Volume 263 — Illinois Reports

<p>1. Attorney and client—when question whether contract was wise one to make cannot be inquired into. An attorney may contract with reference to his services and compensation before he undertakes his client’s case, and in such case, if the parties were competent to ■ contract and no fraud or misrepresentation of any fact is shown, the question whether the contract was a wise one for the client to make cannot be inquired into.</p> <p>2. Same—all purchases by attorney from client are not necessarily voidable at client’s election. There is no necessary incapacity for dealing between an attorney and his client, but the burden rests upon an attorney who bargains with his client in a matter of advantage to himself, to show that the transaction was fair and equitable, that the client was fully informed of his rights and the nature and effect of his contract, and was so placed as to be able to deal with the attorney at arm’s length. •</p> <p>3. Same—fact that method of obtaining employment zvas unethical does not vitiate the contract. The canons of professional ethics adopted by the Illinois State Bar Association and the American Bar Association are not enforced by the courts as binding obligations, and the fact that the method adopted by an attorney to secure employment is in violation of such ethical rules does not, of itself, vitiate the contract of employment.</p>

<p>AVrit oe Error to the. Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding.</p>

<p>1. Appeals and errors—rule where bill of exceptions■ shows-making of a motion for new trial but does not contain the. motion. Where the bill of exceptions recites that a motion for new trial was made and overruled and exception taken by the defendants but does not set out the motion itself or the grounds of the' mo- ’ tion, the defendants may avail themselves, in a court of review, of any ground for new trial which may appear in the record.</p> <p>2. Criminal law—when the record must be free from any sub-, stantial error. Where the evidence in a criminal case, even when taken most strongly against the defendants, is of a very unsatisfactory character the record must be free from substantial error in' order to sustain the judgment of conviction.</p> <p>3. Same—when conversation is not admissible against defend-, ants. A conversation between the owner of stolen goods and a third person jointly indicted with the defendants for receiving the. goods but not tried with them, which conversation tends to show the guilt of the defendants or of one of them, neither of whom was present at the conversation, is not admissible.</p> <p>4. Same—when it is error to refuse to exclude answer to question. Where a police officer testifying for the People is asked a question on cross-examination, and his answer, except the first few words, is not responsive to the question but is a volunteered state-' ment which brings in a conversation with a third person implicating the defendants with the crime, though they were not present at the conversation, it is error to refuse to exclude the unresponsive portion of the answer.</p> <p>5. Same—when it is error to permit assistant State’s attorney to state facts outside the record. It is error to permit the assistant State’s attorney, in his argument to the jury, to state-as a fact a.</p> <p>damaging matter not in evidence and to leave the jury to decide the matter upon such statement.</p> <p>6. Same—the court should not criticise witness for defendants. In a criminal case the court should not make remarks in criticism of a witness for the defendants nor permit the assistant State’s attorney to make unfair remarks with respect to his testifying, even though he was employed at the preliminary examination as attorney for a person who was jointly indicted with the defendants but not tried with them.</p>

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

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding.</p>

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

<p>1. Leases—owner of a dower interest in land has no pozver to make oil and gas lease. The owner of a dower interest in land has no power to make a lease under which oil, gas or minerals can be removed from the land, unless she has been authorized in writing by the owner of the fee to make the lease as his agent.</p> <p>2. Same—an oil and gas lease is not void because executed on Sunday. In Illinois the • fact that an oil and gas lease, or other contract, is executed on Sunday does not render the lease or contract void.</p> <p>3. Same—what is not a false representation. A representation by a party desiring to obtain the execution of an oil and gas lease by the owner of a dower interest in land, to the effect that a former lease made by her was invalid, is not a representation of fact but merely an opinion as to the legal effect of the lease, and such opinion furnishes no basis for a charge of fraud in obtaining the .execution of the second lease by her, particularly where the first lease was, in fact, invalid.</p> <p>4. Same—rule where parties are dealing at arm’s length. Parties desiring to obtain an oil and gas lease from the owner of the fee, where no fiduciary relation exists, are not obliged to volunteer any information as to the surrounding conditions, although if they do volunteer information for the purpose of influencing his action they must tell the truth and the whole truth.</p> <p>5. Same—essential elements of a false representation. A false representation such as will warrant a court of equity in setting aside a contract must be a statement of a material fact which the party making it knows is untrue and which is made for the purpose of inducing action by the other party, who believes the statement and acts in reliance thereon.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. R. W. Olmsted, Judge, presiding.</p>

