Volume 262 — Illinois Reports

<p>1. Special assessments—when exclusion of street railway right of way is proper. Where a street railway is occupying a portion of a street with its tracks under an ordinance granting it such privilege and requiring the company to pave such portion of the street at the time and in the manner in which the remaining portion of the street is paved by the city, it is proper to exclude the street railway company’s portion of the street from the terms of the paving ordinance.</p> <p>2. Same—what does not show that street railway ordinance is fraudulent. It is for a city to say whether the paving by a street railway company of the portion of the street occupied by its tracks shall be equivalent to an assessment of benefits against the property of the company for paving the whole roadway of the street, and</p> <p>the fact that the cost of the paving to be done by the company may be less than the benefits that might be assessed does not render fraudulent an agreement by the city to accept the paving by the company as the equivalent of an assessment.</p> <p>3. Same—when a paving ordinance sufficiently describes width of strip exempted. A paving ordinance exempting from the improvement “the space between the rails, and for. a distance of one foot outside the rails, of the track of the Springfield and Northeastern Traction Company,” etc., sufficiently describes the width of the portion of the street to be exempted, as the physical situation of the surrounding territory may supplement and aid the description in the ordinance.</p> <p>4. Same—objection to defects in a publication notice must be made under special appearance. An objection that the publication notice in a special assessment proceeding was defective must be made under a special appearance, as such defects are waived where general objections are filed going to the merits of the case.</p> <p>5. Same—property of railroad corporation may, if benefited, be specially assessed. In Illinois the property of a railroad corporation, even though being used for railroad purposes, may, if benefited, be specially assessed to pay for a local improvement.</p> <p>6. Same—when measure of benefit is I he increased value for the restricted use of property. Where property is restricted by statute or grant to a particular use and cannot be legally applied to any other use and is at the time of the improvement devoted to the restricted use, the true measure of benefit to such property from the improvement is the increased value thereof for the restricted use, there being no proof tending to show that any change of such use is intended or probable.</p> <p>7. Same—measure of benefit to land owned by a railroad company but not devoted to railroad purposes. Where land owned by a railroad company is not devoted to railroad purposes but to ordinary business uses, the measure of benefit to such land from a local improvement is the enhanced market value of the property for any purpose by reason of the construction of the improvement, notwithstanding the grant to the company restricts the use of the land to railroad purposes.</p> <p>8. Same—when measure of benefits to railroad property 'is the enhanced market value for any purpose. Strips of ground owned by a railroad company and lying between its right of way and the street to be paved, the strip in one block being leased for a lumber yard and in another block being used, by permission of the company, for a small park, may be specially assessed for the paving improvement, and the measure of benefit is the enhanced market value of such strips for any purpose, by reason of the construction of the improvement.</p> <p>9. Same—measure of benefit to lands used solely for right of way and depot purposes. The measure of benefit from a street paving improvement to land owned by a railroad company and used solely for right of way and depot purposes is the enhanced value of the property for the particular use to which it is devoted, by reason of the construction of the improvement.</p> <p>10. Same—when an instruction as to considering ftiture use of property is erroneous. Where part of the property of a railroad company specially assessed for a paving improvement consists of land used exclusively for right of way and depot purposes, it is error to instruct the jury that they shall consider, on the question of benefits, whether or not the market value of such property for any legitimate purpose for which the same may be used will be increased by reason of the construction of the proposed improvement.</p> <p>11. Same—when an instruction mid, form of verdict should be •given. In a proceeding to confirm a special assessment against the property of a railroad company for paving a street, where the evidence varies as to the amount of such benefits, some witnesses testifying that it was' more and others less than the assessment, an instruction and form of verdict requested by the company should be given,1 stating that if the jury believed, from the evidence, the property was not benefited to the amount of the assessment they should find the amount it was benefited.</p> <p>12. Same—when fact that a strip of land is used for park purposes does not preclude its assessment. The fact that a strip of ground owned by a railroad company, adjoining its right of way, has been planted with trees, and is being used, with the consent of the company, for a small park, does not preclude its assessment for a street paving improvement, where there is nothing to show that the' company cannot change the use, at any time, to business or railroad purposes.</p> <p>13. Same—what element of benefit is too remote and conjectural. Whether the leaving of a strip of land owned by a railroad company and lying between its right of way and the street, without buildings, would be a. benefit to the company by lessening the danger of accidents at cross-streets is too remote and conjectural an element of benefit to be considered.</p> <p>14. Same—question of relative benefits to different property is a question for the court and not the jury.- The only questions for the jury in a special assessment proceeding ape whether the property is assessed more or less than it will be benefited and whether it is assessed more or less than its proportionate share of the.cost of the improvement, and the jury is not authorized to hear evidence as to the relative benefits to the property on the opposite sides of the street.</p> <p>15. Same—a witness should not be allowed to give an opinion whether benefit equals assessment. A witness may testify as to the amount which property is benefited by the proposed improvement, but he should not be allowed to give an opinion as to whether the property is benefited the amount of the assessment, as that is the ultimate question for the jury to determine. .</p>

<p>1. Limitations—when a tax deed acquired by husband of one co-tenant is not color of title. One tenant in common cannot acquire color of title by procuring for her exclusive benefit an outstanding adverse title, including a title acquired by purchase at a sale for taxes imposed on the common property during the common ownership; and this rule extends to the husband of such co-tenant. (Busch v. Huston, 75 Ill. 343, followed.)</p> <p>2. Same—possession of one co-tenant may be adverse. Ordinarily the possession of one co-tenant is the possession of all, but it may become adverse, provided he asserts exclusive ownership and denies1 all right or title in his co-tenants, either by means of a formal notice or by such overt acts of exclusive ownership as give notice to the co-tenants that an adverse possession and disseizin are intended to be asserted, and in such case the Statute of Limitations will run and the right of the co-tenants become barred.</p> <p>3. Same—when right of co-tenant is not barred. The right of a co-tenant who has inherited an undivided one-third interest in land is not barred by the mere fact that another co-tenant and her husband have been in possession of the land and paid the taxes thereon for over twenty years, where their possession first began by virtue of the wife’s ownership of an undivided one-third interest in the land, continued unchanged in character after the husband acquired a tax deed based on a sale of the land for taxes imposed during the common ownership, and remained unchanged after the wife recognized the rights of another tenant in common by purchasing his interest.</p> <p>4. Same—when possession of husband cannot be adverse to that of wife. Where a co-tenant takes possession of the property with her husband under her ownership of an undivided interest in the land, and they continue to reside together upon the land after the husband has acquired a tax deed based upon a sale of the land' for taxes imposed during the common ownership and after the wife has purchased the interest of another tenant in common, the possession of the husband is not adverse to the wife nor a denial of her title, and whatever may be the nature of her possession as against another co-tenant, the husband cannot claim any benefit from it.</p>

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

<p>1. Biers of review—bills of review fall into three general classes. For practical purposes bills of review, or bills in the nature of bills of review, are divided into three classes, which are: bills for error appearing on the face of the record, bills for newly discovered evidence, and bills for fraud impeaching the original transaction.</p> <p>2. Same—rule as to obtaining leave to file a bill of review. A bill of review for error apparent on the face of the record or to impeach a decree for fraud may be filed without leave of court, but leave must be obtained before the filing of a bill of review for newly discovered evidence, or where 'the averment of newly discovered evidence is united to or accompanied by a charge of fraud in obtaining the decree or united with allegations as to errors of law upon the face of the record.</p> <p>3. Same—what amounts merely to a claim- of error apparent on face of the record. Allegations in a bill of review to the effect that the provisions of the State and Federal constitutions as to due process of law were not observed in the original proceeding, amount merely to a claim of error apparent on the face of the record.</p> <p>4. Same—when bill for errm- apparent on face of record cannot be maintained. A bill of review for errors apparent on the face of the record cannot be maintained where the original proceeding has been taken to a court of review and the decree therein affirmed.</p> <p>3. Same—what essential to right to maintain bill of review for newly discovered evidence. Before a bill of review can be filed for newly discovered evidence it must clearly be shown by the allegations of the bill that the new matter was discovered after the original decree was entered, and that it could not by the exercise of reasonable diligence have been discovered before that time.</p> <p>6. Same—mere conclusions of pleader do not amount to charge of fraud. One who seeks to maintain a bill of review for fraud in the original proceeding must state in his bill the facts relied upon to show the fraud, and mere conclusions of the pleader, unaccompanied by an averment of the facts, do not amount to a charge of fraud.</p> <p>7. Same—what does not amount to a charge of fraud. Allegations in a bill to review the decree in an escheat proceeding, which are to the effect that the court was led by fraud and circumvention into misconstruing certain provisions of the statute pertaining thereto, without setting out any facts to show how the court was misled, do not amount to a charge of fraud.</p> <p>8. Same—failure to obtain leave to file a bill of review may be ground, for demurrer. Failure to obtain leave to file a bill of review in a case where leave to file the same is required may be taken advantage of by special demurrer or may be ground for a motion to strike the bill from the files. (Griggs v. Gear, 3 Gilm. 2, and Forman v. Stickney, 77 Ill. 575, explained.)</p> <p>9. Tax deeds—zvhen holder of certificate of purchase is not deprived of any right zvithout due process of law. The right of the holder of a certificate of purchase at a tax sale amounts only to a lien which may under certain circumstances entitle him to a deed, but the holding of the court in an escheat proceeding that the provisions of the statute have not been so followed as to entitle him to a deed but that he is entitled only to reimbursement does not deprive him of any contract or vested right without due process of law.</p>

<p>Wills—when merger of life estate and reversion destroys life estate and contingent remainder. Where the testator devises a life estate in lands to his son, who was the sole heir-at-law, and at his death to the issue of his body, if any survive him, and if none survive him then to the testator’s heirs, the reversion descends to the son pending the vesting of the remainders, and if he has no children living and conveys the land by warranty deed to a third person the life estate and reversion merge in the grantee, with the effect of destroying the life estate and contingent remainder, and upon the grantee’s re-conveyance to the son the latter takes the legal title to the premises in fee, free from the rights of any other person. (Bond v. Moore, 236 Ill. 576, Belding v. Parsons, 258 id. 422, and Barr v. Gardner, 259 id. 256, followed.)</p>

<p>1. Words and phrases—the words “court” and “judge” do not always mean the same thing. The words “court” and “judge,” while sometimes used synonymously, do not always mean the same thing, and the jurisdiction of a court to hear and determine matter and the eligibility of a judge to hold that court are entirely dif- • ferent matters.</p> <p>2. Constitutional law—act relating to death or resignation of county or probate judge is valid. The act of 1885, as amended in 1899, authorizing the county clerk, in case of the death, resignation or inability of the judge of a county or probate court, to designate and call any county or probate judge to hold such county or probate court, has' no relation to nor effect upon the jurisdiction of such courts, and is not unconstitutional, as attempting to enlarge the jurisdiction of probate courts.</p> <p>3. Courts—when probate judge may be called to preside in the county court in special assessment proceeding. Under the act of 1885, as amended in 1899, it is lawful, in c.ase the judge of the county court in which a special assessment proceeding is pending has resigned his office, for the county clerk to designate the probate judge of such county to preside over the county1 court during the period the office is vacant, and he may, in such case, hear and determine the special assessment proceeding so pending.</p> <p>4. Special assessments—proof of publication of notice of confirmation—how made. Proof of the publication of the notice of confirmation provided for in section 44 of the Local Improvement act must be made in accordance with section 1 of the statute relating to notices; and said section 1 is not changed by the act of 1909, providing that the newspaper in which a legal notice is published must be held to mean a newspaper which has been regularly published for at least six months prior to the first publication of the notice, but it is proper to include in the certificate of publication a statement that the newspaper has been regularly published for such period, and such statement, if untrue, may be contradicted in a proper manner the same as any other fact.</p> <p>5. Same—when court should set aside default and permit objections to be Med. In a special assessment proceeding the court should permit a default to be set aside and objections to be filed where the m’otion is made but three days after the default was entered and the affidavits in support of the motion show that the objector has a meritorious defense to the whole or a material part of the assessment and that under the circumstances there is a reasonable excuse for suffering the default.</p>

