Volume 258 — Illinois Reports

<p>1. Wiees—remote grantee of heir has a right to file bill to contest will. A remote grantee of an heir-at-law under a conveyance made by the heir before the probate .of a will which, if valid, will destroy the grantee’s title, has such an interest in the will as entitles her to file a bill in chancery to contest its validity.</p> <p>2. Same—when devisees under a lost will are entitled to partition. Where a will giving a life estate in land to the testator’s wife, with remainder to his grandchildren, has disappeared and has not been probated, one who obtains title to the land from the testator’s son and the widow, with full knowledge of the will and the grandchildren’s rights thereunder, is not a bona fide purchaser, and when the will is subsequently probated as a lost will the grandchildren are entitled to partition as against the wife of such grantee, to whom he devised the property at his death.</p> <p>3. Same—when devisees are entitled to recover value of land, ■with interest. Where part of the land obtained by the grantee of an heir and the widow, with knowledge that the fact of the existence of a will leaving the remainder in fee in the land to the testator’s grandchildren was being concealed, is sold by him to an innocent purchaser for value the latter will be protected, but upon the probate of the will as a lost will the grandchildren are entitled to recover from the estate of the fraudulent grantee the value of such land at the time of the death of the life tenant, with interest.</p> <p>4. Same—meaning of the words “any person interested,” used in section 7 of Wills act. Section 7 of the Wills act, giving the right to file a bill in chancery to contest a will to “any person interested,” means any person who has a direct, existing, pecuniary interest which will be detrimentally affected by probate of the will.</p> <p>5. .Same—when objection to a deposition.because of no opportunity of cross-examination cannot be upheld. Where the stipulation upon which an order consolidating a partition suit and a suit to contest a will is based provides that the case shall be tried without a jury, and the contestant is represented by the same counsel in both suits, in each of which the validity of the will is put in issue by the pleadings, the contestant cannot insist, on appeal, that a deposition of a subscribing witness, taken before the stipulation was entered into and admitted without objection to its being considered in the will case, was not admissible for the reason that it was taken before the will case was begun and without opportunity for cross-examination by the contestant.</p> <p>6. Same—what makes a prima facie case that the will was lost. Clear proof of the execution, attestation and contents of a will, and that the will was last seen in the possession of the widow some weeks after the. testator’s death, justifies the presumption that the widow performed her duty under the law and delivered the will to the probate court, and such proof, coupled with the testimony of the clerk of the probate court that he has made diligent search among the files and records of his office and has been unable to find the will, makes a prima facie case that the will has been lost.</p> <p>7. Same—witnesses testifying to the contents of lost will need not give its exact language. To establish the contents of a lost will it is not essential that the subscribing witnesses, by whom it is sought to make the proof, shall be able to repeat its exact language, and it is sufficient if they are able to recollect with certainty the substance of the -will, which is a very simple one.</p> <p>8. Same—when alleged error in admitting order of the probate court in evidence will not reverse. In a consolidated cause, consisting of a bill for partition and a bill to contest a will, alleged error in admitting in evidence the order of the probate court admitting the will to probate will not reverse, where the cause was tried by the chancellor without a jury and there is sufficient competent evidence of the validity and contents of the will to sustain the decree.</p> <p>9. Taches—when failure of the remainder-men to assert rights does not constitute laches nor raise estoppel. Remainder-men are not ’ obliged to assert their rights against the grantee of the life tenant before the death of the life tenant notwithstanding the grantee’s deed purports to be a conveyance of the entire title, and the facts that during the life tenant’s lifetime they do not assert any rights against the grantee nor seek to prevent him from making valuable improvements do not constitute laches nor raise an estoppel, where he had knowledge of the existence of their rights when the deed was made.</p> <p>io. Same—grantee of a life tenant does not hold adversely to remainder-men until the life tenanfs death. The grantee of a life tenant, even though he supposes he has the fee as the deed purports to convey, and retains possession, pays the taxes and makes improvements, does not hold his possession adversely to the remainder-men until the death of the life tenant puts the Statute of Limitations in operation.</p>

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

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

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

<p>1. Municipal corporations—a city has power to prohibit conducting of museum of anatomy. Under clause 75 of section 1 of article 5 of the Cities and Villages act, authorizing a city to declare what shall be a nuisance and abate the same, a city has power to prohibit the conducting of a museum of anatomy, even though it is operated in connection with a place where medical treatment is offered for profit.</p> <p>2. Same—business conducted indecently may be prohibited under police power of a city. A city has power, under clause 66 of section 1 of article 5 of the Cities and Villages act, to prohibit the conduct of a business in a manner which is indecent and against good morals.</p> <p>3. Same—when city’s determination that a thing is a nuisance is final. Even though it may be doubtful whether an exhibition or business tends to immorality and there may be an honest difference of opinion as to whether such exhibition or business should be suppressed, the declaration of the city that it is a nuisance is final.</p> <p>4. Constitutional law—ordinance tending to preserve public morals is constitutional. An ordinance prohibiting an exhibition or business which is against decency and good morals is not in violation of section 1 of article 2 of our constitution nor of section 1 of the fourteenth amendment to the Federal constitution.</p>

Writ of Error to the Branch “B” Appellate Court for the First District;-—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.

<p>Appeal from the County Court of Christian county; the Hon. C. A. Pratlr, Judge, presiding.</p>

<p>AppEat from the Circuit Court of Champaign county; the Hon. Soron Phirbricic, Judge, presiding.</p>

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

<p>1. Mechanics' eiEns—section 1 of Mechanic’s Lien law does not abridge the owner’s right to contract with lessee. Section 1 of the Mechanic’s Lien law does not preclude an owner of premises from contracting with the lessee that the latter shall make improvements at his own expense, and is therefore not unconstitutional as abridging the owner’s right in that regard; but if the contract is kept a secret from the contractors employed to do the work, the owner subjects the premises to mechanics’ liens for labor and material furnished.</p> <p>2. Same—lessee agreeing to make repairs at his own expense is not to be regarded as the principal contractor. Where the owner of premises agrees with the lessee that the latter shall make alterations and improvements at his own expense but such agreement is not made known to the contractors employed to do the work, the lessee is not to be regarded as the principal contractor, the terms of whose contract with the owner would be binding upon the contractors furnishing the material and doing the work. (Carey-Lombard Co. v. Tones, 187 Ill. 203, followed.)</p> <p>3. Same—when provision that lessor’s interest shall not be subject to liens is void. Where the improvement of premises is the joint enterprise of the owner of premises and the lessee, a provision in the lease to the effect that the lessor’s interest shall not be subject to mechanics’ liens for labor or material furnished for the improvement is void, as an attempt to set aside the law of the land.</p> <p>4. Same—when alteration of building is the joint enterprise of owner and lessee. Where a building leased solely for a theater is wholly unfit for use for such purpose without extensive alterations, and the lease provides that the lessee may make alterations at his own expense and gives him the right of renewing the lease for two additional years at an increased rental each year, the matter of making such alterations must be regarded as the joint enterprise of the owner and lessee.</p> <p>5. Same—the lien given by the statute attaches as of the date of the contract. Where the provisions of the statute are complied with, the lien given by the Mechanic’s Lien act attaches as of the date of the contract, and whoever purchases the property after the contract is made, purchases subject to'the lien under that contract and is bound by it.</p> <p>6. Same—contractor should not be allowed for same item a lien is allowed to material-man. Where part of the amount claimed by a contractor is for the same item set forth in the claim of a material-man it is improper to allow such item to both the contractor and material-man, and if allowed to the latter the item should be deducted from the contractor’s claim.</p> <p>7. Same—objection that a claim is not properly verified comes too late on appeal. The objection that a claim for a mechanic’s lien was not properly verified comes too late on appeal, when not urged before the master or the chancellor.</p> <p>8. Same—effect where a claimant was incorporated after contract zvas made. The fact that the contract for plumbing and heating was made with a partnership whereas the claim for lien was filed by a corporation does not defeat the right to a lien, where the claim was properly assigned by the partnership to the corporation.</p>

