Volume 259 — Illinois Reports

<p>1. Constitutional law—legislature had power to authorise the examining board to revoke architecfs license. The legislature had power to authorize the State Board of Examiners of Architects to revoke the license of an architect for cause, as the license is not revoked as a punishment, but to protect the public against persons who have become incompetent or unworthy to practice the profession for which they are licensed. (People v. Apfelbaum, 251 111. 18, approved.)</p> <p>2. Same—“due process of law” does not necessarily require judicial proceedings by a court. The provisions of the act authorizing the State Board o"f Examiners of Architects to revoke an architect’s license are not in violation of the “due process of law” clauses of the State and Federal constitutions, as “due process of law” does not necessarily mean judicial proceedings in some court of .competent jurisdiction."</p> <p>3. ' Same—provision for revoking a license for “gross incomp eteitcy or recklessness” not-void for uncertainty. The provision of the statute authorizing the State Board of Examiners of Architects to revoke an architect’s license “for gross incompetency or recklessness in the construction of buildings” is not void for uncertainty nor as an unwarranted' délegation of discretionary power to the board.</p> <p>.4. Same—revoking of architect’s license is not an exercise of judicial pozver by the State board. The revoking of an architect’s license by the State Board of Examiners of Architects, under the authority of the statute, is not an exercise of judicial power by such board, within the meaning of that term as used in. the provision of the constitution concerning the distribution of the powers of government.</p> <p>5. Same—State board cannot arbitrarily revoke architect’s license. The State Board of Examiners of Architects cannot arbitrarily revoke the license of an architect but the proceedings with reference to notice and a hearing must be in accordance with the statute, and if the discretion of the board is exercised with manifest injustice, the courts have power to interfere.</p> <p>6. Same—section 10 of the act of 1907, concerning architects, is not void. Section 10 of the act of 1907, authorizing the licensing of architects by the State Board of Examiners of Architects and. the revoking of a license for gross incompetency or recklessness in the construction of buildings or for dishonest practices, is not in violation of either the State or Federal constitution.</p>

Writ or Error to the Branch “D” 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>AppEae from the Circuit Court of Cook county; the Hon. H. S. Pomeroy, Judge, presiding.</p>

<p>Writ or Error to the Circuit Court of McLean county; the Hon. Corostin D. MyRrs, Judge, presiding.</p>

Writ or 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. R. W. Wright, Judge, presiding.

<p>1. Deeds—extent of presumption that a deed was delivered on its date. Where there is no statute making the acknowledgment of a deed requisite to its operation as a conveyance, it is presumed, in the absence of evidence to the contrary, that the deed was delivered on its date notwithstanding the certificate of acknowledgment bears a later date.</p> <p>2. Same—when deed cannot be presumed to have been delivered on its date. The statute expressly makes the acknowledgment an; essential element of a release of homestead unless possession is abandoned or given in pursuance of the deed, and hence if the acknowledgment to a quit-claim deed containing a release of homestead bears date later than the date of the deed and the evidence shows that the possession of the premises was not abandoned or given in pursuance of the deed, there is no presumption that the deed was delivered on its date, but it will be presumed, in the absence of proof to the contrary, that it was delivered on the date the acknowledgment was taken.</p> <p>3. Same—acknowledgment not essential to operation of deed as a conveyance unless made so by statute. Unless the statute makes an acknowledgment requisite to the validity of a deed the delivery of a deed without an acknowledgment is good and will pass title, as in such case the certificate of acknowledgment is merely evidence of the execution of the deed by the grantor and may be attached to the deed either before or after its delivery.</p> <p>4. Same—effect where grantor makes deed of assignment after making deed of trust. Where the owner of the fee makes a trust deed to secure a note and subsequently makes a deed of assignment for the benefit of creditors, the grantees in the deed of assignment take the equitable title subject to the trust deed, .and by their quit-claim conveyance to an assignee in bankruptcy appointed by the court the latter takes the equitable title which they held, but only in trust for the purpose of applying the proceeds for the benefit of creditors.</p> <p>5. Same—equitable title held by an assignee in bankruptcy re-vests when bankruptcy proceedings terminate. Where an assignee in bankruptcy holds the equitable title to real estate of the bankrupt at the time the bankruptcy proceedings are terminated without having had to convey the property to obtain the proceeds for the creditors, the equitable title so held by him re-vests in the former bankrupt by operation of law and no conveyance by him is necessary, and as he has no interest, individually, his conveyance after the title has re-vested in the bankrupt by operation of law conveys nothing.</p>

<p>Appear from the Circuit Court of White county; the Hon. E. E. Nbwrin, Judge, presiding.</p>

<p>1. Special assessments—when an objection that an ordinance changed width of a roadway cannot be considered. An objection that a paving ordinance provides for paving a roadway of a specified width, which it is claimed is greater than the established roadway, will not be considered, where the abstract does not show that the objection was made in the county court or what the width of the roadway was prior to the passage of the ordinance.</p> <p>2. The objection with regard to the sufficiency of the engineer’s estimate was considered and decided adversely to the appellants’ contention here, in City of Chicago v. Underwood, 258 111. 116.</p>

<p>Writ oe Error to the Circuit Court of Putnam county; the Hon. T. N. GrEEn, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Coles county; the Hon. William B. Scholfield, Judge, presiding.</p>

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

<p>1. Trusts—when will creates a power coupled with a trust. A will devising the residuary estate to a trustee, with power to divide it among the heirs-at-law of the testatrix, including himself, in such proportions as he shall in his discretion deem each of them worthy, creates a power coupled with a trust, and such power is considered a trust for the benefit of the parties designated.</p> <p>2. Same—zohen estate will be divided per capita where trustee dies before making distribution. Where a trustee having power to divide the estate among the heirs-at-law of the testatrix as he deems them worthy, dies before making distribution, and there is no indication in the will how the division shall be made, equity will distribute the estate among the heirs-at-law per capita.</p> <p>3. Same—effect where there has been a partial execution of power. Where a trustee having power to divide the estate among the heirs-at-law, in his discretion, pays a sum of money to certain heirs but dies before taking any other steps to distribute the estate, it will not be presumed by a court of equity that such heirs would not.have received more of the undistributed estate, and they will be entitled to share equally with the other heirs in the distribution thereof.</p> <p>4. Wiles—probate of will cannot be attacked in a partition proceeding. An order probating a will cannot be attacked, in a subsequent partition proceeding, by an answer setting up that the, probate court erred in admitting the will to probate because the entire will was not before the testatrix at the time the will was' executed.</p> <p>5. Appeals and errors—when alleged error cannot be considered. Whether the trial court erred in,requiring two of the -heirs of an estate to account for certain money paid them by the trustee before his death cannot be considered, where one heir did not assign error on such ruling, and the other, though assigning error, did not raise the question in her original brief.</p> <p>6. Same—a question not raised in original brief is waived,. A question not raised by an appellant in his original brief cannot be thereafter raised by reply brief, oral or printed argument or on a petition for rehearing.</p>

