Volume 260 — Illinois Reports

<p>1. Appeals and Errors—bill by tax-payer to enjoin collection of special assessment relates directly to revenue. A bill by a taxpayer for an injunction to restrain the collection of a special tax or special assessment relates directly to the revenue, and an appeal in the case lies directly to the Supreme Court.</p> <p>2. Highways—effect where bridge approach owned by city is subsequently included within limits of a village. Where a bridge, and a toll road leading thereto and lying outside the limits .of a city, are purchased by the city for the use of the public, but thereafter a village is organized which includes the toll road within its corporate limits, such road comes under the control of the village and may be improved by the village the same as other streets within its corporate limits.</p> <p>3. Injunction—what objections camnot be urged in proceeding to enjoin special tax. Objections that property which should have been specially taxed for the improvement of a street has been omitted and that the fee of the street to be improved is not in the municipality levying the tax and making the improvement are objections which should be raised in the county court before the tax is confirmed, and they cannot be urged in a collateral proceeding to enjoin the collection of the tax.</p> <p>4. Same—when equity will'not grant relief against judgment at law. The power of a court of equity to grant relief against a judgment at law must be exercised according to fixed rules, and it is no ground for relief in equity that a judgment is wrong in law or in fact if the complaining party had an opportunity to make a defense at law and failed to do so.</p> <p>5. Special taxation—what does not excuse failure to file objections. That misleading statements were made to property owners by the board of local improvements affords no excuse for the failure of such owners to file objections to the confirmation of tax.</p> <p>6. Same—a village has-power, by ordinance, to fix amount of public benefits. A village has power, when passing an ordinance for the improvement of a street by special taxation, to fix the amount of public benefits.</p> <p>7. Same—when a street railway company need not be made a party to proceedings. Where the ordinance granting the franchise to a street railway company provides that the company shall pave its right of way when the other portions of the street are paved, it is not necessary that the company be made a party to a proceeding to pave such other portions of the street by special taxation.</p>

<p>.Writ oE Error to the Criminal Court of Cook 'county; the Hon. Thomas G. Winbes, Judge, presiding.</p>

<p>1. Master and servant—master is not an insurer of the competency of his servants. It is the master’s duty to exercise ordinary care in the selection of his servants and to employ such as are fairly skillful and competent, in order that other employees may not be endangered by the misconduct of persons not possessed of reasonable qualifications, but he is not an insurer of the competency of his servants.</p> <p>2. Same—when a servant cannot recover because of incompetency of another servant. While the danger resulting from the incompetency of fellow-servants is not one of the usual risks assumed by a servant by his contract of hiring, yet where a servant, knowing the incompetency of another servant, continues to work with him he assumes the risk of injury resulting from such Incompe.tency, and the master is not liable.</p> <p>3. Same—when a conductor assumes risk of incompetency of a person acting as motorman. A conductor on a •'street car who knows the incompetency of the night foreman at the car barns to act as motorman, and who protests against his acting as motorman but nevertheless accompanies him on the car instead of insisting upon a competent motorman being furnished, assumes the risk of the incompetency of such foreman.</p> <p>4. Same—when rule permitting recovery when a servant is injured in obeying order of foreman acting as fellow-servant does not apply. The rule permitting a recovery of damages by a servant injured while obeying an order of his foreman, who at the time was acting - as a fellow-servant, does not apply where the order relates'to the performance of a usual duty of the servant, which is not connected with any concealed danger known to the foreman and unknown to the servant. (Norton Bros. v. Nadebok, 190 Ill. 595, and Roebling Construction Co. v. Thompson, 229 id. 42, explained.)</p> <p>5. Same—when a street car conductor cannot recover for injuries resulting from a motorman’s negligence. Where the night foreman at the car barns is acting as motorman he is a fellow-servant of the conductor on the car, and the fact that at the time the conductor was thrown out of the front vestibule, due to the foreman’s improper handling of the car, he had stepped out'there to hand the foreman his trip-sheet, which the foreman had ordered him to make out and which was a regular duty for the conductor to perform, does not entitle the conductor to recover damages.</p>

<p>Appear from the Circuit Court of Marshall county; the Hon. T. N. GrEEn, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Gallatin county; the Hon. William H. Green, Judge, presiding.</p>

<p>1. Infants-—ratification of contract made during minority is a question of intention. In order to constitute a ratification of a contract made during minority the act relied upon as a ratification must be performed with full knowledge of its consequences and with express intent of ratifying what is known to be voidable.</p> <p>2. Same—when alleged ratification is ineffectual. Where the same lack of knowledge exists at the time of an alleged ratification of a contract made during minority as existed at the time the contract was made, the alleged ratification is held to be a part of the original transaction and is ineffectual.</p> <p>3. Same—when infant should be required to quit-claim his interest. Where a deed made by a minor in exchange for a deed to a certain farm' is set aside in equity at his instance, the decree should require him to quit-claim his interest in the farm to such person as the court directs.</p> <p>4. Same—other party need not be placed in statu quo when infant’s deed is disaffirmed—allowance for improvements. To -give effect to an infant’s disaffirmance of his contract it is not necessary that the other party shall be placed in statu quo; but the purchaser from an infant whose deed has been avoided is entitled to be allowed for the improvements placed by him upon the land, by setting off the same against the rents and profits.</p> <p>5. Same-—when correctness of accounting, as to infant, cannot be inquired into. Where the deed of an infant-is set aside by a court of equity at his instance and no cross-errors are assigned on appeal by the other party from the decree, the correctness of the accounting provision of the decree, in so far as the infant is concerned, cannot be' inquired into.</p>

<p>1. Criminae eaw—jury must ñx term of imprisonment for incest. As the statute specifying the punishment for incest fails to fix a minimum term of imprisonment the jury must fix the punishment, and it is reversible error for the court to impose an indeterminate sentence under the Parole law.</p> <p>2. Same—what does not show that the -grand jury was illegal. A certificate by the county clerk stating that there was no request, in writing, by at least one-third of the members of the board of supervisors requesting a meeting in December does not show that a grand jury selected at the December meeting was illegal, where the certificate is silent as to whether there was an adjournment of the regular September meeting to December.</p> <p>3. Same—when allowance of a motion to amend is within discretion of court. Where a general motion to quash the indictment has been made and overruled, a plea of not guilty entered and two continuances had on motion of the accused, it is within the discretion of the trial court to allow the plea of not guilty to be withdrawn and the motion to quash amended so as to specify the grounds therefor.</p> <p>4. Same—■proof of complaint ’by the victim is limited to the offense of rape. The rule permitting proof, in a prosecution for rape, of immediate complaint by the woman assaulted does not extend to other offenses, but is merely an exception to the rule which forbids hearsay evidence.</p> <p>5. Same—what does not amount to proof of complaint in a prosecution for incest. Where one defense in a prosecution for incest is that the defendant’s daughters and their aunt have conspired to send him to the penitentiary and secure his property, it is competent to show that the aunt came to Illinois and assisted in the prosecution after receiving a letter from the daughter written after the occurrence charged in the indictment, and such proof does not amount to proof of a complaint, there being no evidence of the contents of the letter nor that any complaint was made.</p> <p>6. Same—the proof of previous acts of incest is admissible. Where the State’s attorney has elected to rely for a conviction upon the act of incest charged as occurring on a certain date, it is not error to permit the wronged daughter to testify to the frequent repetition of the same acts covering a period of four and one-half years prior to the date relied upon, as the logical connection between the series of acts is such that one tends to establish another, and all are admissible.</p> <p>7. Same—proof of three acts of incest on same date does not require further election of offences. Where the State’s attorney has elected to rely for a conviction upon an act of incest committed on a certain date, proof that on that date there were three different acts of incest does not require the State’s attorney to make a further election as to which particular act he will rely upon for a conviction, as the repetition of the’ acts on the same date does not make them distinct felonies.</p> <p>8. Same—daughter cannot be an accomplice to crime of incest committed upon her. Under the Illinois statute concerning incest the daughter is regarded as the victim and not an accomplice and cannot be indicted for the offense, and it is error to give instructions concerning the weight to be given her testimony, based upon the ground that she was an accomplice to the crime, even though her testimony might be construed to indicate that she was a willing participant in the act.</p> <p>9. Sam®—test in determining whether person is an accomplice. An accomplice is one who is associated with another in the commission of a crime, and the test is whether he or she could be indicted for the offense.</p>