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

<p>1. Easements—rule where owner sells part of entire premises after arranging for light and ways. Where the owner of entire premises arranges for light and passageways for the benefit of the different portions of the premises and afterwards the premises are severed and the title vested in separate owners, each grant will carry with it, without being specifically mentioned, the rights, burdens and advantages imposed by the owner prior to the severance.</p> <p>2. Same—when it is error to sustain a right to easement upon payment of money. In a proceeding to enjoin the closing up of a' passageway, claimed to constitute a perpetual easement, where the complainant is either entitled to the relief absolutely or is not entitled to any relief, there is no authority for granting the relief to complainant if the latter will pay a specified sum of money to the defendant.</p> <p>3. SameE—court of equity has jurisdiction to enjoin obstruction of private easement. A court of equity has jurisdiction to enjoin the obstruction of a private easement, but the proof of the existence of the easement must be so clear and convincing as to remove every substantial doubt as to the existence of the right claimed.</p> <p>4. Same—when complainant is entitled to an easement. Where the owner of two lots constructs a passageway, with gates, along the side of one lot and the same is used as the only means of reaching the rear of the.other lot, (the forepart of such lot being entirely covered by a building,) and where the owner encumbers the lot having the passageway upon it with a trust deed covering such lot and expressly mentioning the easement, the easement is binding as between a purchaser of the lot, who assumed and</p> <p>paid the encumbrance, and the purchaser of the other lot, who knew the existing conditions and had actual notice of the provision of the trust deed relating to the easement.</p> <p>5. Same—when an easement is not affected by private understanding of grantor. If the owner of two lots arranges a passageway over one lot for the benefit of the other and recognizes the existence of the easement in a trust deed covering the servient lot, which is recorded, the effect of her formal recognition of the easement, as to subsequent purchasers, is not destroyed or limited by her private understanding that the easement would cease to exist when the trust deed was canceled.</p>

<p>Information to disbar.</p>

<p>Appeal from the Circuit Court of Warren county; the Hon. George W. Thompson, Judge, presiding.</p>

<p>1. Criminal law—the counts for burglary and larceny may be joined in one indictment. Counts for burglary and larceny, growing out of the same transaction, may be joined in one indictment, and the two offenses may even be joined in the same count.</p> <p>2. Same—when corpus delicti is sufficiently established. While the corpus delicti in burglary and larceny cannot be established solely by the confession of the accused, yet where, in addition to such confession, there is proof of the possession by the accused of the stolen goods and no explanation of such possession the corpus delicti is sufficiently proved, as it is proper to prove the corpus delicti by circumstantial evidence.</p> <p>3. Same—what is not a necessary allegation in indictment for burglary of freight car in a train. An indictment for burglary and larceny alleged to have been committed in a freight car need not necessarily allege that the car was passing over a railroad and that it could not “readily be determined in what county the offense was committed,” as provided in section 11 of division 10 of the Criminal Code.</p> <p>4. Same—rule when place of the crime can be definitely ascertained. Where the place where a freight car in a moving train was robbed can be definitely ascertained the venue of the crime should be laid and the indictment brought in the county where such place is located.</p> <p>5. Same—when a conviction for burglary o.f a freight car can not be sustained. Where the proof shows that the place where a freight car in a moving train was burglarized was in Cook county, a conviction for such offense under an indictment laying the venue in Peoria county cannot be sustained. '</p> <p>6. Same—when verdict of jury cannot be corrected. A verdict finding the defendant guilty of burglary and larceny cannot be corrected so as to apply to the larceny count, alone, except in the presence of the jury and with their assent, and, in the absence of such correction, if the conviction for burglary cannot be sustained, the judgment must be reversed as to both offenses, even though a conviction for larceny, alone, might have been upheld had the verdict been limited to that offense.</p>

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

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

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

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

<p>Appeal from the County Court of Rock Island county; the Hon. Benjamin Bell, Judge, presiding.</p>

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

<p>1. Dedication—common law offer of dedication may be withdrawn before acceptance and user. A common law offer to dedicate land for streets and alleys may be withdrawn before acceptance and user by the public.</p> <p>2. Same—when city loses right to accept streets. Where there has been ho acceptance by the public authorities of a common law offer to dedicate land for streets in a subdivision laid out in a swamp for over forty years the offer may be withdrawn by making and filing proper deeds of vacation, and the city cannot thereafter exercise the right to accept such streets. (Moore v. City of Chicago, 261 Ill. 56, followed.)</p>

Writ oe Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. L. BernrEuTEr, Judge, presiding.

<p>1. Insurance—relation of an insurance company to a policyholder is contractual. The relation of an insurance company to a policyholder is purely contractual and does not ordinarily involve any element of trust, and it is the duty of the courts to construe and enforce the agreement as made and not to make a new contract for the parties.</p> <p>2. Same—when surrender of a policy is precedent to right to paid-up insurance. Where a life insurance policy provides that after full premiums have been paid for a certain number of years the policy can be surrendered within six months from the date of lapse for paid-up insurance or for cash, as specified in accompanying tables, and further provides that except as to such provisions the policy shall become void if the premium is not paid when due, the surrender of the policy within six months after the date of lapse is a condition precedent to the right to paid-up insurance or cash, and if no surrender is so made such rights are forever gone.</p>

