>

<p>1. Wills—when statements of the testatrix concerning undue influence are not admissible. In a will contest case, where undue influence by the defendant is charged, statements of the testatrix, made out of the defendant’s presence, tending to show that he had used undue influence, are not admissible upon that issue.</p> <p>2. Same—what may be testified to by devisee in a suit by heir. In a will contest case brought by an heir it is proper to allow the defendant, who is the devisee under the will, to testify that he found certain letters, which were introduced in evidence, among the papers of the testatrix after her death.</p> <p>3. Same—what is admissible to rebut charge that devisee made false statements to testatrix concerning complainant. Where the complainant in a will contest case charges that the defendant, the devisee, made false statements to the testatrix that complainant was a gambler and spendthrift, in order to poison her mind against the complainant, and some evidence to sustain the charge that such statements were made by defendant is introduced, it is proper to permit the introduction of letters from the complainant to the testatrix which clearly show that such statements, even if made by the defendant, were true, and that the testatrix thus had independent knowledge of the facts.</p> <p>4. Instructions—when refusal of instructions is harmless error. Refusal of certain instructions for the contestant in a will case is harmless error, where his given instructions fully advise the jury as to the law applicable to the issues being tried and substantially embody the contents of the instructions so refused.</p> <p>5. Costs—error in decreeing costs against the defendant may be corrected on appeal. Where costs are erroneously adjudged against the defendant upon the dismissal of a bill to contest a will and the defendant assigns such action as cross-error on an appeal by the complainant, the Supreme Court, if there is no reversible error in the record, may modify the decree in that respect and affirm it as modified.</p>

<p>Appeal from the Branch “B” Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.</p>

<p>1. Special assessments—record of the board of local improvements cannot be contradicted by parol evidence. The law requires a record to be kept of the proceedings of the board of local improvements, and such record cannot be contradicted, added to or supplemented by parol evidence.</p> <p>2. Same—board of local improvements need not pass resolution the moment the public hearing ceases. It is not essential to the validity of a special assessment ordinance that the board of local improvements shall pass a resolution adhering to the proposed improvement the moment it has ceased considering the improvement at the public hearing and before any recess or adjournment is had.</p> <p>3. Same—when courts will not hold an ordinance void as being unreasonable. Courts will not interfere with the action of the city council and declare an ordinance for a local improvement void, as being unreasonable, unless the evidence clearly shows that the ordinance is arbitrary, unjust and oppressive.</p> <p>4. Same—Supreme Court cannot consider question of proper proportion of public and private benefits. The question whether the assessment for public benefits is out of proportion with the assessment of benefits levied against private property is not subject to review by the Supreme Court on appeal or writ of error.</p> <p>5. Same—the commissioner may consider front-footage as an element. A special assessment made on a frontage basis, merely, without any regard to benefits, would be invalid, but the law does not preclude the commissioner from taking front-footage into consideration as an element in fixing the amount of the assessment.</p> <p>6. Same—property cannot be assessed more than it is benefited. The test in all special assessment proceedings is that the assessment shall not exceed the special benefits to the property.</p>

<p>Appeal from' the Branch “B” Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. McKenzie ClELANd, Judge, presiding.</p>

<p>1. Specific performance—when equity will not decree specific performance. If a contract for the exchange of properties gives a party thereto the clear right either to make the exchange or pay a stipulated -sum of money in lieu thereof, equity will not decree a specific performance of the first alternative.</p> <p>2. Same-—contract construed as giving party an option to perform or pay money. A contract for the exchange of properties which provides that the willful failure of either party to perform his undertaking shall subject him “to the payment of the sum of $1500 fixed and liquidated damages to the party injured, and upon payment thereof this contract is to become null and void,” gives either party the option to make the conveyance or pay the money.</p> <p>3. Tender—when tender need not be paid into court. Where a bill for specific performance alleges a tender by the defendant of the sum stipulated in the contract as liquidated damages in case of a refusal to perform, it is not necessary for the defendant to renew the tender or pay the money into court upon the filing of a demurrer to the bill.</p>

■ Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal front the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.