<p>1. Criminal law—when confession or admission may be implied. An admission or confession may be implied from the conduct of a person in remaining silent when, charged with a crime or complicity therein, or when statements are made by third persons in his presence, affecting him, under circumstances which afford him an opportunity to deny his guilt or make explanations, as ordinary men similarly situated would naturally do.</p> <p>2. Same—jury determines weight to be given to implied admissions. Implied admissions of guilt are admissible upon the theory that the accused, by remaining silent when the statements imputing his guilt are made in his presence, has ratified such statements and adopted them as his own, but it is for the jury to say what bearing the evidence has upon the issues and the weight to be given to it.</p> <p>3. Same—when testimony by police officers is admissible. Police officers may testify, in a burglary trial, that the sister of the accused stated to them, in his presence, that a certain cut in his hand had been made while he was slicing a melon and that the shoes and hat found on the burglarized premises were not his, but that at a later interview, in his presence, she stated to him that he had better make a clean breast of it, whereupon he stated that his hand had been cut in a fight with certain men and that the coat and shoes were his but had been taken from him by the men he fought with.</p> <p>4. Same—when accused is not harmed though testimony was inadmissible. Where the testimony of the accused in his own behalf is in accord with the testimony of police officers as to statements made to them by the accused and his sister, he cannot be said to have been harmed by the admission of the testimony of the police officers even though such evidence may have been improperly admitted.</p> <p>5. Same—when a party is not entitled, as a matter of right, to cross-examine .his own witness-. The mere fact that a witness called by the accused makes a statement, on cross-examination, which counsel for the accused claims is different from his statements at other times, does not entitle the accused, as a matter of right, to have the court interrogate the witness as a witness for the court, in order that counsel for accused may cross-examine him.</p> <p>' 6. Same—reasonable doubt of guilt must be one arising upon the evidence. It is not the province of the jury to go beyond the evidence to create doubts which are chimerical or conjectural, as the reasonable doubt which will justify an acquittal must be one arising from a candid and impartial examination of the evidence, and if, after considering all the evidence, the jury have an abiding conviction of the truth of the charge, then they are satisfied beyond a reasonable doubt.</p> <p>7. Same—when conclusion of instruction as to considering testimony of accused is not improper. An instruction concerning the weighing of the testimony of the accused is not erroneous which concludes with the statement that if the jury, after considering all the. evidence in the case, shall find that “any witness testifying on behalf of either side has willfully and corruptly testified falsely as to any fact material to the issue in this case, then they have a right to disregard the testimony of such witness, except in so far as corroborated by other credible evidence or facts and circumstances in evidence.”</p> <p>8. Same—when an instruction is properly refused as selecting certain facts and ignoring others. An instruction tendered by the accused in a burglary trial is properly refused which attempts to state the law upon the subject of identification by referring to the testimony of a single witness and ignoring all the other testimony, in the record upon that subject.</p> <p>9. Same—affidavits must be incorporated in the bill of exceptions. Affidavits as to what took place in the court room during the trial are not intrinsically a part of the record and are not made so by the fact that the clerk has incorporated them therein, but they can only be made a part of the record by incorporating them in the bill of exceptions.</p>

<p>Disbarment—mere loaning of money at usurious rates is not ground for disbarment. The mere fact that an attorney at law loans money at usurious rates is not ground for disbarment, there being no proof that he is conducting the business in an improper or fraudulent manner or that he is imposing upon the weak and ignorant and unjustly increasing the burden of their debts.</p>

Appear from the Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Max Ebrrhardt, Judge, presiding.

<p>1. Practice—when sufficiency of evidence to sustain judgment cannot be inquired into. The sufficiency of the evidence to sustain the judgment cannot "be inquired into on appeal in a condemnation case, where there was no ruling upon the admission of evidence and no motion for a new trial.</p> <p>2. Same—motion for new trial not necessary to preserve question of correctness of instructions for review. If the question of the correctness of the court’s charge to the jury is otherwise properly saved for review no motion for new trial is necessary to preserve such question.</p> <p>3. Eminent domain—a railway only acquires the ■use of land condemned for right of way. By condemning a part of a tract of land for right of way the railroad acquires the use of the land for railway purposes but the fee remains in the owner subject to such use, and he may, if the land is underlaid with oil, coal or other mineral deposits, drill wells or make tunnels under the right of way, so long as he does not interfere with the use of the right of way for railway purposes.</p> <p>4. Same—value of land taken should be assessed irrespective of benefits to the remainder. Where part of a tract of land is condemned for railroad right of way the value of the land taken should be assessed irrespective of any benefits that may accrue to the remainder; but, in ascertaining the damages to such remainder, benefits which the owner will enjoy as peculiar to his own land should be deducted but not benefits he will enjoy in common with the whole community.</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. Oscar M. Torrison, Judge, presiding.

<p>Writ OB Error to the Circuit Court of LaSalle county; the Hon. Joe A. Davis, Judge, presiding.</p>

<p>1. Negligence—when the question of fellow-servants is not involved. Where the boss in a coal mine, after directing a miner to go into a certain entry with a car to bring out some dirt, gives orders that a water car be left temporarily on the track of the main entry at a point so close to the junction of the track into the entry where the miner had gone that the latter, in coming out of the entry with his car, is injured in his effort to avoid a collision with the water car, the negligence, under such circumstances, lies with the mine boss and no question of fellow-servants is involved.</p> <p>2. Same—it is for the jury to say whether a person confronted with sudden danger acted with reasonable care. It is ordinarily for the jury to determine whether a person confronted with sudden peril acted as a reasonable man would have acted under the same circumstances in attempting to extricate himself from his perilous position.</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. Thomas G. Windrs, Judge, presiding.

<p>1. Drainage—procedure outlined in sections 51 and 52 of the Farm Drainage act must be followed in organizing district by user. The procedure outlined and the conditions specified in sections 51 and 52 of the Farm Drainage act must be followed and complied, with upon the hearing of a petition to organize a special' drainage district under section 76 of such act, providing for districts by user.</p> <p>2. Same—no district can be organized if the cost will exceed the benefits. Under the constitutional provision authorizing drainage legislation the aggregate amount of the assessments must not exceed the benefits to the property assessed, and such condition must therefore apply to all proceedings for the organization of drainage districts under statutory authority.</p> <p>3. Same—district by user cannot be organized if cost will exceed the benefits. The organization of a drainage district under section 76 of the Farm Drainage act differs from the organization of other districts provided for in the act only, in that one land owner may petition for such organization if the necessary jurisditional facts are shown to exist, and in that the other land owners who have constructed and joined their ditches, as therein specified, are held to have consented to be united in a district; but this consent is limited to such a district as may be organized under the constitution, and if, upon the hearing of the petition, it appears that the cost of the proposed work will exceed the benefits, the petition should be dismissed.</p> <p>4. Costs—duty of party who feels aggrieved by taxing of costs by the clerk. Under section 26 of the Costs act one who feels himself aggrieved by the taxation of costs by the clerk should apply to the court in which the proceeding was had to re-tax the costs according to law; and this is true though the objectionable item was taxed as costs by the clerk in pursuance of a direction of the court in its written order.</p> <p>5. Same—direction to clerk to tax item as costs is not reviewable on appeal. A direction by the county court to the clerk to tax the bill of the court reporter as part of the costs of a proceeding to organize a drainage district is not a final order from which an appeal can be taken; nor is such direction.reviewable on appeal from the order dismissing the petition to organize the district.</p>

' Appeals and errors—when a judgment must he affirmed. A judgment must be affirmed where all of the errors assigned relate to matters presented in a bill of exceptions which has been expunged from the record. Writ of Error to the County Court of Vermilion county; the Hon. Lawrence T. Allen, Judge, presiding.