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

<p>1. Township organization—power of the legislature to provide for township organization. The legislature is not restricted in regard to the terms and provisions of a township organization law, except that the law must be general, no two townships shall have the same name, the system must be adopted by a majority of the legal voters of the county, the holding of the annual town meeting must be uniform throughout the State, and the fees of township officers must be fixed and regulated by general law.</p> <p>2. Same—a town under township organization is a civil _ subdivision of the county. A town under township organization is a civil subdivision of the county and the county is an involuntary political or civil subdivision of the State, created by statute to aid in the administration of government.</p> <p>3. Constitutional law—municipal corporations are subject to legislative control. All municipal corporations are subject to legislative control, and may be divided, changed, enlarged or abolished as the exigencies of the public may demand, the only restriction upon- such power being that no local or special law shall be enacted with reference to them.</p> <p>4. Same—what does not make a law local. A law is not local because it operates only in certain municipalities of the State, if by its terms it operates uniformly throughout the State upon all municipalities under like circumstances and situation.</p> <p>5. Same—act for organizing territory of a city into township, as it stood before the amendment of 1903, is constitutional. The act of 1877, providing that the county board, upon the request of a city, may organize the territory of the city into a township, pro-' vided such territory shall have a population of not less' than three thousand, is constitutional. (People v. Brayton, 94 Ill. 341, and People v. Hazelwood, 116 id. 319, adhered to.)</p> <p>6. Same—the proviso of 1903 to act for organizing territory of city into township is not invalid. The proviso, added in 1903 to the act of 1877, (Hurd’s Stat. par. 136, p. 2341,) that whenever the territory of any city of a population of not less than fifteen thousand shall be composed of portions of two or more townships, the county board shall, upon request of the city, organize the territory of the city into a new township, is not invalid, as being based upon an unreasonable and arbitrary classification.</p> <p>7. Sam®—word “city,” used in proviso of 1903, includes incorporated towns. The word “city,” used in the proviso added in 1903 to the act of 1877, authorizing the organization into a new township of the territory of any city having not less than fifteen thousand inhabitants and composed of portions of two or more townships, must be held to include incorporated towns or villages of the population specified, and the proviso is therefore not invalid, as embracing cities, only. (People y.Fox, 247 Ill. 402, distinguished.)</p>

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

<p>1. Wn.ES—"credible” witness to will-means a "competent” witness. The word “credible,” as used with reference to the subscribing witnesses to, a will, means “competent,” and means a witness who at the time of attesting the will would be legally competent to testify in court to the facts which he attests by subscribing his name to the will.</p> <p>2. Same—■competency of subscribing witness is determined as of the time the will is executed. The competency of an attesting witness is to be determined from the facts as they exist at the time of the execution of the will, and not as they exist at the time the will is offered for probate.</p> <p>3. Same—when a partner of executors is not a competent subscribing ivitness. A partner of the executors named in a will is not a competent attesting witness to such will where the partnership articles provide that he shall share in fees earned by the other partners while acting as executors or administrators, and his action in subsequently releasing his interest as to such fees does not relate back and render him a competent attesting witness.</p>

<p>Writ or Error to the Criminal Court of Cook comity; the Hon. Lockwood Honors, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.

<p>1. Constitutional law—section 10 of article 10 of constitution does not apply to salaries of county civil service commissioners. Section 10 of article 10 of the constitution, authorizing the county board, except as provided in section 9, to fix the compensation of county officers, applies only to the compensation of officers elected under the provisions of the constitution and not to officers thereafter created by the legislature, and said section does not, therefore, apply to county civil service commissioners, and it is within the power of the legislature to fix their compensation.</p> <p>2. Same—whether whole act is- void because amendment was not printed depends upon character of the amendment. Whether the failure of the journal to show that a certain amendment was printed renders the whole act or merely the amendment void, depends upon the question whether the amendment 'is so blended with the remainder of the bill that it cannot be presumed the legislature would have passed the bill without the amendment.</p> <p>3. Same—County Civil Service act of 1911 is unconstitutional. Failure of the journal of either house to show that the conference committee amendments to- section 11 of the County Civil Service act of 1911 (Laws of 1911, p. 199,) were ever printed renders-the entire act void, as said section 11 is so inseparably connected with the remainder of the act and the amendments thereof are so material that it cannot be presumed the legislature would have passed the bill without said section, or with such section but without the amendments.. (Neiberger v. McCullough, 253 Ill. 312, followed.)</p>

<p>1. Practice—section 81 of Practice act construed. Section 81 of the Practice act of 1907, requiring an appellant or plaintiff in error who desires to take up a portion, only, of the record, to serve notice upon the opposite party of the time and place where the prcecipe for the record will be filed, together with a copy of the prcecipe, is mandatory, in the sense that the notice must be given to enable the opposite party to file a prcecipe for additional parts of the record if he so desires; but the giving of the notice is not an indispensable prerequisite to the right to have the record reviewed.</p> <p>2. Same—what should be shown by appellee where appellant does not give notice of filing of prcecipe. If the appellant fails to give the statutory notice of his intention to file a prcecipe for portions of the record which he desires reviewed, the appellee should show, by affidavit or otherwise, that the record as called for by appellant’s prcecipe is not sufficient to present the errors assigned or that additional portions are needed as a basis for assigning cross-errors, in which case the Supreme Court will make such order for an additional record, and the cost thereof, as is reasonable and just under the circumstances; but the failure to give the notice is not ground for dismissing the appeal.</p>

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

<p>1. Corporations—what combinations and contracts are unlawful. Combinations and contracts of corporations and of individuals having for their object the restraint of trade, the destruction of competition, the creation of a monopoly and the raising of prices are unlawful, even though they violate no statute.</p> <p>2. Same—rule that contracts in partial restraint of trade may be valid does not apply to public service corporations. The ordinary rule that contracts in partial restraint of trade may be valid under certain circumstances does not apply to contracts of corporations engaged in a service in which the public is interested, and whatever tends to prevent competition between them or to create a monopoly is unlawful.</p> <p>3. Same—public service corporation cannot disable itself from performing any of its duties. A public service corporation, such as a telephone company, owes a duty to the public, and it cannot, without the consent of the State, disable itself from performing any part of the functions which its charter authorizes it to perform, and a. contract to do so is a violation of its duty to the State and is void, as against public policy.</p> <p>4. Same—local telephone company cannot bind itself to connect with one long distance line, only. A local telephone company can not bind itself, by contract with a long distance telephone company, to give the long distance business of its patrons to such long distance company, only; and it is no justification for such contract that the local company is not under any express duty to give its patrons long distance service, or that it cannot get connection with any long distance company without making such a contract.</p> <p>5. Same—whether public interest will be best served by competitive or monopolistic service is a legislative question. It is a legislative question whether the public interest will be best promoted by monopolistic rather than competitive service, but in the absence of legislative action a contract by which a local telephone company binds itself to give the long distance business of its patrons to one long distance company, only, is violative of public right and against the declared public policy of the State.</p>

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

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

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

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

<p>1. Telegraph companies—when question of company’s negligence is for the jury. Where it is shown that the defendant telegraph company had a message in its possession a sufficient time before its wires stopped working to have transmitted it, and also that if the message had been sent promptly after the wire trouble ceased it would have been received in time to have accomplished the sender’s purpose, and it is not shown that the wire trouble was due to some cause not within the company’s control, the question whether the company was negligent is for the jury.</p> <p>2. Same—when sender of a message is not bound by conditions printed on back. A sender of a telegram is not bound by printed conditions on the back of the telegraph blank furnished by the company unless he or his agent has knowledge of such conditions and assents thereto.</p> <p>3. Same—when knowledge of conditions cannot be presumed. The fact that the agent for the sender of a telegram has for years used the blanks furnished by the company does not justify the court in holding, as a matter of law, that the agent knew the printed conditions on the back of the blanks, where the agent testifies that he had never read such conditions and did not know what they were; but the question of knowledge, under such circumstances, is one of fact for the jury.</p>