<p>1. Appeals and errors—a decree must recite sufficient facts to sustain it where there is no certificate of evidence. A decree granting affirmative relief must recite sufficient facts to sustain it on appeal if there is no certificate of evidence.</p> <p>2. Contracts—party cannot rescind contract in part and affirm it as to the residue. As a general rule, a party cannot rescind a contract in part and affirm it as to the residue, and, except in certain cases, if he seeks to rescind a contract upon the ground of fraud he must do so in toto and offer to return the consideration.</p> <p>3. Husband and wipe—when wife is not entitled to rescind contract. Where husband and wife are each competent to contract at the time a contract is made for a division of property between them in contemplation of their living apart, the wife is not entitled to have the contract rescinded so far as it is to her disadvantage and confirmed so far as it is to her advantage, without restoring or offering to restore the consideration for the contract in so far as she is able to restore it.</p>

<p>1. Wills—effect of probating foreign will in Illinois. Under section 10 of the Wills act, where the will of a non-resident, which has been probated in a foreign State, is admitted to probate in a county in Illinois, the admission to probate in Illinois gives the will the same effect, in law, as though it had been originally proved in Illinois.</p> <p>2. Statutes—all parts of statute must be considered together. In construing a particular provision of a statute all parts of the statute must be construed together and the meaning of the particular provision be thereby determined.</p> <p>3. Same—courts are not confined to literal meaning of words used in statute. In construing a statute the courts are not confined to the literal meaning of the words used but the intention may be collected from the necessity or objects of the act, and its words may be enlarged or restricted according to its intent.</p> <p>4. Same—statute should be so construed as to give effect to the main intent. The several provisions of a statute should be construed together in the light of the purpose and objects of the act so as to give effect to the main intent, even though in so doing particular provisions are not given their literal meaning.</p> <p>5. Same—repeals by implication are not favored. An intention to repeal provisions of a statute by implication will not be presumed nor the effect of such a repeal be admitted unless the inconsistency is unavoidable.</p> <p>6. Administration—policy of State has been to grant preference to near relatives. For many years it has been the policy in Illinois to give a preference to the surviving husband, widow or near relatives to administer upon the estate of an intestate person regardless of whether or not deceased was a resident of Illinois.</p> <p>7. Same—when public administrator not entitled to administer under section 18 of Administration act. Section 18 of the Administration act, as amended in 1905, providing that in all cases where the intestate is a non-resident, and in all cases where there is no widow, husbánd or next of kin who are residents of this State, administration shall be granted to the public administrator, creates but one class "of cases where administration shall be so granted, and that is where the intestate is a non-resident and leaves no husband, widow or next of kin residing in Illinois.</p> <p>8. Same—when a relative is entitled to nominate administrator. Where the deceased is a non-resident and leaves a will, which is probated in some county in Illinois where there is property of which the deceased died seized, a relative of the deceased residing in Illinois is entitled, as against the public administrator of the county, to nominate a resident of Illinois as administrator with the will annexed.. (Rosenthal v. Prussing, 108 Ill. 128, approved.)</p>

<p>Appeal from the Circuit Court of DuPage county; the Hon. Duane J. Carnes, Judge, presiding.</p>

<p>1. Statute op Frauds—a» agent’s contract, and also his authority, must be in writing. Prior to the amendment of the Statute of Frauds, in 1869, it was not necessary that the authority of an auctioneer or other agent be in writing, but under the present statute it is necessary, not only that the contract made by an agent by virtue of his authority shall be in writing, but that the authority of the agent must also be in writing.</p> <p>2. Same—when sale by auctioneer does not comply with statute. A printed notice signed by the owner of lots announcing his intention to sell the same at public sale, and hand-bills signed by him announcing the sale, are sufficient authority to the auctioneer, but upon making the sale there must also be some contract or memorandum in writing signed by the auctioneer, otherwise the owner is not bound to carry out the sale.</p> <p>3. Same—a verbal promise to carry out an agent’s contract is not binding, A verbal promise by the owner of lots to carry out a contract for their sale, made by an agent without any note or memorandum in writing signed by him, does not satisfy the requirements of the Statute of Frauds; nor does the owner’s acceptance of part of the purchase price and his agreement as to terms take the case out of the statute.</p> <p>4. Same—party has a legal right to claim benefit of Statute of Frauds. The owner of land has a legal right to claim the benefit of the Statute of Frauds where the contract for the sale of the land does not meet the requirements of the statute, and his moral wrong in refusing to be bound by his verbal agreement does not authorize the application of the doctrine of equitable estoppel.</p>

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Carroll county; the Hon. O. E. Heard, Judge, presiding.