<p>1. Wills—widow accepting benefits under will adopts the whole instrument. Where the widow accepts the provisions of the will for her benefit she must be held to have adopted the whole instrument and renounced every right inconsistent with it.</p> <p>2. Same—when widow’s interest ceases at marriage. Where a will provides that the use of the testator’s real estate shall go to his widow for her maintenance and support during her life while she remains unmarried, a subsequent provision directing equal distribution of the real estate between the testator’s son and daughter after the death of the widow does' not enlarge the widow’s interest to an unconditional life estate, and upon her subsequent marriage the remainder to the children is accelerated and she ceases to have any interest in the land by way of homestead dower or otherwise.</p> <p>3. Tax deeds—holder of an^invalid tax. deed is entitled to reimbursement. The holder of a tax deed set aside in a partition proceeding is entitled' to ' reimbursement for his lawful expenditures for taxes, interest and costs notwithstanding the tax deed is. invalid for irregularities, where there is no fraud or bad faith connected with the transaction.</p>

<p>1. Schools-—ivhat does not bar second election to select school house site. The fact that there is a majority of votes against the proposition to select a certain site for a school house does not bar a second election to select a site, including the one rejected at the first election, where there was no vote at the first election selecting any site. (Kiehna v. Mansker, 178 Ill. 15, distinguished.)</p> <p>2. Eminent domain—rule as to damages in condemning a site for a school house. In a proceeding to condemn an acre of ground in the corner of a tract of land for a school house site it is proper to instruct the jury not to include damages to adjoining land in fixing the compensation for the land taken, and that in determining the damages to the lands not taken they should consider the effect upon the market value of such lands.</p> <p>3. Same—court may direct payment of part of compensation to the mortgagee. Where the farm containing the acre of land condemned for a school house site is mortgaged for a trifle over $60 per acre, it is proper for the court to order payment, out of the compensation awarded, of $60 to the mortgagee to cover the mortgage interest taken by the judgment.</p> <p>4. Same—defendants deed is the best evidence of title to lands the title to which is not admitted by the petition. Where the petition to condemn an acre of farm land for a school house site admits the title to the acre described in the petition it is for the defendant to prove his title to any other lands, and upon this question his deed is the best evidence, and he is not entitled to prove such title by cross-examination of the petitioner’s witnesses.</p>

Writ of Error to the Branch “B” Appellate Court for the Eirst District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.

<p>1. .Courts—only appellate jurisdiction can be conferred upon the Appellate Courts of this State. Under section 11 of article 6 of the constitution, which provides for the organization of Appellate Courts, the only jurisdiction which can be conferred upon such courts is. appellate jurisdiction.</p> <p>2. Same—section 11 of Appellate Court act, concerning pozver to issue writ of mandamus, construed. Section 11 of the Appellate Court act, which confers jurisdiction upon the Appellate Courts to issue writs of mandamus, certiorari, supersedeas, etc., does not confer original jurisdiction to issue such writs, but means only that where the Appellate Court has acquired jurisdiction of a case it may issue such writs when they become necessary in furtherance of the appellate jurisdiction.</p> <p>3. Same—when the Appellate Court cannot award writ of mandamus. Upon appeal to the Appellate Court from a judgment sustaining a demurrer to a petition for writ of mandamus the Appellate Court may, if it deems the judgment erroneous, reverse the same and remand the cause, but it has no jurisdiction to enter a judgment overruling the demurrer and awarding the writ, as this is an exercise of original jurisdiction.</p> <p>4. Sams—jurisdiction of subject matter cannot be conferred by consent of parties. If the Appellate Court has no jurisdiction to enter a particular judgment, the judgment must be reversed notwithstanding the parties make no objection to the jurisdiction of the court to enter such judgment, as jurisdiction of the subject matter cannot be conferred by the consent of the parties.</p>

<p>1. Wills—word “children,” in its ordinary significance, does not include grandchildren. The word “children,” in its ordinary-significance, denotes immediate offspring, and will not be construed to mean grandchildren unless a strong case of intention or necessary implication requires it.</p> <p>2. Same—word “children” in its technical sense, is a word of purchase. The word “children,” both in its technical and general sense, is used as descriptive of persons, and in its technical sense is a word of purchase and not a word of limitation.</p> <p>3. Same—rule in Shelley’s case ordinarily applies only to limitations using zvord “heirs.” The rule in Shelley’s case applies only to limitations in which the word “heirs” is used, unless it can be clearly ascertained that the testator, by the use of some other word, meant “heirs.”</p> <p>■ 4. Same—when rule in Shelley’s case does not apply. Where the testator devises a tract of land to his son for life and at his death said lands “shall descend to his children in fee if he shall leave any child or children surviving him, and if not, then said lands shall descend in fee to his heirs-at-law,” the rule in Shelley’s case does not apply, and the son takes a life estate only, and at his death his surviving children take the fee.</p> <p>5. Same—zvhen the word “descend” is not used in the sense of passing land by succession. Where a will gives a life estate in lands to the testator’s son and provides that at his death said lands shall “descend” to his children if he shall leave any child or children surviving him, and if not, then said lands shall descend to his heirs-at-law, the word “descend” is not used in the sense of passing land by succession, but to signify his children shall succeed immediately to the possession of the land upon the life tenant’s death.</p> <p>6. Same—when a devisee does not take as a purchaser in fee. The fact that the testator’s son, who is given a life estate in lands, is required by the will to make certain cash payments to the executor does not make him a purchaser iri fee, where the will expressly makes such payments a charge upon the rents, issues and profits of the land.</p>

<p>Appeal from the County Court of Edgar county; the Hon. Dan V. Dayton, Judge, presiding.</p>

<p>1. Appeals and Errors—a party cannot complain of method of examining witnesses first adopted by him. An objector in a proceeding to confirm a special assessment cannot complain, on appeal, of a method of examining witnesses upon the subject of benefits where he was the first to adopt such method; nor can he urge an objection not made in the trial court which might have been obviated by amendment.</p> <p>2. The principal questions involved in this case are decided in City of Lincoln v. Chicago and Alton Railroad Co. (ante, p. 11.)</p>

<p>1. Dedication—when question of dedication is not in the case. Where a blank space on a plat is not designated as a street or other public ground, and there is nothing on the face of the plat to indicate any intention to dedicate the premises so shown for any public use, and no proof is made as to the intention of the proprietor, there can be no question of dedication.</p> <p>2. Same—acceptance by the proper authorities is necessary to constitute a highway by prescription. Even if a plat be regarded as an offer to dedicate a strip of land for a street or other public ground there must be an acceptance by the proper public authorities before it can be regarded as a. highway by dedication, and if the strip is conveyed by the original proprietors and the conveyance accepted before any acceptance of the offered dedication the conveyance operates as a withdrawal of the offer.</p> <p>3. Highways—the statute does not contemplate that a highway by prescription shall be created by mere use. The changes in the statute with reference to the length of time required in order to create a highway by prescription did not contemplate any change in the character of the use required, and it is still necessary that such use shall be adverse, open and notorious, exclusive, continuous and uninterrupted for the statutory, period. (Township of Madison v. Gallagher, 159 Ill. 105, Road District v. Beebe, 231 id. 147, explained.)</p> <p>4. Same—permissive use zvill not ripen into prescriptive right. A highway by prescription over a strip of land owned by a railroad company cannot be said to have been created by prescription, where the evidence 'shows that the use was wholly permissive and was principally a use by the company’s tenants and those doing business with them, there being no other access to the tenants’ places of business, and where it appears that the road was made by the tenants and that the work done by the public authorities was trifling in amount and done merely for temporary convenience of travel.</p>

<p>1. Special taxation—when property owner cannot insist upon right to build a sidewalk. The rights of property owners which are preserved by section 8 of the Sidewalk act, as amended in 1907, with reference to a case where a new ordinance is passed to pay for a sidewalk which has been constructed in good faith under a prior ordinance which has been set aside by any court, do not include the right to construct the sidewalk in front of their own property.</p> <p>2. Same—when .objections directed to the prior ordinance are immaterial. If a sidewalk ordinance is held to be invalid by the Supreme Court and a new ordinance is passed to pay for the sidewalk, which was constructed under the prior invalid ordinance, new objections directed to the prior ordinance are immaterial and will not be considered on appeal from a judgment overruling objections to an application for judgment and order of sale under the new ordinance, as the basis of the new ordinance is the invalidity of the prior one.</p> <p>3. SamU—when property owner cannot question good faith in constructing sidewalk. A property owner who objects to a special -sidewalk tax on the ground that the sidewalk is defective and improperly constructed, cannot change his position in a subsequent proceeding under a new ordinance to pay for a new sidewalk built to replace the former one, which the city removed, and insist that the city did not act in good faith in constructing the new sidewalk, because the one it removed was a good, substantial walk.</p>

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

<p>1. Special assessments—ordinance is the basis'of every special assessment. The ordinance is the basis of every special assessment, and the assessment must be levied in accordance with the provisions of the ordinance.</p> <p>2. Same—when an assessment cannot be levied against right of way of a street railway. Where an improvement ordinance expressly excepts from the property to be assessed the right of way of a street railway company,* which the company is bound, under the ordinance granting its street rights, to pave as directed by the city, such right of way cannot be specially assessed for the improvement.</p> <p>3. Same—what objection is broad enough to raise the question of right to assess street railway right of way. An- objection by a street railway company stating that “the property of this objector described in the assessment roll filed herein is not subject to assessment in this proceeding” is broad enough to raise the question of the right to assess the right of way of the objector, and if the court overrules all the legal objections it will be presumed that the objection was called to the attention of the court.</p> <p>4. Same—provision of franchise for paving right of way is regarded as the equivalent of an assessment. An ordinance granting street privileges to a street railway company, which accepts and acts upon the ordinance, is a valid and binding contract which can not be revoked by either party, and if the ordinance requires the company to pave its right of way as directed by the city, such requirement is regarded as the equivalent of a special assessment on the right of way when the street is paved.</p> <p>5. Same—when assessment of right of way cannot be sustained because the improvement includes a storm drain. Where the ordinance for an improvement expressly excepts from assessment the right of way of a street railway company, an assessment against such right of way cannot be sustained upon the theory that a storm drain, as well as a pavement, was constructed, where it appears that the storm drain was constructed as a necessary part of the paving improvement.</p>

