Volume 261 — Illinois Reports

<p>1. Criminal law- — accused has right to a trial on competent evidence without illegal disparagement of his witnesses. The law does not provide one method for trying innocent persons and an-</p> <p>■ other for trying guilty ones, and one accused of crime has a right to a trial by jury upon competent evidence and without illegal disparagement of his witnesses, whether he is guilty or innocent.</p> <p>2. Same — what is an improper cross-examination of a witness. Where one of two defendants accused of robbery testifies to an alibi for both, and states that he never robbed anyone in his life and had never carried a gun but that the police had persecuted him and had ill-treated him when arresting him, it is improper to permit the State to show, on cross-examination, that he had been indicted for two felonies and that the indictments were then pending, and to require him to answer as to his guilt of another felony for which it is not shown he was indicted and to introduce oral evidence to show that he was guilty of such felony.</p> <p>3. Same — when prosecution has no right to try immaterial issues. The prosecution cannot, by failing to object to incompetent evidence of a co-defendant in a criminal case to the effect that he was not guilty of other crimes but that the police had persecuted and ill-treated him, acquire the right to try the immaterial issues so presented, although it is entitled to impeach the witness according to recognized rules of law.</p> <p>4. Same — when rule that judgment will not he reversed where guilt is clear cannot apply. The rule that a judgment of conviction will not he reversed where the evidence clearly establishes the defendant’s guilt cannot be applied where there has been a total disregard of the right of the defendant to be tried by the law of the land.</p>

<p>1. Municipal corporations — powers of a city organised under the general law. A city organized under the general Cities and Villages act has such powers, only, as are therein delegated or necessarily implied.</p> <p>2. Same — statutes granting powers to municipal corporations are strictly construed. Statutes granting powers to municipal corporations are strictly construed, and any fair and reasonable doubt as to the existence of such powers mus_t be resolved against the municipality.</p> <p>3. Same — enumeration of kinds of business a city may control excludes others. The express enumeration in the Cities and Villages act of the occupations or businesses, not nuisances per se, over which a- city is given control is an exclusion of all other occupations or businesses.</p> <p>4. Same — clause 66 of paragrq-ph 62 of Cities and Villages act does not give cities unrestrained police power. Clause 66 bf paragraph 62 of the, Cities and Villages act, giving cities the power to pass and enforce all necessary police ordinances, is not an unrestrained and unlimited grant of police power to cities, although, as to the subjects over which cities have been given control, they may pass all necessary police ordinances.</p> <p>5. Same — what cannot be done under guise of exercise of- police power. Even if a city were possessed of the entire police power of the State within- the limits of the city it would have no power to deprive a citizen of valuable property rights under the guise of regulating or prohibiting a business or occupation that has no tendency to injure the public health or public morals or interfere with the general welfare.</p> <p>6. Same — rights of individual as against the State. The owner of property has the constitutional right to make any use of it he desires so long as he does not endanger or threaten the safety, health, comfort or general welfare of the public; and this right cannot be taken away or limited by the State except in so far as it may become necessary for individual rights to yield to the higher law of the best- interests of the public.</p> <p>f: Same — property rights cannot be interfered with for purely (esthetic reasons. Legislation, either State or municipal, which interferes with private property rights or personal liberty for purely aesthetic purposes cannot be sustained.</p> <p>8. Same — when ordinance to regulate location and construction of store buildings for retail trade is invalid. An ordinance which prohibits the location or construction of any store for the sale, at i retail, of goods, wares and merchandise in any block used exclusively for residence purposes without the frontage consent of a majority of the property owners upon both sides of the street in su:h block, cannot be sustained as a proper exercise of the police power by the city nor as an authorized regulation by the city of any business or occupation.</p>

<p>1. Taxes — word "tax,” used in statute authorising city to impose water tax, is not used in a technical sense. The word “tax,” used in paragraph 257 of the Cities and Villages act, (Hurd’s Stat. 1911, p. 330,) is used' in the sense of “rate” rather than in its technical sense, as the charges made by a city to persons using water are imposed and collected, not as a tax, but as compensation for a commodity used.</p> <p>2. Same — water rents due a city cannot be collected as delinquent taxes under the Revenue law. A city has the right to charge for water service when a contract has been made with the consumer and has been carried out by the city, and the statute gives a lien upon the premises of the consumer, which may be enforced and the charge thereby collected, but the contractual relation between the city and the consumer does not authorize the city to collect such,charges as delinquent taxes, in the manner provided by the Revenue law.</p>

<p>Appeal from the County Court of EaSalle county; the Hon. A. T. Eardin, Judge, presiding.</p>

<p>Practice — intervention implies a suit pending. An intervention implies a suit pending between parties in which another applies to be heard, and after a cause has been heard and determined between the parties and a final decree has been entered there c^n be no intervention by a third person, but the latter’s rights, if any, must be enforced in an original proceeding.</p>

<p>1. Taxes — one objecting to tax has the burden of showing its invalidity. The presumption is that a tax is just and that the taxing authorities have properly discharged their duties, and hence one who objects to the collection of a .tax has the burden of showing its invalidity by clear proof.</p> <p>2. Same — county board has a reasonable discretion as to what amount of taxes shall be raised. While it is against the policy of the law to levy taxes for the purpose of accumulating a large fund for the remote future or for contingencies that may never occur, still the county board must use sound business judgment so that the county’s credit will not be impaired, and has a reasonable discretion to determine what amount of taxes shall be raised for the current expenses of the county.</p> <p>3. Same — county not obliged to resort to sale of anticipation •warrants. The law does not contemplate that the county board shall limit the amount of taxes to be raised to such sum, only, as is needed for the payment of the county expenses up to September 1, and that money needed to pay current expenses from September 1 to the time the taxes are paid in shall be raised by the sale of anticipation warrants.</p> <p>4. Same — what does not skpw that county tax is invalid. The mere fact that the report ofThe finance committee of the county board, based upon the county p-epsurer’s accounts of receipts and expenditures for the fiscal year, shows a balance of more than $56,000 in the county treasury on September 1, does not show that the county board’s levy of taxes in the amount of $51,000 to meet the expenses of the county for the ensuing year is unnecessary and invalid, as it cannot be presumed that the balance in the treasury is available for general county expenses.</p>

<p>1. Drainage — when a new levy for keeping ditches and drams in repair cannot be made. A new levy cannot be made by a farm drainage district for the purpose of keeping ditches and drains ■ in repair where there is more money in the hands of the treasurer not otherwise appropriated than is required for any repairs needed.</p> <p>2. Same — when additional assessment is not authorized. The Farm Drainage act does not authorize a new additional assessment to be levied for the purpose of collecting from certain property owners the money which they have escaped payment of by reason of a former additional assessment being held invalid.</p> <p>3. Same — what is meant by word “credits” in section 26 of the Farm Drainage act. The word “credits,” as used in section 26 of the Farm Drainage act, which provides how special assessments shall be made, has no reference to credits for an illegal tax voluntarily paid, but has reference to the provisions of a prior section •authorizing the commissioners to credit land owners with the value of old ditches on their lands which can be advantageously used in whole or in part.</p>

<p>Practice — zvhen case should be taken to the Appellate Court. A writ of error to review a judgment of the circuit court finding against the claims of alleged heirs to the personal estate in the hands of the public administrator and ordering the administrator to pay such funds to the county treasurer should be sued out 6f the Appellate Court, there being no special feature of the case which would give the Supreme Court jurisdiction.</p>

<p>1. Deeds — when a deed will be set aside for want of sufficient mental capacity. A deed will be set aside in equity at the suit of the grantor’s heirs where the preponderance of the evidence shows that the grantor did not have sufficient mental capacity to manage the property and protect her own interests, nor to reason in regard to the value of the property and the effect of the conveyance, nor to place her will in opposition to the request of the grantee for the conveyance.</p> <p>2. Same — court of equity may correct mistake in description of land in deed. A misdescription of land in a deed purporting to convey, among other lands, forty acres which the grantor did not own, will be corrected in equity, where the evidence is clear that the description as to such forty was á mistake, and that both parties intended the deed should convey another forty acres which the grantor owned and of which the grantee was in possession when the deed was made and thereafter continued in such possession.</p> <p>3. AppEaes and errors — when admission of incompetent evi- ■ dence will not reverse. The admission of incompetent evidence in a chancery case will not be ground for reversal where there is sufficient competent evidence in the record to sustain the decree, disregarding the evidence complained of.</p>