<p>Appeal from the County Court of LaSalle county; the Hon. W. H. HinEbaugh, Judge, presiding.</p>

<p>1. Sanitary districts—primary object of Sanitary District of Chicago. The primary object in organizing the Sanitary District of Chicago was to dispose of the sewage of the district without pollution of the waters of Lake Michigan, which furnishes drinking water for the inhabitants of a large portion of the district.</p> <p>2. Same—powers of sanitary district are not limited to territory outside of other municipalities. The powers delegated to the Sanitary District of Chicago may be exercised in furtherance, of the purposes of the district within as well as without the territory of other municipalities which are wholly or partly within the territory of the sanitary district.</p> <p>3. Same—what is meant by "adjuncts” and "additions.” ' The words “adjuncts” and “additions,” used in the Sanitary District act, mean auxiliary channels to bring the sewage and drainage from the sewers and sewer systems of the various municipalities within the district into the main channel of the district; but the question as to what is or is not an “adjunct” or “addition” must be determined by the facts of the particular case.</p> <p>4. Same—purpose of constructing north shore channel. The purpose of the construction of the north shore channel by the Sanitary District of Chicago was to convey the sewage of the city of Evanston, and of the other municipalities north of Chicago and within the boundaries of the district as extended by the act of 1903, to the main channel of the district through the connection of the north shore channel with the sewer systems of such municipalities.</p> <p>5. Same—power of sanitary district to build intercepting sewer and pumping plant. Where a city lying within the Sanitary District of Chicago has a complete and adequate system of sewers, which discharge into Bake Michigan, with the result that the water supply of inhabitants of the district living outside of the city is contaminated, the sanitary district may construct, at its own expense, an intercepting sewer, conduits and sewage pumping plant to divert the sewage into the channel of the district, without regard to the question whether the city would have power to make the same improvement. (City of Chicago v. Green, 238 Ill. 258, explained.)</p>

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

<p>1. Mandamus—writ of mandamus will not be awarded except in a clear case. One petitioning for a writ of mandamus must show a clear and undoubted right to the relief demanded, and the writ will not be awarded except in a clear case.</p> <p>2. Same—writ will not be awarded to compel the doing of a useless thing. The writ of mandamus will not be issued to compel the doing of a useless thing or where it would prove unavailing, fruitless or nugatory.</p> <p>3. Same—writ cannot be awarded to compel city to grant dram-shop license for an expired quarter. A writ of mandamus cannot be issued to compel a city to grant a dram-shop license for a municipal quarter which has expired, and it is of no consequence that the granting of the writ may be beneficial to the.petitioner in fixing his status as to a future license.</p> <p>4. Same-—writ cannot issue to determine an abstract constitutional question. A party has no standing to require a court, by a writ of mandamus, to determine the constitutionality of a statute or the validity of an ordinance as an abstract question of law.</p>

<p>Registration oe title—when a defendant need not be reimbursed for taxes and assessments paid. In a proceeding to register title a defendant who holds a certificate of purchase upon which the time has expired for taking out a tax deed is not entitled to reimbursement for taxes and special assessments paid by him while holding such certificate. {Kelle v. Egan, 256 Ill. 45, followed.)</p>

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

<p>1. Disbarment—when attorney should not be disbarred. The fact that from an ethical standpoint the respondent should have returned a ten-dollar fee to his client notwithstanding her peremptory and rude dismissal of him is not ground for disbarment, where the proof shows that he had performed some services for her and honestly believed he was entitled to the fee for the services rendered.</p> <p>2. The court reviews the evidence in this case, and agrees with the finding and recommendation of the commissioner that the evidence does not sustain the charges in the information and that the rule be discharged.</p>

<p>1. Criminal law—when accused cannot he said to have been tried without a plea. Where the accused obtains leave to withdraw his plea of not guilty for the purpose of making a motion to quash the indictment, and, after the overruling of the motion to quash, the trial proceeds without any objection by the accused that his plea was not renewed, the overruling of the motion to quash will be regarded as having re-instated the plea.</p> <p>2. SamL—-jury must fix term of imprisonment for incest. As section 156 of the Criminal Code, regarding incest, fails to specify any minimum term of imprisonment the jury must definitely fix such term, and the court is without power to impose an indeterminate sentence under the Parole law, as such law requires the punishment to be not less than one year nor more than the maximum term fixed by law. (People v. Hartsig, 249 Ill. 348, followed.)</p>

<p>1. Drainage—facts necessary to jurisdiction must appear from record. County courts derive their power to organize drainage districts from the statute, and every fact essential to the jurisdiction of the court must affirmatively appear from the record.</p> <p>2. Same—what is not a compliance with the law as to posting notices. The posting of two notices on the same tree at crossroads, so that each notice faces a different road, is not a posting of such notices in two public places but is the posting of two notices in one public place.</p> <p>3. Same—when notices are posted in the same place. Where the affidavit of posting notices stateá that one notice, was posted “at south-east corner of the north half of the north-east quarter of south-west quarter in section 2, town 8, range 9, on fence post'; another at north-east corner of south half of the north-east quarter of south-west quarter in section 2, town 8, range 9, on fence post,” both notices appear to have been posted in the same place, and if such a description was intentionally used to mislead the reader into thinking the notices were posted in different places the attempted deception requires severe condemnation.</p> <p>4. Same—when failure to .post notices renders the organization fatally defective. Failure to post notices in ten different places in the proposed drainage district renders the organization of the district fatally defective as to all property owners who do not waive the defect by filing objections in the court below.</p> <p>5. Same—what is not waiver of defect in posting notices. The fact that certain property owners, at the term after a drainage district was organized, entered a special appearance asking the court to correct the record to show that no property owner had filed objections to the organization of the district does not operate as a waiver of a failure to comply with the statute concerning the posting of notices.</p> <p>6. Same—petition should state character of proposed drain or ditch. The Levee act contemplates that the petition to organize a district shall state the starting point, terminus, route and character of the proposed work in such terms that the property owners, as well as other persons interested, can readily understand the general character of the work, and a petition is insufficient in that respect if it fails to describe the character of the proposed drain in any way with reference to size or method of construction.</p> <p>7. SamE'—lands should be so described that they may be located. A petition to organize a levee drainage district should giye such a description of the lands affected that a person familiar with real estate descriptions can, if necessary, locate the tracts and fix the boundaries of the district with reasonable accuracy.</p>

<p>1. Appeals and errors—what necessary to give the Supreme Court jurisdiction on ground that a constitutional question is involved. To give the Supreme Court jurisdiction upon the ground that a constitutional question is involved such question must really exist and be presented in the case and be one which has not been previously settled.</p> <p>2. Same—when constitutional question is not involved. A constitutional question is not involved unless there is a debatable question as to the validity of the statute attacked, and after such question has been once presented to the Supreme Court and considered and decided it cannot be said to be debatable.</p> <p>3. Same—when the Supreme Court will not assume jurisdiction of a direct appeal. If it appears that the only constitutional question involved has been settled and is no longer open to doubt or debate, the Supreme Court will not assume jurisdiction of the appeal merely to refer to its former decisions.</p> <p>4. Constitutional law—validity of Attorney’s Lien law is not a debatable question. The validity of the Attorney’s Lien law was determined in the case of Standidge v. Chicago Railways Co. 254 Ill. 524, and is no longer a debatable question.</p>