<p>1. Wills—presumption where will kept in testator’s possession is not found after his death. Where a will is retained by the testator after its execution and kept in his possession and after his death it cannot be found the presumption is that the testator destroyed it animo revocandi, and it will not be presumed that it was destroyed by some other person without the testator’s' knowledge, as to do so would be presuming a crime.</p> <p>2. Same-—what must be shown to overcome presumption that testator destroyed will. To overcome the presumption that the testator destroyed a will in his lifetime with the intention of revoking it, it is incumbent upon the party seeking to establish such will as a lost will to show that the instrument was in existence at the testator’s death and that it was lost or destroyed since that time.</p> <p>3. Same—what does not show that will was in existence at testator’s death. Letters written by the testator a few days before his death, referring to his will as being in a certain place, do not show that it was in existence at his death, where there is no will found in such place after his death nor in any other place, but only a series of papers and memoranda stating what disposition he desired to make of his property.</p> <p>4. Same—contents of alleged lost will cannot be established by declarations of testator, alone. Declarations of a testator are admissible in evidence to corroborate the testimony of others who testify from their own knowledge to the contents of a lost will, but the contents of such lost will cannot be proved by the declara- " tions of the testator, alone. (In re Page, 118 Ill. 576, explained.)</p>

<p>1. Taxes—when levy for building purposes will not be held invalid. A school tax levy for “building purposes” will not be held invalid upon application for judgment and order of sale, as having been fraudulently levied for the' purpose of raising a fund for educational purposes in excess of the rate fixed by law, where the evidence does not clearly establish such charge but shows that the school directors did not know how much would be needed for building purposes, and that the levy was, in fact, in excess of what was needed.</p> <p>2. Same—proposed diversion of a tax levied for building purposes is not ground for holding tax Uvy invalid. The fact that it is proposed to use a part of the fund raised by a tax for building purposes to pay expenses incurred for educational purposes is not ground for holding the tax invalid, even though the funds for building purposes and educational purposes must be kept separate and be used only for the purposes for which the taxes were levied, as a court of equity will enjoin any proposed diversion of the funds after the taxes are collected.</p>

<p>1. Criminal law—rule as to evidence of dangerous character of deceased. If the defendant in a homicide case first establishes that she was assailed by the deceased and was in apparent danger, she may prove that the deceased was a person of ferocity, brutality, vindictiveness or excessive strength, for the purpose of showing that she was acting in terror, and hence incapable of specific malice, or that she was in such apparent extremity as to make out a case of self-defense, or that the purpose of deceased in encountering the defendant was deadly.</p> <p>2. Same—rule as to evidence of threats is the same as in regard to character of deceased. The riile in regard to evidence of threats by the deceased is the-same as that in regard to his character, and unless there is evidence that the deceased ,was the assailant, proof of threats against the defendant or members of her family is properly denied admission.</p> <p>3. Same—mere threats, unaccompanied by any overt act, do not justify homicide. Before one may attack or inflict bodily harm upon a person who has made threats against her, however well grounded her apprehension may be, there must be some overt act from which it may reasonably be inferred that there is an intention to carry the threats into effect and that the danger is imminent.</p> <p>4. Same—-when objection should not be sustained to entire answer of the defendant. On the trial of a woman for shooting her husband as he was approching his house, an objection to the defendant’s statement, in answer to a question as to what the, deceased did, that “he. lunged at me as though he would draw a revolver from his pocket,” should be sustained only to that part giving the defendant’s impression that deceased acted “as though he would draw a revolver from his pocket,” as her statement that her husband lunged at her is competent.</p> <p>5. Same—whether the defendant was prejudiced by rejection of testimony is determined by the whole record. Whether the defendant was prejudiced by the improper rejection of part of a statement by her must be determined by a consideration of the whole record, and if the rejected statement could not reasonably have affected the verdict its exclusion is not reversible error.</p> <p>6. Same—-when it is not error to give instruction directing jury to find the defendant guilty of murder. If the facts hypothetically stated in an instruction constitute the crime of murder, it is not error to instruct the jury to find defendant guilty of murder if they believe the facts so stated have been proved by the evidence beyond a reasonable doubt. (Crowell v. People, 190 Ill. 508, followed.)</p> <p>7. Same—credibility of witnesses not to be judged by “surrounding circumstances appearing on the trial.” An instruction upon the subject of determining the credibility of witnesses should not contain the statement that the jury may, upon such question, consider “surrounding circumstances appearing on the trial,” but the inclusion of such statement will not be ground for reversal where there is no reasonable doubt of the guilt of the defendant.</p>

<p>Plea of release of errors.</p>

<p>1. Criminal law—conclusion of robbery cotint setting up matter of aggravation is not a separate count. Where a count for robbery, in the usual form, concludes with the statement that the accused was then and there armed with a dangerous weapon, etc., the conclusion is not a separate count but is merely a statement of the aggravated form of robbery under the statute.</p> <p>2. Same—when indictment for robbery is not fatally defective. Where the conclusion in an indictment for robbery, consisting of a single count, is defective in stating that the accused was armed with a dangerous weapon, intending to kill and maim himself, (the name of the accused being inserted where the name of his victim should have been,) the indictment is not fatally defective as a charge of the offense of plain robbery, since the averments with respect to the circumstances of aggravation may be stricken out as surplusage.</p> <p>3. Same—when part of a verdict may be stricken out as surplusage. Where the circumstances of aggravation in an indictment of one count for robbery are so imperfectly alleged that the jury could not properly find the accused guilty of the aggravated offense, and the jury returns a verdict finding the accused guilty of robbery and also that he was guilty of the aggravated offense of being armed with a dangerous weapon with intent to kill and maim the person so robbed, the provision of the verdict as to the aggravated offense may be stricken out as surplusage and the verdict sustained as a verdict of guilty of plain robbery.</p> <p>4. Same—when a judgment sentencing prisoner for aggravated form of robbery is erroneous. If the allegations of the indictment, consisting of a single count, and the finding of the verdict, are good as to the offense of plain robbery but not as to the aggravated offense of being armed with a dangerous weapon with intent to kill and maim the person robbed, a judgment finding the accused guilty of robbery and that he was guilty of the aggravated offense, and sentencing him for an indeterminate term not exceeding the maximum fixed by the statute “for the crime whereof he stands convicted,” is erroneous, as the maximum term for the aggravated offense is greater than that for plain robbery, and the judgment will be reversed on writ of error and the cause remanded for the entry of a proper judgment.</p> <p>5. Same—prisoner is entitled, to have the erroneous judgment corrected. One found guilty of the offense of robbery but who is erroneously found by the judgment to be also guilty of the aggravated offense of being armed with a dangerous weapon with intent to kill and maim the person robbed and is given an indeterminate sentence in accordance with such finding, is entitled to have the erroneous judgment corrected, regardless of the question of his right to a writ of habeas corpus at the termination of the maximum term for plain robbery.</p>

Writ op Error to the Appellate Court for the Third District—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, judge, presiding.

<p>1. Judgments and decrees—what order is not sufficient to base an execution thereon. An order reciting that “upon hearing the proof it is ordered that T. F. Drew be allowed the sum of $75 as and for his guardian ad litem fee and that said fee be taxed as costs herein, and the motion of the guardian ad litem to file cross-, bill is by the court overruled, and the motion of the complainant for leave to dismiss this cause now being heard and duly considered is by the court allowed and the cause is dismissed at the cost of the complainant herein, without prejudice,” is not a sufficient decree upon which to base an execution sued out by the guardian ad litem for his costs.</p> <p>2. Same—what must be shown by decree or judgment. While no particular phrase or words are necessary to constitute a valid decree or judgment, yet it is essential that the order shall show a party who recovers, a party against whom the recovery is had and the amount recovered. (Wells v. Hogan, Breese, 337, explained.)</p> <p>3. - Judicial sales—when slight circumstances of unfairness will be ground for setting aside sale.' While a sale regular'in all other particulars will not be set aside for mere inadequacy of consideration, yet where the price paid is grossly inadequate slight circumstances indicating unfairness or fraud, either upon the part of the officer, the purchaser or the party to the record who is benefited by the sale, will furnish sufficient ground for setting the sale aside in equity.</p> <p>4. Same—when land should he offered for sale in small tracts. Where a valuable tract of farm land is to be sold to satisfy a judgment for a small amount, the law requiring the land to be offered in parcels instead of en masse should be strictly followed; and the land should be offered in the smallest possible parcels compatible with its proper division, so that the amount of the judgment may be realized from the least amount of the land.</p> <p>5. Same—if land is first offered in parcels the sheriff’s return should show that fact. The return of the sheriff is the best evidence of the manner in which the sale was conducted, and if the land was first offered in small parcels before it was sold en masse the return of the sheriff should show that-fact.</p>

<p>1. Taxes—park district taxes are to be levied, as nearly as practicable, as taxes are levied by cities and villages. Under section 22 of the Park act the taxes to be levied by the corporate authorities of a park district are to be levied, as nearly as practicable, in the manner in which taxes are levied by cities and villages, which includes a sufficiently definite itemization to enable tax-payers to object to items which they consider illegal or unjust.</p> <p>2. Same—when an item for salaries of officers and employees should be separated. An item of a park district tax of $16,000 for “officers’ and employees’ fees and salaries” should be separated to show the amount allowed to the officers and the amount allowed to the employees, as the commissioners are not entitled to compensation .under the statute, and the only other persons who may be termed officers are the secretary and treasurer of the board.</p> <p>3. Same—when appellee cannot, by cross-error, question action of court in sustaining item of tax. On appeal by the People from an order sustaining an objection to an item of a park district tax for fees and salaries of officers and employees, the appellee cannot, by assigning cross-error, question the action of the court in overruling an objection to an item of tax for interest on bonded debt, as the two items are independent of each other, and the judgment of the court is','in effect, a distinct judgment as to each item.</p>

<p>Police pensions—adopted child of policeman has same right in pension fund as a natural child. An adopted child, under sixteen years of age, of a person who at the time of his death has served as a policeman long enough to be entitled to a pension under the Police Pension Fund act, or whose widow or children would be entitled to a pension at his death, is entitled to a continuance of the pension after the widow’s death the same as a natural child. (Eddy v. Morgan, 216 Ill. 437, explained.)</p>

<p>Inheritance tax—when a finding fixing value of notes cannot stand. A finding of the county court in an appraisemenfproceeding under the Inheritance Tax law cannot stand on appeal, where such finding fixes the value at several thousand dollars less than the face value of the notes but there is nothing whatever in the testimony to indicate that such notes were not worth their face value.</p>

<p>1. Practice—rule where record is prepared under pracipe calling for portions of record. Where the record on writ of error is prepared on a prcecipe by plaintiff in error calling for the portions of the record he desires to bring up, it is the duty of the defendant in error, if he desires to have any other portions of the record brought up, to make a request to that effect, and if he does not do so the cause will be heard on the portions of the record brought up.</p> <p>2. Same—when freehold is involved though land lies in another State. If the court has jurisdiction of the parties to a suit to enjoin the defendant from disposing of land and seeking to set aside complainant’s deed to the defendant as having been obtained by fraud and to compel the defendant to re-convey the land to complainant, a freehold is involved though the land is in another State.</p> <p>3. Same—all previous orders are before the court on final hearing in chancery case. On the final hearing in a chancery case all previously rendered decretal orders are before the court and may be altered or vacated as justice may require.</p> <p>4. Same—ivhen order dismissing a sitit pending on reference to master is erroneous. An order dismissing a chancery suit for want of prosecution is erroneous but not void, where the cause at that time was pending before the master in chancery under an order of reference and where the order of dismissal was entered without notice to either party and was inadvertently entered by the court because no notation had been made on the trial calendar that the cause had been referred to a mastér in chancery.</p> <p>5. Same—when an erroneous order can only be set aside on a writ of error or appeal. An erroneous order, entered through inadvertence, dismissing for want of prosecution a chancery suit then pending before a master in chancery under an order of reference, may be set aside by the court if a motion for that purpose is made at the term at which the order is entered, but after the term has passed without motion being made it can be set aside only on writ of error or appeal.</p>

Writ op Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding.