<p>1. Boundary lines — what testimony does not tend to show an agreed boundary line. In an action of trespass quare clausum fregit, testimony that plaintiff’s grantor measured off forty feet of the lot conveyed by the deed and put a stake down, and that plaintiff built a fence upon the line so indicated and took possession, is admissible for the purpose of showing the nature of the plaintiff’s possession, but it has no tendency to show an agreed boundary line and should be limited to the purpose for which it was admissible.</p> <p>2. Same — when rule concerning boundary lines by agreement does not apply. The rule concerning boundary lines by agreement applies under two conditions, only, — where the line is in dispute and where it has not been ascertained, — and in either case the agreement is for the purpose of establishing the disputed or unascertained line; but the rule does not apply where the grantor merely measures off a certain number of feet and drives a stake and the grantee builds a fence on the line and takes possession.</p> <p>3. Evidence — when general objection against husband testifying is properly overruled. In an action concerning the separate property of the wife the husband is competent to testify as against a general objection to his testifying, and the fact that he testified to conversations of the wife which he was not competent to testify to is not ground for complaint, where no objection was made to any particular question or answer relating to the conversation.</p> <p>4. Pleading — when plaintiff in trespass quare clausum fregit must make-a new assignment. If the declaration in an action of trespass quare clausum fregit is general, without particularly describing the land, and the defendant has any land in the same jurisdiction, the latter may, under a plea oí'liberum tenementum, show in defense that he has title to any land in the jurisdiction unless the plaintiff makes a new assignment particularly describing the locus in quo.</p> <p>5. Same — office of a new assignment where a plea of liberum tenementum is Med. The office of a new assignment, where a plea of liberum tenementum is filed to a declaration in an action of trespass quare clausum fregit which merely describes the plaintiff’s close as being in the county, is to furnish a more particular description of the plaintiff’s land, the reason for the new assignment being that the judgment under such plea, where ownership of the land is tried, is res judicata of the location of the boundary line.</p>

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

<p>1. Benefit societies — application and by-laws are part of the ■ contract between society and the member. The application for a benefit certificate and the by-laws of the society are to be considered a part of the contract between the society and the member.</p> <p>2. Same — restriction upon power of agent to zmive conditions may itself be zmived. A restriction upon the power of an agent of a benefit society to waive any of the conditions of the contract or upon the manner of their waiver is a condition which may itself be waived; and this rule applies not only to regular insurance companies but also to mutual benefit associations.</p> <p>3. Same — subordinate lodge is the agent of the supreme lodge. A subordinate lodge or council is the agent of the supreme lodge or council, notwithstanding the declarations of the by-laws of the society to the contrary.'</p> <p>4. SamIe — when local lodge is the agent of the supreme lodge in receizñng dues. Where the by-laws of a benefit society require members'to pay their dues and assessments to the local lodge, the officers of the local lodge, in the matter of receiving and transmitting dues, are the agents of the supreme lodge, and are the authorities with whom members must deal and upon whose actions, within the scope of their authority, the members may rely.</p> <p>_ 5. Same — when benefit society cannot insist upon a forfeiture. If a benefit society permits a subordinate lodge and its officers to act in such a manner, in receiving dues, that the member is justified in believing that the reasons for forfeiture specified in the by-laws have been waived, the society cannot set up a forfeiture, incurred by relying upon such action, as a defense to a suit on the certificate.</p> <p>6. Same — when a provision requiring dues to be paid during calendar month is waived. A by-law requiring payment of an assessment during the month when due and declaring a suspension of members not so paying is waived, where it is shown that the assessment was received by the local recorder, with full knowledge of the member’s condition, on the fourth day of the month after it was payable and forwarded by her to the supreme lodge, in accordance with a long standing custom to remit to the supreme lodge from the fifth to the tenth of the month following the one at which the assessment was payable, and to accept all payments made between the first of the month and the time of remitting without reporting the delinquents as suspended.</p>

<p>1. Redemption — zvhat right is acquired by purchaser at sale. The purchaser at a sale under an execution acquires only a right to receive the redemption money if it should be paid or a sheriff’s deed in case the property is not redeemed.</p> <p>2. Same — when mistake in amount of certiñcate should be corrected in equity. Where the deputy sheriff by mistake inserts in the certificate of purchase a smaller amount than was paid at the sale and the holder of the equity of redemption redeems on such certificate without knowing of the mistake and without any fraud or negligence, a court of equity should correct the mistake by granting leave to perfect the redemption upon payment to the sheriff of the full amount paid at the sale, with interest.</p>

<p>1. Taxes — what necessary to justify an amendment of tax levy. To justify an amendment of a tax levy by showing some additional action by the taxing authorities it is necessary that such action shall have been actually taken, and it is not permitted to show that to have been done which was not, in fact, done, even though the taxing authorities would have done that thing had they known it to be necessary.</p> <p>2. Same — mistaken judgment as to legal effect of action taken cannot be corrected by amendment. The fact that the taxing authorities were mistaken as to the legal effect of the action which they actually took and intended to take in the matter of levying a tax, does not justify an amendment at a later meeting supplying an element essential to the validity of the levy.</p> <p>3. Same — when invalidity of levy is not cured by subsequent action. Where the board of supervisors, at its September meeting, levies taxes for county purposes which are insufficiently described in the written report of the committee and in the resolution as “for mileage and per diem, $3000,” “for county farm, $3000,” and “for judiciary, $5500,” the levy for such purposes is invalid, and it is not aided by the fact that the board, at a regular meeting in the following June, adopted a resolution amending the levy by amplifying the insufficient descriptions of such items.</p>

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

<p>1. Statutes — new act may adopt existing statute, or sections thereof, by reference. A statute may, by reference to a particular statute or sections thereof, adopt the same, and fhe effect of such adoption is to make the particular státute, or the sections thereof, a part of the new statute as the adopted statute or sections thereof exist at the time of their adoption, but not to include subsequent amendments of the statute or sections adopted.</p> <p>2. Same — effect where reference is merely to the general law regulating subject. Where an adopting act merely refers to the general law regulating the subject, the reference will be regarded as including not only the law in force at the date of the adopting act, but also the law in force when the action is taken or proceedings are resorted to which involve the application of such act.</p> <p>3. Same — two statutes upon same subject may be valid. The mere circumstance that the legislature has enacted two statutes upon the same subject and for the purpose of accomplishing the same general result furnishes no reason why both statutes may not be valid; and the mere fact that the later act may be repugnant to the spirit of the earlier act in any respect does not operate to repeal the earlier act.</p> <p>4. Same — effect where two statutes are in irreconcilable conflict. Where two statutes upon the same subject are in such irreconcilable conflict that both cannot stand, the later act, being the last expression of the legislature, will be regarded as repealing the earlier act by implication; but a statute will not be held to be thus repealed unless there is no 'other alternative.</p> <p>5. .Constitutional law — when act is valid though it modifies prior existing statutes. An act which is complete in itself and does not purport, either in its title or in the body thereof, to amend or revive any other act is valid, even though it may, by implication, modify or repeal prior existing statutes.</p> <p>6. Same — when act is invalid as amending statute by reference to title, only. An act which, although complete in itself; purports to amend or revive a prior statute by reference to its title, only, is invalid, regardless of all other questions.</p> <p>7. Same- — when an act incomplete in itself is invalid. An act which is incomplete in itself and in which new provisions are commingled with old ones, so that it is necessary to read the two acts together to determine what the law is, is an amendatory act and invalid under the constitution, and it is unimportant, in such case, that the act does not purport to amend or revive any other statute.</p> <p>8. Sams — the Township High School act of rpii is not invalid as an amendatory act. The Township High School act of 1911, (Taws of 1911, p. 505,) which provides for the organization of township high school districts under certain conditions, is not in violation of section 13 of article 4 of the constitution, which provides that “no law shall be revived or amended by reference to its title only, but the law revived or the section amended, shall be inserted at length in the new act.”</p> <p>9. Schools — effect of the Township High School act of ipn. The effect of the Township High School act of 1911 is to give to the people the option to proceed with the organization of a township high school district either under such law or under the general School law, whichever is best adapted to the local conditions and applicable thereto.</p> <p>10. Sams — words “contiguous and compact territory” must receive reasonable construction. The words “contiguous and compact territory,” used in section 6 of the Township High School act of 1911, must be given a reasonable construction in view of the object to be attained by the law.</p> <p>11. Sams — legal existence of a school district is not dependent upon legality of election of board of education. The legal existence of a township high school district is not affected by the fact that the election for members of the board of education may not have been held in the manner and at the time required by law.</p> <p>12. EsSCTions — provision for election of board zvithin thirty days after organisation of high school district is not mandatory. The purpose of section 4 of the Township High School law of 1911, requiring the calling of an election for members of the board of education within thirty days after a favorable vote upon the organization of the district, is to procure a board of education within a reasonable time, and the mere fact that the election is not held for forty-two days after the vote on the organization of the district does not render the election invalid.</p> <p>13. Sams — ballot at first election of board of education should designate length of terms. The ballots at the first election of the members of the board of education under the Township High School law of 1911 should designate the length of the term of office for which the several candidates are to be elected.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. Prank Perrin, Judge,- presiding.</p>

<p>Appeal from the Circuit Court of Woodford county, the Hon. T. M. Harris, Judge, presiding.</p>