<p>1. Deeds—manual delivery not essential to constitute delivery of deed. While delivery óf a deed is necessary to pass title it is not essential that there be an actual manual delivery, as the test of delivery is the intent with which the acts relied upon as equivalent to actual delivery were done, and this intent is to be gathered from the conduct of the parties and all the surrounding circumstances.</p> <p>2. ’Same—when deed will he regarded as delivered. Where the grantor executes a deed to his son during the latter’s absence in a foreign State, reserving a life estate in the grantor and his wife, and the grantor at the same time causes a receipt in the same amount as the consideration named in the deed to be prepared as being in full of all claims of the son against the grantor for wages or otherwise, which receipt he has the son sign upon his return, it must be held, in the absence of clear proof to the contrary, that the grantor intended the deed to presently pass title, even though he subsequently claims that the deed was recorded without his knowledge or consent by the third party having its custody and_ it is shown that the grantee never had manual possession thereof.</p>

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

<p>Appeal from the County Court of Vermilion county; the Hon. Lawrence T. Allen, Judge, presiding.</p>

<p>Writ oE Error to the Circuit Court of Pike county; the Hon. Harry HigbEE, Judge, presiding.</p>

Appear from the Branch “D” Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Frederick L-Fake, Jr., Judge, presiding.

Writ or Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Williamson county; the Hon.'W. W. Duncan, Judge, presiding.

<p>1. Deeds—when testimony of physician as to grantor’s incapacity is overcome. Testimony by a physician who saw the grantor four times during the month in which the deed was executed, but not on the day of its execution, that in his opinion she was suffering from senile debility, kidney trouble and hardening of the arteries, and that he thought she was not capable of transacting ordinary business, is overcome by disinterested testimony that at different times during such month, and about the time the deed was made, she was bright mentally, conversed intelligently and was able to transact ordinary business.</p> <p>2. Same—when evidence that grantor had long entertained the idea of making a deed is competent. Where undue influence by the grantee is charged, evidence of statements by the grantor showing that she had for some years been intending to make the deed is admissible, as tending to show that the execution of the deed was not the result of undue influence.</p> <p>3. Same—what does not establish undue influence by grantee. There is no presumption of undue influence in case of a conveyance from parent to child, and in the absence of any proof showing a fiduciary relation or domination by the child, evidence that the child and her husband were in the room when the deed was executed and that the officer taking the acknowledgment was summoned by the grantee’s husband does not establish that the deed was the result of undue influence.</p> <p>4. Same—no money consideration is necessary to support conveyance from parent to child. A conveyance from parent to child which is a gift or voluntary settlement will not be set aside because no money consideration was paid.</p> <p>5. Same—when delivery is presumed. Where a deed of voluntary conveyance from parent to child is found in the possession of the grantee after the grantor’s death a delivery of the deed is presumed, in the absence of evidence to the contrary.</p>

<p>1. Real property—zc¡hen instructions as to damages are misleading. Where the trial in an action for damages to land does not take place for nearly thirteen years after the elevated railroad complained of was completed and put in operation, and the jury is instructed to make its estimate of benefits and damages as of the date the railroad was completed and put in operation, it is error, after admitting evidence of the enhancement in value of the property down to the time of the trial, to give instructions authorizing the jury to take such evidence into consideration and find for the defendants in case it should find that the plaintiffs’ property was not damaged at the time of the trial.</p> <p>2. Same—when instruction limiting purpose of evidence of increase in value should be given. In an action for damages to real estate from the construction and operation of an elevated railroad, which was completed and in operation nearly thirteen years before the trial was had, it is error to refuse an instruction offered by the defendants limiting the consideration of evidence of subsequent increase in value of the property to the purpose of ascertaining the effect of the construction of the railroad upon the market value of the property at the time the railroad was completed and opened.</p> <p>3. Same—extent to which the increase or decrease in value of other property may be considered. In an action for damages to real estate from the construction and operation of an elevated railroad, the tendency of other property abutting upon the railroad toward increased or decreased rental or sale values, or the value of ground leases, can be considered only so far as such tendency arises from the construction and operation of the railroad, and not from other causes.</p> <p>4. Same—jury is not required to separate its finding of damages into items. In an action for damages to real estate from the construction and operation of a railroad the jury is not required to separate its finding into items and assess a definite amount for each item of injury, and it is error to instruct it, in effect, that it must find for the defendants, even though the plaintiffs’ property was damaged, if the jurors are unable to agree upon the damage arising from the separate elements of injury.</p> <p>5. Same—in action for damages the jury’s view of premises is not evidence. In an ordinary action at law for damages to real estate the purpose of having the jury view the premises is to enable it to understand the physical situation of the property and apply the evidence, but the facts acquired from such view are not evidence to be considered in arriving at a verdict, although the contrary is true in condemnation cases.</p> <p>6. Appeals and errors—when cause must he remanded upon reversal. Where a judgment in favor of the defendants in an action for damages to real estate is reversed the cause must be remanded, as the defendants are entitled to a jury trial, of which the Supreme Court cannot deprive them.</p> <p>7. The contention that the trial court erred in its view of the character of the benefits which may be set off against damages was decided adversely to appellants’ contention in Brand v. Union Elevated Railroad Co. (ante, p. 133.)</p>

<p>1. Deeds—when neither laches nor the Statute of Limitations applies to a suit to reform a deed. Neither laches nor the Statute of Limitations is applicable to a suit to reform the description in a deed where the complainant has at all times been in undisturbed possession.</p> <p>2. Same—Statute of Frauds does not apply to suit to correct a deed on ground of mistake. The Statute of Frauds has no application to a suit to correct the description of a deed on the ground of mistake, to make the deed conform to the intention of the parties.</p>

<p>1. Judgments and decrees—what is a final judgment. A final judgment, within the meaning of the statute, is one which finally disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate branch thereof.</p> <p>2. Same—order setting aside a default judgment on motion, to permit a defense, is not a final order. An order denying the defendant’s motion to vacate a default judgment to enable him to present his defense is a final, appealable order, but an order allowing such motion is merely interlocutory and no appeal will lie therefrom.</p> <p>3. Same—correct practice where a motion to set aside default judgment is allowed. If the plaintiff desires to question the action of the court in allowing a motion by the defendant to vacate a default judgment to enable him to present his defense, he should preserve exceptions to such action and assign error thereon as a part of the record after the controversy has been determined.</p>