<p>1. Equity—a court of equity has no jurisdiction over criminal matters. A court of equity exercising its general powers has no jurisdiction over matters merely criminal or immoral, where no property rights are involved.</p> <p>2. Contempt—court of equity cannot punish party for contempt in marrying in violation of the statute and decree. The fact that a divorce decree embodies the prohibition of section 1 a of the Divorce act against the parties marrying again within one year, does not authorize that court to adjudge one of such parties in contempt for violating such provision but the punishment of such party must be left to a court of criminal jurisdiction, and the penalty provided by the statute must be presumed to be adequate.</p> <p>3. Divorce—court has no power to enjoin parties from marrying again within one year. A court of equity exercising its jurisdiction in a divorce case has no power to embody in the decree an injunctional order against the parties marrying again within one year unless such power is given by statute, and a violation of such injunctional order does not authorize the court to punish the offending party for contempt.</p>

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

Writ or Error to the Branch “D” Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding.

<p>1. Appeals and errors—a decree may be reversed on writ of error though void. The fact that a decree is void as to a certain person, in that it purports to find that she has no interest in the land involved notwithstanding she was not a party to the suit, does not preclude her from having, the decree'reversed on writ of error, as a writ of error is not limited to erroneous judgments, only.</p> <p>2. Same—when reversal of a decree as to one plaintiff in error will not affect its validity as to others. The reversal of a decree as to one plaintiff in error because it assumed to adjudicate upon her rights though the court had no jurisdiction of her person will not affect the validity of the decree as to the other plaintiffs in error, nor the errors assigned by them, unless she was an indispensable party, without whose presence no decree could be rendered.</p> <p>3. Same—what does not show that person was an indispensable party to a tax lien foreclosure suit. The single fact that during the hearing of a tax lien foreclosure suit by the People a quit-claim deed was offered in evidence purporting to convey to the wife of one of the defendants one-third of whatever interest the husband had acquired in lots in the county by virtue of tax deeds, but which did not describe the property against which the lien is being foreclosed, does not show that such grantee was a necessary party.</p> <p>4. Same—bar of Statute of Limitations to writ of error cannot be interposed after joinder in error.. A suit commenced by writ of error is subject to the bar of the Statute of Limitations, but the question should be raised by plea or motion to dismiss, and the bar cannot be interposed after joinder in error, which operates as a demurrer to the assignments of error.</p> <p>5. Taxes—lien for taxes is paramount to all rights, titles or interests. The lien for taxes which have been forfeited to the State is paramount to all rights, title's, claims or interests, whenever and-however acquired, and everyone claiming an interest is a proper party defendant to a proceeding to enforce the lien, and his interest is subject to a decree finding the amount of taxes due and foreclosing the lien.</p>

<p>1. Mechanics' liens—section 5 of Mechanic’s Lien act is not limited to contractor’s first notice of amount due sub-contractors. Section 5 of the Mechanic’s Lien act, (Laws of 1903, p. 230,) requiring the original contractor to give, and the owner to require, a sworn statement of the amounts due sub-contractors, does not contemplate that only one sworn statement shall be given but that sworn statements shall be made from time to time- when payments are made to the original contractor.</p> <p>2. Same—the owner may rely upon truth of contractor’s sworn statement, in absence of notice. Where a sub-contractor serves no notice upon the owner as to the amount due him from the original contractor the owner has a right to rely upon the original contractor’s sworn statements in that regard, and he will be protected in his payments, as against the sub-contractor, if he has no notice from any source that the sworn statements are false.</p> <p>3. Same—what is sufficient delivery of statement to the owner. If the architect is acting as the owner’s agent under a building contract, a delivery to the architect of sworn statements by the original contractor showing the amount due the sub-contractors, is, in law, a delivery of such statements to the owner.</p>

<p>1. Inheritance tax-—only the beneficial interest passing as a result of the death is taxable. Only the beneficial interest passing from the decedent to the heir as a result of the death is taxable under the Inheritance Tax law, and an absolute transfer or gift of property for valuable consideration at any time before the owner’s death, and not made in contemplation of death, is not subject to an inheritance tax as part of the estate of deceased grantor or donor.</p> <p>2. Same—widow and heirs may dispose of decedent’s property as they see fit. Upon the death of a person intestate, the widow and heirs, acting together and all agreeing thereto, may dispose of decedent’s property as they see fit, and the widow may exchange her interest in the remainder of the portion of the decedent’s property which she would take under the law for a life estate in the whole of such property.</p> <p>3. Same—instrument may give a life estate in personal property without disposing of the remainder. It is entirely legal for an instrument to give a life estate in personal property, as well as real estate, without disposing of the remainder, and in such case the remainder will be left as it was before the life estate was created.</p> <p>4. Same—when shares of stock are not subject to an inheritance tax. Shares of stock in which the decedent had a life estate, only, the remainder being- vested in her sons by valid agreement based upon a valuable consideration and not made in contemplation of death, are not subject to an inheritance tax as part of the estate of the deceased life tenant.</p>

<p>1. Constitutional law-—laws regulating use of streets in cities throughout the State must be general. Laws regulating the use of the streets of cities and villages throughout the State must be general in their operation, and every citizen must have the same right to the use of the streets as any other citizen, under the same circumstances.</p> <p>2. Same—law permitting persons to lay service pipes in street must be general. Not every person may be permitted, to lay service pipes in the streets of a city, but the law which determines who may be permitted to do so must be a general law, which applies uniformly to all persons in substantially the same situation.</p> <p>3. Same—to be general a law need not apply to every person in the State. In order for a law to be general it is not necessary that it shall apply to every person in the State, and a law which is general in its nature and uniform in its operation upon all persons coming within its scope is a general law.</p> <p>4. Same—power of legislature to impose limitations upon freedom of. actions- of individuals.- The legislature has power to impose limitations upon the freedom of action of individuals or particular classes of persons, but it must do so by a general law, and if it imposes restrictions on persons engaged in a particular business, such restrictions must be based upon some existing distinction or reason not applicable to others who are not engaged in such business.</p> <p>5. Same—what necessary to render legislation as to particular class valid. It is only when such distinctions exist as differentiate, in some important particulars, persons or classes from the body of the people that laws having operation only upon such particular persons or classes of persons have been held valid enactments.</p> <p>6. Same—object of Gas Frontage act of 1897. The object of the Gas Frontage act of 1897 (Laws of 1897, p. 100,) was to benefit abutting owners by giving them the right to prevent the obstruction. and encumbering of the streets by the installation and maintenance of gas pipes and electric wires unless the ordinance granting such privileges was based upon the frontage petition required by the act, and such object is not a police regulation.</p> <p>7. Same—effect of Gas Frontage act of 1897. The result of the Gas Frontage act of 1897, requiring ordinances authorizing the laying of gas pipes or stringing of electric wires in the streets to be based upon frontage petitions, is to confer upon pe’rsons or corporations using the streets for laying water pipes special privileges not enjoyed by persons or corporations using exactly the same kind of pipes for gas, and to confer upon abutting owners the special privilege of preventing the laying of pipes for gas which other owners, confronted with the same conditions, cannot exercise if the pipes are to be used for water.</p> <p>8. Same—laying of service pipes in street is not a right but a privilege. The laying of service pipes in a public street is not a right but a privilege, and a law conferring such privilege must be general in its operation and be based upon some differences which furnish a reasonable basis for the classification adopted by such law.</p> <p>9. Same—Gas Frontage act' of 1897 is invalid. The Gas Frontage act of 1897, (Laws of 1897, p. 100,) which requires frontage petitions to authorize ordinances for the laying of pipes for gas but makes no such requirement if the pipes are to be used for water, even though the pipes are the same and laid and maintained in the same manner and with the same effect as respects the public use of the streets, is special in its operation and is void, as in violation of section 22 of article 4 of the constitution.</p>

<p>■ 1. Partition—when accotmting provision of decree is merely interlocutory. A decree for partition which finally settles and adjudicates the rights of the parties in the property and the right to partition thereof is subject to review on appeal or writ of error, but the accounting provision of the decree is merely interlocutory and is not before the court, where the question of accounting was reserved in toto by the decree and re-referred to the master for further evidence and further consideration.</p> <p>2. Same—what is not an agreement by heir not to bring partition suit. In the absence of special equities the court will not decree a partition in favor of the complainant, as against the objection of the other heirs, if the complainant has agreed with them that the estate shall not be partitioned; but a mere statement by the complainant, in the presence of one of the heirs, that she did not want a partition suit started does not amount to such agreement and does not, bar her suit.</p> <p>3. Same—proving -up solicitor’s fee before master and before decree is not approved practice.' The practice of proving up the complainant’s solicitor’s fee, in a partition proceeding, before the master in chancery and before there has been any decree for partition or adjudication of the rights of the parties is not approved.</p> <p>4. Same—general rule as to taxing the complainant’s solicitor’s fee as costs. Where the bill for partition correctly sets up the rights and interests of the parties, and the suit is an amicable one, the statute authorizes the taxing of complainant’s solicitor’s fee as costs; but when the proceeding is hostile, so that defendants are obliged to employ counsel to protect their interests, and a substantial, even though unsuccessful, defense is made, such fee should not be taxed as costs.</p> <p>5. Same—effect where the only substantial defense is on the accounting provision of the bill. If the complainant makes an accounting from the defendants a necessary part of her partition suit and seeks an accounting for items, some of which are barred by the Statute of Limitations and others denied in good faith by the defendants, whose interests are sought by the bill to be subjected to a lien for the amounts found due and who are obliged to employ counsel, it is inequitable to tax the complainant’s solicitor’s fee as costs, even though the defendants made no substantial defense to the partition of the land in accordance with the averments of the bill. (Stollard v. Nycum, 240 Ill. 472, distinguished.)</p>

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

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Erost, Judge, presiding.

Writ or Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.