<p>Appear from the Superior Court of Cook county; the Hon. M. L. McKinrEy, Judge, presiding.</p>

<p>Appear from the Superior Court of Cook county; the Hon. M. L- McKinrey, Judge, presiding.</p>

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

<p>1. Constitutional law—what constitutes compliance with the provision for printing amendments. Where a bill introduced in the senate is printed and passed in its original form but is amended in the house and passed after the bill and its amendments have been printed and is then returned to the senate and passed as amended, the constitution is complied with although the bill and the amendments were not re-printed in the senate.</p> <p>2. Same—statute authorizing injunctions on Sunday was regularly enacted. Section 23 of the Injunction act, (Rev. Stat. 1874, p. 581,) authorizing the granting of a writ of injunction on Sunday if the conditions specified in such section exist, was regularly enacted.</p> <p>3. Injunction—issuing an injunction without notice does not render the injunction void. The question whether an injunction must be issued immediately and without notice must be determined by the court, judge or master in chancery from the facts appearing in the bill and affidavit; and even if the conclusion to issue the writ without notice is erroneous, the injunction is not void and cannot be rightfully disobeyed on that ground.</p> <p>4. Same—party cannot disregard injunction though it is improvidently issued. ' If the judge to whom an application for an injunction is presented on Sunday has jurisdiction to issue an injunction, upon a proper bill and affidavit, in the class of cases to which the bill applies, the fact that the injunction may be improvidently granted does not authorize the defendants to disregard it.</p> <p>5. Same—alleged defective bill for injunction must be tested by demurrer and not by disobedience. If a bill for an injunction is deemed by the defendants to be defective the bill must be tested by demurrer and not by disobedience to the writ.</p> <p>6. Courts—the statutory jurisdiction of county courts is limited. County courts are given certain jurisdiction by the constitution but all other jurisdiction must be conferred by statute, and if conferred by statute the jurisdiction is limited to such cases as are specified in the statute.</p> <p>7. Same—jurisdiction of the county court in election matters is limited. The jurisdiction of the county court in election matters is derived from the statute, and in its exercise the court is an inferior court of limited jurisdiction.</p> <p>8. Same—the county court has no authority to take charge of organising county convention. The power of the county court, under the City Elections law and the Primary Elections act o£ 1910, with reference to election matters, does not justify that court, or its judge, in taking jurisdiction to fix the hour or place of meeting for a county convention of precinct committeemen nor in assuming charge of its organization.</p> <p>9. Same—court can only exercise its functions at the place appointed by law. Orders entered or given by a county judge at a convention hall in furtherance of his attempt to take charge of and authorize a county convention are no protection to police officers or other persons who obey them,'as courts are not migratory and can only exercise their functions at the place appointed by law.</p> <p>10. Same—unless authorised by statute, courts cannot interfere with political matters. Courts cannot be drawn into political contests of any sort unless required by statute to interfere, and any injunction for the purpose of restraining or controlling acts of a political nature is void unless authorized by statute and may be disregarded without accountability to the court.</p> <p>11. Same—mere fact that a political question is involved does not deprive the court of jurisdiction. Injury to property, whether actual or prospective, is the foundation upon which the jurisdiction of courts of equity rests, and, if there is foundation for equitable jurisdiction, the fact that the determination of the controversy may depend upon the decision of a political question does not deprive the court of jurisdiction.</p> <p>12. Same—when property right is merely incidental to political question. The fact that the chairman of a county central committee, who is the proper officer to fix the time and place for the convention of precinct committeemen, has, acting for his party, leased a building for a day and has paid part of the rent and obligated himself for the balance and for damages to the building, does not give him such a property right as authorizes a court of equity to issue an injunction to enforce a provision of the lease that no one shall enter the building without his permission, as in such case the property right is merely incidental to the political question and the courts are not authorized to assume jurisdiction.</p> <p>13. Contempt—answer does not purge party of civil contempt. In cas.e of a civil contempt the court may hear proofs to contradict the answer of the party charged with the contempt, and it is not material whether the fine or imprisonment is to compel compliance with an injunction or is in the nature of a punishment.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Dorrancb Dibell, Judge, presiding.</p>

<p>1. Trusts—what does not make party a trustee. If the holder ,of the legal title to property conveys the same, the fact that she thereafter obtains the unrecorded deed and destroys it or keeps it in her possession does not re-invest her with the title nor make her a trustee.</p> <p>2. Same—party claiming resulting trust has burden of proof. One who asserts a resulting trust has the burden of proving facts from which the law will raise a trust and establish title contrary to the record legal title.</p> <p>3. Same—resulting trust arises, if at all, when deed is taken. A resulting trust arises, if at all, at the time the deed is taken and on the facts then existing, and it does not arise from any contract or agreement of the parties, but is created, by implication, of law, from the two facts of payment of the purchase money by one and the conveyance of the title thereby purchased to another.</p> <p>4. Same—what does not create resulting trust. The fact that much of the money invested by a woman in real estate may have been given to her at different times by the man with whom she was living does not create a resulting trust in his favor, if the money was her own at the time she invested it.</p> <p>5. Evidence—party claiming that deeds were executed has the burden of proof. One who claims that the party having the legal title to land executed, quit-claim deeds, which disappeared without being recorded, must establish the fact that the deeds were executed by such owner, and mere proof that quit-claim deeds purporting to have her name signed to them were once in existence is not sufficient, where it is clear, from the testimony of disinterested witnesses, that the deeds were not genuine but had been prepared by the grantee named therein, with the intention of using them in case the purported grantor died before he did.</p>

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

<p>1. Special assessments—a finding that improvement complies ■with ordinance is final. The order of the county court confirming the certificate of cost of a local improvement and finding that the improvement conforms substantially to the requirements of the ordinance for its construction is not subject to review on appeal or writ of error.</p> <p>2. Appeals and errors—appellant must point out reason for assignment of error. . A statement in appellant’s brief that various sums paid to certain persons in the construction of a local, improvement were unlawfully paid and should be credited back to the assessment fund is nothing more than an assignment of error, and if no reasons are stated why such payments were unlawful the court will not search the abstract and record to find some ground upon which to sustain the assignment.</p>

<p>1. Criminal law—what shows that the declarant believed his death was impending. Proof that the injured person accepted his physician’s opinion that his wound would be fatal and that he believed he would not live even an hour and a half, justifies the admission of his statement in evidence as a dying declaration even though he lived several days, during which time there was no hope of his recovery.</p> <p>2. Same—what evidence is admissible though of a harrowing nature. As bearing upon the question of the condition of the injured person at the time his statement, offered in evidence as a dying declaration, was made, it is not improper to permit a witness to state that as she raised him up to fan him the blood gushed out over her dress.</p> <p>3. Same—when instruction is erroneous in assuming that the bullet fired by the accused killed -the deceased. Where there is evidence in the record in a murder trial tending to show that other shots than those fired by the accused were fired and that the deceased was in a position where he might have been in range of such shots, it is error to give an instruction which assumes that it was a bullet fired by the accused which inflicted the mortal wound.</p> <p>4. Same—dying declaration is not entitled to same weight as though made under oath. A statement which is admissible under the rules concerning dying declarations is competent to the sam'e extent as if made under the sanction of an oath, but it is error to instruct the jury that it is entitled to the same weight as if made under the sanction of an oath. (Nordgren v. People, 211 111. 425, followed; Barnett v. People, 54 id. 325, overruled.)</p>