<p>1. Appeals and Errors—what findings by Appellate Court are conclusions of law. Findings by the Appellate Court, in its judgment reversing a judgment for the defendant in a suit on a bill of exchange, that the defendant was indebted to the plaintiff in a certain sum for principal and interest on the bill of exchange, and that the compromise agreement under which the bill of exchange was drawn constituted a good and sufficient consideration for the bill, are conclusions of law.</p> <p>2. Same—when Appellate Court must remand upon reversal. Where an action to recover on a bill of exchange is defended upon the ground of fraud and a judgment is rendered in favor of the defendant, the Appellate Court, upon finding as a fact that there was no fraud, may reverse the judgment and remand the cause, but it should not enter final judgment for the plaintiff, as such course deprives the defendant of its right to a jury trial on the question of fraud.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>Appear from the County Court of Champaign county; the Hon. W. G. Srurgin, Judge, presiding.</p>

<p>1. .Limitations—effect of possession and payment of taxes by cestui que trust. If the legal title to land is actually held in trust for the person who is in possession of the premises, the possession and payment of taxes by the cestui que trust is the possession and payment of the trustee under the color of title held by him, even though the deed does not expressly designate him as trustee.</p> <p>2. Same—statute does not require that possession and payment of taxes be by the same person for entire period. The seven year Statute of Limitations does not require that the possession under claim or color of title shall be continued in the same person nor that the same person shall pay all taxes for that period, and it is sufficient if the taxes are paid under claim and color of title by those having or succeeding to the possession.</p> <p>3. Tax deeds—when a tax deed may be set aside regardless of its validity or invalidity. Title acquired under the Statute of Limitations by possession and payment of taxes for seven successive years under claim and color of title, after the execution of a tax deed, is good as against the-world, and in a proceeding to have such tax deed set aside as a cloud upon the title it is not necessary to allege or prove the invalidity of the tax deed.</p> <p>4. Same—party not entitled to have tax deed set aside without reimbursing holder thereof. Where one has acquired title to property by possession and payment of taxes for seven successive years under claim and color of title his possession cannot be disturbed by the holder of an outstanding tax deed, but if he seeks to have such tax deed set aside as a cloud the statute requires him to reimburse the holder of the tax deed for the money properly expended in procuring it.</p> <p>5. Same—when it is error to require holder of tax deed to pay costs. If the complainant in a bill to remove a tax deed as a cloud upon title makes no tender, before filing the bill, of the amount legally due the holder of the tax deed by way of reimbursement, it is error, upon setting aside the tax deed, to require the costs to be paid by such holder.</p> <p>6. Same—when objection that the decree does not provide for reimbursement may be urged on appeal. Where by his report the master finds the amount expended by the holder of a tax deed but makes no recommendation as to whether or not he shall be reimbursed for such expenditures, the holder may make the objection, on appeal, that the decree does not provide for such- reimbursement, there being no opportunity to urge the objection in the court below.</p>

<p>Partition—it is error to proceed to decree without making parties the tenants in possession. A bill for partition should set out the interests of tenants in possession of the land and make them parties, and if the answer and the evidence disclose that there are tenants in possession who have not been made parties and whose interests are not disclosed, it is error to proceed to a final decree without making them parties.</p>

<p>1. Special assessments—objections not urged in county court are waived. Error cannot be assigned upon the pro forma action of the county court in overruling certain of the legal objections to a special assessment, where the bill of exceptions shows that such objections were not urged before that court and were thus waived or abandoned.</p> <p>2. Same—rule as to describing right of way assessed. Under section 40 of the Local Improvement act, if the right of way of a railroad company through a city receives benefits throughout any specific portion of its length, it is sufficient, in making the assessment, to describe that section of the whole right of way to which the benefits accrue, and it is not necessary to specify what portion of the width of the right of way is deemed to lie benefited.</p> <p>3. Same—measure of benefits where land is restricted to a special use. Where land is restricted to a special use, such as a railroad right of way, the measure of benefits which it may receive from a local improvement is the increased value of the property for such special use and not for some other use to which it might be put in the future; but the admission of evidence concerning such future use will not reverse, where the case was tried without a jury and the evidence of benefits for the special use is sufficient to sustain the judgment.</p> <p>4. Same—railroad right of zuay is not exempt from assessment for paving. The mere fact that property which for several blocks adjoins the street proposed to be paved is railroad right- of way does not, as a matter of law, show that such property cannot be specially benefited by the proposed improvement.</p> <p>5. Same—city council determines extent of proposed improvement. The determination- of the extent of the proposed improvement rests in the discretion of the city council, and the courts will not interfere with the exercise of such discretion unless it clearly appears that it has been abused.</p> <p>6. Same—assessment must be spread according to benefits from the particular improvement. Under the Local Improvement act an assessment for a particular improvement must be spread solely according to the benefits, and it is immaterial whether the property so assessed has been assessed, or is proposed to be assessed, for benefits because of other and similar local improvements.</p>

<p>Appeal from the County Court of Whiteside county; the Hon. William A. Blodgett, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Alexander county; the Hon. W. N. ButlER, Judge, presiding.</p>