<p>■ Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Wiias—presumption against intestacy does not prevail over an intention expressed in the will. The presumption that the testator intended to dispose of his entire estate by the will is only a presumption, and will not prevail o.ver an intention expressed in the will.</p> <p>2. Same—the law favors vesting of estates. The law favors the vesting of estates, and in the absence of words expressing a clear intent to the contrary an estate devised by will will be construed as vested; but if the will shows a clear intent to the contrary such intention must prevail.</p> <p>3. Same—in doubtful cases the courts will construe a condition as subsequent rather than precedent. Since a condition precedent is one which must be performed before the estate will vest, the courts, in doubtful cases, will hold a legacy to be a charge upon the land rather than hold the payment thereof to be a condition ■precedent to the vesting of the title.</p> <p>4. Same—when a condition must be held to be precedent. A provision in a will devising a farm to the testator’s son after the death of the testator’s wife, that “before he shall receive the farm” he shall pay to the testator’s daughter a cert.ain sum as her share of the farm and a certain sum to the testator’s step-son, and upon the son filing the receipts of such payments with the county clerk “he shall have the above described lands under this will,” must be held to be a condition precedent to the vesting of the estate.</p> <p>5. Same—what is not a contingent remainder, to take effect upon succession. Where a testator gives a life estate in a farm to his wife and provides that after her deáth the farm shall go to his son, but before he receives the farm the son shall pay certain legacies and file receipts therefor with the county clerk, the son’s interest is not a contingent remainder, to take effect, by succession, on the termination of the life estate, but is a contingent future interest, which will become vested upon payment of the legacies after the expiration of the life estate.</p> <p>6. Same—refusal to accept legacies does not defeat the devise. Refusal by legatees .to accept the legacies when payment thereof is tendered, thereby preventing the performance of the condition precedent upon which the estate was to vest in the party making the tender, does not defeat the devise, but the title will vest upon payment of such legacies into court for the benefit of the legatees.</p>

<p>1. Special assessments—the word “roadivays,” used in resolution, does not necessarily mean full width of street. The word “roadways,” used without qualification in a resolution for a paving improvement, does not necessarily mean that part of the legally established street which has previously been improved and used by the public, and the fact that the width of the streets specified in the ordinance differs from the width of the roadways specified in the resolution is not necessarily a variance. (Gardner v. City of Chicago, 224 Ill. 254, distinguished.)</p> <p>2. Same—when paving ordinance will not be held void for unreasonableness. The character of a pavement to be constructed is, under the law, to be determined by the city council in its discretion, and the ordinance will not be held void for unreasonableness as to the character of the improvement unless the evidence clearly shows that it is arbitrary, unjust and oppressive, in view of the uses to which the improvement will be subjected.</p> <p>3. Same—verdict as to benefits will not be lightly overturned. Whether property benefited has been omitted from assessment and whether other property has been assessed more than its share of the cost are questions which must be determined largely from the opinions of the witnesses, and if the evidence is conflicting the verdict of the jury should stand, on appeal, unless against the clear weight of the evidence.</p>

<p>1. Nuisances—jurisdiction of equity• to enjoin a nuisance will be exercised with caution. Courts of equity have jurisdiction to grant relief 'against either public or private nuisances by compelling their abatement, but this jurisdiction will be exercised with caution and only in extreme cases, unless the rights of the parties and the fact of the nuisance have been settled in an action at law, in which case granting an injunction is a matter of course.</p> <p>2. Same—a municipal corporation may, in a proper case, call upon court of equity to abate nuisance. A municipal corporation, in the exercise of the power granted to it by the State to abate nuisances, may, in a proper case, call upon a court of equity .for assistance, but if there is a substantial dispute as to the facts or the law, and the question is in doubt, a trial at law will be required before a court of equity will intervene.</p> <p>3. Same—when an obstruction of alleged streets is not a nuisance per se. The obstruction of alleged streets by buildings and slack piles of a coal washing company does not constitute such a nuisance per se as will justify interference by a court of equity before the facts and the rights of the parties have been settled in an action at law, where such condition has existed for many years and it does not appear that the' public has suffered any inconvenience or that travel is .prevented or seriously incommoded by such obstruction.</p> <p>4. Same—when recovery of judgments at law does not establish right to injunction. The fact that a city has recovered several judgments at law against a coal washing company for violating ordinances providing for the abatement of nuisances does not establish the city’s right to an injunction, where such judgments are all pending on appeal.</p> <p>5. Same—what necessary in order to authorise injunction before fact of rmisance is established 'at law. In order to authorize an injunction to restrain the continuance of a business 0which is not a nuisance per se, before the fact of the nuisance has been established at law, the law must be beyond question and the facts must be clearly established and must show a case of pressing necessity for interference by a court of equity.</p>

<p>Appear from the Circuit Court of Stephenson county; the Hon. Arthur H. Erost, Judge, presiding.</p>

<p>1. Deeds—heirs and devisees cannot attack conveyance merely because it was voluntary. Where there are no creditors a husband has a legal right to make a voluntary conveyance to his wife through the medium of a third party, and heirs and devisees of the husband, who claim merely as. volunteers, have no right to attack the conveyance to the third party upon the ground that it was without consideration and decreased the husband’s estate.</p> <p>2. Equity—doctrine of equitable conversion. The doctrine of equitable conversion rests upon the maxim that equity regards that as done which ought to be done, and under such doctrine real estate may, in a proper case, be regarded in equity as personal property and personal property be regarded as real estate. '</p> <p>3. Same—when proposed vendor is regarded in equity as trustee of the naked title. Where a valid, enforcible contract for the sale of real estate has been made, equity, as between the vendor and vendee, regards the vendee as the owner of the land and the vendor as the owner of the purchase money and trustee of the naked legal title to the land for the benefit of the vendee.</p> <p>4. Same—rule where vendor dies intestate before carrying out the contract of sale. Where the owner of land makes a valid, en-forcible contract for its sale but dies before the contract is carried out, without having made any other disposition of the land by will, the land, or whatever interest he has therein, will be regarded, under the doctrine of equitable conversion, as personal property, and will be treated as assets in the hands of his personal representative. (Wright v. Minshall, 72 Ill. 584, Covey v. Dinsmoor, 226 id. 438, and Adams v. Peabody Coal Co. 230 id. 469, explained.)</p>

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

<p>1. Municipal corporations—when city can declare a thing a nuisance only if it is a nuisance in fact. If a business is not in its nature a nuisance but may become one by reason of its locality, surroundings or the manner in which it is conducted, a city can declare it to be a nuisance only if it is one in fact.</p> <p>2. Same—when an ordinance cannot be sustained as a health measure. An ordinance prohibiting the establishment or maintenance of an ice-making house or cooling plant within four hundred feet of any church, hospital or school cannot be sustained as a health measure.</p> <p>3. Same-—city has no power to prohibit ice plant within four hundred feet of church or school. A city has no express or implied power, under the statute, to absolutely prohibit the erection or maintenance of an ice-making and cooling plant within four hundred feet of any church, .hospital or school, without regard to any other condition or circumstance.</p>

<p>1. Wills—it is the duty of an executrix to defend the will. It is the duty of an executrix to defend the will when the same is attacked by heirs.</p> <p>2. Same—term “undue” influence means “wrongful” influence. “Undue” influence means “wrongful” influence, but influence which is secured by a child merely through the parent’s affection is not wrongful unless it goes to the extent of depriving the parent of his free agency.</p> <p>3. Same—what does not show undue influence. Proof that the testator’s son, who was one of the four principal beneficiaries of the will, sharing equally with the other three, who were his sisters, accompanied the testator to the scrivener’s home, sent for a stenographer, said the will must be made that day as he was going away, and stated that the testator was not going to allow his three grandchildren to share equally with the children because their mother had treated him shabbily, does not show such undue influence as avoids the will, where the testator lived for several months thereafter with the will in his possession and the son lived in a foreign State, thus giving the testator ample time to change his will if he so desired, there being no question of his mental ability to do so.</p> <p>4. Same—undue influence must operate at time of the transaction sought to he impeached. Undue influence such as will avoid a deed or will must go to the extent of depriving the grantor or testator of his free agency and must operate at the time of the transaction sought to be impeached.</p>