<p>1. Appeals and errors—Supreme Court has direct appellate jurisdiction if revenue is directly affected. The Supreme Court has direct appellate jurisdiction of a case which directly affects the revenue, as where the question arises between a recognized authority or municipality authorized by law to assess and collect taxes and those of whom the taxes are demanded.</p> <p>2. Same—the Supreme Court has jurisdiction if the question is whether the money belongs to the revenue. If the question to be determined in a controversy is whether the money demanded belongs to the revenue, the revenue* is directly affected and the Supreme Court has direct appellate jurisdiction of the case.</p> <p>3. Same—when case relates directly to the revenue. An action by tax-payers on the bond of a tax collector, the breach alleged being that he has failed to pay over to the city a certain sum of money collected by him as taxes, involves the question whether such money belongs to the revenue, and the revenue is therefore directly affected.</p> <p>4. Pleading—a demurrer tenders an issue of law on the facts well pleaded. In case of a demurrer to a declaration the facts well pleaded are admitted, and an issue of law is tendered as to whether such facts give a right of action. '</p> <p>5. Same—what question cannot be presented by a demurrer. Whether persons alleged to be tax-payers and’ who are prosecuting a suit in the name of the People, for the use of a city, on the official bond of a tax collector, are authorized to act for and protect the rights of the city is a question which .cannot be raised by demurrer.</p> <p>6. Bonds—who are not "aggrieved persons” mentioned in section 262 of Revenue act. Tax-payers suing on the official bond of a tax collector in the name of the People, for the use of a city, are not “aggrieved persons,” within the meaning of section 262 of the Revenue act, since they are not entitled, in their own right, to receive the money sued for.</p> <p>7. Same—when suit is not authorized by section 4 of article 10 of the Cities and Villages act. Section 4 of article 10 of the Cities and Villages act refers only to actions brought in the name and for the benefit of a city or village, and does not authorize a suit by tax-payers in the name of the People, for the use of a city.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. E. M. Mangaíst, Judge, presiding.</p>

<p>1. Limitations—mere fact that a co-tenant in possession receives the rent and pays the taxes does not constitute adverse possession. Mere possession by one tenant in common who receives the rents and profits and pays the taxes is not, of itself, sufficient to overcome the presumption of law that the possession of the one is the possession of all, and such facts do not constitute adverse possession.</p> <p>2. Same—how possession of one tenant in common may become adverse to others. The possession of one tenant in common may become adverse to his co-teiiants by the assertion of an adverse right and title and notice that the premises are held adversely to the claim of the co-tenants; and such notice need not be a formal one, but may consist of overt acts of exclusive ownership of such a nature as to show the co-tenants -that an adverse possession and disseizin are intended to be asserted.</p> <p>3. Same—statute begins to run when possession of a co-tenant assumes an adverse character. The possession of a co-tenant becomes adverse, as a matter of fact, if his acts are of such a character as to show that he claims exclusive ownership and denies all right or title in his co-tenants, and whenever his possession assumes that character the Statute of Limitations begins to run and an action by the other co-tenants will be barred after the statutory period, has elapsed.</p> <p>4. Same—when possession of life tenant is the possession of the remainder-men and their grantee. Where a co-tenant who has been in the adverse and hostile possession as against the other co-tenants dies leaving a will devising the land to his widow for life with remainder to his children, and the widow continues in the exclusive possession of the land, the possession of the widow is the possession of the remainder-men and their grantee.</p> <p>5. SamH;—when the right of recovery by co-tenants is barred. Where one co-tenant and his devisees have been in the adverse, open, hostile and exclusive possession of land for more than twenty years under a claim of title inconsistent with that of any other person, the right of his co-tenants to bring an action to recover their interest is barred, even though the co-tenant in possession when the other co-tenants became of age, some forty years before the action was begun, recognized that they had an interest in the title by requesting them to make a quit-claim deed to him.</p>

<p>Appeal from the Appellate Court for the First District ;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Rueus F. Robinson, Judge, presiding.</p>

Writ oe Error to the Branch “C” Appellate Court for the First District ;■—heard in that court on writ of error to the Criminal Court of Cook county; 'the Hon. Kickham Scanlan, Judge, presiding.

<p>1. Ejectment—effect of denial of affidavit of common source of title. The effect of the defendants’ denial of the plaintiffs’ affidavit of common source of title is merely to neutralize the affidavit and require the plaintiffs to make such proof as would have been required had no affidavit of common source of title been filed.</p> <p>2. Same—when proof of possession, alone, is sufficient. Proof that the plaintiffs in ejectment had been in adverse possession of the strip of land in controversy for more than twenty years before their possession was invaded by the defendants is evidence of a fee, and must prevail if not rebutted by proof of a higher and better title.</p> <p>3. Same—effect of special plea denying possession. The effect of a special plea by the defendants denying their possession is to merely require the plaintiffs to prove that the defendants were in' possession when the suit was brought.</p> <p>4. Same—proof that holder of title has died raises presumption that he died intestate. In ejectment, proof that the holder of the legal title, under whom the plaintiffs claim as widow and heir, respectively, has died, raises the presumption that he died intestate. (Sielbeck v. Grothman, 248 111. 435, followed.)</p> <p>5. Same—misdescription of estate claimed does not defeat all recovery. Since the amendment of section 12 of the Ejectment act, in 1872, the plaintiffs in ejectment may recover whatever interest they may be able to prove on the trial they are entitled to, notwithstanding the declaration claims the premises in fee.</p> <p>6. Same—when there is a misjoinder of parties plaintiff—the effect. The right to the possession of homestead premises is in the widow, and it is therefore improper for the widow and heir to join as plaintiffs in an action of ejectment to recover a portion of the homestead premises, but under section 27 of the Ejectment act such misjoinder does not prevent a recovery by the widow according to her interest.</p>