<p>Practice—when bill is properly dismissed for want of equity and not for zvant of prosecution. Where a chancery cause is referred to the master, it is the duty of the master, after giving due notice to the parties, to take the evidence offered by the defendant even though the complainants do not appear, and when the cause is heard by the chancellor on the evidence taken by the master the chancellor may dismiss the bill for want of equity and need not dismiss it for want of prosecution. (Cleaver v. Smith, 114 Ill. 114, explained.)</p>

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

<p>Appeal from the Circuit Court of Jasper county; the Hon. James C. McBride, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.</p>

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

<p>1. Limitations—when the title by twenty years’ adverse possession. is not divested by party’s declarations. Declarations made by the possessor of land after more than twenty years’ continuous possession thereof, to the effect that he did not claim to own the land until after the twenty-year period of possession had elapsed, will not operate to divest him of title acquired by such possession.</p> <p>2. Same—nature of party’s possession may be characterized by his acts. The nature of a party’s possession of land may be characterized by his acts as well as by oral declarations, and if he enters into possession and remains in possession continuously for over twenty years, using and controlling the premises the same as would an owner, it is not necessary to prove that he made oral declarations of claim of title.</p> <p>3. Appeals and Errors—when Supreme Court will not reverse . a finding of fact. The Supreme Court will not reverse a finding of fact by the trial court from conflicting evidence in an action of ejectment unless such finding is clearly contrary to the weight of the evidence.</p>

<p>Appeals and errors—order sustaining demurrer is not a final order. An order sustaining a demurrer to an information but containing no words equivalent to a judgment that the petitioner take nothing by the writ or that the defendants go hence without day is not a final order and no appeal lies therefrom, as the statute limits the right of appeal to final judgments, only.</p>

Writ or 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. Charles M. Walker, Judg'e, presiding.

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.

<p>1. Reae property—what is a remainder. A remainder is a remnant of an estate in land, depending upon a particular prior estate created at the same time and by the same instrument, and limited to arise immediately on the determination of that estate and not in abridgment of it.</p> <p>2. Same—no remainder can be created without a precedent estate. No remainder can be created without a precedent estate, which is said to support the remainder, and where the particular estate supporting the remainder comes to an end before the happening of the event upon which the remainder is to take effect the remainder is defeated.</p> <p>3. Same-—rule of merger. Where the reversion and the life estate come together in the same persons, the life estate merges in the reversion and comes to an end and a contingent remainder dependent thereon is destroyed.</p> <p>4. Same—effect of statutory warranty deed. Under sections 9 and 13 of the Conveyances act a statutory warranty deed is a conveyance in fee simple, except in so far as a less estate may be limited by express words contained therein or may appear to have been granted by construction or operation of law.</p> <p>5. Same—deed construed as conveying a fee simple subject to but one contingency. A statutory warranty deed containing the restriction that in case the grantee shall die before his wife dies and any children survive him, the surviving children and his wife shall have the use of the land during the wife’s lifetime, when it shall go to his children if any are living, but if at the death of the grantee no children survive him the title shall be in the grantors, creates a fee simple in the grantee, which ceases to be a fee simple upon the one contingency that the grantee’s wife shall survive him.</p> <p>6. Same—when limitation takes effect under Statute of Uses. Where a statutory warranty deed provides that if the grantee shall die before his wife dies and any children survive him, such children and the wife shall have the use of the land during the wife’s lifetime, when it shall go to the children if any are living, but if at the grantee’s death no children survive him the title shall be in the grantors, the interest of the wife and children will take effect, if at all, in derogation of the estate of the grantee conveyed by the granting clause, and as the deed is one of bargain and sale, which takes effect under the Statute of Uses, the limitation is valid.</p> <p>7. Same—token deed does not create contingent remainder destructible by grantors’ conveyance of reversion to grantee. Where a statutory warranty deed provides that if the grantee shall die before his wife die's and any children survive him, the children and the wife shall have the use of the property until her death, when it shall go to the children if any are living, but if at the grantee’s death no children, survive him the title shall be in the grantors, the grantee takes a fee with limitations over which may terminate the estate, but the deed does not create such a contingent remainder as is destructible by the act'of the grantors in subsequently conveying the reversion to the grantee.</p>