<p>1. Special taxation—power of the court to amend roll upon the hearing. Under section 52 of the Local Improvement act the court, on the hearing of the application to confirm a special tax for the construction of a local improvement by special taxation upon abutting property in proportion to frontage, may strike from the roll property not abutting upon the proposed improvement.</p> <p>2. Same—court cannot add property to roll without new notice. A proceeding to construct a local improvement by special taxation of abutting property is a proceeding in rem and not in personam, and the court is without -jurisdiction to add to the roll property not originally included therein without the giving of a new notice such as is required in the first instance, even though the owner is in court objecting as to other property originally included in the roll.</p> <p>3. Same—when location of land is prima facie evidence that it is not benefited. Where a tract of land comprising the bed of a river is arbitrarily added to a special tax roll on the hearing without any new notice, the roll itself affords no evidence that such tract will be benefited by paving a street forming the bank of the river, and, in the absence of any evidence that it is benefited, the location of the land is itself prima facie evidence that it will not be benefited.</p> <p>4. Same—city has power to provide that entire cost of pavement shall be specially taxed against contiguous property. In providing for the construction of a pavement by special taxation it is for the city to determine whether the improvement shall be paid for wholly by special taxation or in part only, and if in part only, what proportion shall be paid for by special taxation and what part shall be paid for by general taxation.</p> <p>5. Same—land abutting zipon an improvement may be specially taxed for its share of cost of street intersections. Where an improvement is to be constructed by special taxation upon contiguous property all the land contiguous to the improvement may be taxed for its share of the cost of the whole improvement, including street intersections.</p> <p>6. Same—when it is proper to assess whole of railroad right of way as contiguous to improz’ement. Where a railroad right of way lies between two parallel streets, which form, respectively, the east and west boundaries of the right of way, such right of way is contiguous to both streets, and when it is sought to pave one street by special taxation upon contiguous property it is proper to tax the entire right of way as being contiguous to such street.</p> <p>7. Same—when record of special assessment proceeding is admissible in a special tax proceeding. In a proceeding to confirm a special tax for the paving of a street forming the eastern boundary of a railroad right of way, the record of a special assessment proceeding for paving the street forming the western boundary of the right of way is admissible as bearing upon the question of the extent the right of way is benefited by the improvement to be paid for by special taxation; but the record of the assessment proceeding does not, of itself, show a scheme for carrying on two proceedings for the purpose of assessing the right of way twice for a single improvement.</p> <p>8. Same—witness should not be asked whether special tax exceeds the benefit. In a proceeding to confirm a special tax it is proper to call upon witnesses to give an opinion as to the amount which the property will be benefited by the proposed improvement, but it is improper to ask them to determine the ultimate fact in the case by asking the direct question whether the amount set down in the special tax roll against certain property exceeds the benefits thereto.</p>

<p>Appeal from the Comity Court of Lake county; the Hon. David T. Smiley, Judge, presiding.</p>

<p>1. Nuisances—abatement of a nuisance is no part of the punishment for maintaining it. The abatement of a nuisance at the expense of the defendant convicted of maintaining the same, as authorized by section 222 of the Criminal Code, is no part of the punishment for the misdemeanor of maintaining the nuisance, and it is therefore proper to prosecute such misdemeanor by an information.</p> <p>2. Same—■agents of corporation who aid in maintaining a nuisance are liable as principals. If the business of a corporation is so carried on as to constitute the maintaining of a nuisance, the agents of the corporation who perform the acts constituting the offense are guilty of the misdemeanor equally with the corporation, as there is no agency in crime, and all persons who aid, abet or assist in the commission of. a misdemeanor are guilty as principals.</p> <p>3. Instructions—when it is not error to modify instruction in prosecution for maintaining nuisance. In a prosecution for maintaining a nuisance, where an instruction is asked authorizing the jury to take into consideration the location of the plant of the defendant corporation, “whether convenient or not,” the management and manner in which the plant was operated and run, etc., it is not error to strike out the words “whether convenient or not,” as they are indefinite and misleading as so used.</p> <p>4. Same—defendants who testify have a right to have a proper instruction given as to weighing their testimony. In a prosecution for a misdemeanor, defendants who testify in their own behalf are entitled to have given a proper instruction presented by them directing the jury to judge their testimony by the same rules as apply to the testimony of other witnesses and not to reject it merely because they are defendants.</p>

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

<p>x. Practice—complainant may dismiss bill before a decree, in absence of cross-bill. If no cross-bill has been filed the complainant may dismiss his bill upon his own motion at any time before the entry of a final decree, and in such case the order dismissing the bill is not a bar to the filing of another bill.</p> <p>2. Same—when order dismissing bill is not res judicata. An order which recites that the court, “having heard the argument of counsel and being fully advised in the matter, the demurrer to the amended bill of complaint is hereby sustained and the above entitled cause dismissed on motion of complainant,” shows, on its face, that the cause was dismissed by complainant before the entry of a final decree, and such order is not a bar to the filing of another bill.</p> <p>3. Same—complainant may either amend bill or dismiss it upon the sustaining of a demurrer. Upon the sustaining of a demurrer to a bill the complainant has the right to ask leave to amend the bill, or he may dismiss the bill in order to thereafter file another which he would be willing to stand by.</p>

<p>1. Criminal law—when it will he presumed that person convicted of rape ivas more than twenty-one years of age. In the absence of a bill of exceptions showing the evidence, instructions and grounds of the motion for new trial in a prosecution for rape, it will be presumed, on writ of error, that the accused was more than twenty-one years of age and that the jury were therefore not required to find his age, where the indictment charges the accused was a male person of the age of sixteen years “and upwards,” as such allegation will permit proof of any age over sixteen years.</p> <p>2. Same—statute requiring jury to find age of accused applies only to minors. Section 10 of the Reformatory act, which provides that the jury shall find whether or not the defendant is between the ages of ten and twenty-one years, and if between such ages' shall find his age, was intended to apply to minors, only, and not to operate as a repeal of the existing provisions of the Criminal Code so far as adults are concerned.</p>

<p>i~. Railroad and Warehouse Commission—jurisdiction of the Railroad and Warehouse Commission. The act establishing the Railroad and Warehouse Commission expressly gives it jurisdiction over all common carriers within the State and authorizes it to establish reasonable switching rules and regulations and reasonable rates therefor, and to hear and determine all questions arising under the act.</p> <p>2. Same—what does not relate to the question of jurisdiction. The fact that the Railroad and Warehouse Commission cannot compel a railroad company to perform a service for its patrons without compensation has no relation to the question of the jurisdiction of the commission to hear a case and decide what is -a legal or reasonable charge for such service.</p> <p>3. Same—railroad company, when switching cars in city, acts as a common carrier. ■ A railroad company, when switching cars within a city, acts as a common carrier, the same as when engaged in moving cars between stations.</p> <p>4. Sam:E—railroad company may make only a single charge for switching service. A railroad company is entitled to make only a single charge for switching service, and is not entitled to demand, in addition to its regular switching charge, a specific sum per car, as car rental, for switching service between industries on its lines or to industries or deliveries on other lines.</p> <p>5. Same—when decision does not deprive railroad company of its property. A decision by the Railroad and Warehouse Commission that a railroad company is not entitled to make two separate charges for the same switching service, but which does not attempt to limit the amount of the single charge for such service, does not amount in any way to the taking of the company’s property without compensation.</p> <p>6. Same—what is meant by term “transportation.” The term “transportation,” as universally understood and as defined by our statute, includes cars and other vehicles and all instrumentalities and facilities of shipment or carriage, and while a railroad company may make one charge for transporting a car on its own line and a separate switching charge, if both are reasonable, it cannot make separate charges for the same switching service.</p>

<p>1, Ante-nuptiai, contracts—nthen ante-nuptial contract bars husband’s rights. An ante-nuptial contract, fairly and understandingly entered into, by which both parties agree, in consideration of the marriage, that neither shall have “any right, title or interest in the property of the other during their joint lives nor afterwards,” and the husband agrees that he -will not “claim, take or receive” any of the wife’s personal property, nor any right or title in any of her real estate, either as homestead or dower, bars all the husband’s rights in her land, and not merely homestead and dower.</p> <p>2. Same—when fact that ante-nuptial contract is not acknowledged is immaterial. The fact that an ante-nuptial contract is not acknowledged is not material, even though it is claimed that it does not for that reason operate'as a release of the husband’s homestead estate, where at the time of the wife’s death they had been living apart for two years, during which time the husband had acquired a home with his son.</p>

<p>1. Motor vEhici.ES—municipalities may regulate motor vehicles notwithstanding the act of ipn. By the last proviso of section 12 of the Motor Vehicle act of 1911 the legislature has invested municipal corporations with power to make and enforce reasonable traffic and other regulations, except as to rates of speed, not inconsistent with the provisions of the act. (Ayres v. City of Chicago, 239 Ill. 237, and People v. Sargent, 254 id. 514, explained.)</p> <p>2. Ordinances—an ordinance is presumed to be valid. Ordinances of a municipal corporation, to be valid, must be reasonable; but the presumptions are in favor of the validity of ordinances, and it is incumbent upon persons seeking to have them set aside as unreasonable, to point out or show affirmatively wherein the unreasonableness consists.</p> <p>3. Same—Chicago ordinance against allowing smoke, gas or oil to escape from motor vehicle is not unreasonable on its face. The Chicago ordinance prohibiting the use of any motor vehicles in such a manner as to permit the escape of any noxious smoke, gas, steam or other offensive odors, or so as to discharge any embers, oil or residue from the fuel used, is not in conflict with the Motor Vehicle act of 1911, nor is it, upon its face, unreasonable.</p>

Appear from the Appellate Court for the Second District ;—-heard in that court on appeal from the Circuit Court of Grundy county; the Hon. Edgar ErdrEdge, Judge, presiding.