<p>1. Special assessments—presumptions are in favor of the validity of ordinance. Where an ordinance has been properly passed by a municipal corporation all presumptions are in its favor.</p> <p>2. Same—difference of opinion between property owners and improvement board not ground for injunction. A bill to set aside a judgment of Confirmation and restrain the city from proceeding further with the construction of a sewer system cannot be maintained, where the most that is shown by the bill is that there is a difference of opinion between the property owners and the board of local improvements as to the kind of improvement to be made.</p> <p>3. Same—when a confirmation judgment will not be set aside. A judgment confirming a special assessment will not be set aside by a court of equity even though it may be wrong in law or fact, or both, if the complaining party had an opportunity to present his defense at law and failed to do so.</p> <p>4. Same—what objections, even if proved, do not render sewer ordinance void. Objections that the board of local improvements did not transcribe its first resolution for a sewer improvement in its records and that such resolution was not signed, that there was no such resolution, and that notices were not ‘ sent to owners of property abutting upon existing sewers, would not, even if proved, render the ordinance void but only defective, and they cannot be raised in a collateral attack on the judgment of confirmation.</p> <p>5. Same—what is not ground for relief in equity against confirmation judgment. The fact that a property owner may refrain from objecting to the confirmation of a special assessment for a sewer improvement because of promises made by the board of local improvements to make other improvements is not ground for relief in equity against the judgment of confirmation, as he is bound to know that the board of local improvements cannot make improvements and that the city council is not bound- by the recommendations of such board.</p> <p>6. Same—bill should set out notice and judgment claimed to be defective. Where it is claimed by a bill to set aside a confirmation judgment that the notice for confirmation and the judgment are defective, the notice and judgment should be set out in the bill or attached thereto as exhibits, in order to determine, on demurrer to the bill, whether they comply with the law.</p> <p>7. Same—when certificate of publication made by secretary of corporation is not invalid. A certificate of publication signed and sworn to by the secretary of a corporation is not invalid upon the ground that the secretary of a corporation has no implied authority to make such a certificate, where the certificate states that he is the authorized agent of the corporation. (City of Chicago v. Stein, 252 111. 409, distinguished.)</p> <p>8. Same—a defective certificate of publication does not overthrow judgment on collateral attack. A defective certificate of publication and affidavit will not be allowed to overthrow a confirmation judgment on collateral attack, as they are merely prima facie evidence, upon which the court may or may not have acted in arriving at its finding of jurisdiction.</p> <p>9. Same—method of notifying property owners, provided by Local Improvement act, is constitutional. The method provided by the Local Improvement act, particularly sections 45, 46 and 51, for notifying property owners, is constitutional.</p>

<p>Appear from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Iroquois county ; the Hon. Frank L. Hooper and the Hon. Dorrance Di-BELL, Judges, presiding.</p>

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

<p>Writ or Error to the Criminal Court o-f Cook county; the Hon. M. E. McKinley, Judge, presiding.</p>

<p>1. Wills—court should, if possible, give effect to intention of testatrix to devote residue of estate to charitable purposes. Where .it clearly appears from the provisions of the will that it was.the intention of the testatrix to devote the residue of her estate to charitable purposes, the court should give such intention effect if it can do so without doing violence to the rules of construction.</p> <p>2. - Same—what bequests are gifts for charitable purposes. Bequests of the residue of the estate of the testatrix “to be equally divided between Home Missions and Foreign Mission and for education of poor children,” are gifts for charitable purposes, and must be considered according to the rules applicable to such gifts.</p> <p>/ 3. Same—gifts to charity need not have same certainty as gifts to individuals. The same degree of certainty is not required in gifts to charity as in gifts to. individuals, and uncertainty as to the object or subject of the gift is not necessarily fatal to its validity.</p> <p>4. Same—when evidence is admissible to show what society or institution was intended. Where there is a gift to a society for charity without clearly specifying the particular society, and there are two or more societies carrying on the same character of charity, a latent ambiguity exists, and extrinsic evidence is admissible to determine the particular society intended by the donor.</p> <p>5. Same—bequests to “Home Missions and Foreign Mission” are valid gifts to charity. Bequests to “Home Missions and Foreign Mission” are valid gifts to charity, to be administered by the respective boards incorporated for those purposes in the church which the evidence of extrinsic facts and circumstances shows was the society intended by the testatrix to have control of the fund.</p> <p>6. Same—equity will not allow a trust to fail for want of a trustee. In Illinois, where the Statute of Charitable Uses is in force, a gift to charity, if the object is definite, will not be allowed' to fail for want of a trustee, and in such case a court of equity will administer the trust or appoint a trustee to administer it.</p> <p>7. Same—bequest “for education of poor children” will be upheld. A bequest “for the education of poor children” is a valid charitable trust, and although no trustee is appointed with power to select the beneficiaries from the class so designated, the trust will not for that reason fail but will be administered through a trustee appointed by a court of chancery.</p> <p>8. Same—to sustain a charitable trust without a trustee being named does not require exercise of prerogative power. To sustain a gift to charity though no trustee was appointed or provided for by the donor does not require the exercise of any prerogative power of a nature sometimes exercised in England, but requires only the exercise of ordinary jurisdiction of a court of chancery.</p> <p>9. Same—when court should not designate any particular institution to administer trust. Where the extrinsic evidence does not clearly show that the testatrix, in making a bequest “for the education of poor children,” had in mind any particular society or institution to administer the trust or any particular members of the class designated as “poor children,” the selection of the particular beneficiaries from the class should be left to the trustee appointed by the court.</p> <p>10. Same—how fund bequeathed to charity should be divided. Where the testatrix directs the residue of her estate “to be equally divided between Home Missions and Foreign Mission and for education of poor children,” such residue should be divided into three equal parts and each of the three mentioned charities should receive one part.</p>

<p>Writ of Error to the Appellate Court for the Fourth District;.—heard in that court on appeal from the City Court of East St. Louis; the Hon. W. M. VandEvEnter, 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. Lockwood Honors, Judge, presiding.

<p>1. Eminent domain—a condemnation proceeding must have statutory authority. A proceeding by a city to condemn land for a. local improvement is not founded on the common law but must have statutory origin.</p> <p>2. Same—in 1893 article 9 of Cities and Villages act was the only authority for condemning land for a local improvement. In 1893 article 9 of the Cities and Villages act of. 1872 was the only authority whereby a city might condemn private property for a local improvement, and the only power possessed by the court in such a proceeding was that derived from said article.</p> <p>3. Same—adoption of a method for making payment excludes other methods. Under article 9 of the Cities and Villages act a city might, in condemning private property for a local improvement, provide for payment of compensation by special taxation, special assessment or out of general funds; but the adoption of one method by the ordinance excludes the idea of payment in any other manner.</p> <p>4. Same—effect where property owner delivers possession before payment of the compensation. If the owner of property condemned by a city for a local improvement to be paid for by special assessment upon property benefited, under the provisions of article 9 .of the Cities and Villages act, voluntarily delivers possession to the city before the compensation is paid he does not thereby waive his right to compensation, but he cannot insist upon payment in any other manner than in that provided for by ordinance.</p> <p>5. Same—article 9 of Cities and Villages act does not cover case where the owner delivers possession before the award is paid. Article 9 of the Cities and Villages act does not cover the case where the owner of land condemned for a local improvement to be paid for by special assessment voluntarily delivers possession to the city before the compensation is paid, and by such action the owner deprives himself of the provisions of the statute under which the court might grant relief in case the city wrongfully took possession without payment of the compensation.</p> <p>6. Same—when the court has no jurisdiction to enter absolute judgment for compensation. Where a property owner, in a proceeding by a city, under article 9 of the Cities and Villages act, to condemn the property for a local improvement to be paid for by special assessment, voluntarily delivers, possession to the city before the compensation is paid, the court has no power, on petition filed by the owner in the original proceeding, to enter an absolute and unconditional judgment against the city for the amount of such unpaid compensation. {St. L. & S. B. Ry. Co. v. Teters, 68 111. 144, and City of Chicago v. Barbián, 80 id. 4.82, explained.)</p> <p>7. Same—property owner delivering possession before compensation is paid is not without remedy. Where the ordinance condemning private property for a local improvement, under article 9 of the Cities and Villages act of 1872, provides that compensation shall be paid by special assessment upon property benefited to the extent it may be legally assessed and the balance by general taxation, a property owner who voluntarily delivers possession to. the city before the compensation awarded is paid may by mandamus compel the city to levy and collect the special assessment if it fails to exercise due diligence in that regard, and if a balance remains unpaid after exhausting the power of special assessment, he may by mandamus compel the city to raise the balance due according to the provisions of the ordinance.</p>