<p>1. Municipal corporations—city cannot proceed under Local Improvement act to ascertain the compensation for property to be paid for by general taxation. Section 13 of the Local Improvement act authorizes a city to proceed thereunder to ascertain the compensation to be paid for private property taken or damaged for a municipal improvement only when such improvement is to be paid for wholly or in part by special assessment or special taxation, and not where it is to be paid for by general taxation. (Village of Norris v. Lyon, 251 Ill. 457, adhered to; Chicago and Northwestern Railway Co. v. Chicago, 148 id. 141, Snydacker v. West Hammond, 225 id. 154, and Litz v. West Hammond, 230 id. 310, explained.)</p> <p>2. Appeals and Errors—court cannot revievo an order entered subsequent to judgment appealed from. The Supreme Court can not review an order entered subsequent to the judgment appealed from, authorizing the city to enter at once upon the property condemned, but upon a reversal of the judgment appealed from the subsequent order must fall with the judgment.</p>

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

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

<p>Writ of Error to the Branch “B” Appellate Court for the First Districtrheard in that court on appeal from the County Court of Cook county; the Hon. Lewis Rinaker, Judge, presiding.</p>

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

<p>Appear from the Municipal Court of Chicago*, the Hon. Henry C. Ward, Judge, presiding. .</p>

<p>1. Specific performance—when contracts should be construed together. Two contracts executed by the same parties and which concern the same subject matter are to be read and construed together as constituting a single transaction, though they are executed at different times.</p> <p>2. Same—when second contract is merely a modification of the first. Where a partition contract between two heirs provides that one shall have a house and lot and a certain 160 acres of farm land and the other shall have the remainder of the farm, amounting to' about 184 acres, the conveyances to be made after survey, a second agreement, made after the survey, which does not mention the house and lot but recites that the parties have heretofore mutually agreed upon a partition of the lands owned by the ancestor at her death, a survey of which “has heretofore been made,” and recites that owing to the construction of a drainage ditch across the lands a re-allotment of said lands has been agreed upon, will be held to modify the original contract as to the farm lands, only, and not as superseding such contract as to the house and lot.</p> <p>3. Same—when parol evidence does not tend to vary terms of •written contract. Where two contracts concerning the partition of land are executed between the same parties, parol evidence tending to show the circumstances under which the second of the contracts was drawn and the object of the parties in making it is not inadmissible under the rule forbidding the introduction of parol evidence to alter or vary the terms of a written contract.</p> <p>4. Practice—court not bound to postpone hearing on original bill to await hearing on cross-bill. It is within the discretionary power of the chancellor to postpone the hearing upon an original bill until the cross-bill is ready, so that both may be heard together; but the filing of a cross-bill, which is a matter of right, does not necessarily stay the hearing upon the original bill.</p> <p>5. Same—party desiring to file a cross-bill should act with due diligence. A defendant who desires to file a cross-bill in a chancery proceeding should act with due diligence and file the same without unreasonable delay, so that it may be heard with the original cause, if so desired.</p> <p>6. Same—when refusal to stay hearing on original bill after filing cross-bill is proper. Where a cross-bill is not filed in a specific performance case until about three years after the filing of the original bill and after the master has taken the evidence and prepared his report, ready to be submitted to the court, it is not an abuse of the chancellor’s discretion to proceed to a final hearing on the original bill before the cross-bill is ready for hearing.</p> <p>7. Demand—when the failure to demand deed is not material. Failure of the complainant, in a suit to specifically enforce a partition agreement, to make formal demand upon the defendant to execute a deed does not affect the merits of the suit nor require apportionment of costs, where the complainant had performed her part of the contract and made and delivered her deed, and the defendant, instead of tendering a deed and asking for a dismissal of the bill at complainant’s costs, denied complainant’s right to a deed and contested such right throughout the case.</p>

<p>1. Usury-—usury which is paid under compulsion may be recovered. One who voluntarily pays usury cannot compel its repayment to him, but the law is otherwise where the payment is made under compulsion.</p> <p>2. Same—when payment of usury is under compulsion. Where one gives a judgment note to a money lender for the amount of the loan and an usurious charge, and the note is assigned to' an innocent purchaser, who enters judgment on the note, the payment of the judgment must be regarded as a compulsory payment of the usurious charge, and the maker of the note may recover the amount of such charge from the money lender.</p> <p>3. Same—an action at law may be maintained to recover m-oney paid as usury. The maker of a note who is compelled to pay usury may recover in an action of assumpsit the amount so involuntarily paid, and is not obliged to resort to a proceeding in equity.</p> <p>4. Constitutional law—when cotirt may refuse to consider constitutionality of statute. Where a statute has long been treated by the courts as constitutional and important rights have been based thereon, the court may thereafter refuse to consider its constitutionality.</p> <p>5. Same—constitutionality of Municipal Court act, as a whole, cannot now be questioned. The constitutionality of the Municipal Court act, as a whole, cannot now be questioned upon the ground that it was not properly passed by the legislature. (City of Chicago v. Reeves, 220 Ill. 274, and Greenberg v. City of Chicago, 256 id. 213, adhered to.)</p>