<p>1. Evidence—interest of witness, to be disqualifying, must be legal, certain and immediate. The interest of a person which will disqualify him as a witness in his own behalf when the opposite party sues or defends as executor, administrator, heir or legatee must be a legal, certain and immediate interest, either in the result of the suit or in the record as an instrument of evidence in support of his own claims in another action.</p> <p>2. Same—when grantor in quit-claim deed has no disqualifying interest. The fact that the grantor in a quit-claim deed to his attorneys for fees may have the right to have the deed avoided does not constitute such a present, certain • and vested interest as disqualifies him as a witness in a suit as to the title to the property between his grantees and the personal representatives or heirs of a deceased person.</p> <p>3. Same—When a warrantor of title is competent as a witness. A warrantor of the title to property which is in controversy is generally incompetent as a witness for his vendee in an action concerning the title, but if the effect of the judgment is only to render it more or less probable that he will be prosecuted, the objection goes only to his credibility.</p> <p>4. Same—rule as to admissibility of testimony of absent witness in subsequent suit. The testimony of an absent witness in a former proceeding is, admissible in a subsequent suit provided the matters in issue and the parties are the same; and the word “parties,” as so used, means privies in blood, law or estate.</p> <p>5. Same—warrantor may testify if his liability is the same no matter how the suit results. The grantor in a warranty deed may testify in a suit involving the title to the land where the controversy is over the question of the substitution of grantees after the deed was executed, as his liability is the same regardless of who is the true grantee.</p>

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

<p>Writ OR Error to the City Court of East St. Louis; the Hon. Mortimer M. Millard, Judge, presiding.</p>

Appear from the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding.

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

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

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

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

<p>1. Taxes—what the board of review decided is to be determined by the record made by it. The record of the decision of the board of review upon a hearing for the purpose of modifying an assessment is made by entering it upon the assessment books, and that which the board decided to do must be determined by the record made by it.</p> <p>2. Same—oral testimony as to what board of review decided to do is not admissible. Where the board of review reduces on the books an assessment of real estate from six million dollars to four million dollars, oral testimony is not admissible to show that members of the board had stated the board intended to reduce the assessment to three million dollars.</p> <p>3. Same—what does not show fraud, accident or mistake. Where the board of review reduces on the books an assessment of real estate from six million dollars to four million dollars, testimony that the president of the board, on the hearing of the owner’s complaint of over-valuation, stated that the assessment would be reduced to three million dollars does not show that the assessment of four million dollars, shown by the books, was the result of any fraud, accident or mistake.</p>

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

Writ op Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Paul McWilliams, Judge, presiding.

<p>Appeals and errors—an order sustaining a demurrer is not a final, appealable order. An order sustaining a demurrer to a bill is not a final, appealable order even though it adjudges costs, and the Supreme Court, having jurisdiction to review final orders, only, will dismiss, of its own motion, a writ of error sued out to reverse the order.</p>

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

<p>■ 1. Taxes—when a notice for hard road tax election is invalid, A notice calling for a vote for or against the proposition to levy a hard road tax is invalid where it contains the word “per cent” in place of the word “cents.” • -</p> <p>2. Same—when error in notices for vote upon hard road tax may be corrected. An error in notices for a vote upon the proposition to construct a hard road may be corrected by destroying the old notices and posting new ones with new dates, where sufficient time remains to' give the full statutory notice. (Haggard v. Fay, 255 Ill. 85, distinguished.)</p> <p>3. Appeals and errors—when court’s finding will not be disturbed. Where the trial court, in a.proceeding to sell land for delinquent taxes, has decided the case on questions of fact depending upon the oral testimony of the witnesses, the Supreme Court will not disturb the finding unless it is palpably against the weight of the evidence.</p>

<p>1. Wills—when conversation in presence of testator cannot he proved. ' In a proceeding by heirs to contest a will, the person whose name is written in the will as the legal heir of both real and personal property cannot testify to an alleged conversation between him and the girl who, in the testator’s presence, was writing the will, Wherein he told her she was not writing all the testator said, which she admitted but said she did not know how to write it, whereupon he dictated, while she wrote, the sentence naming him as the legal heir of the real and personal property.</p> <p>2. Same—when it is not error to permit witnesses to a will to testify on contest. Where the only issue before the jury in a will contest case is whether certain words were written in the will after it was executed by the testator, subscribing witnesses who made affidavits of the execution of the will when it was probated may testify whether such words were in the will when executed.</p> <p>3. Same—court of equity may hold part of will to he the will of the testator. A court of equity, in a proceeding to contest a will which it is claimed contains words interpolated by a third person after its execution, has power to determine that the will, as to such words, is not the will of the testator but that the remainder of the instrument, with such words eliminated, is his will.</p>

<p>Appeal from the Branch “D” Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Rueus F. Robinson, Judge, presiding.</p>

<p>1. Special assessments—an objection on the ground of want of notice must be specific. An objection that no notices'of the public hearing before the board of local improvements were mailed should state that no notices were mailed to the persons in whose behalf the objection is filed, that such persons received no notices and that they were not present at the public hearing; and hence an objection which states, generally, that notices were not mailed “to parties who paid the general taxes for the last preceding year,” is not sufficiently specific and may be stricken from the files.</p> <p>2. Same—what constitutes a sufficient record of improvement board’s resolution. The statute requiring the resolution describing the proposed improvement to be at once transcribed into the records of the board of local improvements is complied with where, at the time of the public hearing, the- written resolution, with others, was bound into book form and the book so kept that at any time after the adoption of the resolution anyone interested might inspect it if he cared to do so.</p>