<p>1. Appeals and Errors—-when a freehold is involved in a proceeding to review a foreclosure proceeding. A freehold is involved on appeal from a decree dismissing a bill to review a foreclosure proceeding, even though the original foreclosure decree did not involve a freehold, where the supplemental decree found that the time for redemption had expired and the right to redeem was lost and directed the county clerk to issue a deed.</p> <p>2. Bills oe review—general rule as to who may file bill of review. As a general rule, no one but parties to the suit, or those in privity with them, have the right to maintain a bill of review.</p> <p>’ 3. Same—what does not entitle person to file a bill of review. Where a supplemental decree in a foreclosure proceeding mentions the name of a certain person as claiming some interest in the property and finds that she is not the owner, but it appears from the other pleadings in the case that she was not a party to the foreclosure suit, such person is in no w^ty bound by the supplemental decree nor aggrieved thereby, and she is not entitled to maintain a bill of review. (Bruschke v. Nord Chicago Schuetzen Verein, 145 111. 433, distinguished.)</p> <p>4. Same—when a person is prejudiced or aggrieved by decree. A person is prejudiced or aggrieved by a decree, in a legal sense, when a legal right is invaded thereby or his pecuniary interest is directly affected.</p> <p>5. Same—when a bill of review cannot be filed without leave. While a bill of review may be filed without leave if it is solely for-errors apparent on the face of the record, yet if the bill is filed not only for errors apparent on the face of the record but also for matters requiring extrinsic evidence, the bill cannot be filed without first obtaining leave of the court.</p> <p>6. Same—when offer to amend bill of review filed without leave is of no avail. If a complainant files, without leave of court, a bill of review for errors apparent on the face of the record and for matters requiring extrinsic evidence to establish them, it is of no avail, after objections and a motion to strike are on file, to offer to amend the bill so that it would show that it was filed only for errors apparent on the face of the record and for fraud in obtain-' ing the decree.</p> <p>7. Same—objection that bill of review was filed without leave may be raised by motion to strike. An objection that a bill of review requiring leave was filed without leave, may be raised by demurrer or by motion to strike the bill from the files.</p> <p>8. Same—when cross-bill falls with bill. Where a bill of review is properly stricken from the files as having been filed without leave it is proper to also strike the cross-bill from the files, where the cross-bill is subject to the same objection as the bill of review and could not be filed as an original bill except by leave of court.</p> <p>9. Judgments and decrees—when a supplemental foreclosure decree does not bind person. Where it is necessary in tax foreclosure proceedings, under section 253 of the Revenue act, to make a certain person a party in order to adjudicate his interest in the property but he is not made a party to the original suit, he cannot be precluded as to his interest by a statement in a supplemental decree that he had notice of the supplemental proceeding, and in such case his rights are not affected by the findings of the supplemental decree.</p> <p>' 10. Same—decree not binding when entered will not become so with lapse of time. A supplemental decree in a tax foreclosure proceeding which is not binding upon a certain person at the time it was entered, because she was not a party to the suit, will not become binding by mere lapse of time.</p> <p>11. Same—when supplemental foreclosure decree is not a cloud. A supplemental decree in a tax foreclosure proceeding, which states that a certain person has notice of the proceeding and finds that she is not the owner of the property or any part thereof, does not constitute a cloud upon her title, where it appears from all the pleadings in the foreclosure case that she was not a party to the proceeding.</p> <p>12. Same—finding of a decree as fo notice may be contradicted by other parts of the record. A finding in a decree that certain persons have been duly notified and made parties to the proceeding may be contradicted and overcome by other portions of the record, which is to be construed and tried by itself.</p> <p>13. Same—a party is not prejudiced- or aggrieved by a decree which is invalid, on its face, as to her rights. A party is not prejudiced or aggrieved by a supplemental decree in a foreclosure proceeding where it appears from the face of the entire foreclosure proceeding that it is invalid in so far as it attempts to affect her rights, and in such case she cannot maintain a bill of review.</p> <p>14. Practice—when a party has a right to make a motion to strike. Where a person is made a party defendant to an original bill of review and also to the cross-bill, which allege that she has certain interests, she has a right to make a motion to strike the bill and cross-bill from the files, even though it may appear from the motion that she has transferred her interest, where there is ho finding by the court that she has no interest.</p>

Writ or Error to the Appellate Court for the Fourth District ;■—heard in that court on appeal from the Circuit Court of St.Clair county; the Hon. George A. Crow, Judge, presiding.

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

Writ of Error to the Branch “D” Appellate Court for the Birst District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Barlin Q. Ball, Judge, presiding.

<p>1. Animaes—owner’s knowledge of vicious propensity of dog must be proved. The natural presumption from the habits of dogs is that they are tame, docile and harmless, both as to persons and property, and. in order to render the owner of a dog liable for damages resulting from the vicious or mischievous acts of the animal it must be proved that the owner had knowledge of the vicious or mischievous propensities. ' ,</p> <p>2. Same—what is not sufficient to charge owner of a dog with knowledge. To charge the owner of a dog with knowledge of the vicious or mischievous propensities of the animal it is sufficient if the proof shows that he knew that the dog would be likely to inflict an injury similar to the one complained of; but the fact that he might have known of the vicious or mischievous propensities had he exercised reasonable care is not sufficient to charge him.</p> <p>3. Same—owner of animal is bound to take notice of general propensities of the class to which it belongs. The owner of an animal is bound to take notice of the general' propensities of the class to which it belongs, but he is under no obligation to guard against injuries which he has no reason to expect on account "of some disposition of the particular animal different from the general class, unless he has notice of such disposition or the injury is attributable to some other neglect on his part.</p> <p>4. Same—admissibility of evidence of peaceable disposition of dog. If conclusive proof is made of the vicious propensity of a dog to attack and bite mankind, and it is shown that the owner had knowledge of such propensity, then proof that the dog had acted peaceably at other times would be incompetent; but where the evidence tending to show vicious acts by the dog is contradicted and it is not shown the owner knew of such acts, then proof of the previous quiet and peaceable disposition of the dog is admissible on the question of notice.</p> <p>5. Same—what does not obviate error in excluding evidence of peaceable disposition of dog. The fact that the owner of a dog is allowed to testify that the animal was quiet and peaceable does not obviate the error of the court in refusing to allow his witnesses, who were disinterested persons, to give their testimony, offered for the purpose of showing that the dog had uniformly been of a quiet and peaceable disposition.</p> <p>6. Same—what evidence not competent to show scienter. To show knowledge by the owner of a dog of the vicious disposition of the animal, it is not competent to show the knowledge acquired by virtue of the particular attack upon which the action against the owner for damages is based.</p> <p>■ 7. Attorneys at eaw—attorneys are not incompetent to testify. Attorneys are not incompetent to take the stand as witnesses in the case they are trying, but their relation to the case is a matter which affects their credibility.</p>