<p>Writ oE Error to the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.</p>

<p>1. Taxes'—the Sanitary District of Chicago must bear its just share of taxes. Property owned by the .Sanitary District of Chicago must bear its proportionate share of the taxes of the town in which such, property is located.</p> <p>2. Same—cost of main drainage channel should not be considered in valuing Lockport power plant. The water power plant of the Sanitary District of Chicago located at Lockport was undertaken by the district as a financial investment and is not a necessary part of the drainage system, and in determining the assessable value of such plant for taxation the cost of the main drainage channel should not be considered as part of the cost of the power plant.</p> <p>3. Same—duty of Sanitary District as to furnishing a description of its alleged farm land. If the Sanitary District of Chicago) desires to have its land which it claims is farm land assessed separately from its other property, it should furnish a description of such land to the proper officials before 'the assessment is made.</p> <p>4. Same—general allegations of fraud are not sufficient. Proof of fraud or discrimination must be clear and convincing to warrant interference by a court of equity in matters of taxation, and general charges of fraud are mere conclusions of the pleader and are not admitted by a demurrer to the bill.</p> <p>5. Same—mere fact of over-valuation does not, of itself, establish fraud. The mere fact that property has been valued for taxation at too high a rate is not, .of itself, evidence of fraud such as justifies the interference of a court of equity with the collection of the tax, unless the valuation is so grossly excessive as to show that the assessing body could not have acted honestly.</p> <p>6. Same—prism of main drainage channel of Sanitary District of Chicago is not exempt from taxation.- .The prism of the main drainage channel of the Sanitary District of Chicago is not exempt from taxation as a public, navigable waterway. (Sanitary District v. Martin, 173 Ill. 243, and Sanitary District v. Hanberg, 226 id. 480, adhered to.)</p>

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

<p>Writ oe Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.</p>

<p>1. Constitutional law—section 2 of the schedule, concerning fines and penalties, construed. Section 2 of the schedule in the constitution of 1870, providing that “all fines, taxes, penalties and forfeitures, due and owing to the State of Illinois under the present constitution and laws, shall inure to the use of the people of the State of Illinois, under this constitution,” is merely a saving clause saving to the State all fines, taxes, penalties and forfeitures then due and owing to the State, and applies to nothing else.</p> <p>2. Same—Wife Abandonment act does not delegate legislative power to the courts. In the Wife Abandonment statute the legislature has indicated the extent of the punishment, and the fact that the court is empowered to impose a fine as in other cases of misdemeanor, or to require the defendant, by way of punishment, to pay a stipulated sum per week to the abandoned wife, does not amount to a delegation of legislative power to the courts, in violation of the constitution.</p> <p>3. Same—section 1 of Wife Abandonment act does not violate section 20 of article 4 of constitution. Section 20 of article 4 of the constitution was intended to prohibit the legislature from making any appropriation to pay the debts of any corporation, association or individual, or to pledge the credit of the State for such debts, or in aid of any corporation, association or individual, but it was not intended to affect the disposition to be made of penalties inflicted for the violation of criminal statutes, and section 1 of the Wife Abandonment act does not violate such provision.</p> <p>4. Same—the Wife Abandonment act does not violate the provision against remitting fines. The Wife Abandonment act does not violate that clause of section 22 of article 4 of the constitution providing that no special or local law shall be passed remitting fines or penalties, as such clause merely prohibits the legislature itself from remitting any particular fine, penalty or forfeiture which has been inflicted or has become due.</p> <p>5. Same—the Wife Abandonment act does not deprive defendant of jury trial or of liberty or property without due process of law. The Wife Abandonment act does not violate, section 2 of article 2 of the constitution, providing that no person shall be deprived of liberty or property without due process of law, nor section 5 of article 2, which provides that the right of jury trial as heretofore enjoyed shall remain inviolate, as such statute gives a defendant the right to have the question of his guilt submitted to a jury of his peers, and he cannot be convicted except as the result of a trial under due form of law.</p> <p>6. Same—right of jury trial extends only to question of guilt or innocence. The right of trial by jury in criminal cases extends only to the question of the guilt or innocence of the accused, and does not extend to the question of the punishment that may be inflicted by the-court after a verdict of guilty.</p> <p>7. Same—Wife Abandonment act does not violate provision of constitution against imprisonment for debt. Section 1 of the Wife Abandonment act is not in violation of section 12 of article 2 of the constitution, providing against imprisonment of a person for debt.</p> <p>8. Same—when question that statute is invalid, as authorizing double punishment, cannot be raised. The question that a statute is invalid because it authorizes a double punishment for the same offense, at the option of the trial judge, cannot be raised by a defendant who has received but one punishment and is therefore not injured by the alleged invalid provision of the statute.</p> <p>9. Same—power of the legislature to authorize the court to suspend sentence. The Wife Abandonment act is not invalid as authorizing the court to suspend sentence, as it is within the power of the legislature to empower the courts, in certain classes of cases, to suspend sentence upon, the defendant entering into a recognizance and thereafter impose sentence and enforce its execution.</p> <p>10. Wise abandonment—Statute of Limitations runs against the offense of wife abandonment. To constitute wife abandonment there must be the overt act of abandonment and the neglect and refusal to maintain and provide for the wife, and hence, after the abandonment has taken place, the crime becomes complete upon the neglect and refusal to provide for the wife, and the Statute of Limitations begins to run when the two elements concur.</p> <p>11. Same—what is necessary to constitute a second abandonment. Under the statute abandonment is an overt act accomplished by the desertion of the wife, and before a husband can be guilty of a second abandonment he must first return to the wife and resume the marital relation.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. John B. Hay, Judge, presiding.</p>