<p>1. Drainage — whether lands are benefited at all is a question settled at the time classification is made. Whether the lands in a farm drainage district are benefited at all by the improvement is a question which is settled at the time the classification of the lands is made, and hence an objection, upon application for judgment and order of sale for a delinquent installment of the assessment, raising the point that the land derived no benefit from the improvement should be stricken from the files on motion.</p> <p>2. Same — whether property has been properly classified as assessed land is a question not open on application for sale. The classification of lands in a farm drainage district is subject to review by the county court upon appeal by any land owner who may feel aggrieved, and the question whether his land is benefited at all or has been classified too high may be submitted to .a jury upon such appeal, but the question whether lands have’been properly classified as assessed lands cannot be raised upon an application for judgment and order of sale for a delinquent installment of the assessment.</p> <p>3. Same — question whether farm drainage assessment exceeds benefits may be raised on application for sale. Owners of land in a farm drainage district are entitled to a hearing upon the question whether their land is assessed more than it is benefited by the improvement, and as the first opportunity to raise that question in such district is upon application for judgment and order of sale it may be raised at that time, in the absence of any question of estoppel. (People v. Welch, 232 Ill. 167, and People v. Brozvn, 253 id. 578, adhered to.)</p> <p>4. Same — when owners are estopped to question amount of the assessment. Dand owners in a farm drainage district who, with knowledge of the amount of the assessment against their lands, petition the commissioners to divide the assessment into installments and issue bonds therefor, thereby inviting investors to purchase the bonds, recognize the validity of the assessment and the liability of their lands to pay their proportionate share of the assessment, and are estopped, upon an application for judgment and order of sale for a delinquent installment, to urge the objection that the amount of the assessment exceeds the benefits to their land from the proposed improvement.</p> <p>5. Same — the collector may urge point that land owners are estopped to question amount of assessment. The county collector, on application for judgment and order of sale for a delinquent installment of a farm drainage assessment, may urge the point that the land owners, by their action in petitioning to divide the assessment and issue bonds, aré estopped to question the amount of the assessment, even though the bondholders are not nominal parties to the suit, as in such,case the bondholders are the real parties in interest, and the people, through the proper officers, act as the agent of the bondholders in .collecting the assessment.</p>

<p>1. Specific performance — a provision that time of payment is the essence of the contract may be waived. A provision in a contract for the sale of real estate on the installment plan, that the time of payment shall be of the essence of the contract, is lawful and will be enfqrced in equity if the parties were competent to contract and the provision is in force when the forfeiture 'was. declared; but such provision may be waived by conduct of parties.</p> <p>2. Same — a waived or suspended provision cannot be restored except upon definite and specific notice. Parties to a contract for the sale of land on the installment plan may waive or temporarily suspend the provision that time of payment shall be of the essence of the contract, and where such provision has been waived or suspended it cannot be restored except upon definite and specific notice to the party in default and under circumstances of perfect fairness on the part of the other party.</p> <p>3. Same — when provision, that time of payment is of the essence of the 'contract cannot be restored by mere demand. Where the vendor in a contract for the sale of real estate upon the installment plan has from the beginning of the contract and for a period of five years accepted payments in amounts and at times not in accordance with the contract and has failed to release an encumbrance on the lot according to his agreement, he cannot restore such provision by demanding the whole amount due at once, as he had been threatening for a year to do.</p> <p>4. Same — what offer of payment is a sufficient basis for a bill for specific performance. Where the payments under a contract for the sale of real estate upon the installment plan have extended over a period of five years in small amounts and the amount still due is not accurately known to the' purchaser and is difficult of ascertainment, a tender of an amount slightly less than is actually due, coupled with an offer to pay whatever is found due, is a sufficient basis for a bill for specific performance, where the vendor made no objection to the tender because of the amount but because he had determined to stand on his legal rights under his declaration of forfeiture.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. Frank Perrin, Judge, presiding.</p>

<p>1. Pleading — what circumstance should be considered in determining truth of averment in answer. The failure of the defendants to a bill for specific performance to set up the defense of a cancellation of the original contract until the filing of an amended answer five months after the original answer (which made no such defense) had been filed, although the fact, if true, must have been known when the original answer was filed, is a circumstance to be considered in determining the truth of the averment.</p> <p>2. Specific performance — parties may, by their acts, waive a provision that time islt of essence of the contract. A provision in a contract for the sale of land that time of payment shall be of the essence of the contract is waived, where the evidence shows that both parties disregarded such provision from the beginning, and that the payments on the purchase price and payments of taxes and of interest were none of them made according to the terms of the contract or at -the time fixed thereby.</p> <p>3. Same — when actual tender of final payment is unnecessary. Where the only thing which remains for the purchaser to do to entitle him to a deed is to make the final payment, but there are unsettled accounts between him and the seller over which there is a dispute in good faith,' it is sufficient if the purchaser is ready and willing to pay the amount found due upon an accounting, and no actual tender need be made.</p> <p>4. Same — when seller cannot claim compensation for services. Where the parties to a contract for the sale of land make an arrangement whereby the seller is to look after the collection and disbursement of the funds of the purchaser, who was then financially embarrassed, such arrangement being for the benefit of the seller to secure the purchaser’s indebtedness to him upon all accounts, the seller is not entitled to compensation for his services. if no agreement to that effect was made.</p> <p>5. Costs — costs, in chancery, are largely within the discretion of the trial court. .Costs, in chancery, are to be awarded in the discretion of the trial court, and unless there is an abuse of such discretion the Supreme Court will not interfere.</p>

AppEae from the Appellate Court for the First District ; — -heard in that court on appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baedwin, Judge, presiding.

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

<p>1. Criminal i,aw — what is essential to validity of record in a criminal case. ' It is essential to the validity of the record in a criminal case that it show that the proceedings were had in a court regularly organized, and therefore the convening order for the term at which the conviction was had must appear, the record must show that the grand jury was sworn, that the indictment was returned in open court, that the trial jury was empaneled and sworn, and that the defendant was present and entered a plea to the indictment.</p> <p>2. Same — plea of guilty does not waive defect going to jurisdiction of grand jury to act. A plea of guilty waives irregularities in the constitution of the grand jury, consisting of informalities in drawing or summoning the jurors, questions regarding their qualifications, and the like; but this doctrine does not extend to cases where, because of some fundamental defect, the grand jury was without jurisdiction to act.</p> <p>3. Same — record mtist show that grand jury zvas sworn. The record must show that the grand jury was sworn notwithstanding the accused entered a plea of guilty to the indictment, as an unsworn grand jury has no jurisdiction to return any indictment and the accused cannot waive a charge by an actual grand jury.</p>

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

<p>1. Elections — the ballots will prevail over returns if they have been properly preserved. In an election contest the ballots will prevail over the returns where it is shown that they have been preserved according to law and have not been exposed in such a way as to afford a reasonable probability that they have been changed or tampered with.</p> <p>2. Same — when force of ballots as best evidence cannot be said to be overcome. The fact that the evidence of the village clerk as to the manner in which he kept the ballots between the time of the election and the re-count does not show the highest degree of care and does not exclude the possibility that they could have been tampered with does not overcome the force of the ballots as the best evidence. (Roland v. Walker, 244 Ill. 129, distinguished.)</p> <p>3. Same — when irregularity of cross in circle does not authorize rejecting ballot. If there is a distinct cross in the circle, indicating an honest attempt of the voter to make a cross, the ballot should not be rejected because the cross is made irregularly and with more than two lines.'</p> <p>4. Same — mark which can be accounted for consistently with an honest purpose of voter does not necessarily invalidate ballot. A mark upon a ballot which, though unnecessary, can be accounted for consistently with an honest purpose of the voter to indicate his choice does not necessarily render the ballot invalid.</p> <p>5. Same — when crosses in two circles do not invalidate ballot. A ballot having a cross in the circle of the People’s ticket, on which the defendant in the election contest was a candidate, should be counted for him though there is also a. cross in the circle of the Republican ticket, where the latter ticket is blank and it is proven that the defendant was a member of the republican party, thus indicating that the voter intended to vote for the defendant by marking the circle of the Republican ticket before he discovered there were no names on the ticket.</p> <p>6. Same — lines in the square or circle must cross at some point. To entitle a ballot to be counted there must be some point inside the square or circle where there is an intersection of lines which may be properly called a cross.</p>

<p>Taxes — fact that there is a balance in county treasury does not invalidate tax levy to that extent. The fact that there is a considerable sum of money in the county treasury on September 1 does not, of itself, render invalid to the extent of that sum the levy to pay the county expenses for the ensuing year. (People v, Atchison, Topeka and Santa Fe Ry. Co. ante, p. 33, followed.)</p>

<p>Writ op Error to the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.</p>

<p>Appeal from the County Court of Shelby county; the Hon. J. K. P. Grider, Judge, presiding.</p>

<p>,i. Taxes — a tax to pay any judgment against a county is not subject to reduction. Under the final proviso to section 2 of the amended Revenue law, (Laws of 1909, p. 323,) which states that no reduction of any tax levy made under such section shall diminish any amount levied pursuant to the mandate or judgment of any court of record, a tax to pay a judgment rendered by a court of record against a county is not subject to reduction, whether the judgment is for payment of bonded indebtedness or for any other character of indebtedness or liability.</p> <p>2. Same — it is not necessary that there be both a judgment and a mandate. If there is a command by a court of record to the taxing authorities to perform the ministerial duty of levying a .tax, or if there is a judgment of a court of record from which the duty to levy a tax for the payment of the judgment follows without any mandate, a tax levied by virtue of the mandate or judgment cannot be diminished by the scaling process provided for in section 2 of the amended Revenue law.</p>