<p>1. Nuisances—city cannot declare that to be a nuisance which is not, in fact, a nuisance. The law authorizes a city to declare what shall be a nuisance; but this does not authorize it to act arbitrarily, and declare that to be a nuisance which is not, in fact, a nuisance.</p> <p>2. Same—when city’s determination that a thing is a nuisance is conclusive. Where a thing is of such a character that in its nature it may be a nuisance but as to which honest differences of opinion may exist among men of impartial minds as to whether it is actually a nuisance or not, the determination of a city that it is a nuisance is conclusive.</p> <p>3. Same—when city’s declaration that thing is a nuisance is not conclusive. Where a thing is not, in its nature, a nuisance but-may become so by reason of its locality, surroundings or the manner in which it is conducted, the city can only declare it to be a nuisance if it is, in fact, a nuisance.</p> <p>4. Same—railroad cannot be compelled to abandon the use of tracks on mere declaration of city that such use is a nuisance. A railroad company which has acquired the right to cross the streets of a city cannot be required to take up its tracks or abandon the use of the streets upon the mere declaration of the city that such use is a nuisance.</p> <p>5. Same—how ordinance should be framed where thing is not, in its nature, a nuisance. Where a thing is not, in its nature, a nuisance but may become so under certain circumstances, an ordinance intending to declare the thing a nuisance under such circumstances should be directed against the circumstances which create the nuisance and not against the thing itself.</p> <p>6. Same—what does not show that a thing is a nuisance. The fact that damages may be recovered by a property owner who is injured by a structure or business does not show that such structure or business is a public nuisance.</p> <p>7. Same—question whether ordinance is valid cannot be left to the jury. An ordinance declaring a thing which is not a nuisance per se to be a nuisance, is, if valid, a law within the municipality, and the question of its validity cannot be left to the jury as a question of fact depending upon the evidence in a particular case, but the only question for the jury is whether the evidence establishes a violation of the terms of the ordinance,</p> <p>8. Same—effect where preamble of ordinance recites manner in which use of switch tracks is offensive. A preamble which recites the manner in which the use of switch tracks is productive of public injury and annoyance amounts to no more than a statement of the reasons for enacting_ the ordinance, and is of no effect where the ordinance does not declare the use of the tracks in the manner specified in the preamble to be a nuisance, but dedares to be a nuisance any use of such tracks for switching, storing, loading or unloading cars within a- business district created by the ordinance.</p> <p>9. Same—an ordinance declaring switch tracks in business district a nuisance is invalid. A city, under its police power, may declare under what circumstances and conditions the maintenance and operation of switch tracks shall be a nuisance, but an ordinance which merely 'established a “business district,” within the limits of which the use of switch tracks or sidings for setting out, switching, storing, making up or passing freight cars, freight trains or engines, or for loading or unloading freight cars, is declared to be a nuisance, is invalid. ,</p>

<p>1. Ante-nuptial contracts—rules of construction applicable to other contracts apply to ante-nuptial contracts. The rules of construction governing other contracts apply in construing ante-nuptial contracts, and the entire instrument should be considered, together with its general scope and purpose, and‘effect should be given to the intention of the parties as shown by the language used.</p> <p>2. Same—circumstances surrounding the parties may be considered. The conditions and circumstances surrounding the parties at the time the agreement was made, so far as they are shown by the record, are proper matters to be considered in construing an ante-nuptial contract.</p> <p>3. Same—parties may release rights in property conveyed or devised without releasing right to inherit. The parties to an ante-nuptial contract may, by the use of proper language to that effect, release their rights with respect to the separate property of the other, conveyed during life or devised by will, without releasing the right to inherit property not so conyeyed or devised.</p> <p>4. Same—release of right to inherit need not be stated in express terms. If the language used in an ante-nuptial contract is broad enough to include a release of the right to inherit, and appears to have been intended to do so, it will be given that effect, the same as though there were an express statement in the contract releasing such right.</p> <p>5. Same—when ante-nuptial contract releases husband’s right to inherit. An ante-nuptial contract by which the parties agree, in consideration of the marriage, that neither shall, by reason of such marriage, “take any right, title or interest in or to the property of the other, either during their lives nor after the death of either,” and that the husband will never, at any time, claim any right, title or interest in or to any property owned by the wife, “either during her lifetime or upon her death,” releases all the husband’s rights in the wife’s property after her death, including his right to inherit, and not merely to such of it as she conveys in her lifetime or devises by will.</p>

<p>1. Fraud—fraud rarely established by direct evidence. Fraud is rarely established by direct and positive evidence, but, like any other fact, it may be proved by circumstances which convince the mind of its existence.</p> <p>2. Same—-when transaction by one tenant in common is fraudulent as to the other. Where one tenant in common, in pursuance of a design to acquire the other co-tenant’s interest, delays payment of interest on a mortgage until it is foreclosed and then procures his son to redeem from the sale for his benefit, the transaction is fraudulent as to the rights of the other co-tenant, and she may enforce her rights in equity against him and the son.</p> <p>3. Same—when statements and declarations of a co-tenant are admissible. Where a bill charges fraud and conspiracy on the part of the complainant’s co-tenant and his son to obtain complainant’s interest by suffering a foreclosure of an encumbrance upon the property and having the son purchase the certificate of sale, admissions and declarations by the co-tenant defendant, after the purchase of the certificate of sale, to the effect that he owned the property, are admissible though made out of the son’s presence.</p> <p>4. Statute of Frauds—defendants must plead the Statute of Frauds to take advantage of it. Defendants to a bill charging fraud in obtaining complainant’s interest in land by means of a collusive redemption cannot take advantage of the Statute of Frauds unless it is pleaded, and their failure to plead the statute is not excused by the claim that they could not anticipate the nature of the proof to be made by the complainant.</p> <p>5. Redemption—when a complainant need re-pay but half of amount paid to redeem.- Where the proof shows that a redemption was made by a third party, as the agent of one co-tenant, for the purpose of defrauding the other co-tenant, a decree finding the latter to be entitled to share in the benefit of the redemption need only require her to re-pay to the agent one-half of the amount paid by him to redeem.</p>

Appear 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. Homer Abbott, Judge, presiding.

<p>Appear from the County Court of Wayne county; the Hon.' A. N. TorrivER, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, 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. William H. McSurELY, Judge, presiding.

<p>1. Pleading—when defective counts are cured by verdict. Defects in certain counts of the declaration in a personal injury case of such a nature that they are available on demurrer are cured by verdict where the issue joined necessarily required proof of the facts defectively stated, and where it cannot be presumed, without such proof, that the court would have directed or the jury would have given the verdict.</p> <p>2. Negligence—rule as to proving due care by decedent where no one saw the accident. Where there are no eye-witnesses to the accident which caused the death of the plaintiff’s intestate the plaintiff may establish ordinary care on the part of the deceased by the highest proof of which the case is capable, including the habits of the decedent and any other facts and circumstances from which the jury may rightfully infer that he was exercising such care.</p> <p>3. Same”—when rule that negligence of lessee railroad is conclusively imputed to lessor does not apply. The rule that the negligence of a lessee railroad is conclusively imputed to the lessor has no application to counts in a declaration charging joint liability against two railroad companies alleged to have been using, jointly, the tracks where the accident occurred, and in such case the plaintiff is entitled to a verdict and judgment against the railroad company shown by the evidence to have been guilty of the negligence charged.</p> <p>4. Same—when a verdict of not guilty as to one railrbad does not preclude verdict against another. Where certain counts of a declaration charge that one railroad company owned, and the other used, the tracks where the accident occurred but the other, counts merely aver joint user and joint liability, the fact that the court, at the close of the evidence, directed a verdict in favor of the company charged as owner, after which the counts charging ownership were dismissed, does not preclude the jury from returning a verdict of guilty against the other company under the" counts charging joint user and liability.</p> <p>5. Same—rule as to suing different defendants in tort. The plaintiff in an action of tort may sue as many defendants as he chooses and have judgment against those, only, who are proven guilty; and even after verdict finding joint liability it is not error for the court to enter judgment against one defendant alone and permit the plaintiff to dismiss the suit as to the others.</p>