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

Writ of Error to the Branch “B” Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, -presiding.

<p>• i. Criminal law—when admission of conversation in evidence is not error. Where an objection is made to the admission of a conversation in evidence because it was not in the presence of the defendant but the witness states that it was in the room and near the defendant, it is not error to admit the testimony even though the court subsequently strikes it out because in doubt as to whether the defendant heard it.</p> <p>2. Same—when the effect of admitting evidence subsequently stricken out is not prejudicial. The effect of admitting in evidence, in a murder trial, a conversation which the court struck out because in doubt as to whether the defendant heard it is not prejudicial, where such testimony was immediately followed by proof of another conversation of the same purport which was in the presence and hearing of the defendant.</p> <p>3. Same—what testimony by physicians is not admissible as expert testimony but is admissible as proof of an actual test. In a murder trial, proof that two physicians, before rigor mortis had set in, made an actual test with the body of the victim by putting the revolver in her hand and bending her arm to see whether it would have been possible for her to have fired the shot, and that they considered it was impossible for her to have done so, is not admissible as expert testimony, but it is competent as proof of an actual test, and the error of the court in admitting it as expert testimony is immaterial.</p> <p>4. Same—what is competent in rebuttal of evidence that the defendant was peaceable and law abiding. On the trial of a man for the murder of his wife, where the defendant offers evidence that he was peaceable and law abiding, that he treated hk wife kindly and that she admitted she had a good home and a good husband, it is competent to prove, in rebuttal, that at different times the defendant brought men to his house and drank whisky and beer there, against his wife’s objection and protest; that he called her a vulgar name and ordered her to fix them up some whisky, which she refused to do.</p> <p>5. Same—when instruction as to weighing the evidence is not misleading. In Illinois, instructions calling the attention of the jury to the conduct and demeanor of the defendant during the trial are not permitted; but. an instruction is not subject to that objection which authorizes the jury to determine which witnesses are worthy of credit from a consideration of their appearance on the witness stand, their interest (if any) in the event of the suit, their temper, feeling of bias, (if any had been shown,) their demeanor while testifying, their apparent intelligence or lack of intelligence, their means of information, and all the surrounding circumstances on the trial. "</p> <p>6. Same—when instruction as to what constitutes murder is not incorrect. An instruction telling the jury that if they believe, from the evidence, beyond a reasonable doubt, that the defendant killed the deceased, as charged in the indictment, under circumstances showing no considerable provocation but showing an abandoned and malignant heart upon the part of the defendant, then the law pronounces it murder, is not incorrect, as omitting the element of malice aforethought, as the law implies malice from the facts stated in the instruction.</p> <p>7. Same—when an instruction is not contrary to rule that court should not, in its instructions, give especial significance to particular facts. Where the whole purpose of an instruction in a murder trial is to inform the jury that the defendant would have no right to kill his wife because she had been guilty of improper conduct with another man and had written letters to such man, the instruction is not contrary to the rule that instructions must not be given which impress the jury with the belief that the court attaches especial significance to particular facts.</p>

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

Writ oe Error to the Appellate Court for the Second District;—heard in that court on writ of error to the County Court of Knox county; the Hon. R. CliEE Rice, Judge, presiding.

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

<p>1. Easements—right to be free from ñow of surface water may be acquired by prescription. Where the owner of the dominant estate voluntarily changes the course of the natural drainage so that the water which would naturally flow over the servient estate thereafter flows through a ditch constructed by the owner of the dominant estate, and such condition continues, without interruption, for over twenty years, mutual and reciprocal rights are ¿cquired by prescription which forever release the servient estate from the burden of the original easement.</p> <p>2. Same—it is not essential that dominant and servient estates shall be contiguous to each other. In order that the owner of the servient estate may acquire the right, by prescription, to have the waters from such estate flow through a ditch voluntarily constructed by the owner of the dominant estate which changed the natural flow of surface water, so that it thereafter flowed over the dominant estate, it is not essential that the two estates shall be contiguous to each other.</p>

<p>1. Municipal corporations—library board is part of the city government. Under the statute authorizing the establishing and maintenance of a public library and reading room the public library board is part of the city government.</p> <p>2. Same—city is liable for negligence of its employees in exercising ministerial duties. Where a municipal corporation is acting ■ within its authority, in a ministerial capacity, in the management of its property, it is liable for the negligent acts of its employees even though the work in which they are engaged will inure to the benefit of the municipality.</p> <p>3. Same—when a city is not liable for negligence of its officers. Where a city is exercising judicial, discretionary or legislative authority conferred by its charter, or is discharging a duty imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers.</p> <p>4. Same—city not liable for negligence of servants acting under police power. A city is not liable for the negligent acts of employees who are acting under the police power granted to the city or who are endeavoring to carry out the regulations of the city for the public health and the care of the sick and destitute.</p> <p>5. Same—zvhen city is liable for negligence of driver of automobile. A city is liable for the negligence of a driver of an automobile who was hired by the secretary of the public library board, and who at the time of the accident was driving an automobile owned by the public library, conveying books from one library building to another along the streets of the city.</p>

<p>1. Criminal taw—when variance in Christian name of victim is fatal. Where the indictment for the crime against nature alleges that the Christian name of the victim was Rosetta and the proof is that the name of the girl upon whom the crime was committed was Rosalia the variance is fatal, and it is not material that the question of variance was not raised on trial.</p> <p>2. Same—when doctrine of idem sonans does not apply. Where the indictment alleges the Christian name of the victim of a crime to be Rosetta but the proof shows that the name of the girl upon whom the crime was committed was Rosalia the doctrine of idem sonans does not apply.</p> <p>3. Same—what does not constitute the crime against nature. Proof that the accused inserted his tongue in the private parts of a female child does not establish the crime against nature, which involves an unnatural use of the male organ, but the offense established by the proof is within the act of 1907, to define and punish crimes against children.</p>

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

<p>1. Malpractice—when recovery by physician for services does not bar suit for malpractice. The recovery of a judgment before a justice of the peace for the fees of a physician for services in attending a woman does not bar a suit by the woman for malpractice, where she did not appear before the justice and attempt to defeat the claim for fees by setting up such malpractice. (Howell v. Goodrich, 69 Ill. 556, distinguished.)</p> <p>2. Same—what does not show that defense of malpractice was interposed in suit for fees. The facts that the husband, who was sued jointly with his wife for the fees of a physician who had attended the wife, appeared before the justice, accompanied by his counsel, who asked the physician what instruments he used on the woman and stated to the justice that the husband did not deny he owed the bill, do not show that the defense of malpractice was interposed.</p>