<p>1. Benefit societies—zvhat members are exempt from operation of by-law. In the absence of a provision in a by-law of a benefit society that it shall apply to existing members, a by-law which provides for the suspension of a member and for the forfeiture of all rights, by operation of law and without notice, in case of those who, after obtaining membership in the order, engage in certain prohibited occupations, does not include those who are members and engaged in the prohibited occupations at the time of the adoption of the by-law.</p> <p>2. 'Same—when a by-law of a benefit insurance order may be zuaived. A by-law of a benefit society declaring the suspension of membership and the forfeiture of'all benefits where a death occurs, directly or indirectly, while a member is engaged in certain prohibited occupations may be waived by the officers and agents of the local order or society, who, with knowledge of the facts, accept payments of dues and treat the contract as in force._</p> <p>3. Same—insurance contracts are strictly construed. Contracts of insurance, being entirely of thé insurer’s own making, are construed strictly against the insurer and liberally in favor of the insured, and where two interpretations, equally reasonable, are possible, that construction should be adopted which will enable the beneficiary to recover.</p> <p>4. Same—when by-laws declaring forfeitures are waived. The local lodge or council of a mutual benefit society is the agent of the supreme lodge and may waive by-laws which declare forfeitures and suspensions by accepting dues and assessments with full knowledge of all of the facts constituting a violation of the rules of the order, or by other acts and conduct of its officers and agents of such a character as to induce a belief on the part of the insured that the society recognizes the insured as a member of the society in good standing and does not intend to exercise its right of forfeiture.; .and for this purpose knowledge of facts received or communicated to its officers having authority to act in the premises, and whose duty it is to act, is imputed to the society.</p> <p>5. Same—what acts show waiver. A benefit society waives the right to forfeit a member’s benefit certificate on the ground that he was engaged in a prohibited occupation, where the president, the local organizer and collector and the secretary of the local order</p> <p>made numerous visits to the member’s place of business and knew the character of his occupation, and, together with the assistant manager of the order, who also visited the member’s place of business, failed to take steps for the suspension of the member.</p> <p>6. Appeals and errors—when finding as to waiver and notice will not be disturbed. The finding of a jury upon the questión of notice and waiver will not be disturbed by the Supreme Court unless the record clearly shows that the trial court committed error in its rulings in the admission or in the exclusion of evidence to the prejudice of the complaining party or that it misdirected the jury as to the law of the case.</p> <p>7. Practice—oral charge should be construed as a whole. An oral charge to the jury by the municipal court of Chicago will be construed as a whole, and if it be not misleading it is no objection to the charge that certain portions of it are subject to criticism.</p>

<p>1. Tax deeds—what is sufficient proof of title as against invalid tax deed. As against an invalid tax deed, proof of possession of the premises- by the complainant, together with deeds purporting to convey title, is sufficient evidence of title.</p> <p>2. Evidence—statute authorizing secondary proof of deed can not he disregarded. The provisions of section 36 of the Conveyances act prescribing the conditions upon which a copy of a deed, certified by the recorder, may be read in evidence, are founded upon substantial reasons and cannot be disregarded by the courts.</p> <p>3. Same-—what is not sufficient preliminary proof. Testimony by the complainant in a bill to set aside a tax deed as a cloud that he does not know what has become of one of the deeds to his lots; that he had lost it, and that he looked for it in the trunk where he had the two deeds and found only one, is not sufficient preliminary proof to authorize the admission in evidence of a certified copy of the deed claimed to be lost.</p> <p>4. Same—when taxing of costs of suit to defendant is not error. While a tender to the holder of a tax deed of the amount due, coupled with a demand for the execution of a quit-claim deed, is not sufficient to fix a liability for costs of the subsequent suit to set aside the tax deed as a cloud, yet if the complainant’s solicitor testifies that the tender, though made in that form in a letter, was also made by him personally, regardless of the execution of a deed or any other condition, and his testimony is not denied by the defendant, it is not error to charge the defendant with the costs of the suit.</p>

<p>1. Disbarment—to justify disbarment, case made must be free from doubf. To justify disbarment the case made must be free from doubt, not only as to the act charged but as to the motive with which it was done.</p> <p>2. Same—when making false affidavit is not ground for disbarment. The fact that an attorney organizing a corporation for his clients makes a false affidavit that the capital stock is paid in is not ground for absolute disbarment, where he testifies that he was informed by his clients that they had the money ready to pay in as soon as it was needed by the corporation in its business.</p> <p>3. Same—when an attorney should be suspended. Where the evidence shows that an attorney has been guilty of unprofessional conduct in being connected with an oppressive and usurious loan made by another party and has made a false affidavit that the capital stock of a corporation had been paid in, the affidavit being made upon the representation of his clients that they had the money ready to pay in, the attorney should be disciplined by suspension, even though his disbarment is not justified.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. John P. McGoorTy, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. T: N. Green, Judge, presiding.</p>