<p>1. Appeals and errors—clerk’s recitals showing exceptions to judgment are of no legal effect. Recitals by the clerk in the record showing exceptions to the judgment are of no legal effect, as such exceptions can only become a part of the record by being incorporated in a bill of exceptions.</p> <p>2. Same—errors assigned but which are not argued in the briefs are waived. Assignments of error as to the admission and exclusion of evidence which are not presented or argued in the plaintiff in error’s brief are waived.</p> <p>3. Same—when no question is presented to the Supreme Court. No question is presented to the Supreme Court on writ of error to review a judgment for the defendants in an action of ejectment, tried by the court, by agreement, without a jury, where the bill of exceptions fails to show any exceptions to the judgment or any propositions of law or rulings thereon, and no question of law is discussed in the briefs arising on the rulings in admitting or excluding evidence.</p>

<p>1. Cloud on title—when question of possession when bill was filed is not jurisdictional. Where, a bill is for partition and the removal of a cloud upon complainant’s title the removal of the cloud is incidental to the relief prayed, and the question of complainant’s possession at the time the bill was filed is not jurisdictional, although, if the right to partition is not sustained, the bill must be dismissed if it appears the defendant was in possession when the bill was filed.</p> <p>2. Limitations—color of title must purport to convey title to the premises claimed. In order that a deed may be relied upon as color of title it must purport, on its face, to convey title to the premises claimed under it arid must describe the premises with sufficient certainty to enable a surveyor to locate the premises from the calls in the deed.</p> <p>3. Same—when possession and payment of taxes not material. If the strip of land which a party claims by virtue of possession and payment of taxes under color of title for seven successive years is not embraced in the description in the instrument relied upon as color of title, the question of possession and payment of taxes for a period less than twenty years is not material. ,</p>

<p>1. Motor vehicles—city cannot make regulations inconsistent with the Motor Vehicle act. Under the present Motor Vehicle act a city may make and enforce reasonable traffic and other regulations except as to rates of speed, provided such regulations are not inconsistent with the Motor Vehicle act and the conditions are such as to warrant them.</p> <p>2. Same—city cannot require owner of pleasure car to display city license number. A city cannot compel the owner of a motor vehicle, not a motor truck or motor-driven commercial vehicle, to display upon such vehicle any number other than the number of the registration seal issued by the Secretary of State, and hence an ordinance requiring the owner of a motor vehicle, not a motor truck or motor-driven commercial vehicle, to display the .number corresponding with the city license is in conflict with the Motor Vehicle act "and is void.</p>

<p>1. Drainage—facts essential to jurisdiction of the county court must affirmatively appear in the record. County courts derive the power to establish drainage districts from the statute, alone, and every fact essential to the jurisdiction must affirmatively appear from the record.</p> <p>2. Same—petition must be such as the statute prescribes. The conditions upon which the legislature has authorized the establishxfaent of drainage districts must be complied with and the petition must be such as the statute prescribes.</p> <p>3. Same—petition need not show, on its face, the acreage of the district or acreage owned by signers. It is not necessary that the petition to organize a levee drainage district shall show, on its face, the exact acreage of the’district and the acreage owned by the signers, but it is sufficient if the boundaries oE the district are given and data furnished from which the total acreage and the acreage owned by the signers of the petition can be ascertained by proof. (Drummer Creek Drainage District v. Roth, 244 Ill. 68, explained.)</p> <p>4. Same—the petition need not describe proposed work with accuracy and detail. It is not necessary that the petition to organize a drainage district shall describe the location of the drains and ditches with the same accuracy and detail as are required in the report of the commissioners, and it is sufficient if it specifies the starting point and terminus of each ditch and gives the general route of each ditch with sufficient accuracy to advise the petitioners of its general course through the district. .</p> <p>5. Same—court is without jurisdiction if the petition fails to describe character of ditches. The county court is without jurisdiction to enter an order organizing a levee drainage district if the petition merely describes the ditches as “ditches,” without specifying whether they are to be open ditches or tile drains. (Tennessee Drainage District v. Moye, 258 Ill. 296, followed.)</p> <p>6. Same—word “ditches” cannot be held to mean open ditches, only. In view of section 57 of the Levee act, which provides that the word “ditch” shall be held to include any drain or water-course, it cannot be held that the use of the word “ditches” in a drainage petition necessarily means open ditches, only.</p> <p>7. Same—right of person to withdraw signature from drainage petition. Before a drainage petition is filed the signers may, upon notice, withdraw their signatures, but if they again sign the petition their notice of withdrawal is ineffective and they are in the same position as voluntary signers who have given no notice of withdrawal, and after the petition is filed they cannot, under section 4 of the Levee act, withdraw their signatures except by consent of the majority of the other signers, unless their signatures were obtained by fraud or misrepresentation.</p>

<p>1. Deeds—presumptions are in favor of delivery of a voluntary conveyance to one standing in relation of child. Where a deed is a voluntary conveyance to the child of the grantor, or one standing in the relation of a child, and the grantor retains a life estate, the deed will be presumed to have been delivered, in the absence of evidence to the contrary, even though it was not recorded.</p> <p>2. Same—one alleging undue influence has the burden of proving such charge. One who seeks to set aside a deed as having been made through undue influence has the burden of proving the charge alleged.</p> <p>3. Same—what does not tend to prove the charge of undue influence. The mere fact that the friend of the grantor who suggested the name of the attorney who drew the deed was a distant connection of the grantee does not tend to prove undue influence, where the deed was a voluntary conveyance reserving a life estate' in the grantor, and was made in pursuance of the grantor’s long expressed intention of leaving her property to the grantee, who was unknown to the attorney who drew the deed and was not present when the deed was made.</p>

<p>1. Registration of title—party consenting to entry of decree need not be served with summons. A defendant to an application to register title may consent, in writing, to the entry of a decree registering the title, and in such case it is not necessary that he have summons issued against him or that he have an opportunity to be heard, nor will he be permitted to appeal from such decree or assign error upon it.</p> <p>2. Same—the written consent to entry of decree need not be acknowledged. The written consent by a defendant to the registration of the title, as prayed in the application, need not be acknowledged in the same manner as the assent of the husband or wife of the applicant is required to be acknowledged, as such acknowledgment would only serve as proof of the genuineness of the statement and signature, and the absence of such method of proof would not preclude the chancellor from hearing other proof as to the exe* cution of the writing.</p> <p>3. Same—consent to registration of title may be attached to the application itself. If a defendant to an application to register title attaches his consent to the entry of the decree to the application itself it is sufficient, and it is not material whether the statute expressly provides that the consent shall be evidenced in that mahner.</p>

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

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

<p>1. Drainage—original classification is binding until a new classification is made. The original classification of lands in a farm drainage district becomes binding upon the land .owners for their respective proportions of the payment for the proposed work at the time it is made, but neither then, nor at any other time, can an assessment levied upon such classification exceed the benefits to the land assessed.</p> <p>2. Same—what does not deprive land owner of right to insist that assessment shall not exceed benefits. Farm drainage commissioners may make a new classification if they believe, from experience and results, .that the former classification is not fairly adjusted on the several tracts of land according to the benefits which will be derived,from a new plan of drainage for which it is proposed to levy a new assessment; but the fact that the commissioners decide that no new classification is necessary does not deprive a land owner of the right to insist that the new assessment against his land shall not exceed the benefits thereto from the new plan.</p> <p>3. Same—constitution limits drainage assessments to the benefits received. The provision of the constitution which authorizes drainage assessments does not authorize any assessment beyond the benefit conferred by the enhanced market value of the land, and neither the legislature nor drainage commissioners acting under the authority of any law can levy and enforce an assessment beyond that limit.</p> <p>4. Same—question is not whether benefits to the whole district equal the cost of the improvement. To hold that in determining whether a farm drainage assessment exceeds the benefits the court must consider the benefits conferred upon the whole district, and, taking the whole district and the entire improvement, determine whether' the benefits equal the cost, would be to deprive the individual land owner of his constitutional right to insist that the assessment against his land shall not exceed the benefit thereto derived from the improvement.</p> <p>5. Taxes—question whether a farm drainage assessment exceeds benefits may be raised on application for judgment and order of sale. Every owner of land in a drainage district is entitled, at the first opportunity presented, in a tribunal authorized to determine the question, to a hearing on the question whether an assessment exceeds the benefit to his land, and under the present Farm Drainage law the first opportunity is upon application for judgment against his land and an order of sale.</p> <p>6. Same—the collector’s report, when evidence to meet it'is produced, ceases to have any force. On application for judgment against land for taxes the collector makes a prima facie case by introducing his report, with proof of publication of notice, and the prima facie case must prevail unless an objector produces proof to contradict it, but when this is done the collector’s report ceases to have any force as proof and the issue must be determined from the evidence.</p> <p>7. Same—when a judgment reducing farm drainage assessment ■will not be reversed on appeal by the collector. A judgment of the county court reducing a new farm drainage assessment to a flat rate of fifty cents an acre, although the lands were classified at different rates on a graduated scale in the original classification according to the benefits to be received from the original improvement, will not be reversed on appeal by the collector, where the evidence justifies the conclusion that the lands of the objectors, which were classified at the highest rate on the graduated scale, were not benefited more than the amount of judgment so rendered.</p>

<p>1. Eminent domain—petition in conformity with the statute is essential. A petition in conformity with the statute granting the right of condemnation is necessary to give the court jurisdiction to proceed under the Eminent Domain act.</p> <p>2. Same—a petition shoiild set forth all the facts necessary to authorize the court to act. A petition in a condemnation proceeding should set forth all the facts necessarjr to authorize the court to act, should show a clear right to take the land sought to be taken, and should show not only that the property is wanted for a public use, but that the case is within the particular statute under which the proceeding is had.</p> <p>3. Same—when condemnation proceeding need not set out any ordinance or resolution. If a petition by a city to condemn land refers to the statute under which it is proceeding and avers facts bringing it within the statute, it is not necessary, in order to show the authority of the city to maintain the petition, to set out any ordinance or resolution of the city council providing for the work.</p> <p>4. Same—what averment does not show that petitioner is within the terms of a particular statute. An averment in a condemnation petition by a city that it is necessary for-it to raise and strengthen its present levee system for the protection of the city from overflow from the Ohio river does not amount to an averment that the petitioner is a city subject to, in danger of or threatened with overflow, or that it has any system of levees or has determined to raise and strengthen any levees, and does not bring the petitioner within the terms of the act of 1913 (Laws of 1913, p. 157,) empowering cities subject to, in danger of or threatened with overflow to raise and strengthen their levees and authorizing the purchase or condemnation of land for such purpose.</p> <p>5. Municipal corporations—city council can only act by ordinance or resolution. A city council can only act by means of an ordinance or resolution, but where a city council has power to act in a given case and its charter does not prescribe the manner of its action it may accomplish its purpose by resolution as well as by ordinance.</p> <p>6. Same—when condemnation of land for levee material is not unauthorized. Where a statute authorizes a city to condemn land for the purpose of getting earth to build a levee, the fact that the levee is being constructed by contract, or by some agency other than the employees of the city, does not deprive-the city of its power to condemn land for the purpose so authorized.</p> <p>7. Practice—all communication between judge and jury must be in open court. It is reversible error for a trial judge to hold any communication with the jury in regard to the instructions in the case except in open court, and it is immaterial in such case whether the instructions so given are right or wrong.</p>