<p>1. Trusts—men may create a trust in their personal property for any lawful purpose. The owners of personal property may create a trust therein for any purpose they deem best, so long as the purpose is not prohibited by statute or some rule of public policy.</p> <p>2. Corporations—trust in stock of corporation for purpose of controlling it is not illegal. There is no statute in Illinois which prohibits a trust of the stock of a corporation for the purpose of controlling its management, and no rule of public policy which prohibits the combination of the owners of a majority of the stock of the corporation for the purpose of controlling the corporation.</p> <p>3. Same—stockholders may agree beforehand to vote for certain persons as directors. Stockholders can control the affairs of the corporation only through the election of directors,' at which election there is necessarily a combination of shares, and while such combination may be made at the time of the meeting, yet there is no reason why the stockholders may not agree beforehand to vote for certain persons as directors.</p> <p>4. Same—owners of majority of stock may give proxies to the same person. There is nothing in the law to prevent the owners of the majority of stock in a corporation from giving proxies to the same person, and, unless restricted by its terms or some statutory provision, a proxy confers on the grantee a discretion, unlimited either in character or duration, until revoked.</p> <p>5. Same—a majority of stockholders .may confer unrestricted voting power upon trustee. A majority of stockholders may, by uniting in the same proxy, confer upon the grantee an unlimited discretion to vote their stock, and there is no policy of the law to prevent their transferring the stock to a trustee with like unrestricted power.</p> <p>6. Same—purpose for which a trust is created determines its legality. The fact that the majority of the stockholders in a corporation confer upon certain trustees an unrestricted power to vote their stock does not necessarily make such trust illegal, as it is the purpose for which the trust is created which determines its legality.</p> <p>7. SamE'—pooling of slock for purpose of controlling corporation is not necessarily illegal. The pooling of stock by the owners for the purpose of electing directors and officers and controlling the management and business of the corporation is not against pub-lie policy, so long as no fraud is committed or wrong done to the other stockholders.</p> <p>8. Same—effect of transfer of stock to the Chicago City and Connecting Railways Collateral Trust. The effect of the transfer of the stock of the Chicago City Railway Company to the Chicago City and Connecting Railways Collateral Trust was to place the legal title to the majority of the stock of the Chicago City Railway Company in the trustees, together with the voting power, which was thus separated from the beneficial ownership existing in the holders of the participation certificates but is to be exercised in accordance with the wishes of such holders as expressed by a committee chosen by them for that purpose, and such trust is not necessarily illegal.</p> <p>9. Same—when stockholders are not deprived of deliberative powers by trust agreement. The fact that the election of directors of a corporation is to be by trustees, to whom the legal title to a majority of the stock has been assigned, together with the voting power, does not deprive the stockholders of their deliberative powers or divest them of all control of the corporation, where the trust agreement requires the trustees to vote as directed by a committee selected by the participation shareholders, who are the beneficial owners of the stock.</p> <p>10. Same—what does not render trust agreement illegal. Participation shareholders under a trust agreement, who are the owners of the majority of the stock in a street railway corporation, have a right to control the election of directors and officers and the management of the business through a committee selected by themselves so long as no fraud or wrong is committed against the other stockholders; and the mere facts that such participation shareholders are owners also of other corporations, and that they have committed the management of such corporations to boards of directors composed of the same persons as the board of directors of the street railway corporation, do not, of themselves, render the trust agreement illegal.</p> <p>11. Same—what combinations of corporations or individuals are ordinarily unlawful. Combinations and associations of corporations or of individuals by which the control of competing corporations is vested in a single ownership, with the effect of destroying competition, limiting production, enhancing prices or monopolizing business, are ordinarily unlawful.</p> <p>12. Same—constitutional provision against the consolidation of competitive railroads does not apply to street railways. The prohibition contained in section 11 of article 11 of the constitution against the consolidation by any railroad corporation of its stock, property or franchises with any other railroad corporation owning a parallel or competing line, does not apply to street railway companies.</p> <p>13. Same—it is for a city to determine whether the operation of street railways shall be competitive or monopolistic. The constitution commits to cities the control of the operation of street railways in its streets, and it is for the city to determine whether such operation shall be competitive or monopolistic and whether it shall grant the privilege to many or confine it to one.</p> <p>14. Same—city council may declare the public policy as to operation of street railways. The city council has authority to declare the public policy of the city in regard to the operation of street railways within the city, and by the passage of the ordinance of February 11, 1907, and subsequent street railway ordinances, the city of Chicago has abandoned the principle of competition between the street railways of the city and has declared for the joint operation of street railway lines under a single management.</p> <p>15. Same—combination or merger of street railway companies in city of Chicago is not now against public policy. Under the various street railway ordinances passed by the city of Chicago since February n, 1907, the combination, union or merger of two or more street railway lines in Chicago for the joint operation of such lines under a single management is not against public policy. (1South Chicago City Railway Co. v. Calumet Mlectric Street Railway Co. 171 Ill. 391, explained.)</p> <p>16. Same—what provision of trust agreement does not render entire agreement invalid. The provision of the trust agreement whereby the trustees of the Chicago City and Connecting Railways Collateral Trust are authorized to transfer shares to any person to qualify him as a director or for the purpose of maintaining the organization of the company is not an essential part of the agreement, and even if such provision were invalid it would not invalidate the trust agreement as a whole but might be disregarded.</p> <p>17. Same—name "Chicago City and Connecting Railways Collateral Trusf’ does not imply a corporation. The name “Chicago City and Connecting Railways Collateral Trust” does not imply a corporation, as a trust may be incorporated or unincorporated, and the adoption of such name does not, of itself, amount to the assumption of a fictitious corporate name, in violation of law.</p> <p>18. Same—the act of 1855 authorizes operating agreements between street railway companies. As section 11 of article 11 of the constitution, prohibiting the consolidation of parallel or competing railroads, does not apply to street railways, the act of 1855 (Hurd’s Stat. 1911, par. 44, p. 1820,) is still authority for the making of operating agreements between street railway companies.</p> <p>19. SamE-t-present situation with reference to consolidation of surface street railways and elevated railroads. At present the constitution forbids the consolidation of railroad corporations owning parallel or competing lines and the statute authorizes the consolidation of corporations of the same kind, only, and in no event can a consolidation or merger of surface lines of street railways with elevated railroads take place without the consent of the city by the passage of an ordinance.</p> <p>20. Injunction—mere apprehension of illegal action by directors is not ground for injunction. The mere apprehension or fear on the part of a stockholder in a corporation that the directors may take some illegal action is not ground for an injunction, but the act to be enjoined must be one the doing of which is actually threatened and may be expected with reasonable certainty if not enjoined.</p>

<p>1. Attorneys’ liens—Attorney’s Lien act requires party settling suit after notice, to regard attorney’s rights. The Attorney’s Lien act does not affect the right of a defendant in a suit, or persons against whom claims or demands are held by attorneys for collection, from settling the same, but it requires that they shall, after notice, in making such settlement, retain sufficient funds from the amount of the settlement to satisfy the lien of the attorney for his fees.</p> <p>2. Same—rule where attorney is to receive one-half the amount to be recovered. Where an attorney has a contract with his client, for one-half the amount to be recovered in a personal injury case against a street railway company, and the company, after notice of the attorney’s claim for a lien, settles with the client and pays him $365, and agrees, as part of the settlement, to pay the attorney “a reasonable fee, whether on account of your written contract with him or otherwise earned by him,” the attorney is entitled to demand and receive from the company an amount equal to that paid to the client, as otherwise their shares would not be equal,</p>

<p>1. Color or title—presumption of good faith will prevail until overcome. The good faith required by the statute in the creation or acquisition of color of title is a freedom from a design to defraud the person having a better title, and the presumption of good faith will prevail until it is overcome by evidence of fraud or actual bad faith.</p> <p>2. Same—when presumption of good faith is overcome. Where the holder of a certificate of a tax sale makes an affidavit for a tax deed positively stating that the premises were not taxed or assessed in the name of any person, whereas the collector’s warrant for the taxes for which the property was sold shows the owner’s name, the presumption of good faith is overcome, and his failure to ascertain the truth under such circumstances amounts, in the absence of any explanation, to bad faith.</p> <p>3. Appeals and Errors—the examiner’s finding of fact is conclusive if not excepted to. A finding of fact by the examiner of titles, in a title registration proceeding, must be regarded by a court of review as conclusive, where it was not excepted to.</p> <p>4. The decision in Bjork v. Glos, 256 Ill. 447, controls the determination of the other question in this case, concerning the admissibility in evidence of the abstract of title.</p>

<p>Writ oe Error to the Circuit Court of Clinton county; the Hon. James C. McBride, Judge, presiding.</p>

Writ or Error to the Branch “f>” Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.