<p>1. Special assessments—no presumption can be indulged in support of jurisdiction of the court. As the levying of a special assessment under the Local Improvement act is purely statutory, jurisdiction can be acquired only .in strict conformity with the statute, and such, jurisdiction must appear upon the face of the record, as no presumption will be indulged in its support.</p> <p>2. Same—jurisdiction of a particular assessment case depends upon a proper petition. The county court has jurisdiction over the general subject of special assessments, but it can acquire jurisdiction of a particular assessment case only by the filing of a petition by the officer specified in the ordinance, in the name of the municipality, praying that steps may be taken to levy a special assessment for the improvement.</p> <p>3. Same—the petition must be Med by some officer of the city. Under the Local Improvement act every petition for the levy of a special assessment for the making of a local improvement, whether private property is required to be taken for .the improvement or not, must be filed by some officer of the city designated in the ordinance or by resolution.</p> <p>4. Same—petition filed by private person is unauthorised. A petition for a special assessment filed by a private person is unauthorized and confers no jurisdiction upon the court, even though</p> <p>such person is designated by name in the ordinance as the person to file the petition, where there is nothing whatever to show that such person is an officer of the municipality.</p> <p>5. Same—extent to which judgments refusing order of sale for assessment are conclusive. Judgments refusing applications for judgment and order of sale for the successive installments of a special assessment are conclusive that the property is not liable to assessment under that ordinance, but they have no force as to a new assessment under a new ordinance passed under section 60 of the Local Improvement act.</p> <p>6. Same—objection that petition was not presented by officer of the municipality cannot be waived. An objection that the petition for the levy of a special assessment was not presented by an officer of the municipality goes to the jurisdiction of the court over the subject matter and is not waived by filing other objections.</p> <p>7. Same—when description of land is not vague and uncertain.</p> <p>The description of land specially assessed is not vague and uncertain if the land may be located from the description given and the plat of the territory offered in evidence.</p>

<p>1. Special assessments—when an improvement ordinance does not provide for double pavement of street intersections. An ordinance providing for grading, curbing and paving certain roadways and portions of intersecting streets not included in the roadways will not be construed as providing for the double pavement of the street intersections, where there is nothing in the ordinance which directly shows a purpose to pave the street intersections twice or which prevents the adoption of a contrary interpretation. (Chicago Union Traction Co. v. City of Chicago, 208 Ill. 187, distinguished; City of Chicago v. Wilshire, 243 id. 123, followed.)</p> <p>2. Ordinances—that construction will be adopted which sustains rather than the one which invalidates legislation. Where an ordinance is susceptible of two constructions, one of which will render it invalid and the other sustain it, the court will adopt that construction which sustains rather than the one which destroys the legislation.</p>

<p>Appeal from the County Court of Rock Island county; the Hon. Benjamin S. Bell, Judge, presiding.</p>

<p>1. Municipal corporations—cities have power to pass garage ordinance. Clause 82 of section 1 of article 5 of the Cities and Villages act expressly authorizes cities to direct the location and regulate the use and construction of public garages.</p> <p>2. Same—the statute conferring power upon cities and tillages to regulate public garages is valid. In the exercise of the police power the legislature may authorize municipalities of the State to direct the location and regulate the use and construction of public garages, for the business of conducting a public garage may become a nuisance when conducted in particular localities and under certain conditions although such a business is not a nuisance per se.</p> <p>3. Same—when reasonableness of an ordinance is subject to inquiry. Courts may inquire into the reasonableness of an ordinance passed in pursuance of a general statutory power where the statute gives no details as to the manner in which that power shall be exercised, and ordinances passed by a municipality under such a statute must be reasonable in their terms.</p> <p>4. Ordinances'—when a garage ordinance is reasonable. An ordinance directing the location and regulating the construction and use of public garages is not unreasonable which prohibits the construction of a garage within two hundred feet of a church and requires the written consent of a majority of the property owners in case the location of the garage is to be in a strictly residential district.</p>

<p>Writ of Error to the Circuit Court of Franklin count}''; the Hon. Jacob R. Creighton, Judge, presiding.</p>

<p>1. Appeals and Errors—rules of the municipal court should be preserved by bill of exceptions. The Supreme Court cannot take judicial notice of the rules of the municipal court of Chicago, and they must be preserved in the bill of exceptions, the same as the rules of other inferior courts, if points depending thereon are desired to be raised.</p> <p>2. Same—motions and orders concerning striking pleas from the files must be preserved by the bill of exceptions. Motions and orders with reference to striking pleas and affidavits from the files,</p> <p>. and the exceptions thereto, must be preserved by a bill of exceptions and cannot be made a part of the record by the recitals of the clerk.</p> <p>3. Same-—section 38 of the Municipal Court act does not obviate necessity of bill of exceptions. Section 38 of the Municipal Court act, providing that no formal exception need be taken, in actions of the first class, to any erroneous ruling of the court against the objection of the party complaining, does not relieve the complaining party of the duty of preserving for review by bill of exceptions such matters as are not properly a part of the common law record nor of showing the rulings complained of were made against his objections.</p> <p>4. Same-—when irregularity in entering judgment by default is not reversible error. An irregularity in entering a judgment by default with an appearance on file, instead of entering a judgment</p> <p>nil dicit or for want of a plea, is not reversible error, where no objection was made to such judgment and no request made for a jury to assess the damages after the default.</p> <p>5. Same—when demand for jury trial does not refer to the assessment of damages after default. A demand for “trial by jury,” made by the defendants at the time of entering their appearance in an action of the first class in the municipal court of -Chicago upon a supersedeas bond, has reference to the trial of the issues when made up, and not to an assessment of damages by a jury after a judgment by default, which the defendants did not anticipate when the demand was made.</p>