<p>Writ or Error to the Circuit Court of McDonough county; the Hon, Harry M. Waggoner, Judge, presiding.</p>

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

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

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

<p>Appeal from the County Court of Logan county; the Hon. Charles J. Gehlbach, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Erost, Judge, presiding.</p>

<p>Writ op Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Massac county; the Hon. A. W. Lewis, Judge, presiding.</p>

<p>1. Drai-nagb—circuit and county courts have concurrent jurisdiction in organizing district. Under the statute the circuit court and county court have concurrent jurisdiction in the matter of organizing levee drainage districts, and the court first acquiring jurisdiction of particular territory will retain it to the exclusion of the other.</p> <p>2. Same—when petition in county court is properly dismissed. Where the circuit court has acquired jurisdiction over particular territory for the organization of a levee drainage district, a subsequent petition to organize a levee drainage district embracing a part of the same territory is properly dismissed on motion supported by a showing of the fact, and the county court would have no power to appoint commissioners, thereby assuming jurisdiction, and leave to the commissioners the matter of excluding in their report the land under the jurisdiction of the circuit court.</p>

Frank D. Ramsay, Judge, presiding. Appellee, Frank J. Taylor, and his mother, Deborah Taylor, filed their bill in the circuit court of Henry county to set aside certain deeds executed by the appellee to his brother, Albert C. Taylor, appellant, and for other relief. John H. Taylor, the father of appellant and appellee, resided in Henry county, Illinois, and died intestate June 4, 1898.

<p>Writ oE Error to the Criminal Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.</p>

<p>1. State Board of Agriculture—State Board of Agriculture is an arm or agency of the State. The State Board "of Agriculture was created as an arm or agency of the State for «the purpose "of managing and conducting a department of the State, and all powers conferred and duties enjoined upon the board are for the purpose of enabling it to manage the department in such manner as to best promote the objects of its creation.</p> <p>2. Same—power to make rules does not render State Board of Agriculture a private corporation. The fact that the act creating the State Board of Agriculture gives it power to make rules and regulations for the efficient management of the department, which, under the statute, includes the holding of State fairs, does not take from the board its public character and subject it to the liability of a private corporation.</p> <p>3. Same—State Board of Agriculture is not subject to liabilities of a private or quasi public corporation. The State Board of Agriculture acquired no rights by the statute creating it' which the legislature cannot" change or abolish at any time, and all of the property acquired by it from all sources is trust property required to be used for the benefit of the department of agriculture, and hence said board is neither a private nor quasi public corporation and is not subject to the liabilities of either.</p> <p>4. Same—provision authorising State Board of Agriculture to sue and be sued construed. The provision of the statute providing that the State Board of Agriculture may sue and be sued has reference only to obligations incurred by contract in the management of the department of agriculture, and does not refer to an action of tort.</p> <p>5. Same—State Board of Agriculture not liable in an action of tort. The State Board of Agriculture is not liable in an action for damages for an injury received by the collapsing of the elevated seats or bleachers provided for spectators of the races at x the State Fair, even though the board may have been guilty of negligence in not discovering the defective condition of said seats or bleachers. '</p>

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

<p>Writ of Error to the Superior Court of Cook county; the Hori. M. E. McKinley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of DeKalb county; the Hon. Mazzini Slusser, Judge, presiding.</p>

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

<p>Appear from the County Court of Mercer county; the Hon. Henry E. Burgess, Judge, presiding.</p>

<p>1. Courts—the judge can enter no order in vacation not authorized by statute. Courts can exercise judicial functions only at such times and places as are fixed by law, and judges of courts can enter no orders in vacation except such as are expressly authorized by statute.</p> <p>2. Practice—approval of decree is the authority of the clerk to enter it of record. The practice in Illinois is for the solicitor of the party in whose favor a decree is pronounced to write it out in due form and submit it to the chancellor for approval, which is the clerk’s authority to enroll it or enter it upon the record.</p> <p>3. Same—when entry of decree in vacation is error. Where a cause is heard in term time and an order entered that “upon consideration of the evidence a decree is entered as per draft to be filed,” but there is nothing to show in whose favor the decree is entered or what the decree is, or that the cause has been taken under advisement or that the parties have agreed to the entry of a decree in vacation, it is error to permit a decree to be entered long after the adjournment of the term, even though it is entitled as of the previous term and is filed on a date in vacation “as of” a date in the previous term.</p> <p>4. Same—what does nqt amount to an impeachment of record. Where the record shows that a decree was not entered until long after the adjournment of the term at which the cause was heard, the fact that the decree is entitled as of such term does not so establish the time of its entry as to make it an impeachment of the record to hold that it was not entered until after the term.</p>

<p>1. Special assessments—a city may condemn private property for- outlet sewer, under Local Improvement act. A city which has passed an ordinance, under the Local Improvement act of 1897, for a system of sewers in the city and an outlet sewer outside of the city, has power, under such act, to condemn private property outside of the city for the outlet sewer.</p> <p>2. Same—a condemnation petition may be filed at a probate term. Under section 51 of the present Local Improvement act a petition by a city to condemn land for a local -improvement may be filed at a probate term of the county court and all subsequent proceedings be had at probate terms.</p> <p>3. Same—county court takes judicial notice of person holding office of city clerk. The certificate of a city clerk to the copy of the ordinance filed in the county court with the petition to condemn land for a local improvement is not defective because the city clerk does not certify that he is the city clerk but only describes himself as city clerk by way of recital, as the county court will take judicial notice of the persons holding the office of city clerk in the various cities of said county.</p> <p>4. Same—objections are properly sustained to questions having no bearing upon the issues to be decided by the jury. Under section 23 of the Local Improvement act the only issues to be determined by the jury in a proceeding to condemn land for a local improvement are those involving compensation for land taken or damaged and the amount of benefits, and questions asked of a witness which relate only to the matter of the city’s good faith in making the improvement have no bearing on such issues, and it is proper to sustain objections thereto.</p> <p>5. Same—report of commissioners is not evidence of value or damages. The provision, of section 23 of the Local Improvement act that the report of the commissioners “shall be prima facie evidence both of the amount of the compensation to be awarded and of the benefits to be assessed” merely changes the burden of proof in the first instance, and if. the defendant introduces evidence upon the question of compensation and benefits then the report of the commissioners ceases to have any weight as evidence, and it is incumbent upon the city to make proof upon those questions if it is not satisfied with the defendant’s proof.</p> <p>6. Same—jury have no right to disregard testimony and base verdict upon their view of the premises. In a proceeding to condemn land for a local improvement the jury have no right to disregard the testimony of the defendant’s witnesses as to the questions of compensation and benefits and base their verdict solely upon their view of the premises or upon the report of the commissioners.</p>

<p>Appeal from the Circuit Court of Henderson county; the Hon. Harry M. Waggoner, Judge, presiding.</p>