<p>1. Criminal law — when judgment of conviction should not be reversed on the evidence. A judgment of conviction based upon the verdict of a jury should not be reversed as not warranted by the evidence, even though there is testimony tending to support the defense of an alibi, unless it is clear that the verdict is so clearly contrary to the weight of the evidence as to show that it is the result of passion or prejudice.</p> <p>2. Same — it is proper to prove circumstances of the arrest. In a prosecution for robbery it is not error to permit a police officer to testify to the circumstances under which the accused was arrested, including a statement of where he was found and the names of the persons then with him, even though one of such persons is such a notorious criminal that the jurors may have heard of him and be cognizant of his bad reputation.</p> <p>3. Same — State-may prove by schoolboys that school was not in session on a certain date. Where a young brother of the accused testifies that he attended a picture show with the accused on the night of the crime and fixes the date by the circumstance that he had attended school on that day, it is not improper for the prosecution to prove by schoolboys who attended the same school the witness attended that the school was not in session that day.</p> <p>4. Same — when an officer may testify though he remained in court room when other witnesses were excluded. It is not error to permit an officer to testify in a criminal case though his name was not indorsed on the indictment and though he remained in the court room notwithstanding a rule had been entered excluding the witnesses, where he was the officer in charge of the court and where the court offered to allow counsel for the accused to interview the witness before he testified.</p> <p>5. Same — mere fact that State’s attorney makes a statement outside the record is not necessarily reversible error. The mere fact that the State’s attorney, in describing the physical surroundings where the robbery took place, makes a statement which is outside of the record is not necessarily ground for reversal, there being nothing in the statement tending to prejudice the accused.</p>

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

<p>Appeal from the County Court of Pike county; the Hon. Paul F. Grote, Judge, presiding.</p>

<p>Appeal from the County Court of Washington county; the Hon. W. P. Green, Judge, presiding.</p>

<p>Appear from the Circuit Court of Shelby county; the Hon. J. C. McBride, Judge, presiding.</p>

<p>1. Informations — information must allege every fact essential to existence of offense charged. An information, like an indictment, must allege every fact essential to the existence of the offense charged, and no presumptions are indulged in its support when its sufficiency is challenged by a motion to quash.</p> <p>2. Same — when information need not charge that the defendant “knowingly” violated statute. Where the word “knowingly” is used in the statute and forms a part of the definition of the offense the word must be used in an information based upon the statute; but if the word is not used in the statute and the character of the offense makes it necessary to prove guilty knowledge to make out the charge, such proof is admissible under an allegation that the' act was “willfully and unlawfully committed.”</p> <p>3. Quarantine — power of the county board to make quarantine rules. Under paragraph 116 of the act relating to counties the board of county commissioners in counties not under township organization constitutes the board of health for territory lying outside of incorporated cities and villages and has the power to make necessary quarantine rules and regulations to prevent the spread of communicable diseases; but such power cannot be exercised arbitrarily and without reference to existing conditions. (Potts v. Breen, i6f Ill. 67, approved.)</p> <p>4. Same — statute 'authorising county board to make quarantine regulations is not a delegation of legislative power. The statute authorizing the board of county commissioners in counties not under township organization to make necessary quarantine regulations does not operate as an unlawful delegation of legislative power to such board.</p> <p>5. Same — rules and regulations made by county board must be written and entered of record. The rules and regulations which the statute authorizes the board of county commissioners to make to prevent the spread of communicable diseases must be written rules, adopted in an official manner and duly entered of record.</p> <p>6. Same — a single case of a contagious disease is sufficient to authorise the county board to act. A single case of a contagious disease is sufficient to call into action the power of the board of county commissioners to make a rule quarantining the house where the sick person is, and it is not necessary for the board to wait until the disease has extended to other localities or to other persons in the same locality.</p> <p>7. Same — quarantine regulations are not such public laws as are conclusively presumed to be known. The rules and regulations made by the board of county commissioners, acting as a board of health, to prevent the spread of communicable diseases are not such public laws as are conclusively presumed to be known, and to sustain a conviction for violating such a regulation it must be proved that the defendant had notice of its existence.</p> <p>8. Criminal iaw — what necessary to sustain a conviction for violation of a quarantine regulation. To sustain a conviction for violation of a quarantine regulation made by the board of county commissioners, the information must allege that a regulation was duly made by the board and entered of record, the effect of which was to place the defendant’s residence under quarantine, and should set out enough of such regulation to show that the act charged against the defendant was'a violation thereof.</p> <p>9. Instructions — when error in giving and refusing instructions cannot be considered. Alleged error in giving and refusing instructions cannot be considered in the absence of a bill of exceptions containing' all the evidence.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. William C. Johns, Judge, presiding.</p>

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

<p>'Appeal from.the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.</p>

<p>1. Special assessments — when court may permit amount estimated for costs and expenses to be reduced. Where an ordinance for the condemnation of land for a street and for the payment of the whole cost of the improvement by special assessment includes an item of $500 estimated as the costs and expenses of the proceeding, it is proper for the court, when the amount of compensation is ascertained, to allow the amount estimated for costs and expenses to be reduced so that it shall not exceed the statutory limit of six per cent of the assessment.</p> <p>2. Same — a special assessment is only justified by special benefits to the property assessed. Property cannot be specially assessed where it will not be benefited by the improvement unless some other work, for which no provision has been made, shall be done in the future.</p> <p>3. Same — property owner is entitled to some positive provision that work shall be done. While there is a natural presumption in every case that property condemned for a street will be made into a street, yet a property owner who is assessed for the improvement is not required to rely upon such presumption but is entitled to some positive sort of provision that such action shall be taken.</p> <p>4. Same — provision should be made for removal of buildings and trees from land condemned for street. Property owners can not be specially assessed to pay the compensation awarded for the taking of land for the opening of a street where no provision has been made for the removal of buildings and trees from the land, which, until removed, will prevent the use of the land as a street.</p>

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

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

<p>AppEae from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.</p>

<p>Appear from the Superior-Court of Cook county; the Hon. Theodore BrEntano, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>1. Judgments and decrees — decree is subject to revision during the term. Even though a decree has been signed by the chancellor it remains ambulatory until the end of the term, and during the term it may be revised or modified, on motion, in furtherance of the ends of justice.</p> <p>2. Specific performance — when purchaser must accept a deed not signed by vendor’s wife. If the purchaser accepts a contract for the sale of land signed only by the vendor, who was the owner of the fee, and which contains no provision that the deed shall be signed by the vendor’s wife, the purchaser is bound to accept a deed signed by the vendor, alone, and pay the full purchase price, thus leaving him to rely upon the covenants of the deed to protect him against the dower interest of the wife in case she survives her husband.</p>

<p>1. Res judicata — when a grantor is estopped to deny fact settled by judgment against grantee. Where a grantor who has conveyed a lot with covenants of warranty against encumbrances is advised by the grantee that a suit has been brought against her to establish an easement of way over part of the lot and is notified to defend the suit, and the grantor appears and acts as the grantee’s solicitor, makes defense and manages the suit, he is bound by the judgment, and is estopped, in a subsequent action of covenant by the grantee, to dispute the fact of the existence of the easement established by such judgment.</p> <p>2. Propositions oe daw — propositions of law not necessary to preserve questions of fact. Where a case at law is tried without a jury, propositions of law must be tendered to the court to show what rules of law were applied to the facts, but there is no necessity of such propositions for the preservation of questions of fact.</p>

<p>1. Negligence — what not ground, for holding that death was not the proximate result of an "attractive nuisance.” The fact that at the time a small boy fell into an unguarded clay-hole pond, where he and his young brother were fishing, he was either chasing a chicken to throw it in the water or was trying to get the chicken out after throwing it in, is not ground for holding that his death was-not the proximate result of the attractive nuisance.</p> <p>2. Same — plea of not guilty does not put in issue the defendants’ title to premises. In an action for damages for the death of a small boy who fell into a clay-hole pond and was drowned, a plea of not guilty does not put in issue the defendants’ ownership or possession of the property.</p> <p>3. Evidence- — effect of statute is to leave competency of husband and wife as it was at common law. The effect of sections 1 and S of the Evidence act, taken together, is to leave the competency of husband and wife to testify for or against each other the same as it was at common law, and at common law the wife was incompetent to testify for her husband in any case in which he had a financial interest in the result of the litigation.</p> <p>4. Same — when wife of administrator is not competent to testify. Where the administrator bringing an action for the death of his intestate is the father of the deceased boy, and therefore interested, as next of kin, in the result of the suit, his wife is not a competent witness, and the fact that she is also interested, as next of kin, in the result of the suit does not change the situation. {Craig v. Miller, 133 Ill. 300, repudiating Lincoln Avenue Gravel Road Co. v. Madatis, 102 id. 417, approved.)</p>

Writ of Error tó 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. William H. Me Surely, Judge, presiding.