<p>1. Master and servant—relation does not exist unless power to discharge exists. The relation of master and servant does not exist unless the person sought to • be held as the master has the control of the alleged servant, which involves the power to discharge, and hence the relation does not exist unless the power to discharge exists.</p> <p>2. Same—what does not make an employee the servant of his employer’s customer. A servant sent to do work which his employer has agreed to perform for a customer does not become the servant of the customer merely by having the work pointed out to him and doing it.</p> <p>3. Same—what provisions of a contract do not make customer the master of other party’s teamsters. Provisions in a contract between a gas company and a person who has agreed to do the company’s hauling that the drivers furnished shall be satisfactory to the company and the teaming be done in accordance with the direction of the company’s superintendent, are nothing more than an agreemeiit that the work shall be satisfactorily done, and do not make the teamsters the servants of the company in doing the hauling.</p> <p>4. Same-—when teamster is not a volunteer under the direction of the party for whom the hauling is done. A teamster sent by his employer to do hauling which the employer has agreed to do for a customer is not a volunteer, in the sense that the acceptance of his services by the customer renders him the servant of the customer the same as though working for hire.</p> <p>5. Same—when gas company is not liable for injury caused by teamster. Where a teamster sent by his employer to do hauling which the employer has agreed to do for a gas company, hauls a load of gas pipe to the place directed by the company, and, after unloading it in the street near the opening of a tunnel, stumbles and knocks a piece of gas pipe into the tunnel while on his way to attend to one of his horses, the gas company cannot be held liable for an injury inflicted by the falling pipe on a man working near the mouth of the tunnel.</p> <p>6. Same—when question of relation of the parties is to be determined by terms of the contract. Where a person has a written contract to do the hauling and teaming for a customer the relation in which the teamsters furnished by such person stand to the customer is to be determined from the terms of the written contract, and the construction of the contract is a matter of law for the court and not for the jury.</p>

<p>On. and gas—what does not show an abandonment of lease. The fact that the owner of an oil and gas lease has drilled only-one well upon the premises, which, though pumped daily, does not produce oil in paying quantities, does not show an abandonment of the lease such as entitles the lessor to have it canceled; nor can the lease be held to he forfeited for breach of an implied covenant to work the property with due diligence, where there are no allegations in the bill under which such relief could be granted.</p>

<p>1. Constitutional law—constitutionality of a statute cannot be determined upon pleadings, alone. The constitutionality of a public law, which affects alike all citizens who may come within its provisions, cannot be determined upon the admissions or stipulation of the parties to a suit, as such a course might lead to the entire abrogation of a statute by agreement. (Happel v. Brethauer, 70 Ill. 166, followed.)</p> <p>2. Same—whether an act was properly passed cannot be determined upon demurrer, alone. Where the defendant in an action for damages relies, by special plea, upon a statute as presenting a deffense to the suit, and the plaintiff, by replication, sets out the various steps taken by the General Assembly for the purpose of showing that the statute was never constitutionally enacted, the court cannot determine that question solely upon a demurrer to the replication, but should either require proof of each step taken by the General Assembly before passing upon the demurrer, or should strike the demurrer from the files and require the parties to join issue.</p>

<p>1. Wills—court of equity has no jurisdiction of bill to establish a lost will. A court of equity has no jurisdiction of a hill to establish the existence of a lost or destroyed will, as that matter, as well as the probating of the will after it has been established, is within the exclusive jurisdiction of the probate court.</p> <p>2. Same—probate court has jurisdiction to determine eifect of alterations. Whether alterations in a will were fraudulently or innocently made, and what effect the same shall have upon the devises or bequests, are questions to be determined by the probate court upon application to admit the will to probate, and if the parties are dissatisfied with the order of the probate court in that regard they should appeal, instead of attempting to bring the matter before a court of equity by original bill.</p>

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

<p>1. Drainage—when the description of land is not uncertain.' Under the rule that where a deed describes a tract of land as so many acres in a certain corner of a specified section it will be taken to embrace the given number of acres in the form of a square in the corner of the section designated, descriptions of land in a petition to organize a drainage district, as “the south-west 25 acres of 5. E. J4 S. W. and “S. W. % S. W. % except N. W. 10 acres,” are not void for uncertainty.</p> <p>2. Same—failure to give notice as required by statute is unimportant if all owners were present. Failure to give the notice of the hearing on a drainage petition in the manner required by the statute is unimportant if the record shows that all land owners of the proposed district were either present in person at the hearing or were represented.</p> <p>3. Same—when order finding that petition is properly signed is not supported. An order of the county court finding, “from an affidavit now on file,” that the petition is signed by one-third of the adult owners of land owning “the major portion of the la'nds in said proposed district,” is not supported where the affidavit referred to does not state they own the major portion of the lands but “more than one-third of the land in said district.”</p> <p>4. Same—when affidavit does not give county court jurisdiction. An affidavit which states that the petition for the proposed drainage district is signed by “more than- one-third of the adult owners of land in said district and that said signers are the owners of more than one-third of the land in said district,” does not comply with section 2 of the Levee act, which requires that one-third of the adult owners must own a major portion of the land, and as the affidavit is insufficient to give the county court jurisdiction the petition should be dismissed.</p> <p>5. Same—organisation of drainage district is a statutory proceeding. The organization of a drainage district is a statutory proceeding, and every essential step required by the statute must be taken and must affirmatively appear of record in order to give the court jurisdiction to organize the district.</p> <p>6. Same—when county court loses jurisdiction. Under section 13 of the Levee act a drainage district cannot be finally organized until after the hearing of the report of the commissioners in pursuance of an order of the court continuing the cause for that purpose to a day certain, and hence if the county court enters an order purporting to finally organize the district after appointing the commissioners and makes no order for a continuance to a day certain to hear the report of the commissioners, it loses jurisdiction of the cause and its subsequent orders are not binding.</p>

<p>1. Ejections—decision of city council upon contest of election does not bar quo warranto by People. A decision by a city council, on the contest of an election for the office of alderman, does not bar the remedy of the People by an information in the nature of quo ivarranto to oust the successful contestant from office. (Snozuball v. People, 147 Ill. 260, followed; Massey v. People, 201 id. 409, distinguished.)</p> <p>2. Same—when ballot is to be counted as indicated by cross in square. Where the ballot for the election of alderman has three tickets and each ticket has the name of one candidate printed thereon, the ballot should be counted according to the cross in the square in front of the name of the candidate on one ticket even though a cross is made in the circle at the head of another ticket; and the cross in the circle is not to be regarded as a distinguishing mark under such circumstances, even though it is useless.</p>

<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. Sheridan E. Fry, Judge, presiding.</p>

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

Writ oe Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Bureau county; the Hon. Samuel C. Stough, Judge, presiding.

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

Writ or Error to the Branch “C” Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.

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

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

<p>Appeal from the Circuit Court of Rock Island county; the Hon. F. D. Ramsay, Judge, presiding.</p>

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

Writ oe 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. Homer Abbott, Judge, presiding.

<p>Contracts—when a contract between attorney and client must be upheld. A contract between attorney and client making a settlement of their accounts for past years, fixing compensation for yearly employment in the future and giving the attorney an option to purchase a tract of land from the client at a specified price must be regarded as fairly obtained notwithstanding their relation as attorney and client, where to hold otherwise would require disregarding the testimony of four disinterested witnesses, none of whom were impeached or shown by anything in the record to be unworthy of belief.</p>

<p>Courts—the legislature may confer concurrent jurisdiction in criminal cases upon municipal court. Under the constitution the criminal court of Cook county has jurisdiction of all criminal cases; but such jurisdiction is not exclusive, and the legislature may confer concurrent jurisdiction of certain classes of criminal cases upon the municipal court of Chicago.</p>