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

<p>1. Deeds—no particular form, is necessary to constitute a good delivery of deed. Whatever clearly manifests the intention of the grantor that the deed shall presently become operative and effectual and shows that he intends to part with all dominion and control over it sufficiently establishes a good delivery.</p> <p>2. Same—there is a presumption of delivery of a deed of voluntary settlement. In case of a deed executed to effect a voluntary distribution or settlement the law presumes a delivery; and this presumption is especially strong where the conveyance is made by a father for the benefit of a minor child.</p> <p>3. Same—party claiming deed of voluntary settlement was not delivered has burden of proof. One who claims that a deed of voluntary settlement from father to child was never well delivered has the burden of proving that there was no valid delivery.</p> <p>4. Same—when delivery of deeds to a third party for grantees passes title at once. Voluntary deeds from a father to his children, which he delivers to a third person with instructions to deliver them to the grantees after the grantor’s death and without the retaining by the grantor of any dominion or control over them, are well delivered and vest title in the grantees at once, notwith- ■ standing each deed contains a clause providing that it is to be delivered after the grantor’s death.</p> <p>5. Same—when deeds are not invalid as an attempted testamentary disposition of property. Voluntary deeds containing a clause providing that they are to be delivered after the grantor’s death are not invalid as an attempted testamentary disposition of property not in accordance with the Statute of Wills, where the deeds were delivered by the grantor to a third person with unconditional instructions to deliver them to the grantees. .</p> <p>6. Same—title passing by delivered deed is not divested by the grantor’s subsequent will. If a deed disposing of land has been delivered to a third person with unconditional instructions to deliver it to the grantee after the grantor’s death, title passes to the grantee at the delivery in escrow, and the title passing thereby is not divested by a subsequent will of the grantor attempting to devise the property to some other person.</p> <p>7. Equity—what is not a suit to contest a will. Where a will attempts to dispose of property the title to which the grantor has already conveyed by a delivered deed, a bill to remove from the grantee’s title the cloud created by the will is not a bill to contest the will, within the meaning of section 7 of the Statute of Wills, limiting the time for bringing such actions.</p>

<p>1. Equity—party complying with section 19 of Chancery act may Me an ansiver as a matter of right. Under section.19 of the Chancery act, if a defendant who was not summoned or served with a copy of the bill or did not receive the notice required to be sent him by mail, files his petition and otherwise complies with the requirements of said section 19, he is entitled to file his answer to the bill as a matter of right and be heard as though he had answered in the first instance.</p> <p>2. Same—■procedure where party Mes petition to answer a bill after entry of a decree. Upon the filing of a petition, under section 19 of the Chancery act, disclosing the petitioner’s right to answer, the cause should proceed the same as any other chancery suit, except that the decree stands pending the hearing, and will not be confirmed, set aside, altered or amended until the hearing is concluded.</p> <p>3. Same—effect of motion to strike answer from Mes. Where the answer filed under section 19 of the Chancery act is in proper form and there is nothing about it to authorize the court to strike it from the files on motion, the effect of such a motion, there being no replication on file, is an offer to submit the cause for hearing on the bill and answer, under section 29 of the Chancery act.</p> <p>4. Cloud on title—when court is not authorised to construe a deed in bill to quiet title.. In a proceeding to quiet title the court is without jurisdiction to construe a deed to the complainant, where such construction is not incidental to the granting of the relief upon which the jurisdiction of the court to entertain the bill is predicated, but is merely a matter of declaring the legal title as between the complainant and the heirs of complainant’s grantor.</p> <p>5. Same—when bill should be dismissed as to a part of the defendants. Where the only relief asked against certain of the defendants to a bill to quiet title is for the court to construe their ancestor’s deed to the complainant and declare the legal title to be in complainant, and such relief is not incidental to granting the relief upon which the jurisdiction of the court to entertain the bill is predicated, the bill should be dismissed as to such defendants.</p>