<p>1. Practice — certificate of evidence cannot be amended upon mere recollection of judge. Where a bill of exceptions or certificate of evidence is signed and filed it becomes a part of the record, and it cannot thereafter be amended merely from the judge’s recollection of what occurred.</p> <p>2. Same — affidavit of solicitor cannot be considered by court as a basis for amending certificate of evidence. An affidavit of one of the solicitors in the case cannot he considered by the judge as evidence upon which to base an amendment of the certificate of the evidence.</p> <p>3. Same — when certificate of evidence is itself sufficient basis ' for amendment. If the certificate of evidence shows on its face that it contains all the evidence, there being a statement therein_ by complainant’s solicitor, following complainant’s evidence, that “this is our case,” and a statement by the defendant’s solicitor that their only evidence was certain stipulated payments of taxes and receipts therefor, which are shown, the certificate itself is sufficient authority to enable the judge to add the statement that the certificate contáins all the evidence heard.</p> <p>4. Evidence — courts cannot disregard statute relating to introduction of secondary evidence of deeds. Every citizen is entitled to the benefit of the rules prescribed by the legislature for the admission of secondary evidence of deeds, and the courts are not at liberty to disregard such rules and admit certified copies of deeds in evidence, over proper objections, without any attempt being made to comply with the conditions prescribed by the statute.</p>

<p>1. Infants — fact that judgment in suit by infant is rendered without a jury does not make the judgment void. The fact that a judgment for the defendant in a replevin ■ suit begun by a minor, by his next friend, was rendered by the court without a jury does not render the judgment void on the alleged ground that the minor could not waive his constitutional right to a trial by a jury, as infancy is a personal matter, and a court having jurisdiction of the subject matter arid of the person of the infant does not lose its jurisdiction by any irregularity in its exercise. (Paulsen v. People, 193 Ill. 507, distinguished.)</p> <p>2. Appears and errors — when a constitutional question is not presented. In a suit on a replevin bond, given in a replevin suit in which the plaintiff was a minor suing by his next friend and in which the judgment was rendered in favor of the defendant by the court without a jury, the defendant cannot raise the constitutional question as to the right of the infant plaintiff to waive a jury trial in the replevin suit, as the judgment in such suit would not for that reason be void; and as such constitutional question could not be raised in the trial court it cannot be urged in the Supreme Court.</p> <p>3. Same — whether a nunc pro tunc order was properly entered does not present constitutional question. Whether a nunc pro tunc order amending a judgment and purporting to be made upon notice, from an inspection of the records, files and orders of the court, was properly made does not present any constitutional question.</p>

<p>1. Criminal law- — when court will not inquire into evidence heard by grand jury. The court will not inquire into the proceedings before the grand jury in order to determine whether the evidence heard by that body was sufficient to support the indictment, unless all the witnesses were incompetent or all the testimony upon which the indictment was found was incompetent.</p> <p>2. Same — effect where prosecuting witness does not testify .before the grand jury. The name of the prosecuting witness may be indorsed on an indictment for rape though she did not testify before the grand jury, and the fact that she did not testify before the grand jury does not raise the presumption that there was no competent evidence given which would warrant the grand jury in returning the indictment.</p> <p>3. Same — fact that accused has not had opportunity to interview prosecutrix is not ground, for a continuance. The fact that neither the accused nor his counsel have had an opportunity to interview the prosecuting witness in a rape case is not ground for a continuance, nor can the court be required to enter an order requiring her to be produced in court for the purpose of granting such' interview, where Ihe name of the prosecuting witness was indorsed on the indictment so that the accused had notice that she would testify against him.</p> <p>4. Same — what objection should be raised by challenge to the array. An objection that the sheriff was guilty of misconduct in serving a special venire, in that he refused to serve the venire upon men who he ascertained by open questions were not married, must be raised by a challenge to the array, as the irregularity, if any, existed at the time the jurors were summoned.</p> <p>5. Same — what testimony is admissible in rape case as showing means used by accused to obtain consent and silence. In a prosecution ' for rape without force, testimony by the prosecutrix that when she told the accused she was afraid he replied that his first wife was only thirteen years old when he married her, and that during the act of intercourse he told the prosecutrix not to tell but to be wise and keep quiet, as another girl (naming her) had done, is admissible for the purpose of showing the means used by the accused to obtain the consent and silence of the prosecutrix. •</p> <p>6. Same — when prosecution'is not required to make election as tó offenses until proof is in. In a prosecution for rape, where the prosecutrix is under the age of consent, testimony of more than one act of intercourse with her permission is admissible, and the prosecution does not, by introducing evidence of the first act, waive its right to elect to prosecute upon the second one and is not required to make the election until after the proof is in.</p> <p>7. Same — fact that the accused attempted suicide while in jail may be shown. In.a prosecution for rape, the fact that accused, while confined in jail after his arrest, attempted to commit suicide is a circumstance which may be proven and be taken into consideration by the jury in connection with the other facts and circumstances proven.</p> <p>8. Same — when refusal to admit testimony as to contents of a memorandtim book cannot be reviewed. The refusal of the trial court, after permitting the accused to explain his motive in attempting suicide, to allow him to state what he had previously written in a memorandum book wh'ich was taken'from him by the sheriff and not produced on the trial though demanded, cannot be reviewed on writ of error, where there is nothing in the record to show what the memorandum contained.</p> <p>9. Same — the wife cannot testify for or against husband in a prosecution for rape. The wife of the accused cannot testify for . or against him in a prosecution for rape, and is not a competent witness to contradict the testimony of the prosecutrix in referenc.e to conversations had with the wife in the- presence of the accused or conversations which she testified she had overheard between the accused and his wife.</p> <p>10. Same — when improper cross-examination of a witness for accused ■will not reverse. Improper cross-examination of a witness for the accused, the only purpose of which was to show that she was a lewd and immoral woman and to degrade her before the jury, will not be ground for reversal, where the matters to'which she testified in favor of the accused were of minor importance.</p> <p>n. Same — when highly improper conduct by State’s attorney will not reverse. If the matters testified to by a witness for the accused are of minor importance, the fact that the State’s attorney, as the witness was leaving the stand, stated, in the presence of the jury, that he desired to swear out a warrant for her arrest on the charge of perjury, to which the court responded, “Motion denied,” is not ground for reversal of the judgment although such conduct is highly improper.</p> <p>12, Same — when failure of bailiff to keep jurors from talking with outsiders will not reverse. It is improper for the .bailiff in. charge of the jury in a criminal case to permit the jurors to be in the company of outsiders or to allow a juror to hold a conversation with his wife, but his action in so doing will not be ground for reversal unless it is shown that the jurors, bj such exposure, were influenced in some way to the prejudice of the accused.</p> <p>13. Samé — when fact of birth of a child is corroborative evidence in. a rape case. It is proper, in a prosecution for rape, to refuse an instruction that the fact of the birth of a child to the prosecutrix was no evidence that the accused was guilty, where the birth of the child occurred within the natural period of gestation reckoned from the act of intercourse with the accused testified to by the prosecutrix. (Kevern v. People, 224 Ill. 170, distinguished.)</p> <p>14. Samé — when refusal of an instruction as to character of charge of rape will, not reverse. Refusal to give an instruction to the effect that the charge of rape is easy to make, difficult to prove _ and more difficult to disprove, etc., is not ground for reversal even though it might not be error to give it, as the statement is more in the nature of an argument than a proposition of law.</p> <p>13. Samé — when instruction as to sufficiency of circumstantial evidence is not prejudicial. An instruction given at the request of the People, stating that the .jury are not required to be satisfied, beyond a reasonable doubt, of each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if, taking the testimony all together, they are satisfied, beyond a reasonable doubt, of the guilt of the accused, is not prejudicial, even though, under the facts of the case, the simile of a chain and its links is not applicable.</p> <p>16. Same — what must be shown before accused can complain of a prepared form of verdict. Where the jury are fully instructed as to the three forms of verdict which might be returned, the accused is not entitled to complain that the court gave the jury a prepared form of verdict which could be used under one, only, of such instructions, unless it is affirmatively shown that the judge failed to deliver prepared forms of verdict which could be used under the other instructions.</p> <p>17. Same — when improper argument by State’s attorney will not reverse. Improper argument by the State’s attorney in addressing the jury will not be ground for reversal, where the proof of the guilt of the accused is so clear and convincing that the,jury could not have arrived at any other verdict than the one returned.</p>

<p>Appeal from the Appellate Court for the Second District; — heard in that court on writ of error to the Circuit Court of LaSalle county; "the Hon. Edgar EldrEdgE, Judge, presiding.</p>

<p>Appeal from the County Court of Moultrie county; the Hon. Isaac Hudson, Judge, presiding.</p>

<p>SpEciae assessments — ivhat a sufficient compliance with statute requiring new resolution at public hearing. Where the original resolution for an improvement is modified by resolution at the public hearing and further consideration of the improvement “as modified” is postponed to a future date to which the hearing is adjourned, and thereafter, after several other adjournments, a further modification is made by a resolution describing the change so made and reciting that “the scheme as thus and heretofore modified be adhered to,” such resolution is a sufficient compliance with section 8 of the Local Improvement act, concerning the adoption of a new resolution. (Hulbert v. City of Chicago, 213 Ill. 452, explained.)</p>