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

<p>1. Constitutional law—attorney’s fee provision of Sanitary District act is not invalid. The provision of section 19' of the Sanitary District act, authorizing attorney’s' fees to be recovered in actions for overflowing lands, is not invalid, as granting the special privilege of recovering attorney’s fees to the special class of persons whose lands are overflowed, as the classification, in view of the great powers and privileges of the sanitary district, is reasonable and affects alike all persons in the class to which it applies.</p> <p>2. Same—attorneys fee provision of Sanitary District act is not a denial of equal protection of the laws. The attorney’s fee provision of section 19 of the Sanitary District act is a part of the organic law by which the district was created, and in view of the extensive and exclusive powers and privileges of such district such provision cannot be regarded as a violation of the provisions of the State and Federal constitutions against depriving persons of property without due process of law and guaranteeing all persons the equal protection of the laws.</p> <p>3. Solicitors’ fees—the court is not bound by testimony as to amount of fees to be allowed. In ascertaining what is a proper amount to allow for solicitor’s fees the, court is not bound to accept the opinions of the witnesses as conclusive but should take into consideration its own knowledge of the value of the services rendered.</p> <p>4. Same—amount allowed cannot be more than the plaintiff is liable for to his attorneys. The amount to be allowed as attorneys’ fees in favor of the plaintiff in an action against the Sanitary District of Chicago cannot be more than the plaintiff is liable for to his attorneys, and the question is not what is reasonable, just and proper for the attorneys in the particular case, but what would be the usual charge between parties competent to contract and what would be reasonably contracted for by the plaintiff in employing an attorney to prosecute his claim; and the attorney is entitled to no more because the fee is to be paid by the defendant, under the statute, and not by the client.</p>

Writ OR 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. Drainage—when signature to 31 petition, is sufficient. The signature “Summers & Dickey,” attached to a drainage district petition, is sufficient, where it is shown that C. W. Summers and T. L. Dickey were tenants in common of a tract of land in the proposed district; that Summers authorized Dickey to sign his name to the petition; that Dickey attached the signature in question, intending to sign for himself and his co-tenant, and that no other person by the name of Summers or Dickey owned land in the proposed district.</p> <p>2. Same—a misrepresentation as to the law is not ground for withdrawing signature. A representation by one having charge of a drainage petition to induce a land owner to sign the same, as to what the signer’s rights would be with respect to tiling his outlet to another person’s land and compelling that person to take care of the water, is merely a representation of law, and though untrue is not ground for withdrawing the signature.</p> <p>■ 3. Same—when land lying in different watersheds cannot be included in one district. Lands lying in different watersheds, a portion of which cannot be benefited by the main system of drainage but must be drained by an independent system of ditches having no connection whatever with the main system, cannot be included in one district.</p> <p>4. Same—petition should specify whether lateral Hs to be an open ditch or tile. A petition for the organization of a drainage district should specify whether a certain proposed lateral is to be an open ditch or tile.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>1. Officers—election commissioners may be nvunicipal officers even though the board may not be a municipal corporation. The fact that the board, of election commissioners for the city of Chicago and town of Cicero may not be a municipal corporation does not' tend to negative the proposition that the members of the board are officers of some municipal corporation and therefore municipal officers.</p> <p>2. Same—officer may be a county officer though an officer of the court. The statutory provision that members of the board of election commissioners shall be officers of the county court does not prevent them from being county officers and therefore municipal officers, as an officer of a court may be a county officer.</p> <p>3. Fees and salaries—salary of election commissioners cannot be changed during their term of office. Election commissioners for the city of Chicago and town of Cicero are appointed for a definite term of office for the exercise of powers and the performance of duties in such city and town under the laws of the State, and they are therefore “municipal officers,” as that term is used in section 11 of article 9 of the constitution, providing that the fees, salary or compensation of municipal officers shall not be increased or diminished during their term of office.</p>

<p>1. Practice—appeals lie from municipal court though forty day limit for filing transcript is invalid. The fact that the provision of section 22 of the Municipal .Court act requiring the transcript, on appeal from the municipal court, to be filed within forty days from the date of the judgment has been held invalid does not invalidate the entire section but appeals will lie as therein provided, but the time for filing the transcript is governed by the general Practice act.</p> <p>2. Same—a bill of exceptions is valid though judge’s term of office expires after signing and before filing. A bill of exceptions is not invalidated by the fact that the term of office of the judge who signed the same expired after he had signed the bill but before the same was filed.</p> <p>3. Same—when Appellate Court should recite in its judgment the facts found. If the final determination of a cause by the Appellate Court is the result of its finding the facts different from the trial court, the statute requires the Appellate Court, upon reversing the judgment, to recite in its judgment the ultimate facts found by it.</p> <p>4. Inn-keepers—guest need not state the value of jewelry deposited in hotel safe. Section 1 of the Inn-keeper’s act, (Hurd’s Stat. 1911, p. 1291,) concerning the providing of safes, has reference to deposits of money, jewelry and other valuable articles which are small, while section 3 of such act, and its proviso requiring notice to the hotel proprietor of the unusual and approximate value of property left with him for safe keeping, applies to trunks, valises and other property in the nature of baggage, and it is therefore not necessary for a guest depositing jewelry with the clerk, to be put in the safe, to give notice of the approximate value thereof.</p> <p>5. The question of the respective rights and liabilities of guest and inn-keeper, in case articles of the kind referred to in section 1 of the Inn-keeper’s act should be contained in receptacles of the kind referred to in section 3 of said act is not presented in this case and is not considered.</p>

<p>1. Wills—what does not affect validity of will. Where two sisters, of advanced years, who have lived together since infancy, make mutual wills providing that the survivor shall have their common property, the fact that one of the sisters was two years older than the other and was afflicted with an incurable disease has no tendency to render her will invalid, provided she was competent to make the will.</p> <p>2. Th'e court reviews the evidence in this case and holds that it does not tend to show undue influence, and that the verdict of the jury finding that the testatrix had sufficient testamentary capacity to make the will is amply supported by the evidence.</p>

<p>Appeals and errors—when appeal from probate court should go to the circuit court. An appeal from an order of the probate court dismissing, without prejudice, a petition to determine the homestead rights of the petitioners in a certain estate should be taken to the circuit court instead of the Supreme Court, as the probate court is without jurisdiction to determine the matter presented and no order which it might make in that regard would present any question which would authorize an appeal to the Appellate Court or Supreme Court.</p>

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

<p>1. Criminad daw—counts for burglary, larceny and receiving stolen goods may be joined. Counts for burglary and larceny and for larceny and receiving stolen goods may be joined in the same indictment, and a motion to quash cannot be sustained upon The ground that the indictment charges separate offenses in the different counts.</p> <p>2. Same—when evidence is admissible though it tends to show other offenses. The test of the admissibility of evidence in a criminal case is the connection of the facts proven with the crime charged, and whatever testimony tends directly to show the defendant guilty of the crime charged is competent, even though it tends to show him guilty of another offense.</p> <p>3. Same—when jury are entitled to whole history of the case. On the trial of a person accused of the burglary of a building and the larceny of goods therefrom, the testimony of an accomplice showing that the accused, several months before the date of the crime charged, had taken him to the building and shown him the skylight above, and that he thereafter removed the glass and aided the witness to get into the building and remove the goods on many occasions before the one when they were detected and arrested, is competent, and it is not error for the court to refuse to require an election of offenses before the close of the evidence.</p> <p>4. New triad—affidavit for a new trial for newly discovered evidence must show due diligence. Affidavits stating facts tending to prove an alibi are .not ground for a new trial, where all of the facts stated therein were known to the accused at the time of the trial and could have been proven then as well as later, had he exercised diligence.</p>