<p>1. Specific performance—when a verbal 'contract concerning land should be enforced. Where a verbal contract by which the owner of land agrees to give it to another person if the latter will stay on the farm and work it as the owner desires, as long as the owner lives, is clearly proved and is carried out by such person by living on the farm and working it for forty years, until the owner’s death, a court of equity will decree specific performance, where it is clear that to deny such relief would be most inequitable and unjust.</p> <p>2. Same—what is sufficient proof of verbal contract. While a verbal contract concerning land must be proven by clear and satisfactory evidence yet direct proof is not essential, and if all the facts, including the acts and declarations of the parties, satisfy the court that the terms of the contract have been established and that the complainant has performed his agreement the contract should be enforced, even though it does not appear that either party stated the contract to any witness when both the parties were together. (Geer v. Goudy, 174 Ill. 514, and Vail v. Rynearson, 249 id. 501, distinguished.)</p>

<p>Writ or Error to the Circuit Court of Will county; the Hon. Charges B. Campbeee, Judge, presiding.</p>

<p>1. Drainage—the amendment of ipop, authorizing assessment "to pay obligations incurred for current expenses,” construed. The amendment of section 37 of the Levee act in 1909, authorizing an assessment “to pay obligations incurred for current expenses,” etc., authorizes the commissioners, when all of the funds raised have been honestly applied to the construction of the work, to levy an assessment to pay the just claims of the commissioners for their services, court costs, witness fees, unpaid balance of attorney’s fees, and the like.</p> <p>2. Same—a debt incurred by drainage district for current expenses is within the amendment of ipop. The amendment of section 37 of the Levee act, in 1909, authorizes an assessment not only for “current expenses,” which would include any continuing, regular expenses in connection with the work, but also to pay “obligations” incurred for current expenses, and hence includes within its meaning a debt incurred by the district for current expenses.</p>

<p>1. Charities—'equity has jurisdiction to prevent a misuse or abuse of a charitable trust. A court of equity has jurisdiction to prevent a. misuse or abuse of a charitable trust, and the Attorney General or State’s attorney, representing the public, is charged with the duty of preventing a breach of a trust for public charity or of restoring the trust fund after it has been diverted.</p> <p>2. Same—gift for the promotion of public worship is a public charity. A gift for the support of churches, or to pay the expense of teaching or preaching religious doctrines, or for the promotion of public worship generally, is a gift to charity.</p> <p>3. Same—members' of incorporated religious society need not be made parties to bill. Where a religious society is incorporated the title to the church property is in the corporation, and neither the trustees nor the members have any beneficial ownership or personal or private interest in the property, and the members need not be made parties to a bill brought by the State’s attorney to set aside a sale of the property held by the corporation.</p> <p>4. Same—zvhen rule that property reverts to donor upon dissolution of charitable corporation does not apply. Upon the dissolution of a charitable corporation the title to the property reverts to the original donor or his heirs; but this rule has no application where the property was not donated to the society but was purchased with donations of money from individuals.</p> <p>5. Same—when a court of equity may execute a trust cy pres. In case of a charitable trust, if the plan of the donors cannot be carried out as made but can be carried out in substance, a court of equity may execute the trust cy pres; but this power does not authorize the application of the trust fund to a purpose not corresponding closely to the intention of the donors.</p> <p>6. Same—when equity cannot grant relief against the sale of church property. Where property belonging to an independent religious corporation has for many years been devoted to secular uses and the purpose of the corporation has been abandoned, and all living members of the corporation have authorized a sale of the property and a distribution of the proceeds, there being no other religious corporation of the same character in the community, a court of equity is without power to set aside the sale at the suit of the State’s attorney, acting for the public, and to apply the proceeds of the sale to some other charitable use.</p> <p>7. Same—what should be alleged in the bill to execute a trust cy pres. Where a complainant alleges that a trustee has abandoned the execution of a charitable trust and asks a court of equity to provide for its execution cy pres, the bill should also allege the existence of some society, corporation or agency through which it can be done or propose some plan which will substantially effectuate the intent of the donors.</p>

<p>Limitations—when rights of co-tenants are subject to statute. Where tenants in common convey to a co-tenant eighty acres of land which they know embraces a small tract not covered by the legal description in the deed but which has for many years been fenced in with and treated as a part of the land they intended to convey to the grantee, the grantee’s possession of the tract is not the possession of his co-tenants but is adverse to them, and their rights are subject to the Statute of Limitations.</p>

Appear from the Branch “B” Appellate Court for the First District;-—heard in that court on appeal from the Municipal Court of Chicago; the Hon. IsadorE H. Himes, Judge, presiding.

<p>Writ op Error to the Branch “D” 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>

<p>1. Statutes—history of legislation may be resorted to to ascertain legislative purpose and intent. In construing statutes resort may be had. to the history of the legislation on the subject to ascertain the purpose and intent of the legislature, and to that end it is not only proper to compare statutes relating to the same subject passed at the same or different sessions of the legislature, but to consider statutes upon cognate subjects although not strictly in pari materia.</p> <p>2. Corporations—the act of June 9, 1911, concerning extension of charters, applies to corporations formed under the general law. The act of June 9, 1911, (Laws of 1911, p. 239,) authorizing the extension of charters of corporations for a period not to exceed ninety-nine years, applies to corporations organized under the general Incorporation act.</p> <p>3. Same—act of June 9, 1911, did not repeal, by implication, the act of June 7, 1911. The act of June 9, 1911, (Laws of 1911, p. 239,) concerning the extension of charters of corporations for a period not to exceed ninety-nine years, did not repeal the act of June 7, 1911, (Laws of 1911, p. 470,) amending section 5 of the Railroad and Warehouse act and authorizing the extension of the charters of railroad corporations not to exceed fifty years.</p> <p>4. Same—act of June p, ipil, does not apply to railroad corporations. The act of June 9, 1911; (Laws of 1911, p. 239,) authorizing the extension of charters of corporations for a period of not to exceed ninety-nine years and providing for the payment of fees to the State, the same as in case of a new incorporation, does not apply to railroad corporations.</p> <p>5. Same—act of June 7, 1911, authorises railroad corporations to extend charters without payment of fees. The act of June 7, 1.911, (Laws of 1911, p. 470,) amending section 5 of the Railroad and Warehouse act, authorizes railroad corporations to extend their charters for a period of not to exceed fifty years, and as such act is silent as to payment of fees to the State no fees are required.</p> <p>6. Same—charter extension acts of ipil are not invalid as special legislation. The act of June 7, 1911, (Laws of 1911, p. 47°>) authorizing railroad corporations to extend their charters for a period of not to exceed fifty years without payment of fees, and the act of June 9, 1911, authorizing other corporations to extend their charters for a period not to exceed ninety-nine years upon payment of fees, are not invalid as special legislation,'as railroads are in a class by themselves, and the legislature may pass laws concerning them which do not apply to other corporations.</p> <p>7. Same—extension of charier is not the creation of a new corporation. The extension of the charter of a corporation under a statute authorizing an extension, only, is not the creation of a new corporation, and, in the absence of a provision in the statute requiring payment of fees to the State, does not entitle-the State to demand fees as in case of the organization of a new corporation.</p>