<p>1. Deeds — what constitutes a good delivery. Where the grantee is present at the time of the execution of a deed to him reserving a life estate in the grantors, has come to the office of the scrivener for the purpose of the execution of the deed, and knows that the deed was left with the scrivener by the grantors to be filed for record, such facts, together with the recording of the deed, constitute a good delivery.</p> <p>2. Same — reservation of life estate creates a presumption that immediate delivery was intended. The reservation of a life estate to the grantors creates a presumption that the deed was intended as an immediate conveyance of a future estate, and the retention of the deed by the grantor is not inconsistent with its delivery at the time of its execution.</p> <p>3. Same — when deed cannot be deemed to convey a fee simple. Section .9 of the Conveyances act, providing that a deed in the form therein prescribed shall be deemed a conveyance in fee simple, must be construed with section 13 of the same act, and hence if words theretofore necessary to transfer an estate of inheritance are not used and a less estate is limited by express words or appears to have been granted by operation of law, the deed is not deemed a conveyance of a fee simple estate. (Bauman v. Stoller, 235 Ill. 480, followed; Palmer v. Cook, 139 id. 300, overruled.)</p> <p>4. Same — words following the description of land in statutory form of warranty deed may limit estate. Words inserted after the description of land in a statutory form of warranty deed may limit the estate granted to less than a fee simple estate.</p> <p>5. Same — terms of deed must control unless evidence is clear that it states the agreement incorrectly. While a court of equity has jurisdiction to reform a deed upon the ground of a mistake, yet the presumption is in favor of the written contract, and its terms must control unless the proof is clear and convincing that the deed states the agreement of the parties incorrectly.</p> <p>6. Same — when parties have no right to have deed corrected. Where a grantee accepts a voluntary conveyance reserving a life estate in the grantors and providing that if the grantee dies leaving a wife and children they “shall inherit the whole land as the law directs,” the grantee has no right, as against his children who were then unborn, to have the deed corrected by striking out the clause concerning his children, and their rights are not affected by his making a quit-claim deed of the land to the grantor in the first deed; nor does the latter acquire any right to have the first deed corrected, where he knew of its language at the time the quit-claim deed was made.</p> <p>7. Same — what does not amount to a testamentary disposition of property. The fact that a deed conveying a life estate with contingent remainders uses the words “inherit” and “descend” with respect to the manner in which the title shall pass in case of the happening of the different events mentioned, does not show that the disposition of the property is testamentary in character.</p>

<p>1. Practice — when the Supreme Court can only pass upon the questions raised by propositions of law. In a suit at law coming through the Appellate Court the Supreme Court can pass upon questions of law only, and if the case was tried by the court without a jury such questions must be raised by propositions of law, or findings of fact from which a conclusion of law would follow.</p> <p>2. Illegal contracts — courts will not aid parties to an illegal contract. If the contract of the parties engaged in the business of selling so-called de luxe editions of books is contrary to good morals and public policy, the courts, both law and equity, will decline to aid the parties in recovering from their confederates the profits-gained in their nefarious transactions.</p> <p>3. Same — what is not ground for refusing to allow recovery of commissions. The mere fact that fraud was practiced by the plaintiff in a particular sale of books does not defeat his right to recover commissions- from the defendants, where the matter was settled with the purchaser and the commissions allowed only on the basis of the settlement; nor does the fact that the plaintiff, after another sale and a rupture of the relations between the parties, cast discredit upon the sale but without injuring the defendants, who received the purcháse price in full, prevent the plaintiff’s recovery of commissions on such sale.</p> <p>4. Assumpsit — what cannot be recovered in assumpsit. The interest of the plaintiff in certain books taken in exchange for other books, and which have not been converted into money or money’s worth, cannot be recovered by him in an action of assumpsit to recover his share of profits and commissions on the transactions.</p>

<p>1. Special assessments — denial of a motion to set aside judgment of sale is a final order. The denial of a motion to set aside a judgment and order of sale for delinquent installments of a special assessment and for leave to file objections is a final, appeal-able order.</p> <p>2. Same — section 66 of Local Improvement act is not invalid. Section 66 of the Local Improvement act, which requires all questions concerning the jurisdiction of the court to confirm the assessment and the validity of the proceedings to be raised upon the first application for judgment of sale for delinquent installments of the assessment, and which ljmits the defenses that may be made upon subsequent applications, is not invalid as in violation of the due process of law provision of the constitution.</p> <p>3. Same — effect of general appearance after objections under special appearance are overruled. Where objections going to the jurisdiction of the person of the property owner, and urged under a special appearance on an application for judgment and order of sale are overruled, and the property owner then appears generally and objects to the entry of the judgment of sale on the merits, the objections to the jurisdiction of the person are waived.</p>

<p>x. Wiixs — a will cannot be revoked by spoken words. Under the statute a will or codicil can only be revoked by burning, canceling, tearing or obliterating the same or by the making of another will, and not by spoken words.</p> <p>2. Same — presumption where a mutilated will is found among testatpr’s papers after his death. Where a will remains in the testator’s possessión until his death and is then found among his papers with erasures, alterations, cancellations or tearings, the presumption is that the acts so manifested upon the will were done by the testator' with the intention of revocation; but such a presumption may be rebutted by proof of the facts.</p> <p>3. Same — "tearing” of a will includes cutting. The “tearing” of a will includes cutting, and it need not be the cutting, of the whole will, as any tearing or cutting with intent to revoke the whole will is sufficient for the purpose.</p> <p>4. Same — declarations of testatrix, after cutting will, are admissible to show intent. Where the signature of the testatrix is cut from a codicil to the will in such a manner as to mutilate the will itself, declarations of the testatrix, made either at the time of or after the cutting, are admissible for the purpose of showing whether she intended her act to operate as a revocation of the will itself.</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. George W. Patton, Judge, presiding.

<p>1. Constitutional law — what is meant by term “the board of county commissioners ,” as used in constitution. The term “the board of county commissioners,” used in section 17 of article 6 and section 6 of article 10 of the constitution of 1870, refers to the three officers elected in counties not under township organization and does not refer to the board of commissioners of Cook county.</p> <p>2. Same- — eligibility provision of section if of article 6 does not apply to_ members of board of commissioners of Cook county. The provision of section 17 of article 6 of the constitution of 1870 that no person shall be eligible to membership in “the board of county commissioners” unless he shall have resided in the State at least five years next preceding his election does not apply to the board of commissioners of Cook county.</p> <p>3. Same — eligibility provision of section 6 of article f of constitution construed. The provision of section 6 of article 7 of the constitution that “no person shall be elected or appointed to any office in this State, civil or military, who is not a citizen of the United States, and who shall not have resided in this State one year next preceding the election or appointment,” is not limited to State officers, -but includes county, city or municipal officers provided for in the constitution without any specific requirement as to residence.</p> <p>4. Same — the legislature cannot change qualifications fixed by ■the constitution. The legislature has entire control over an office created by statute, but where the constitution creates an office and fixes the qualifications for such office it is not within the power of the legislature to change or add to them unless the constitution itself gives such power.</p> <p>5. Same- — provision of act of 1893 as to residence of members of board of county commissioners of Cook county is invalid. The provision of section 4 of the act of 1893 that each member of the board of commissioners of Cook county shall have resided in said county for five years next preceding the election is invalid as in conflict with section 6 of article 7 of the constitution, which fixes the qualification of residence within the State at one year.</p> <p>6. Same — constitutional declaration as to qualification for office is conclusive although in negative form. A constitutional provision that .no person shall be elected to office who “shall not have resided in this State one year next preceding the election” is con-elusive though negative in form, and the legislature cannot impose additional requirements as to residence, upon the theory that such provision merely fixes a minimum requirement in that regard.</p> <p>7. Offices — eligibility to office does not depend upon right of suffrage. All persons are equally eligible to office who are not excluded by some constitutional or legal disqualification, and the fact of eligibility does not even depend upon the right of suffrage.</p>

<p>1. WiEES — when rule in Shelley’s case does not apply. The rule in Shelley’s case does not apply to a devise of land'to the testator’s daughter, to have and to hold “unto her and her heirs and assigns forever, in fee simple, subject only to the condition hereinafter set forth,” as there is no estate of freehold devised, with a limitation, by way of remainder, to the heirs of the devisee.</p> <p>2. Same — what language does not import an estate in fee simple. A devise of land to the testator’s daughter “in fee simple, subject only to the condition hereinafter set forth,” does not import an estate in fee simple, which is a pure inheritance, clear of any qualification or condition, and must be given or granted generally, absolutely and simply.</p> <p>3.. Same — condition annexed to devise may be in separate paragraph of the will. Where an estate is devised “subject to the condition hereinafter set forth,” it is not material that the condition is contained in a subsequent paragraph separated from the paragraph making the devise by other provisions of the will.</p> <p>4. Same — when a devise is of a fee upon condition. A devise of land to the testator’s daughter, to have and to hold “unto her and her heirs and assigns forever, in fee simple, subject to the condition hereinafter set forth,” which condition is that in case of the death of the daughter without surviving issue the land shall go to the devisee’s sister amL her mother in fee simple, in equal shares, or in case of the death of both the devisee and her sister without surviving issue the land shall go to the mother in fee simple, is a valid devise of an estate upon condition, and unless there is some further provision making it' impossible to give effect to the testator’s intention without violating some positive rule of law, the devise must be given effect.</p> <p>5. Same — power of sale annexed to estate does not enlarge the estate. A power to dispose of the fee annexed to an estate less than a fee simple does not enlarge the estate, and the addition of a power of sale to a life estate does not defeat a limitation over although nothing may be left at the end of the life estate.</p> <p>6. Same — there must he something more than a fee simple devise to defeat limitation over. The power to convey a fee simple is an ordinary incident of every fee simple estate, but there must be something more than a mere devise in fee simple to defeat a limitation over by way of executory devise; nor is it correct to say that this must always be by conferring a power in addition to the estate devised, but it must appear that the devisee may dispose of the estate devised in his uncontrolled discretion.</p> <p>7. Same — effect of adding power of sale to an estate upon condition. Where a will does not devise a fee simple estate but merely a fee, which will only become absolute when the happening of a specified condition becomes impossible and which is determinable upon the happening of the condition, the addition of a provision that nothing “herein contained” shall be construed to deprive the devisee of the power to sell and convey the land devised in fee simple merely confers a power over the estate, and if such power has not been exercised when the condition happens upon which the estate is to be determined, the limitation over takes effect. (Williams v. Elliott, 246 Ill. 348, and Burton v. Gagnon, 180 id. 345, explained.)</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. Edward A. Dicker, Judge, presiding.