<p>1. Carriers—status of initial carrier under Carmack amendment to Inter-State Commerce act. Under the Carmack amendment to the Inter-State Commerce act, which supersedes all regulations and policies of the different States, a common carrier which receives property for transportation from a point in one State to a point in another State is liable to the holder of the bill of lading for loss or injury to such property caused by it or by any carrier to which such property may be delivered or over whose line or lines it may pass.</p> <p>2. Same—when initial carrier is conclusively treated as having made a through contract. Under the Carmack amendment to the Inter-State Commerce act a common carrier which accepts goods for shipment to a point on another line in another State is conclusively treated as having made a through contract, the same as though the point of destination were on its own line, and as electing to treat the connecting carrier as its agent.</p> <p>3. Same—liability under Carmack amendment does not depend upon issuing bill of lading. It is the receiving of the goods for transportation to a point in another State which makes the carrier liable, under the Carmack amendment, for damage or loss caused by itself or by a connecting carrier, and such liability .does not depend upon its issuing a receipt or bill of lading for the goods.</p> <p>4. Same—when initial carrier is liable though cars are diverted to new destinations. Where a railroad company accepts cars of perishable freight for shipment to a point on its own line in another State and issues bills of lading therefor, but thereafter agrees with the holder of the bills of lading that the cars shall be diverted from the original destination on its own line to different points of destination on other lines at the through rate from the point of shipment to the new destinations, it is liable, under the- Carmack amendment, to the same extent as though the cars had originally been received for shipment to the new points of destination, even though new bills of lading were not issued for the diverted cars.</p> <p>5. Evidence—carrier should specifically point out portions of inspectors’ reports it considers inadmissible. In an action against a carrier for damages to a shipment of fruit, claimed to be due to failure of the defendant to ice the cars, if the defendant considers certain expressions contained in inspectors’ reports, introduced by the plaintiff for the purpose of showing the condition of the fruit, to be incompetent because they refer to damage done by rough handling of the cars, it should specifically point out the expressions objected to, and it is not sufficient to object generally to the admission of the reports in evidence.</p>

<p>1. Elections—when ballots are discredited the result is determined by returns, if latter are not impeached. Where the ballots have been so improperly kept as to be deprived of their force as the best evidence the result must be determined by the unimpeached returns, and the result must be declared accordingly, notwithstanding the canvassing board for some reason did not credit the votes in one precinct in accordance with the returns and declared the candidate elected who the returns show was defeated.</p> <p>2. Same—what a sufficient, affidavit to petition. An affidavit to a petition to contest an election is sufficient which states that the affiant “has read the foregoing petition subscribed to by him and knows the contents thereofand that the same is true except as to matters therein set forth upon information and belief, and as to such matters he believes them to be true.”</p>

<p>1. Criminad daw—discretion of judge on motion for change of venue is subject to review by courts. An application for a change of venue on account of the prejudice of the inhabitants of the county is addressed to the sound legal discretion of the trial judge, but this discretion is not arbitrary and is subject to review by the courts in case of its abuse.</p> <p>2. Same—an abuse of discretion does not mean only a decision from whim or caprice or bad motive. Abuse of discretion by the trial judge on application for a change of venue does not mean only a decision based on whim or caprice or made from a bad motive, but also a decision where the discretion of the judge has not been justly and properly exercised under the circumstances.</p> <p>3. Same—decision on motion for change of venue does not der pefid upon number of affidavits. The proper decision of a motion for a change of venue cannot be made on the basis of the number of affidavits on each side or by mere preponderance of testimony.</p> <p>4. Same—change of venue should be granted on showing which raises a reasonable apprehension that accused cannot receive fair trial. One applying for a change of venue in a criminal case on the ground of prejudice of the inhabitants is not required to show, beyond a reasonable doubt or by a preponderance of the evidence, that he cannot receive a fair and impartial trial, but the change of venue should be granted if the showing made is such as to raise a reasonable apprehension of that fact.</p> <p>5. Same—when an application for a change of venue should be granted. An application for a change of venue in a murder trial upon the ground of prejudice of the inhabitants of the county should be granted, where it appears that the atrociousness of the crime had aroused intense interest and bitter feeling toward the defendant; that large numbers of persons had publicly expressed belief in his guilt and advocated the death penalty; that defendant’s attorneys had been publicly denounced for undertaking his defense; that a statement by the State’s attorney had been published that a change of venue would cost the county $20,000, and that the sheriff had stated that a number of persons had asked for the privilege of springing the trap at the defendant’s execution.</p> <p>6. Same—case on trial at end of term need not be formally con- ■ tinned. A criminal case, the trial of which has been begun before the close of the term, need not be included iñ an order of the court continuing all pending and undetermined motions and adjourning court for the term, and in such case the new term at which the trial is resumed will not be regarded as the term at which the trial began, under the statute concerning the speedy trial of prisoners not admitted to bail.</p> <p>7. Same—rule as to proof of admissions implied from silence of accused. An admission may be implied from the conduct of a party in remaining silent when charged with crime or when statements are made in his presence affecting him, provided the circumstances afford him an opportunity to act or speak in reply and men similarly situated would naturally deny the implied guilt or make explanations or statements.</p> <p>8. Same—•damaging statements made to accused are not admissible if he did not adopt them. Statements made by third persons to the accused charging him with crime or with actions implicating him therein are not admissible against him if he denies them, 01-refuses to answer because he is acting under the advice of counsel, or for any other valid reason.</p> <p>9. Same—when accusations by grandfather of the acmsed are not admissible. In a murder trial it is error to permit the aged grandfather of the accused to testify to conversations between the witness and the accused a week before the crime was committed and having no connection therewith, in which the witness testifies he said to the accused, “You are going to the dogs and going damned fast;” “You are going just where them dynamiters out in California are;” to which he testifies the accused made some reply but the witness did not know what he said.</p> <p>10. Same—motive attributed to accused must have some legal or logical relation to the act. The motive attributed to the accused in any case must have some legal or logical relation to the act, and evidence of other transactions involving suspicion or wrongdoing or of acts from which inferences of moral turpitude may be drawn, which have no bearing on the main fact to be proved or to the material issues on the trial, should not be admitted.</p> <p>11. Same—what not admissible as tending to show condition of mind or motive. Evidence by a detective, who was placed in jail on a fictitious charge to obtain a confession from the accused with ' reference to a murder committed some months previous, to the effect that the accused suggested to him that they join in robbing two banks in the city and outlined a plan involving a description of conditions which the witness testified he was familiar with and were as described, is not admissible for the alleged purpose of showing the condition of mind of the accused or any motive for committing the murder with which he is charged.</p> <p>12. Same—what is required where evidence of a blood-hound tracking human being is admitted. Where the trailing of a human being from the scene of the crime by a blood-hound has been held admissible in evidence it has been required to be shown that the dog is of pure blood and of a stock characterized by an acute sense and power of discrimination, and that the particular dog is possessed of such qualities and has been trained and tested in the matter of tracking human beings only, and these facts must appear from testimony of someone having personal knowledge of the facts.</p> <p>13. Same—qualifications of dog to follow trail is a preliminary question for the court. Preliminary to the admission of testimony as to a blood-hound trailing a human being, it is the rule in the States where such testimony is held admissible, that the court, in the absence of the jury, shall hear the testimony as to the qualifications of the dog to follow a trail under such circumstances as exist in the particular case.</p> <p>14. Same—person in control of dogs and testifying about them must be shown to be reliable. In any case, before evidence of the trailing of a human being by blood-hounds can be admitted it must appear that the person in control of the dogs, and who is testifying as to their qualifications, training and performances, is reliable.</p> <p>15. Same—blood-hounds must have been put on trail at place where accused has been. In States where testimony of the trailing of the accused by blood-hounds is admitted, it is necessary to show that the dogs were placed upon the trail, whether visible or not, at a point where the circumstances tend to show the accused has been and made the trail.</p> <p>16. Same—what testimony as to breed of blood-hound is not sufficient. Testimony by the owner of a blood-hound to the effect that he did not raise* the dog but bought him with the understanding that he was a Russian blood-hound of pure blood, registered by the American Kennel Club, is not sufficient proof that the dog was of pure blood.</p> <p>17. Same—conclusions of blood-hound are too unreliable to be accepted as evidence. The conclusions of a blood-hound are too unreliable to be accepted as evidence in civil or criminal cases.</p> <p>18. Same—evidence of trailing a horse by blood-hounds is not admissible. Evidence of the trailing by blood-hounds of one of the horses it is claimed the accused used in driving from the scene of the crime with a team and buggy is not admissible.</p> <p>19. Same—witness cannot be impeached on a matter he could not have testified to. Where a witness in a criminal case is asked whether he did not make a statement which, in effect, would be an opinion as to the guilt of the accused, and he denies making the statement, he cannot be impeached by the testimony of the person to whom the alleged statement was made.</p> <p>20. Same—what is a proper subject for impeachment of a witness. Testimony by a witness in a murder trial that the relations between the accused and the deceased were amicable is, material upon the question of motive, and if he denies repeating to a certain person a conversation with the deceased tending to show that such relations were not amicable he may be impeached by the testimony of such person that the conversation was repeated to him.</p> <p>2i.. Same—when copy of letter written to deceased is not admissible.' A copy of a letter written by a banker to the father of the accused, which should have reached the father in due course of mail on the last day he was seen alive, and which complained of the “action of the accused in overdrawing his account, is not admissible in evidence as tending to show a motive for the accused in murdering his father, where there is no proof that the letter was received by the father or that there was any communication between the father and the accused, who was away from home, after the letter could have been received.</p> <p>22. Same—when evidence of experimental test is admissible. Where the accused, in accounting for his whereabouts on the night of the alleged murder, testifies that after he had entered his tent, a little past midnight, he saw the lights of the midnight train as it passed, evidence as to a test made by setting up a tent at the sáme place and trying to see the lights of such train is admissible if the conditions are substantially the same as.on the night'testified to by the accused, and any slight difference as to such conditions goes to the weight of the testimony and not to its competency.</p> <p>23. Same—what statement by the State’s attorney is prejudicial. A statement by the State’s attorney in his argument that the accused had said to a certain person, “I am guilty,- but God knows I am not to blame,” followed by his statement, upon objection that such matter was not in evidence, that the testimony was admitted as he had it in his notes, is prejudicial, where no‘such testimony was introduced.</p>

<p>1. Eminent domain—question whether particular property is necessary for public use is for the courts. The question whether the power of eminent domain shall be conferred upon corporations or municipalities to appropriate private property for public use is legislative and not subject to interference by the courts, but the question whether the particular property is necessary for the public use is for the courts, and if the necessity does not exist the property cannot be taken.</p> <p>2. Same—determination of a petitioner to take property is not conclusive of the necessity. If the determination of a corporation, private or municipal, to take the property of a citizen conclusively settled the question of the necessity of the taking the owner would be without the protection to which he is entitled, and the law would not require any averment of necessity but only an allegation of intention to take the property.</p> <p>3. Same-—owner may challenge right to take property by deny- ■ ing the averment of necessity. In a condemnation proceeding the owner may challenge the petitioner’s right to take the property by denying the averment of necessity, and the issue so made is a preliminary one, to be decided by the court.</p> <p>4. Same—burden is on petitioner to prove necessity if averment is denied. If the averment of necessity in a condemnation petition is denied by the defendant the burden is upon the petitioner to establish the fact, "and it is error for the court to find that issue for the petitioner with no evidence of any reasonable necessity to take the property.</p> <p>5. Same—courts will not tolerate abuse of power of eminent domain. The question of the necessity of taking the particular property is left by the courts largely to the discretion of the petitioner, but that discretion is subject to review by the courts for an abuse of power, which will not be tolerated.</p> <p>6. Same—when opinions of witnesses are not expert testimony. The opinions of witnesses testifying to value in a condemnation proceeding cannot be said to be expert testimony based'upon hypothetical states of fact, where the witnesses are not persons who have acquired ability to deduce correct inferences from hypothetically stated facts or from facts involving scientific or technical knowledge, but are alleged to have gained, by practical experience, special knowledge of property, so that they can testify to facts known to them from experience.</p> <p>7. Same—what cross-examination of the witnesses is' proper. Where witnesses for the petitioner testify that the property is adapted to the erection of flat-buildings at a moderate cost, to be rented, and state that they fixed the value upon the basis that the property would be used for that purpose, the defendant has a right to test the value of their opinions by cross-examining them as to the cost of erecting such flat-buildings as they contemplated and the income that would be derived therefrom.</p> <p>8. Same—verdict and judgment in former condemnation of adjoining land not admissible. In a condemnation case, evidence of other sales of neighboring property is admissible when such sales were made in the open market and under circumstances where the owner and purchaser could agree upon the price, but the verdict and judgment in a former proceeding condemning adjoining lots are not admissible.</p> <p>9. Same—when the proof of bona ñde cash offers is admissible. Actual sales of property in the vicinity of that condemned, and similarly situated, are the best^ evidence, but in the absence of such evidence bona ñde offers to purchase for cash, ’made before there is any proposition to take the property for public use and by persons able to buy, are some evidence of what the property would sell for and are competent evidence. (Sherlock v. Chicago, Burlington and Quincy Railroad Co. 130 Ill. 403, explained.)</p>