<p>1. Cloud on title—when -complainant is not entitled to have lien of judgment removed. One who purchases property from a trustee in bankruptcy upon the express understanding that the sale is subject to the lien of a judgment, the exact amount due thereon being known to him, and, in fact, deducted from the value of the property, is not in a position to come into a court of equity and ask that such lien be removed as a cloud upon his title and that the defendants' be enjoined from obtaining, an execution.</p> <p>2. Same—bill to remove cloud from -title is an equitable proceeding. A bill to remove the lien of a judgment as a cloud upon complainant’s title and for an injunction to restrain the defendants from obtaining an execution on such judgment is an equitable</p> <p>. proceeding and is subject to the rules and maxims of equity, including the maxim, “He who seeks equity must do equity.”</p> <p>3. Res judi.cata—when decision on former appeal is not res judicata. ' A decision by the Supreme Court which is limited to the question of the sufficiency of a bill to remove the lien of a judgment as a cloud and for an injunction is not res judicata as to the matters presented by the bill, the answer thereto and the proof made thereunder, where the answer and proof present an entirely different situation from that disclosed on the face of the bill.</p>

<p>1. Criminal law—language of section 13 of Criminal Code is sufficient basis for arson indictment. Section 13 of the Criminal Code, which makes it arson to burn or cause to be burned certain specified buildings or other “building, the property of any other person,” authorizes an indictment for burning, or causing to be burned, any building which is the property of another person. (People v. Covitz, 262 Ill. 514, followed.)</p> <p>2. Same—zvhen an instruction'zvith reference to conspiracy to commit arson is not objectionable. An instruction stating that “if you believe from the evidence, beyond a reasonable doubt, that defendants, or any of them, together or with others, prior to the fire in question entered into a conspiracy to commit the crime of arson as charged in the indictment, and you further believe from the evidence, beyond a reasonable doubt, that thereafter said conspirators, or any of them, pursuant to said conspiracy and in furtherance thereof, set fire to and burned said building as charged in said indictment, then such defendants, if any, as entered into said conspiracy, are guilty of the crime of arson,” does not assume the fact of the conspiracy. (Bond v. People, 39 Ill. 26, distinguished.)</p> <p>3. Same—when consent of owner to bzirning of building is not an issue. Where the charge in the indictment is the burning of the building of another person under section 13 of the Criminal Code, no issue can arise as to consent of the owner unless the accused seeks to acquit himself of criminal intent by proving that the owner consented to the burning, and as the want of such consent is not an element of the statutory definition of arson in Illinois, it is not necessary to aver in the indictment that the burning was without the consent of the owner of the building.</p> <p>4. Same—zvhen instruction does not direct jtiry to believe testimony of accomplice. An instruction stating that the jury are the judges of the credibility of an accomplice, and that while the testimony of an accomplice must be received with great caution, still, if the jury are convinced of its truth, they have a right to believe it and it is their duty to do so, is not subject to the objection that it directs the jury to believe and act on the truth of such testimony.</p> <p>5. Same—nezv trial will not be granted where alleged new evidence is merely cumulative. Affidavits directed mainly to discrediting a witness for the People in respect to a matter which was disputed on the trial are merely cumulative in their nature and do</p> <p>not present the character of newly discovered evidence which is necessary to authorize a new trial.</p> <p>6. Same-—the question of latitude of cross-examination rests, largely with the court. The cross-examination of witnesses is for the purpose of ascertaining the truth of the matter under investigation and the latitude to be allowed rests largely in the discretion of the trial court, and unless there has been a clear abuse of such discretion the Supreme Court will not interfere.</p> <p>7. Same—when cross-examination as to defendant’s knovoledge of other ñres is not error. If there is evidence, admitted without objection, that the fire which the defendants are charged with causing was postponed to await the result of another fire, it is not error to cross-examine the defendants as to their knowledge of such fire; and if one of the defendants is a brother of the persons who had another fire, although it is not connected in any way with the fire involved in the case on trial, it is not improper to inquire of him as to his knowledge of such fire.</p>