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. Willard M. McEwen, Judge, presiding..

<p>1. Trusts — when court of equity may authorise change in character of improvements on property. Where changes occur after the death of the testator which will defeat his intention in creating a trust in land owned by him upon which is an apartment building erected by the lessees under the tferms of a ninety-nine year lease, a court of equity may, with the consent of the lessees and the parties interested as devisees and heirs, authorize the making of a new ninety-nine year lease providing for- a character of improvement suitable to the changed condition and which will enable the testator’s intention to be carried into effect.</p> <p>2. Practice — when minor defendants need not be brought into court by new summons. Where minor defendants to a chancery proceeding are properly in court and represented by a guardian ad litem it is not necessary that they be again brought into court by a new suúimons upon the filing of supplemental and amended supplemental bills.</p>

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

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

<p>Appeal from the Circuit Court of Adams county; the Hon. Harry HigbeE, Judge, presiding.</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. Windes, Judge, presiding.

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

<p>Appeal from the County Court of Cook county; the Hon. D. T. Smiley, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District; — heard in that court on appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.

<p>Appeal from the Appellate Court for the Third District ; — heard in that court on appeal from the Circuit Court of D'eWitt county; the Hon. W. G. Cochran, Judge, presiding.</p>

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

<p>1. Constitutional law — the question whether act was properly passed cannot be determined on pleadings, alone. The question whether a statute was enacted in the manner required by the constitution cannot be determined upon the pleadings, alone.</p> <p>2. Same — when courts may decline to. consider constitutionality af statute. The courts may decline to consider the constitutionality of a statute which has long been held to be constitutional, on the faith of which the community has acted for many years and under which important and valuable rights have accrued.</p>

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

<p>1. Special assessments — property of a street railway company may be benefited by street improvement. The tracks, franchise and right of occupancy of a street railway company in the street are property which may be specially benefited by the improvement of the street and be required to bear a just proportion of the expense of such improvement according to the benefits received.</p> <p>2. Same — city may agree with street railway company that latter shall pave portion of street. A city may'lawfully enter into an agreement with a street railway company requiring the company to pave, maintain and repair certain specified portions of the street in which the tracks are laid, in consideration of the rights and privileges granted by the city.</p> <p>3. Same — when city cannot include street railway right of way in paving ordinance. Where a contract exists between a city and a street railway company requiring the latter to pave the portion of the 'street occupied by it at its own expense, the city has no right to include that portion in an ordinance providing for the paving of the street and the levy of a special assessment to pay for the cost of the improvement, including such portion.</p> <p>4. Same — rule where no contract exists requiring a street railway company to pave. Where no contract exists between a city and a street railway company requiring the company to pave the portion of the street occupied by it, the city may pass an ordinance for the paving of the whole roadway of the street by special assessment and charge against the property of the company its just proportion of the cost of the improvement according to the benefits it receives.</p> <p>5. Same — ordinance construed as requiring street railway company to pave. A provision in an ordinance granting street privileges to a street railway company, that “the parties operating said railroad shall keep the space between said rails, and one foot on each side of the outer sides thereof, in good and safe condition and repair, with the same material used on the remainder of said streets by said city, or other good material that may be approved by the city council of said city,” amounts to an agreement that the street railway company shall pave its portion of the street when the city paves the remainder.</p>

<p>AppEae from the Circuit Court of Warren county; the Hon. Robert J. GriEr, Judge, .presiding.</p>

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

<p>1. DEEDS' — proof must be clear to authorise reforming a deed for mutual mistake. In order to justify a court of equity in. reforming a deed the evidence must be strong and convincing that there was a mutual mistake of the parties in the respect alleged in the bill.</p> <p>2. Same — what does not justify reforming deed. A deed describing a tract of land one hundred feet square by metes and bounds will not be reformed in equity so as to make the north line coincide with the south line of a certain street, even though subsequent purchasers from the grantee may have understood that the land they were buying had such street line for its northern boundary, where there is no clear proof that the original grantor and grantee had that understanding when the deed was made.</p>

<p>1. Contracts — in construing a contract the court will consider the whole instrument. In construing a written contract to determine the meaning of a particular clause the court will look at the whole contract and construe it according to the intention of the parties as the same appears from the language of the instrument.</p> <p>2. Same — provision that article shall have a maximum capacity construed. A provision in a contract for the sale of ice scales to be placed in refrigerators made by the vendee, that the scale mechanism shall have a maximum capacity of two hundred pounds, will not be construed to mean that each mechanism, irrespective of the size of the refrigerator for which it was intended, shall have such maximum capacity, where there is another provision in the contract showing that the vendee intended to use the scales in refrigerators having a smaller capacity than two hundred pounds, and where the pattern refrigerators furnished by the vendee to. the vendor to enable the latter to make scales to fit them were of different sizes, all less than two hundred pounds capacity.</p> <p>3. Same — what does not justify rescinding contract. The mere fact that none of the scale mechanisms furnished to a refrigerator company and paid for by it had a maximum of two hundred pounds capacity does not justify the refrigerator ’company in treating the contract as rescinded and refusing to accept further deliveries under the contract, where it does not appear that there was any demand upon the vendor, or refusal by him, to furnish scale mechanisms of that capacity if desired by the refrigerator company, and where the refusal to carry out the contract was not based upon the matter of maximum capacity of the scales but upon the ground that they were too high priced.</p> <p>. 4. Evidence — when admitting evidence of amount of defendant company’s capital will not reverse. In an action against a corporation for breach of a contract of sale, where the amount of damages is merely a matter of computation from the undisputed facts, it is not reversible error to permit plaintiff’s counsel to prove by a witness how much capital stock the defendant had, even though the evidence was wholly irrelevant and not admissible.</p>

<p>Writ of Error to the Circuit Court of Ford county; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Disbarment — when improper conduct occurring many years before Ming information cannot be overlooked. Improper conduct by an attorney in making personal use of funds in his hands as master in chancery, even though the money was restored by his bondsman and the matter occurred many years before the filing of an information to disbar him, cannot be overlooked where his subsequent conduct has been unprofessional.</p> <p>2. Same — what attempt to collect money is unprofessional. An attorney who writes a letter to a woman from whom he is trying to collect a claim by suit, charging her with having made a false affidavit for a continuance and threatening her with criminal prosecution unless she pays the claim, is guilty of unprofessional conduct.</p> <p>3. Same — when attorney is guilty of reprehensible conduct as State’s attorney. An attorney who, while acting as State’s attorney, urges young boys to plead guilty to a charge of which they protested their innocence, and who takes them into court and has them sign a waiver of jury trial and enter a plea of guilty, which it appears from their conversation with the judge immediately thereafter that they do not intend to do and did not know they .had done, is guilty of reprehensible conduct even though he may have believed he could prove them guilty.</p> <p>4. Same — when motives actuating disbarment proceeding can not affect decision. The fact that the relations between the respondent and those instigating and aiding the prosecution of the information to disbar have long been unfriendly cannot affect the decision of the case, where the facts alleged in the information are proved.</p> <p>5. The court holds, under the evidence in this case, that the respondent has been guilty of such unprofessional conduct as to require his suspension from practice as an attorney for a period of one year and until thereafter permitted to resume practice by an order of the court.</p>

<p>Appeal from the County Court of Clark county; the Hon. H. R. Snavely, Judge, presiding.</p>

<p>1. Specific performance — when a contract and lease must be considered together. Where the parties to a contract for the sale of land execute a lease for the purpose of putting the proposed vendee in possession until such time as the proposed vendor shall be able to perfect his title and make the conveyance, the contract and lease must be considered together in determining the rights of the parties.</p> <p>2. Same — fact that vendor did not have title when contract was made does not defeat specific performance. The fact that .the vendor did not have anything but a tax title to the land at the time he contracted to convey a good merchantable title by a warranty deed and furnish proper evidence of title does not defeat his right to specific performance, where the vendee knew the facts when the contract was made and where the vendor had perfected his title at the time the bill was filed, which was within'the time fixed by the contract for performance.</p> <p>3. Same — court cannot arbitrarily refuse to specifically enforce contract. While the remedy of specific performance is not strictly a matter of right, yet the court cannot arbitrarily' refuse to grant relief where the facts and circumstances and the rules of equity would justify granting it.</p>