<p>1. Evidence—when copy of a claim, and testimony supporting it, are too remote in time. In an action against the Sanitary District of Chicago for damages to land caused by overflow,- resulting from turning the waters of the district into the’ Illinois river in the year 1900, a copy of a claim, and of the testimony supporting it, for damages resulting to a small portion of the same land from the construction of the dam in the Illinois river at Henry in the year 1871 are too remote in point of time and not admissible.</p> <p>2. Same—the market value of land—how shown. In an action against the Sanitary District of Chicago for damages for permanent injury to land from overflow, a witness who has stated what the land in controversy was worth, as a whole, may .properly be asked to state the value of the different portions of the land as divided into farm land, slough and' wood land.</p> <p>3. Same—rule where land is owned by different persons. A question as to the fair cash market value of land or interests owned by different persons should be limited to the particular interest of the person in the land concerning which the witness is testifying.</p> <p>4. 'Same—models, maps and diagrams are admissible as illustrative of testimony. It is proper to receive in evidence models, maps and diagrams designed to give more accurate information concerning objects or places which cannot be conveniently Shown or described to the jury, or which tend by graphic representation to enable the jury to more clearly understand the testimony.</p> <p>5. Same—when a tabulation tending to show duration of overñow is admissible. In an action for damages from overflow of lands it is proper to admit in evidence a tabulation showing the duration and extent of the overflow on the cultivatable lands in controversy for certain years, based upon government records of gauge readings taken from the United States weather bureau, which records had been previously received in evidence.</p> <p>6. Same—contour maps of government survey are admissible in an action for overñow of lands. Contour maps of the government survey showing the elevation of a particular piece of land in controversy are admissible in evidence in an action for damages for an overflow, subject to proof of the incorrectness of those maps or that there had been a material change in the elevation of the land since the maps were made.</p> <p>7. Same—expert testimony as to overflowed lands is admissible. In an action for damages resulting from the overflow of lands by reason of the opening of the channel of a sanitary district, expert testimony is admissible as to what land would be covered by water át a given time, based upon contour maps, rainfalls, gauge readings, and other data of like nature which it is a part of the business of a skilled engineer to understand, although the witness is not personally familiar with the condition of the land on the various dates in question; but the admission of testimony of this character rests largely in the sound discretion of the trial court, in view of all the facts and circumstances of the case.</p> <p>8. Same-’-objection to evidence must be specific. An objection to the question, “What, in your opinion, was the fair cash market value on that date for any purposes for which you think it was reasonably adapted?” upon the ground that the question contemplates a use of land other than the witness has been asked about, does not raise the point that the question assumes that the plaintiff owns the fee, including fire clay and coal underlying it.</p> <p>9. Instructions—measure of datnages for overflow of lands. The true measure of damages in an action for permanent injury to land, caused by opening the channel of a sanitary district, is the difference between the fair cash value of the land immediately before and after the water was turned in, and an instruction which does not limit the fair cash market value of the land is erroneous.</p> <p>10. Same—when instruction, as to right to overflow lands is not misleading. In an action for damages for overflowing lands by the Sanitary District of Chicago, an instruction which states that the defendant had “no right to cause to flow on plaintiff’s land any water that would not flow thereon in a state of nature” is not misleading, though the act under which the defendant was organized authorizes it to overflow lands but makes it liable for damages from such overflow.</p> <p>11. Solicitors’ fees—allowance should be usual charge under all circumstances. In taxing attorney’s fees in an action against a sanitary district the court should exercise its own judgment, based on its own knowledge and experience in such matters, and is not necessarily governed by the opinions of attorneys as to the value of the services, and the allowance should be the usual charge for services between the parties under like circumstances, and not what is reasonable or proper for a given attorney in a particular case.</p>

<p>1. Municipae corporations—when estoppel extends to question of power to grant street privileges. A city has general power to grant street privileges to a gas and electric company even though the manner and condition otf its exercise are prescribed by statute, and if the city not only fails to compel a gas company to discontinue its unauthorized use of the streets but takes affirmative action apparently approving of such use, thereby inducing the company to make large expenditures and incur heavy liabilities in developing its business, the principle of equitable estoppel applies, and the city will not be heard to say that there were no frontage petitions authorizing it to grant the. street privileges.</p> <p>2. Same—what does not amount to fraud in obtaining a city’s recognition of gas company’s rights. The fact that the officers of a gas company represent that their company has lawfully succeeded to the legal rights of other companies having street privileges in a city, and thereby procured from the city acts of recognition and approval of the company’s right to continue to exercise such privileges, does not amount to fraud and misrepresentation such as prevents basing an'equitable estoppel on the city’s' acts, even though the officers are mistaken in their view of the law with respect to their rights, there being no misrepresentation of any fact but only as to the legal result of facts well known to the city.</p> <p>3. Same—a city’s knowledge of extent to which gas company, has relied tip on its recognition of rights is not material. If a city has, by its acts, recognized the right of a gas company to occupy the streets for its business purposes and has thereby induced the company to make large expenditures and incur heavy liabilities on the faith of such acts, it is not material, upon the question of equitable estoppel, whether the city knew the extent of the liabilities incurred.</p> <p>4. PeEading—pleading must answer all that it professes to answer or it will be held bad.. A pleading, including a replication, must answer all it professes to answer or it will be held bad, and hence a replication to a plea of estoppel is insufficient where the plea presents a defense to both branches of the information, but the replication, while it professes to be a complete answer to the defense of estoppel, contains no allegations whatever as to one branch of the information to which the plea applies.</p> <p>5. Same—when refusal to allow general replication to be filed is not an abuse of' discretion. Where the relator in a proceeding in the nature of quo warranto files a general replication to a plea of estoppel but withdraws such plea, and three weeks later, after demurrers to its special replications have been sustained, asks leave to file another general replication, it cannot be said that the trial court abused its discretion in refusing such leave, where the relator fails to show any reason for its action in withdrawing the first replication or that any injury has resulted from denying leave to file the second.</p> <p>6. Costs—when costs may be adjudged against a city. A proceeding by information in the nature of quo warranto, by which a city seeks to oust a gas company from its use of the streets, is substantially a suit by the city to protect, its property right in the streets, even though it is prosecuted in the name of the People, and as such a suit is not within the rule exempting a city from liability for costs in quasi criminal actions for the enforcement of ordinances, it is not error to adjudge the costs against relator.</p> <p>7. Appeals and errors—when refusal to carry bach demurrer cannot be assigned as error. Where the Supreme Court has held that a plea of estoppel presents a good defense to an information in the nature of quo warranto and directs the trial court to overrule the demurrer thereto, the refusal of the trial court, after the case is re-instated, to carry back to the plea of estoppel a demurrer to the replications filed thereto cannot be assigned as error.</p>

Writ ob 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 Adelor J. Petit, Judge, presiding.

Writ oe Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of D'eWitt county; the Hon. Wirriam G. Cochran, Judge, presiding.

<p>1. Corporations—right of a coal- company to recover damages for permanent injury to surface of land. A corporation organized to mine, coke and sell coal may purchase land for the purpose of securing the underlying coal and may use the surface for agricultural or other purposes, and the question of its right to hold and use the surface cannot be raised by a sanitary district as a defense to an action by the coal company for damages for permanent injury to the land for agricultural purposes, due to its being overflowed with water.</p> <p>2. Reae property-—when restricting period for proving condition of land prior to permanent injury is not error. In an action against a sanitary district for damages for permanent injury to land from overflow, it is not an abuse of the court’s discretion to restrict the proof of the condition of the land respecting overflows prior to the alleged permanent injury to a period of fifteen years.</p> <p>3. Same—cause of action for permanent injury to land does not pass to a grantee of the land. If the owner of land injuriously affected or damaged by a permanent structure does not bring any action to recover damages but conveys the land to another person the cause of action does not pass with the title nor inure to the benefit of the grantee, but the grantee takes the land as he finds it.</p> <p>4. Same—title by prescription becoming complete after cause of action has accrued is not sufficient. A' title based upon twenty years’ adverse possession of land will not support an action for damages for permanent injury to the land from overflow, where, at the time the cause of action accrued, the adverse possession had lasted for only fifteen years, even though the suit was not brought until after the full period of twenty years’ adverse possession was complete.</p> <p>5. Same—plaintiff alleging ownership of land must prove fee. Where a declaration in an action for damages for permanent injury to land from overflow alleges that the plaintiff is the owner of the land the proof must show ownership in fee, and there can be no recovery as to a portion of the ’land to which the plaintiff has no paper title but only a title by prescription, which has become complete since the cause of action accrued.</p> <p>6. Practice—proof of reasonable attorney’s fee may be heard before judgment is pronounced. Where the motion for new trial and in arrest of judgment has been overruled in an action against a sanitary district for damages to land from overflow, the court may hear proof of the reasonable attorney’s fee provided for by section 19 of the Sanitary District act, before rendering judgment.</p>