<p>1. Benefit societies—when payment of benefits cannot be justified upon ground of dependency. Payment by a benefit society of the amount of a certificate payable to the member’s wife, (naming her,) which is made on the supposition that the beneficiary named was the member’s lawful wife, whereas she knew, when the marriage ceremony between her and the member was performed, that he had a living, undivorced wife, cannot be justified on the theory that the woman was a dependent, there being no claim of dependency made or suggested until after payment had been made and proceedings instituted by the lawful wife to enforce her rights.</p> <p>2. Same—when woman living with member at his death is not a dependent. A woman who knows at .the time the marriage ceremony is performed that her supposed husband has a living, undivorced wife, does not, by continuing to live with the man and receiving his support, come within the class of beneficiaries designated by statute and the rules of a benefit society as persons dependent upon the member for support.</p> <p>3. Same—society must know that the supposed wife of a member is his lawful wife. A benefit society which pays the amount of a benefit certificate to the beneficiary named therein under the designation of wife of the member will not be protected in such payment as against the member’s lawful wife, even though the beneficiary named had been living with the member under a ceremonial marriage many years before the certificate was issued and continued to live with him until his death, more than twenty-five years after the certificate was issued.</p>

<p>1. Pleading—when additional counts do not state a new cause of action. Where the original counts charge the defendant street railway .company’s negligence to be the sudden increase in the speed of the car, with the result that the plaintiff’s intestate was thrown from the car, additional counts charging the same negligence but with-the result that plaintiff’s intestate vyas brought into violent contact with a telegraph or telephone pole and was thereby thrown to the ground, do not charge a different cause of action from the original counts.</p> <p>2. Instructions'—when refusal of instruction is not reversible error. Refusal to give a specific instruction to the effect that there could be no recovery by reason of the existence of a certain condition which was not charged as a ground of negligence in the declaration is not reversible error, where other instructions are given limiting the plaintiff’s right of recovery to the negligence charged in the declaration. ,</p>

<p>1. Mandamus—mandamus will be awarded only where there is a clear right to the writ. Mandamus is an extraordinary remedy, and will be awarded only where there is a clear legal right to it.</p> <p>2. Drainage—a drainage district cannot take property without compensation. A drainage district is organized for the exclusive benefit of the territory within the district and is not a- governmental agency such as authorizes it to take private property without compensation, in the exercise of the police power of the State for the suppression of disease.</p> <p>3. Same—section 56 of the Levee act construed. Section 56 of the Levee act, requiring railroad companies, upon notice from the drainage commissioners, to enlarge bridges or culverts over natural water-courses to a sufficient capacity to allow the natural flow of the water through such water-courses, does not contemplate any more than such natural flow of the water, accelerated by improved drainage methods in such territory, as in a state of nature drains or flows in such water-courses.</p> <p>4. Same—there is no easement in favor of servient estate changing ñow of water tipon the dominant estate. The right of drainage through a natural water-course is an easement appurtenant to the land of every individual from whose lands the surplus waters flow into such natural water-course, whether such flow is increased by artificial means or not, but no such easement exists in the servient estate to change the natural course of drainage and flow the water upon the dominant estate.</p> <p>5. Same—when railroad company cannot be compelled to enlarge opening of bridge. Levee drainage commissioners cannot, by mandamus, compel a railroad company to enlarge the opening in its bridge over a creek where it appears from the petition that the natural flow of the creek is to be reversed, so that it will become the outlet of a river instead of being a tributary of the river, as it was naturally, but it is not alleged in the petition that the proposed change will not increase the burden which the' railroad company would be bound, in law, to bear had the flow of the creek not been reversed. (Chicago, Burlington and Quincy Railway Co. v. People, 212 Ill. 103, and Cache River Drainage District v. Chicago and Eastern Illinois Railroad Co. 255 id. 398, distinguished.)</p>

<p>Contracts—when a party cannot insist upon rescission of contract. A party cannot insist, in equity, upon the rescission of a contract for the sale of land upon the ground that the other party did not comply with a provision requiring him to have a factory, employing one hundred men, in operation by a certain date, where the failure to perform such condition on time was due to the complainant’s own hostility to the enterprise and his active efforts to prevent the contract from being carried out.</p>

<p>Municipal corporations—ordinance prohibiting smoking tobacco in. public streets or parks is invalid. An ordinance prohibiting the smoking of tobacco in certain specified places, including public streets and parks, without reference to any particular circumstances or conditions, is invalid in so far as it applies to such streets and parks, as being an unreasonable restraint upon the personal liberty of the citizens.</p>

<p>1. Criminal law—what constituted arson at common law. Arson, at common law, was the willful and malicious burning of the dwelling house, or out-house within the curtilage of a dwelling house, of another person, and it was an offense against the habitation and regarded the possession rather than the property.</p> <p>2. SAMir^-what was required to be alleged in indictment for arson at common law. An indictment for arson at common law was required to allege the property to be the property of the one in possession, as the burning of the dwelling house was not regarded as an offense against the property and punishment for it was intended to protect the occupant and not the owner.</p> <p>3. Same—the statute relating to arson was intended to protect property and not merely habitation. Section 13 of division 1 of the Criminal Code, relating to arson, enumerates many buildings, not structures for habitation, the willful and malicious burning of which is defined as arson, and was intended to protect property and not merely habitation.</p> <p>4. Same—section 19 of Criminal Code changes common law rule of pleading as respects arson. Section 19 of division 1 of the Criminal Code, providing that in an indictment for setting fire to or burning any building it is sufficient to allege, if the building was occupied, that the building was the property of the owner, lessee or occupant thereof, or, if unoccupied, to allege that it was unoccupied, giving a description thereof in general terms, changes the common law rule of pleading as to arson. '</p> <p>5. Same—burning any building, the property of another, is arson. The wqrds “any other building,” used in section 13 of division 1 of the Criminal Code, concerning arson, are not limited to buildings of the same class as those specifically enumerated, but include all the buildings specifically enumerated and any other building the property of another.</p> <p>6. Same—when charging offense in language of statute is sufficient. Under section 6 of division 11 of the Criminal Code an indictment is sufficient which charges an offense in the language of the statute creating it, unless the language of the statute fails to apprise the defendant of the real offense with which he is charged.</p> <p>7. Same—when acts and conversations of any of the defendants are admissible ■against all. In the prosecution of several persons for arson, if the evidence on the part of the People shows a. conspiracy among the defendants to burn the building and stock of goods, the acts or conversations of any of the defendants in carrying out the conspiracy are competent against them all.</p> <p>8. Same—uncorroborated testimony of accomplice may sustain a conviction. While the testimony of an accomplice is subject to suspicion and should be received with caution, yet it may be sufficient, uncorroborated, to sustain a conviction.</p> <p>9. Same-—party is not entitled to separate trial as a matter of right. A party indicted with others is not entitled to a separate trial as a matter of right, but his application for separate trial is addressed to the sound discretion of the court, and unless the court abuses its discretion in refusing the application such refusal is not ground for reversal.</p>

<p>1. Constitutional law—meaning of provision concerning appellate jurisdiction of the Supreme Court. The provision of the constitution concerning the appellate jurisdiction of the Supreme Court does not mean that such jurisdiction is conferred in all cases except those in which it has original jurisdiction, but means that in all cases other than those in which the court is given original jurisdiction, its jurisdiction, whether derived immediately from the constitution or from a statute, is appellate jurisdiction, only.</p> <p>2. Same—right of legislature to make judgments of the Appellate Court final. The constitution preserves to the Supreme Court appellate jurisdiction over judgments of the Appellate Court in criminal cases, and cases involving. a franchise, a freehold or the validity of a statute, but except in those cases appellate jurisdiction is conferred by the legislature, which may withhold such jurisdiction and make the judgments of the Appellate Court final.</p> <p>3. Same—in exercise of appellate jurisdiction court cannot receive evidence- of facts not before lower court. In the exercise of appellate jurisdiction the Supreme Court cannot receive evidence of facts not before the court whose judgment is being reviewed, but can receive such evidence only when exercising original jurisdiction.</p> <p>4. Same—-when question whether act was properly passed can not be decided in exercise of appellate jurisdiction. In the exer-' cise of its appellate jurisdiction the Supreme Court cannot determine whether an act of the legislature was passed in accordance with the constitution, where the copies of the journals relied upon were not before the court whose judgment is being reviewed, since the contents of the .journals of the legislature must be proved like any other "fact, and the Supreme Court cannot receive such proof except in some proceeding in which it has jurisdiction to try issues of fact.</p> <p>5. Same—when Supreme Court may decide issues of fact. In the exercise of appellate jurisdiction the Supreme Court, under recognized rules of practice, may decide matters of fact in issue between the parties, such as an alleged release of errors or the barring of the writ of error by the Statute of Limitations.</p> <p>6. Same—when question whether act was properly passed can not be treated as admitted. Joinder in error cannot be treated as admitting alleged facts stated in the assignment of errors and claimed to show that an act was not properly passed, since the constitutionality of a statute cannot be determined upon the admission or stipulation of parties to the suit.</p> <p>7. Same—fact that act as pas.sed contains sections having the same numbers as those stricken out is not material. The fact that an act as finally passed contains sections having the same numbers as certain sections which were stricken out of the bill by amendment does not affect the validity of the act, as the numbering of ‘ the different provisions of a bill and designating them as sections is merely a matter of convenience, and the striking out of certain sections merely changes the numbering of the sections remaining.</p> <p>8. Same—the Certiorari law of ipop docs not provide a method for reviewing judgments. The fact that the constitution may limit the methods for reviewing judgments of the Appellate Court to appeals and writs of error does not render unconstitutional the provision of the Practice act of 1909 making judgments of the Appellate Court final in certain cases unless the Supreme Court shall grant a writ of certiorari, since the application for the writ of certiorari is not intended as a review of the judgment, but to enable the Supreme Court to determine whether the case is such that the judgment should be reviewed, and if the application is granted to bring up the record the review is by writ of error.</p> <p>9. Same—Certiorari law of 1909 not invalid, as introducing into Practice act a subject not within the title. The amendment of 1909 (Laws of 1909, p. 304,) to sections 121 and 122 of the Practice act of 1907, the title to which was, “An act in relation to practice and procedure in courts of record,” did not introduce into the Practice act a subject not within its title, as the writ of certiorari, to which the amendment relates, is within the meaning of the words “practice and procedure.”</p> <p>10. Same—repealed section, or section as it existed before the amendment, need not be printed -in the amendatory act. It is not 'necessary that a repealed section, or a section as it existed before the amendment, shall be inserted at length in the amendatory act, but only that the complete section as amended shall be printed in full, in order that one may know, by reading it, what the law is.</p> <p>11. Same—Certiorari law of 1909 is not discriminatory because 110 bond is reqtiired. The Certiorari law of 1909 is not unconstitutional, as discriminating between parties, because a bond is required in case a party appeals, whereas no bond is required if the application for the writ of certiorari is granted and the case reviewed as on writ of error, as the legislature may prescribe what terms it pleases in case of appeals, and the fact that bonds are required in case of appeals does not affect the validity of an act authorizing writs of error without bond.</p>