<p>1. Injunction — equity lias jurisdiction to enjoin proceedings at law. A court of equity has jurisdiction to enjoin proceedings at law, not because of any supremacy of courts, of equity over courts of law, but because the controversy between the parties litigant involves equitable features which can be fully and finally determined only by a tribunal having equitable jurisdiction.</p> <p>2. Same — when equity may stay a proceeding begun in county court to require guardian to account. While county and probate courts may exercise equitable jurisdiction in the matter of settling the accounts of a guardian, yet if the county or probate court has no power to grant the full equitable relief on the facts established, a court of equity has power to stay the proceedings by injunction and assume jurisdiction to grant the full relief required.</p> <p>3. Guardian and ward — court of equity may require guardian to account. Guardians are regarded as trustees, and may be compelled, in chancery, to render an account before as well as after the termination of the guardianship.</p> <p>4. Same — a guardian has no poz&er to invest ward’s money in land unless authorised by statute. Unless authorized by statute a guardian has no power to invest the ward’s money in land, and in Illinois neither the county nor the probate court has power to authorize such investment or to approve the same; nor can the circuit court, on appeal from the county or probate court, approve such investment, as its powers, on appeal, are limited to the doing of such things as the county or probate court had power to do and should have done.</p> <p>5. Same — a court of equity may authorise a guardian to invest ward’s money in land.- A court of equity, in a proper case, may authorize a guardian to invest the ward’s money in iand, and it may also approve an unauthorized investment when the facts established are such that the court would have granted the authority in the first instance.</p> <p>6. Same — when court of equity may enjoin proceeding to compel guardian to account. Where a guardian, acting in good faith and for the best interest of his ward, invests the ward’s money in land under an order of the county court but is subsequently called upon by the county court to account, and is ordered, after litigation extending through the county, circuit and Appellate Courts, to sell the land and restore the money to the ward, a court of equity may enjoin further prosecution of the proceedings, and, if the facts established so warrant, may approve the .investment and permit the ward to retain the land.</p> <p>7. Same — when judgment in a statutory proceeding requiring accounting from a guardian is not res judicata. A judgment in a statutory proceeding against a guardian requiring him to sell land' purchased by him in good faith for the ward with the ward’s money and restore the money, with the profit, if any, to the ward’s estate, is not res judicata in a subsequent proceeding in equity by the ward and the guardian to have the investment approved and to permit the ward to retain the land.</p>

<p>1. Deeds — a deed delivered to third party for grantee must pass beyond■ the grantoFs control. A deed delivered by the grantor to a third person for delivery to the grantee after.the grantor’s death may be a valid conveyance, but it is indispensable to the validity of the conveyance that the deed, upon delivery to the third party, shall pass absolutely beyond the grantor’s dominion and control.</p> <p>2. Same — depositary has no authority to deliver deed if grantor dies before parting with control. If the grantor places the deed in thq hands of a depositary merely as a convenient place of deposit, still intending to retain control over it, the grantee acquires no rights while the deed is so subject to recall, and the depositary has no authority to deliver it to the grantee if the grantor dies without having parted with his- control over it.</p> <p>3. Same — circumstances of delivery to a depositary must show the grantor intended the deed to become operative at once. The circumstances of the delivery of a deed to a depositary must show that the grantor intended the deed to presently become operative, as it must take effect, if at all, upon execution and delivery, and while the grantor’s intention may be evidenced by words or acts, or both, yet, however manifested, it must show that no control was reserved or intended to be reserved by the grantor.</p> <p>4. Samé — when intended disposition of property is ambulatory. If the grantor delivers deeds to a depositary intending that they shall be delivered to the grantees provided the grantor makes no other disposition of .the property before his death, the intended disposition of the property is ambulatory until -the death of the grantor, and can only be effected by an instrument in writing in conformity with the Statute of Wills.</p> <p>5. Same — what shows that grantor did not intend to part with control over deeds. Where the grantor, after being advisedothat he would have the right to withdraw deeds from the hands of a depositary at any time if he saw fit to make other disposition of the property, executes six warranty deeds, containing no reservation of any life estate in the grantor, which he places in envelopes marked from 1 to 6, each indorsed with the name of the grantor and the words, “This envelope not to be opened during my life,” and hands the envelopes to a banker with the request that he put them away and keep them for him, the facts that the grantor thereafter sold the land covered by two of the deeds and appropriated the proceeds of the sale, and that he continued in the possession of the other land and received the rents and profits, show that he did not intend to part with control over the deeds or that they were to presently become operative.</p> <p>6. Same — when presumption of delivery of deed of voluntary settlement cannot prevail. While the law indulges a stronger presumption of delivery in case of a deed of voluntary settlement than in case of a deed of ordinary bargain and sale, yet there can be no presumption of delivery where the proof shows the grantor did not intend to make a delivery.</p> <p>7. Same — when the defendants cannot testify for each other. Where a bill for partition is filed by persons claiming as heirs, the defendants are incompetent to testify in their own behalf with reference to transactions and statements of the complainants’ ancestor just prior to his death, which are relied upon by the defendants as showing a symbolical delivery of deeds to them, and being incompetent to testify in their own behalf neither is competent to testify in favor of the other as to such transactions and statements.</p> <p>8. Same — what does .not show a symbolical delivery of deeds. The fact that after the death of the grantor one of the grantees presented to the depositary a list made by the grantor describing the six deeds which the grantor had left with the depositary, does not create the presumption that the list was delivered to the grantee by the grantor before his death and was a symbolical delivery of the deeds.</p> <p>9. Same — execution of will, omitting land described in deeds, does not show intention that deeds should presently pass title.' The mere fact that the grantor, after executing six deeds and delivering them to a depositary to keep for him, executes a will in which no reference is made to. the land described in the deeds, does not show he intended the title to pass to the grantees in his lifetime.</p>

<p>1. Emotions — proceeding to contest an election is purely statutory. The right to contest an election to a public office is created by statute, and the statute must be strictly followed in every particular or the proceeding will fail.</p> <p>2. Same — proceeding to contest election is neither one at law nor in chancery. While section- 116 of the Elections act provides that after filing the statement prescribed by section 113 the case shall be tried in like manner as cases in chancery, yet the proceeding is neither one at law nor in chancery.</p> <p>3. Same — electors may join in a statement or petition to contest an election. Under section 112 of the Elections act two or more electors may join in a statement or petition to contest an election to a public office.</p> <p>4. Same — the election of persons to separate offices of different classes cannot be contested in one proceeding. The Elections act does not authorize the election of a supervisor and a commissioner of highways to be contested in one proceeding, and the court is without jurisdiction to entertain a proceeding to contest the election of both of such officers under one statement or petition.</p> <p>5. Same- — rule 3 of section 1 of the act in relation to construction of statutes construed. Rule 3 of section 1 of the act in relation to the construction of statutes, which provides that words importing the singular number may extend and be applied to several persons or things, cannot be applied to a particular statute,'where such application would be inconsistent with the manifest intention of the legislature or repugnant to the context of such statute.</p>

<p>1. Municipal corporations — city has no legislative power not expressly or impliedly given by legislature. All legislative power is vested in the General Assembly, and while it may delegate power to municipal corporations to legislate concerning local matters, such power will be regarded as delegated only where it is given in express terms or is necessarily implied from powers expressly given, and a power not so delegated remains in the General Assembly and can be exercised by it alone.</p> <p>2. Same — clause 42 of section 1 of article 5 of Cities and Villages act does not embrace all common carriers. Clause 42 of section 1 of article 5 of the Cities and Villages act, authorizing cities to license, tax and regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen, and all others pursuing like occupations, and to prescribe their compensation, does not include all common carriers.</p> <p>3. Same — clause 42 of section 1 of article 5 of Cities and Villages act does not extend to railroads organised under Railroads act. The fact that clause 42 of section 1 of article 5 of the Cities and Villages act has been held by the Supreme Court to include street railway companies organized under the general Incorporation law does not authorize a holding that it also includes elevated railroad companies organized under the Railroads act.</p> <p>4. Same — General Assembly has not delegated power to fix compensation of railroad companies organised under the Railroads act. The General Assembly has by section 24 of the Railroads act reserved to itself the power to establish rates and charges by corporations organized under such act, and the fact that such power has not been delegated to municipal corporations is shown by the passage of the act creating the railroad and warehouse commission and the act establishing the maximum passenger fare at two cents a mile for adult passengers.</p> <p>5. Railroads — elevated railroad of corporation organised under the Railroads act is not a street railway. An elevated railroad of a corporation organized under the Railroads act is not a street railway, notwithstanding the fact that the city, under its power to impose conditions upon the construction of such a railroad upon or across its streets, has limited the business of the corporation to carrying passengers. (Knopf v. Lake Street Elevated Railroad Co. 197 Ill. 212, followed.)</p> <p>6. Same — corporation organised under Railroads act need, not exercise all of its charter powers. An elevated railroad corporation organized under the Railroads act may agree with a property owner or the city that it will engage only in carrying passengers or may otherwise limit itself in the use of its rights, but that fact does not change the character of the corporation and make it a street railway corporation.</p> <p>7. Same — city has no power to require elevated railroad corporations organised under the Railroads act to exchange transfers. A city has no power to pass an ordinance requiring elevated railroad corporations organized under the Railroads act to exchange transfers, so as to enable a passenger who has paid a five-cent fare to one of such corporations to obtain a continuous ride within the limits of the city over the lines of the other corporations whose lines adjoin, intersect or connect with the line on which the fare is paid.</p>