<p>1. Pleading—when a formal plea of Statute of Limitations is proper. If an action is brought to recover damages for a permanent injury to real estate, a formal plea that the cause of action did not accrue within five years next preceding the commencement of suit may be interposed, and demurrer will not lie to such plea.</p> <p>2. Same—when a formal plea of Statute of Limitations is not sufficient. If an action is brought to recover damages for a temporary injury to real estate or for a continuing trespass alleged to have occurred within five years, a formal plea of the five year Statute of Limitations is not sufficient, but the, plea should allege special facts to show wherein the suit is barred, as, for example, facts which, if proven, will show that the injury complained of is permanent, and not, as alleged in the declaration, temporary.</p> <p>3. Same—whether suit is for permanent or temporary injury is determined by declaration. Where a formal plea of the five year Statute of Limitations is interposed to a declaration in a suit for damages for an injury to real estate, a demurrer to such plea-raises a question of law whether the action is for permanent or temporary injury, and to determine such question it is necessary to examine the declaration.</p> <p>4. Same—when declaration is for damages for permanent injury to land. If it appears from the declaration in an action against the Sanitary District of Chicago that the channel of the district is a-permanent structure, that ever since the channel was opened the plaintiff has been deprived of the use of the land for agricultural purposes, and that the effect of the opening of the.channel was to destroy the timber on the lands and the use of the lands as farm lands, then the action is one for permanent injury accruing at the time the channel was opened, and a formal plea of the five year Statute of Limitations is not open to demurrer. (Jones v. Sanitary District, 252 Ill. 591, explained.)</p> <p>5. Damages'—when all damages must he recovered in one suit. If the continuance and operation of a permanent structure are not necessarily injurious to land but may or may not be so, then only the injury sustained prior to the commencement of the action can be compensated in that suit; but where the continuance and operation of a permanent structure are necessarily injurious, then damages for all injury sustained must be recovered in one action.</p> <p>6. Constitutional law—attorney’s fee provision of Sanitary District act is not unconstitutional. The attorney’s fee provision of section 19 of the Sanitary District act is not unconstitutional. (Gentleman v. Sanitary District, ante, p. 317, followed.)</p>

Writ or 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. Thomas GWindes, Judge, presiding.

<p>1. Evidence—when proof of cost of clearing timber from land is admissible. In an action against a sanitary district for damages for permanent injury to land from overflow, if there is testimony for the plaintiff that the timber land is as valuable as the cultivated land, the defendant has a right to show, if it can, that the timber on the land is worthless for lumber or mine props, and also that the cost of clearing the timber from the land would exceed the value of the land after it was cleared.</p> <p>2. Same—a defendant may show to what extent land may be profitably cultivated. Where there is evidence that good crops of corn were raised on the land before the water from the defendant sanitary district’s channel was turned into the river but that since then corn could not be raised and the agricultural value of the land was destroyed, the defendant has a right to show what, if any, crops can be profitably raised on the land in a short and wet season.</p> <p>3. Same—what is proper cross-examination to test knowledge and judgment of witness. Where a witness has testified that all the plaintiff’s land, both timber land and corn land, was worth a certain price per acre, it is proper cross-examination, to test his knowledge and judgment, to ask him if he thinks such land was worth as much as the prairie lands in the county, and if he knows what unimproved prairie lands in the county were worth at the time the permanent injury to plaintiff’s land is claimed to have taken place.</p> <p>4. Same—vahen proof of sales of similar property is admissible. In an action against a sanitary district for damages for permanent injury to lands from overflow, proof of sales of land about the time the injury to plaintiff’s land is claimed to have occurred is competent, where the tracts sold were situated about two miles from the plaintiff’s land and a general similarity in kind, situation and condition is shown, even though it is not shown that the tracts sold are exactly like the plaintiff’s tract.</p> <p>5. Same—zsohen proof of sale of land for gross sum is competent. As tending to show the value of bottom land, proof of a sale of a neighboring tract of land, ^composed of both bottom land and upland, for a gross sum is competent, provided it is shown how many acres were bottom land and the price per acre at which, the parties agreed it should be put in.</p> <p>6. Same—when refusal to admit exhibits is not reversible error. Where witnesses have testified to the amount of rainfall, in inches, during certain periods of years and the amount of rainfall during the agricultural seasons of such years, it is not reversible error to refuse to admit in evidence, as exhibits, graphic illustrations intended to represent to the eye the relative amount of rainfall as testified to by the witnesses, even though the court, in the exercise of its discretion, might properly have ádmitted them.</p> <p>7. Same—when engineers should be allowed to make computations. Where engineers have testified to a mass of figures representing the monthly rainfall for a like period of years both before and after the time the permanent injury to plaintiff’s land from overflow is claimed to have occurred, there is no objection to allowing the witnesses to make the computations and state to the jury the annual average difference in rainfall between the two periods and the annual average difference in rainfall during the agricultural seasons of the two periods, as shown by the figures testified to.</p> <p>8. Same—when claims for damage from overñow, and releases and depositions, are not admissible. In an action against the Sanitary District of Chicago for permanent injury to plaintiff’s land from overflow, due to raising a river by turning the water from the district’s channel into the river above the land, claims for damages to the same lands accruing nearly thirty years before from the construction of a dam by the State below the lands, and releases and depositions with reference thereto, are not admissible.</p> <p>9. Same—when paragraphs of report of United States geologi-' cal survey are not admissible. Paragraphs of an annual report of the United States geological survey, relating to the flood stage of a certain river, which do not purport to be based upon measurements and are not officially authenticated in any way, are mere hearsay statements, and are not admissible to prove the conditions referred to therein.</p> <p>10. Waters—when instruction authorising damages for washing or eroding land should not be given. An instruction authorizing a finding of damages for the washing or eroding of the plaintiff’s land should not be given, where there is no allegation or proof of such washing or eroding.</p> <p>11. Same—instruction properly refused which is based upon excluded evidence. An instruction based upon evidence which the court has excluded is properly refused, even though the court acted erroneously in excluding the evidence.</p> <p>12. SpEciae interrogatories—what special interrogatories are meant by the statute. The special interrogatories which a party has the right to require the jury to answer are restricted to those ultimate facts upon which the rights of the parties directly depend, and a special interrogatory is not proper unless some answer responsive thereto would be inconsistent with some general verdict that might be returned upon the issues in the case.</p> <p>13. Same—what special interrogatories are improper. Where the plaintiff’s cause of action for permanent injury to his land is single although the land consists of several tracts, the defendant cannot split up the cause of action, and by special interrogatories compel a finding by the jury of damages as to each tract according to governmental subdivisions or other natural or artificial divisions.</p> <p>14. ConstITutionar raw—attorney’s fee provision of Sanitary District act is valid. The provision of seption 19 of the Sanitary District act, with reference to the allowance of attorney’s fees in actions for damages from overflow, is constitutional. (Sanitary District v. Ray, 199 Ill. 63, and Miller v. Sanitary District, 242 id. 321, adhered to.)</p>

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

<p>Appear from the County Court of RaSalle county; the Hon. W. H. Hinebaugh, Judge, presiding.</p>

<p>1. Practice—writ of error lies to Appellate Court if question of validity of statute first arises there. If the validity of a statute is first involved in the Appellate Court a writ of error lies to that court from the Supreme Court, as no other method of review is provided by the .statute.</p> <p>2. Same—when question of validity of a statute may be first raised in Supreme Court. If the validity of a statute does not become involved until after the case reaches the Appellate Court, the question of such validity may be raised in the Supreme Court on writ of error.</p> <p>3. Same—Supreme Court may look into opinion of Appellate Court for certain ptirposes. The Supreme Court may look into the opinion of the .Appellate Court for the purpose of ascertaining the questions considered and how. they were disposed of.</p> <p>4. Same—opinion of Appellate Court is a part of the files of the case. The opinion of the Appellate Court, since the amendment in 1885 of section 34 of the Appellate Court act, is a part of the files of the case, and while error cannot be assigned upon it, it is the source from which to determine the reasons for the decision and judgment.</p> <p>5. Same—the constitution requires practice and procedtire of courts of same grade to he uniform. Section 29 of article 6 of the constitution requires the proceedings and practice of all courts of the same class or grade, so far as regulated by law, to be uniform, and any provision of a statute affecting the procedure or practice of the Appellate Court or Supreme Court which is in conflict with such provision of the constitution is void.</p> <p>6. Constitutional law—provision of the Municipal Court act concerning judicial notice of rules is void. The provision of section 20 of the Municipal Court act requiring the Supreme Court and the Appellate Court to take judicial notice of the rules of practice in force from time to time in the municipal court is void as in violation of section 29- of article 6 of the constitution, in that the rules of practice of other courts must be made a part of, the bill of exceptions in order to bring them to the attention of the Supreme Court or Appellate Court.</p>