<p>Writ ob Error to the Branch “D;’ Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District ;—rheard in that court on writ of error to the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.</p>

<p>1. Constitutional law—word “bill” may include the bill and its amendments. The word “bill” may, according to the context, mean the bill as first introduced in one of the houses of the General Assembly, or it may mean the bill and its amendments in any of its stages until finally passed by both houses, signed by the officers of each house, approved by the Governor and filed by the Secretary of State.</p> <p>2. Same—whether word “bill” includes amendments depends upon connection in which it is used. Whether the word “bill” is used, in any stage of its progress, to include amendments pending or already adopted must necessarily be shown by the connection in which the word is used."</p> <p>3. Same-—every presumption is in favor of validity of a statute. Every presumption is indulged in favor of the validity of a statute and every reasonable doubt resolved in its favor, and the courts, if possible, must give it a construction to sustain it.</p> <p>4. Same—the rule for construing statute applies to minutes of journals of legislature. The rule that where a statute or ordinance is capable of two constructions, one of which will sustain and the other defeat it, that construction should be adopted which will sustain it, applies with equal force in construing the minutes of the journals of the legislature with reference to the progress and passage of a bill.</p> <p>5. Same—journals of the legislature cannot be aided, or contradicted by other evidence. The parliamentary history of an act or bill in the legislative journals is the only evidence that is recognized by the courts of Illinois, and the journals cannot be aided or contradicted by other documents or evidence of any kind.</p> <p>6. Same—when the failure to print amendment will not render entire .act invalid. Failure of the journal to show that an amendment was printed will not invalidate the entire act if the amendment and the act are so essentially different and independent that it cannot be said the act would not have been passed without the amendment.</p> <p>7. Same—Civil Service act of 1911 was passed in accordance with the constitution. The Civil Service act of 1911 (Laws of 1911, p. 222,) must be held, in view of the entire record of the progress and passage of the bill as shown by the senate journal, to have been passed in accordance with the constitution.</p> <p>8. Same—the Civil Service act of ipn is not unconstitutional. The Civil Service act of 1911 does not contravene the provisions of the constitution relating to the three departments of government, nor is it invalid as an attempt to change the constitutional and statutory duties of State officers and to authorize the duties of officers elected for four years to be performed by a civil service board appointed for an indefinite term. (People v. McCullough, 254 Ill. 9, adhered to.)</p> <p>9. Same—what does not render the Civil Service act invalid. The Civil Service act of 1911 is not rendered invalid by reason of its provisions that all applicants desiring appointments thereunder shall state their age, health, sex, habits and other qualifications. (People v. Kipley, 171 Ill. 44, followed.)</p> <p>10. Same—provision for preferring ex-soldiers and sailors of civil war is not invalid. The provision of the Civil Service act of 1911 that honorably discharged soldiers and sailors of the civil war shall be preferred for appointment to civil service positions, provided they pass the examination and are found to possess the necessary business capacity for the proper discharge of the duties of such positions, is not unconstitutional.</p> <p>11. Same—Civil Service act of ipn not invalid because of its title. The Civil Service act of 1911 is not invalid upon the alleged ground that the title embraces more than one subject and that the subject of the act is not embraced in the title.</p> <p>12. Civil service—stenographer is not a clerk. A stenographer is not a clerk, and is not excepted from the classified service by reason of the provision of section 11 of the Civil Service act that all clerks in the office of certain State officers are exempt.</p> <p>13. Mandamus—what does not prevent court from compelling State Treasurer to act. The fact that the State Auditor may refuse to obey the judgment of the court commanding him to issue a warrant on the State treasury does not preclude the court from including in its judgment a command to the State Treasurer to countersign and pay such warrant. (People v. Kipley, 171 Ill. 44, followed.)</p>

<p>1. Criminal law—an admission must be shown to have been made under standingly. Before an admission can be used as evidence against the accused it must be shown to have been made understandingly, particularly where the accused is a foreigner who does not speak or understand English perfectly.</p> <p>2. Same—when the accused should have the benefit of another trial. If the testimony of the only witness attempting to identify the accused as the man seen running away from the scene of the shooting is inconclusive and there is evidence of an alibi by witnesses who give their residence and occupation, and there is no other evidence clearly connecting the accused with the crime, the accused should have the benefit of another trial.</p> <p>3. Same^circumstantial evidence must be of a conclusive nature. Circumstantial evidence, to warrant a conviction, must be of a conclusive nature and tendency, leading, on the whole, to a satisfactory conclusion, and producing a reasonable and moral certainty that the accused, and no 'one else, committed the crime.</p> <p>4. Same-—when Supreme Court will reverse judgment of conviction. The Supreme Court will reverse a judgment of conviction for murder based upon purely circumstantial evidence where the evidence for the People does little more than raise a suspicion of the guilt of the accused.</p> <p>5. Same—rule as to verbal admissions of accused. Verbal admissions of the accused, if deliberately and understanding!/ made and fully proven, are satisfactory evidence, otherwise they are to be received with great caution.</p> <p>6. Same—when statement of instruction with reference to attempt to escape is improper. An instruction which authorizes the jury, in determining the guilt of the accused, to take certain things into consideration, including any flight or attempt to escape, is improper as not based on the evidence, where there is no evidence of any flight or escape other than the fact that the man who did the shooting ran away from the scene of the crime.</p> <p>7. Same—statement that the fury should be convinced that they have an abiding conviction of the guilt of the accused is improper. In a criminal case the jury should be convinced, from the evidence, "of the guilt of the accused beyond a reasonable doubt, and it is improper for an instruction to state that the jury should be convinced that they have an abiding conviction of the guilt of the accused.</p>

<p>1. Deeds—effect of an agreement that grantor shall live with grantee and receive support. Where the consideration for a deed is that the grantor shall live with and be supported by the grantee, the latter is not bound to furnish support at any other place if the grantor, without cause, refuses to live with the grantee; nor is the grantee bound to pay for support and service furnished by the grantor herself or other persons.</p> <p>2. Same—grantor cannot take advantage of her own wrong to have deed set aside. Where the grantor is the moving party in the execution of a deed based upon the consideration of her living with and being supported by the grantee and enters into the contract without any fraud or undue influence by the grantee, the deed will not be set aside in equity for failure of the grantee to carry out his contract, where the grantor, by her own unjustifiable acts, has prevented such performance.</p>

<p>Appeals and .errors-—when there is nothing for the Supreme Court to review. Where a petition for writ of certiorari under the Practice act is granted upon petitioner’s representation that the trial court refused, in an action against him to recover installments of rent, to permit him to present evidence of a defense that the lessor was not diligent in seeking to re-let the premises, but the record does not show that any attempt was made to establish such defense by evidehce or any ruling of the trial court denying the right to mak'e such defense, there is nothing for the Supreme Court to review.</p>

<p>1. Special assessments—necessity for improvement is a question largely in discretion of municipal corporation. The question of the necessity for a local improvement is committed by law. to the city council or board of trustees, and the courts will not interfere with the determination of such bodies unless there is a clear abuse of discretion.</p> <p>2. Same—when a paving ordinance cannot be said to be unreasonable. An ordinance for the paving of parallel streets, and intersecting streets between, will not be held unreasonable because many property owners are opposed to the improvement, which will necessitate the removal of several ornamental and shade trees, where it is shown that the streets have never been paved and that there are many wooden houses on such streets, which in wet weather are-practically without fire protection because of the difficulty of getting fire engines through the mud.</p> <p>3. Same—when fact that majority of property owners are opposed to improvement does not defeat it. Where a municipal corporation does not come within the provisions of section 8 of the Local Improvement act, the fact that a majority of the property owners are opposed to the improvement does not justify the court in declining to proceed with the improvement..</p> <p>4. Same—improvement board is not required to do more than mail the notices. If the board of local improvements mails the notices of public hearing to the persons who made the last payment of taxes on the property it is not required to do more in that regard, and the fact that some property owners did not receive the notices mailed is not ground for dismissing the petition.</p> <p>5. Same—zvhen a team track of a railway will not be specially benefited. Where a team track of a railway company adjoins a paved street which connects with cross-streets also paved, the fact that there are several vacant lots on other streets and that it will facilitate the delivery of building material unloaded on the team track for use in building houses 'on such lots if the streets upon which they are located are paved, does not constitute a special benefit to the property of the company but is one which would be enjoyed by the public at large.</p>

<p>Writ of Error to the Circuit Court of Crawford county; the Hon. E. E. NEwlin, Judge, presiding.</p>

<p>1. Evidence—general rule as to burden of proof. The general rule is, that the burden of proof rests upon the one who substantially asserts the affirmative of the issue,—that is, upon the party who would be defeated if no evidence at all were offered.</p> <p>2. Same—burden of proof does not depend upon the form of the proposition. The burden of proof does not depend upon the form of the proposition, and whoever alleges a claim or defense which depends upon a negative must, as a general rule, establish the truth of the allegation, as that particular fact is essential to his case.</p> <p>3. Same—question as to burden of proof of negative averment depends- upon facts of case. No general rule can be laid down which will govern, in every case, the question of which party has the burden of proof when a- negative is averred, but each case must depend largely upon its own peculiar circumstances.</p> <p>4. Same—authorities are not in harmony as to burden of proof when want of a license is averred. The authorities are not in harmony as to who has the burden of proof where a want of a license to do a certain class of business is averred, but the weight of authority is, that where the question of the existence of the license is only collaterally involved the license will be presumed unless proof to the contrary is presented.-.</p> <p>5. Same—when party alleging that a mechanic’s lien claimant had no contractor’s license has burden of proof. Where the trustee in deeds of trust covering property against which a claim for mechanic’s lien is filed alleges in defense that the claimant did not have á contractor’s license, as required by city ordinance, for the year in which the work was done, which was several years before such defense was set up in -the answer, the trustee has the burden of proving the truth of his negative averment, and if no such proof is made the validity of the ordinance is not involved in the case.</p> <p>6. Mechanics’ mens—what is not an “abandonment” or "discontinuance," as meant by section 4 of the Mechanic’s Lien act. Where the owner orders the contractor to stop work on the building and the contractor agrees to do so, there is no “abandonment” or “discontinuance” of the work as those words are used in section 4 of the Mechanic’s Lien law, and in such case the question whether the provisions of such section relating to abandonment or discontinuance are valid is not involved.</p>