<p>1. Fraud—fraud may be proved by circumstances. Fraud, like other facts, may be proved by circumstances which convince the mind of its existence, even though there is no direct and positive testimony of the fact.</p> <p>2. Same—gross inadequacy of consideration may itself establish fraud. Mere inadequacy of consideration is not, per se, ground for setting aside a transfer of property, unless the inadequacy is so gross and palpable as to amount, in itself, to fraud.</p> <p>3. Same—what fact raises a presumption that purchaser of land was connected zvith fraud. The fact that a person purchases for $1800 a tract of farm land which he himself had sold shortly before for $4800 to a person who was thereafter fraudulently induced to trade it for worthless city property raises a strong presumption that such purchaser was connected with the fraud.</p>

<p>1. Drainage—appeal from order authorising commissioners to do additional work lies to Stipreme Covtrt. Under the act of 1909 (Laws of 1909, p. 171,) an appeal lies to the Supreme Court from an order of the county court granting the prayer of a petition by commissioners of a levee drainage district to do additional work.</p> <p>2. .Same—when county court may order levee drainage commissioners to do additional work. Where, owing to an error in the plans and specifications of a levee drainage district, certain of the lands, the assessments against which have been paid, receive no benefit from the work, the county court may, under section 37 of the Devee act as amended in 1909, authorize the commissioners to do additional work which will make the improvement beneficial to such lands and pay for the same out of an unexpended balance in their hands from the original assessment, and the fact that some lands of the district have been benefited to the extent they have paid for the drainage does not give the owners thereof the right to object to such action.</p> <p>3. Same—what is not an attack upon judgment of confirmation. The fact that additional work is made necessary by an error in the plans and specifications for the original drainage improvement does not make the petition for an order for such additional work an attack upon the judgment confirming the original assessment, as the power of the commissioners is not exhausted when they have completed the work as originally planned, if it is found that it does not afford a system of drainage which will protect all the lands in the district.</p> <p>4. Same—what is not proof that a sub-district has been organised. An exhibit consisting of a plat of a drainage district, upon which is an explanatory note saying that it shows the location of that part of the ditch for the “proposed Damont Sub-drainage District in the Randolph Drainage District No. 1, in White county, proposed to be constructed by and at the expense of the Randolph Drainage District,” cannot be accepted as proof that such sub-district has been organized.</p> <p>5. Same—it is the duty of commissioners to provide drainage for lands which have paid therefor. After lands in a levee drainage district have paid for drainage they are entitled to it, and it is the duty of the commissioners to provide it for them.</p> <p>6. Appeals and errors—when an objection that accounts Med by commissioners are not properly itemized will not be considered. An objection that the accounts filed by drainage commissioners are not sufficiently itemized and explicit as to receipts and expenditures will not be considered by the Supreme Court where the account is not abstracted as required by the rules of that court.</p>

<p>1. Railroads—lease of part of right of way for a warehouse does not arise from the company’s relations as a common carrier. The leasing by a railroad company of a part of its right of way for a warehouse is not a matter connected with the company’s duty or liability as a common carrier, but is a matter in which the company and the lessee are the only parties interested and with which the general public has no concern.</p> <p>2. Same—provision in company’s lease that lessee will assume all risk of ñre is not invalid. A provision in a lease by a railroad company of a portion of its right of way for an elevator or warehouse, that the lessee will assume all risk of fire even though caused by the negligence of the company’s servants, is not invalid as against public policy, and is not within the rule against a carrier exempting itself, in transportation contracts, from liability for negligence.</p> <p>3. Same—provision of Criminal Code against setting fires does not prohibit railroad company from burning weeds on right of way. The provision of the statute requiring a railroad company to keep its right of way clear of dead grass, dry weeds or other combustible material is a valid law, and the burning of such grass, weeds and combustible material is not prohibited by section 18 of the Criminal Code, providing a penalty against setting on fire any woods, prairie or other grounds.</p> <p>4. Same—when railroad company is guilty of a technical trespass. Where a railroad company has leased a portion of its right of way for a warehouse, without any provision for an entry by the company upon the premises, it is a technical trespass for servants of the company to go upon the premises to burn grass and weeds even though they did not know that the premises were leased; but a provision in the lease that the lessee will assume all risk of loss by fire is a complete defense to all damages sustained by the lessee, except nominal damages.</p> <p>5. Appeals and Errors—a judgment will not be reversed to enable a party to recover nominal damages. The .Supreme Court •will not reverse a judgment and award a new trial merely to allow a party to recover nominal damages.</p>