’Appeal from 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>Appeal from the Circuit Court of Cook county; the Hon. Rockwood Honoke, Judge, presiding.</p>

<p>1. Sanitary districts-—the Sanitary District of Chicago must be regarded as a permanent, completed improvement. When the channel of the Sanitary District of Chicago was completed and the water turned in after the approval of the commissioners and under the authority of the Governor, the improvement became a permanent and completed one, and it was not contemplated by the Sanitary District act that the Illinois river should be so deepened and widened and cleared of obstructions that it would carry off the increased volume of water from the drainage channel without overflowing the adjacent lands.</p> <p>2. Same—Sanitary District act did not contemplate removal of dams built by Federal government. It was not contemplated by the Sanitary District act that the Sanitary District of Chicago should remove from the Illinois river the dams constructed therein by the Federal government before the improvement constructed by the district should be regarded as completed and permanent.</p> <p>3. The other questions raised in this case are controlled by the decision in Vette v. Sanitary District, (ante, p. 432.)</p>

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

<p>1. Practice—court cannot, after term, set aside judgment for errors of law. After the expiration of the term of court at which a judgment is entered the court has no authority to set aside the judgment for any errors of law, and can only amend it in matter of form after notice to the opposite party.</p> <p>2. Same—court may correct errors of fact after term. Under section 89 of the Practice act the court may, at any time within five years after judgment was rendered, correct errors of fact, upon motion, which could be corrected by writ of error coram nobis.</p> <p>3. Same—when order is merely interlocutory. If a court sets aside or vacates a judgment otherwise than under the motion substituted by the Practice art for the writ of error coram nobis the order is merely interlocutory, and the parties must wait for a final order from which an appeal or writ of error will lie.</p> <p>4. Same—when order setting aside default and judgment is a. final order. If the motion to set aside a default and judgment is intended to allege errors of fact, and the action of the court in sustaining the motion is unquestionably based on a finding that there were such errors, the order will be regarded as final and appealable.</p> <p>. 5. Same—motion to set aside judgment for errors of fact is not intended to relieve party from his own negligence. While the motion provided for in section 89 of the Practice act to correct errors of fact may be availed of by a party who without fault or negligence has been prevented from making a defense because of negligence of the clerk in failing .to file a plea or answer, yet the motion is not intended to relieve a party from' the consequences of his own negligence.</p> <p>6. Same—when a party is in default for failure to file affidavit of meritorious defense. Under section 55 of the Practice act, if the plaintiff files an affidavit of merits and the defendant fails to file with his plea an affidavit of meritorious defense the plaintiff is entitled to judgment as in case of default, and while it is not uncommon for the court to enter an order striking the pleas from the files, such order is not necessary, as advantage of the omission may be taken by motion for judgment as in case of default.</p> <p>7. Same—entering judgment by default while pleas remain on file is not an error of fact. Entering a judgment by default without an order striking all of the defendant’s pleas from the files is not an error of fact to be reached on the motion provided for by section 89 of the Practice act, but if error at all is an error of law, to be reached by appeal or writ of error.</p> <p>8. Same—what does not constitute an error of fact. The fact that the defendant’s attorney failed, because of press of business and other things,- to carefully examine the plaintiff’s declaration, so that he did not discover the affidavit of merits and for that reason failed to file an affidavit of meritorious defense with his pleas, does not constitute any error of fact which would have precluded the court from entering default and judgment had the matter been known to the court.</p> <p>9. Same—entering judgment in disregard of the courifs rules is not an error of fact. The fact that the court may have entered a default and judgment without observing rules of the court which were of record does not constitute an error of fact, as courts take judicial notice of their own records, and the records'are always constructively before the court.</p> <p>id. Same—an error of fact must relate to a fact unknown to the court. The error of fact which is subject to correction on the motion provided for in section 89 of the Practice act must relate to a fact which was unknown to the court, and which, if known, would have precluded the rendition of judgment.</p>

<p>1. Oesices—right to hold public office does not involve 'a franchise. An office 'is not a franchise, and a proceeding to test the right of a person to hold a public office and execute the duties of a public office does not involve a franchise and does not authorize a direct appeal to the Supreme Court.</p> <p>2. Same—when concurrence of different authorities is necessary to appointment to office. Where the separate action of different authorities is required for the appointment of officers the concurrence of all is necessary to the appointment.</p> <p>3. Same—nomination by mayor is not made by him as a member of the city council. While the mayor is a member of the city council when presiding at its meetings, there are many duties which he performs as mayor and not as a member of the council, among which are the selection and nomination -of persons for office.</p> <p>4. Schooes—act of 1911, for electing board of education, does not apply to city of Rockford. The act of 1911, (Laws of 1911, p. .500,) providing for the election of members of the board of education in school districts having a pppulation of over 35,000, existing by virtue of a special charter, and where the board of directors or board of education is elected or appointed by the common council of fhe city, does not apply to such school districts as the city of Rockford, 'where the mayor nominates the board of education and the common council rejects or confirms the nominations, as such method is not an election or appointment by the common council.</p> <p>5. Statutes—statute cannot be extended to include cities not within its terms merely to sustain its validity. If 'a statute does not, by its terms, apply to certain cities, it cannot be extended to include such cities solely upon the theory that unless it is so extended it will violate the constitution.</p>

<p>x. Taxes—purpose of the provision requiring petition for hard roads election to describe the roads. The purpose of the provision of the statute requiring the location- of the roads to be described in the petition for a hard roads tax election is to inform the voters what roads they are voting to improve.</p> <p>2. Same—when inaccuracies in describing roads do not invalidate election. Inaccuracies in the description of the location of the roads described in a petition for a hard roads tax election do not invalidate the election, if the description is sufficient to enable the voters to know what roads are intended and it does not apply to any other roads in the township.</p> <p>3. Same—fact that portion of road lies within corporate limits of city or village does not invalidate tax. The fact that one of the roads to be improved by the hard road tax lies partly within the limits , of a city or village of less than 10,000 population does not invalidate the tax where there is the necessary arrangement with the city council or board of trustees, as the act of 1905 (Laws of 1905, P- 369*) authorizes such improvement and ft was within the power of the legislature to provide that a tax levied upon all the property in the township should be partly expended within the corporate limits of a city or village within the township.</p> <p>4. Same—when election on proposition to borrow money and issue bonds is void. An election uppn the proposition to borrow money for the construction of hard roads and to issue bonds therefor is void, where the ballot is so printed that no voter can vote against the proposition but can only vote for the proposition or that he is not against it. (Harvey v. Cook County, 221 Ill. 76, and People v. Myers, 256 id. 529, followed.)</p> <p>5. Same—right of town to incur indebtedness rests upon legislative authority. The right of a town to incur indebtedness does not depend upon equitable considerations but upon legislative authority exercised in the prescribed manner.</p> <p>6. Same—when fact that majority voted for proposition is not material. The fact that a majority of those voting at an election on the proposition to borrow money for hard roads and issue bonds voted for the proposition and understood how they were voting cannot be considered upon application for judgment and order of sale for the delinquent bond tax, where the ballot at the election was so prepared that no one could vote against the proposition. (People v. Sullivan, 247 Ill. 176, distinguished.)</p>

<p>Appeal from the County Court of Douglas county; the Hon. Walter J. Dolson, Judge, presiding.</p>