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

<p>Appeal from the County Court of Greene county; the Hon. Thomas Henshaw, Judge, presiding. t</p>

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

<p>Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.</p>

Writ oe Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Jo Daviess county; the Hon. Oscar E. Heard, Judge, presiding.

<p>Appeal from the Circuit Court of Williamson county; the Hon. Benjamin W. Pope, Judge, presiding.</p>

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

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

<p>1. Criminal law—a sentence denotes the action of a court. A sentence denotes the action of a court of criminal jurisdiction de- . daring the consequences to a convicted person of the fact of guilt confessed or ascertained by verdict.</p> <p>2. Same—the sentence is done away with by commutation. A ' commutation is the substitution of a punishment of a lower degree for one of higher degree and does away with the sentence pronounced by the court.</p> <p>3. Same—upon commutation of a death sentence the Governor may direct imprisonment in either penitentiary. Upon the commutation of a death sentence to imprisonment for life the Governor may, in his discretion, direct imprisonment in either the penitentiary at Joliet or Chester, regardless of the fact that the statute specifies the particular penitentiary in which the prisoner shall be confined if sentenced to imprisonment by the court.</p>

Writ oe Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.

<p>Appear from the Circuit Court of Kno-x county; the Hon. George W. Thompson, Judge, presiding.</p>

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

<p>1. Ordinances—rule of ejusdem generis. In the construction of statutes and ordinances general words following an enumeratibn of particular things are held to apply only to things of the same kind as those specifically referred to.</p> <p>2. Same—when words “other places of amusement” do not include moving picture shows. Under the rule of ejusdem generis, an ordinance prohibiting keeping open on Sunday “any billiard room, ball or pin alley, baseball grounds or other places of amusement,” does not include moving picture shows.</p> <p>3. Municipal corporations—ordinances which regulate secular business on Sunday are within the police power. Ordinances regulating secular business on Sunday are within the'police power of municipalities, and will be sustained where they rest upon proper charter authority.</p> <p>4. Same—power to pass ordinance must be foimd in the charter. The power of a city to pass an ordinance must be found in its charter in express terms, or it must be necessary to carry out the powers expressly granted, or be essential, and not simply convenient, to the declared objects and purposes of the corporation.</p> <p>5. Same—when an ordinance for Sunday closing is not invalid. Clause 66 of section 1 of article 5 of the .Cities and Villages act, concerning police power, authorizes the passage of an ordinance requiring. Sunday closing of places of business, and the fact that certain business occupations are excepted does not render the ordinance invalid for discrimination, provided the classification made by the ordinance has a reasonable basis.</p> <p>6. Same—when ordinance prohibiting labor on Sunday applies to moving picture show. An ordinance forbidding any person to keep open his place of business on Sunday or to pursue his daily labor or occupation applies to the keeping open of a moving picture exhibition having a ticket seller, ticket taker and other employees engaged in -and about the exhibition.</p> <p>7. Same—when classification made by a Stmday closing ordinance is not imreasonable. The fact that an ordinance prohibiting persons from keeping open their places of business or performing their daily labor on Sunday does not embrace persons who consfcientiously observe some other day of the week as the Sabbath, or cases of necessity or charity, or hotels, eating houses, drug stores, tobacco stores, barber shops or livery stables, does not render the ordinance invalid, as the classification so made is not unreasonable.</p> <p>8. Same—police regulations of a city may differ from those of State if not repugnant thereto. The police regulations of a city may differ from those of the State concerning the same subject matter, provided they are not repugnant to the State regulations.</p> <p>9. Same—when Sunday closing ordinance does not contravene the policy of the State. An ordinance prohibiting persons from keeping open their places of business or laboring on Sunday, except as to persons observing some other day as the Sabbath, cases of necessity or charity, and as to hotels, eating houses, drug stores, tobacco stores, barber shops and livery stables, does not contravene the public policy of the State as evidenced by its legislative enactments on the subject.</p>

<p>Writ or Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.</p>

<p>Appear from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.</p>

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

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

<p>Appeal from the Circuit Court of Will county; the Hon. Frank L,. Hooper, Judge, presiding.</p>