<p>1. Special taxation—provision of an ordinance apportioning public and private expense is not subject to review by the courts. Since the passage of the Local Improvement act of 1897 the decision of the commissioner upon the question of the apportionment of public and private expense, in a special assessment proceeding, is subject to review by the trial court, but in a special tax proceeding the provision of the ordinance apportioning the public and private expense is not subject to review by the courts.</p> <p>2. Same—extent to which principle of uniformity applies to a special assessment or special tax proceeding. The constitutional principle that taxes shall be uniform as to persons and property within the jurisdiction imposing the same applies in special assessment or special tax proceedings only as to the property benefited by the improvement and not to other property in the city, as the only property the rule applies to is that which is assessed, and if any other property is benefited, the court, on the hearing, has the power of re-casting the roll and having such property assessed.</p> <p>3. Same—proportion of expense taxed to public need not be the same as respects different improvements. It was not intended by the constitution or the Local Improvement act that the principle of uniformity of taxes should apply on the question of public benefits under separate ordinances for distinct local improvements, and it is no proof of fraud on the part of the public authorities that the proportion taxed to the city for any given improvement is different from that taxed to the city for a somewhat similar improvement in another part o.f the city.</p> <p>4. Same—argument that the Local Improvement act is unwise should be addressed to legislature. The argument that the Local Improvement act is unwise in permitting the municipal authorities to lie the final arbiters upon the question of what proportion of the expense of a local improvement to be paid for by special taxation shall be taxed against the public, and that the trial court should have power to review that question, should be addressed to the legislature, as the statute is not unconstitutional in that respect and the' question of its wisdom cannot be passed upon by the courts.</p> <p>5. Same—question of proportionate share of cost as between different lots cannot be urged in a special tax proceeding. The question of the proportionate share of the cost of a local improvement as between the different lots cannot be raised in the courts in a special tax proceeding, and the mere fact that the ordinance taxes the same amount per square foot upon all the property assessed does not establish that it is unreasonable, even though the evidence shows that some of the property assessed is in a deep ravine within the limits of the improvement.</p> <p>6. Same—what does not show that improvement is unreasonable. The mere fact that certain witnesses testify that the improvement contemplated by a special tax ordinance is unnecessary and unreasonable does not justify the court in substituting its judgment for that of the city authorities.</p>

<p>1. Pure foods—object of section n of Pure Pood act is to prevent imitation of cider vinegar. The provision of section n of the Pure Food act that “all vinegar made wholly or in part from distilled liquor shall be branded ‘Distilled Vinegar’ and shall not be colored in imitation of cider vinegar,” was intended to prevent the imitation of cider vinegar, whether the coloring of the distilled vinegar is done by adding coloring matter, such as caramel, or by mixing the distilled vinegar with sugar vinegar.</p> <p>2. Same—when sale of vinegar is a violation of the Pure Food act. The sale of vinegar composed of distilled vinegar and sugar vinegar mixed in such proportions as to produce the ctílor of cider vinegar is a violation of section II of the Pure Food law, though the barrels containing the- product are plainly branded, “A compound of White Distilled and Sugar Vinegar,” as the provisions of section II relating especially to vinegar control that product, regardless of that part of section 9 of the act relating to the sale of products plainly branded as compounds and containing no poisonous or deleterious ingredient.</p> <p>3. Constitutional law—courts will not hold a statute unconstitutional in a doubtful case. The presumptions are in favor of the constitutionality of a statute, and courts will, if possible, give it such a construction as will sustain it'and will hold it unconstitutional only when it is clearly so.</p> <p>4. Same—police power authorises regulation to prevent fraud and deceit. Under the general police power of the State the legislature may make regulations to prevent fraud and deceit as well as for the public health, safety and comfort, and, in connection with the regulation of food products, may prohibit the use of coloring matter or the mixing of harmless ingredients of the same general nature in such a way as to deceive or mislead the public into accepting the compound for another product.</p> <p>5. Same—section 11 of Pure Food act, relating to vinegar, is not unconstitutional. Section 11 oí the Pure Food act, relating to vinegar, and intending, in part, to prevent fraud in selling as genuine cider vinegar another vinegar colored in imitation of cider vinegar, is not unconstitutional.</p> <p>- 6. Same—word “adulterated,” used in title of Pure Food act, construed. The word “adulterated,” used in the title of the Pure Food act, covers the mixing of distilled vinegar and sugar vinegar in such proportions as to produce a product having the color of cider vinegar, as the manufacture of such compound is contrary to the intent of section 11, which provides that vinegar shall be held to be adulterated, within the meaning of the act, if it is manufactured contrary to its provisions.</p>

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

<p>1. Deeds—when deed will be set aside because name of grantee is inserted after delivery. Where a deed with a blank grantee is delivered in escrow and the proposed purchaser of the property inserts the name of a third person as grantee after rjreceiving the-deed from the depositary the deed should be set aside as against the proposed purchaser and all others having notice, where there is no proof that the grantor or the real owner of the land, or her agent, sanctioned the insertion of the name or in any way ratified the transaction. (Abbott v. Abbott, 189 Ill. 488, distinguished.)</p> <p>2. Same—conditions upon which deed is placed in escrow may be proved by parol. The conditions upon which a deed placed in escrow is to be delivered may be proved by parol evidence.</p> <p>3. Same—deed delivered in violation of escrow agreement conveys no title. The unauthorized delivery, by the depositary, of a deed which has been placed with him in escrow conveys no title and will be set aside, particularly where the parties who set up claims under the deed are not innocent purchasers for value.</p>

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

Writ oE Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.

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

<p>Appeal -from the County Court of Crawford county; the Hon. John C. .Maxwell, Judge, presiding.</p>

<p>Writ OR Error to the Circuit Court of Edgar county; the Hon. M. W. Thompson, Judge, presiding.</p>

<p>1. Special assessments—the meaning of “appearance day,” as used in section 37 of Local Improvement act. The words “appearance day,” as used in section 37 of the Local Improvement act, authorizing the court to dismiss the petition for confirmation upon motion of any objector on or before appearance day, calling attention to the fact that no copy of the ordinance is attached to the petition, mean the day provided for in the notices, under the statute, for a hearing on the confirmation of the assessment.</p> <p>2. Same—when defect in copy of ordinance attached to petition does not require dismissal. A defect in the copy of the ordinance attached to the petition for confirmation which does not in any way mislead the objectors or affect the substantial merits of the case is not ground for dismissing the petition upon motion of an objector, under section 37 of the Local Improvement act, in case the defect is removed by amendment.</p> <p>3. Same—when a mistake in stating length of pavement is not material. A mistake in one place in the ordinance in stating the length of the proposed pavement is not fatal to the proceeding, where the whole ordinance, (which fixes the termini of the improvement by reference to fixed monuments,) considered in connection with the plans and profiles, clearly shows the extent and locality of the pavement.</p> <p>4. Same—an ordinance certified by city clerk under corporate seal is proved. Under the statute an ordinance certified by the city clerk under the corporate seal is admissible in evidence as against a mere general objection that it was not legally passed. (Schott v. People, 89 Ill. 195, explained.)</p> <p>5. Same—when an ordinance concerning the right of way of a street railway is admissible. Where a paving ordinance excepts a double-track right of way of a street railway from the improvement, it is competent to introduce, in support of the assessment proceeding, an ordinance amending the original franchise ordinance and permitting the company to lay a double track in place of the single track originally authorized, notwithstanding the amendatory ordinance did not become' effective, by publication,, until a week after the petition for confirmation was filed.</p> <p>6. Same—when reasonableness of an ordinance cannot be attacked. Where an ordinance amending the original franchise ordinance of a street railway company by permitting it to lay a double track is introduced in, evidence in a special assessment proceeding to show how the space in the middle of the street, which was excepted from the terms of the paving ordinance, was to be improved, the reasonableness of the amendatory ordinance cannot be attacked by showing that a single track, with turn-outs, would have been sufficient to meet the demands of the public.</p> <p>y. Same—an estimate is -not required to be absolutely accurate. The fact that the engineer’s estimate may be too high as a result of not giving sufficient value to old material removed in laying the new pavement, upon which point the evidence is conflicting, is not ground for defeating the assessment, as the Local Improvement act provides for a ratable reduction in case the actual cost of the improvement is less than the estimated cost.</p> <p>8. Same—when objection that ordinance does not describe the kind of creosote blocks is properly overruled. An objection that a paving ordinance is invalid because it describes the creosote blocks as “either yellow pine or tamarack, creosoted,” is properly overruled, where there is evidence that the two kinds of wood cost, when creosoted, practically the same and are of equal durability.</p> <p>9. Practice—filing paper in office of clerk does not amount to making a motion. The mere filing of a paper in the office of the clerk of the court does not amount to making a motion, but the paper must be brought to the attention of the court.</p> <p>10. Same—when it will be presumed that sufficient evidence was heard to justify finding. Where the bill of exceptions does not purport to contain all the evidence heard in the case, it will be presumed, on appeal, that the trial court heard sufficient evL dence to justify its findings.</p> <p>11. Same—it is not the duty of Supreme Court to search ordinance for defects not pointed out. The mere general suggestion that an improvement ordinance does, not sufficiently describe the drain sewers, man-holes and catch-basins, without any specific defect, in description being pointed out, does not require the Supreme Court to search the ordinance to discover defects in description.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

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

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