<p>1. Constitutional law—purpose of provision against damaging private property without compensation. The provision of the constitution of 1870 that private property shall not be taken or damaged for public use without just compensation was intended to give a remedy in certain cases of hardship not within the provision of the constitution of 1848, which authorized compensation only where there was an actual physical invasion of the property.</p> <p>2. Same—rule as to right of recovery for damage to property. The provision of the constitution of 1870 against damaging private property for public use without just compensation was not intended to reach every possible injury that might be occasioned by a public improvement, but is limited to cases where there has been a direct physical disturbance of a right, either public or private, which the property owner enjoys in connection with his property and which gives it additional value, by reason of which disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally.</p> <p>3. Same—constitution affords a remedy for damages from an act done with legislative authority. The provision of the constitution of 1870 against damaging private property for public use was intended to afford a remedy for damages resulting from an act done with legislative authority, where, in the absence of such authority, there would have been a right of action at common law. (Rigney v. City of Chicago, 102 Ill. 64, approved.)</p> <p>4. Municipal corporations—purpose of agreement that a city will pay damages caused by track elevation. A contract whereby a city, for the purpose of securing the elevation of railroad tracks, agrees with the railroad company to assume and pay such damages as the railroad company might become liable for by reason of such elevation, merely determines, as between the city and the company, who shall pay damages recoverable by law, and before a property owner can establish a liability against the city under such contract he must allege facts which would render the railroad company liable.</p> <p>5. Same—when city is not liable for destruction of switch-track connection at grade. An agreement by a city with a railroad company to pay all damages caused by the elevation of the railroad tracks does not authorize a property owner to recover damages from the city for depreciation in the value of his property due to the destruction, by the elevation of the railroad tracks, of a grade</p> <p>switch-track connection with his property, where the railroad company was under no legal obligation, by contract or by virtue of any statute, to maintain such connection.</p> <p>6. Same—effect of rule that measure of damages in action on the case is the same as in condemnation. In a suit for damages to private property after a public work has been constructed the measure of damages and rules of evidence are the same as in a condemnation proceeding; but this does not mean that all depreciation of property on account of a public improvement must be compensated for, either in condemnation proceedings or .in an action on the case for damages.</p> <p>7. Same—ivhen doctrine of equitable estoppel against city does not apply. So far as the elevation of railroad tracks is an exercise by a city of its police power no equitable estoppel can operate to prevent its exercise; nor does the mere fact that a property owner constructs improvements on his property with reference to an existing switch-track connection, at grade, with the tracks of á railroad company, operate to give a right against the city to have the railroad tracks maintained at the existing grade.</p>

<p>1. Insurance—mutual insurance company is not a trustee for the policyholders. A mutual insurance company is the debtor of a policyholder and not a trustee, and the policyholder is the creditor to the amount determinable by the apportionment of the surplus under a tontine savings plan giving the policyholder a right to the reserve accumulations and to an apportioned surplus in the profits of the company.</p> <p>2. Same—when policy will be enforced according to its terms. Where a written contract of insurance is sought to be enforced according to its terms and not sought to be set aside for fraud or misrepresentation in procuring it, all prior negotiations and representations will be disregarded.</p> <p>3. Same—when policyholder is not bound by apportionment of the surplus. Under a provision in a tontine policy that the surplus shall be apportioned equitably among such policies as shall complete their tontine dividend period, a policyholder is not absolutely bound by the insurance company’s apportionment.</p> <p>4. Equity—zvhen bill for discovery and accounting is permissible though remedy at law exists. In this State a court of equity has jurisdiction of a bill for discovery and accounting even though the complainant has a remedy at law upon the contract, where the amount of the complainant’s claim cannot be ascertained except upon an inspection of books and papers in the possession of the defendant, and the account itself is intricate and complicated, involving transactions about which the defendant, alone, can furnish accurate information. (Miller v. Russell, 224 Ill. 68, followed.)</p> <p>5. Corporations—zvhen suit does not involve internal management of affairs of foreign corporation. A bill in equity against a foreign insurance corporation by a policyholder to obtain a decree for the payment of money in accordance with his contract with the corporation does not involve the internal management of the affairs of the corporation and is not required to be brought in the State where such corporation is organized.</p> <p>Carter, J., dissenting.</p>

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding.</p>

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

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

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. S. C. Stough, Judge, presiding.</p>

<p>Writ OE Error to the Branch “B” Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.</p>

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

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

<p>1. Attachment—the statute authorises levy upon an equitable interest. The statute authorizes the levy of a writ of attachment upon an equitable interest in land, and provides that from and after the filing of a certificate of the levy with the recorder of the" county the levy shall take effect as to creditors and bona fide purchasers without notice.</p> <p>2. Same—filing of certificate of levy on equitable interest is notice to purchasers from holder of legal title. The filing of the certificate of levy of a writ of attachment upon an equitable interest "in land is notice not only to purchasers from the owner of the equitable title, but also to bona fide purchasers from the holder of the legal title. (Carbine v. Pringle, 90 Ill. 302, distinguished.)</p> <p>3. Same—when rule that judgment is not a lien upon property conveyed in fraud of creditors does not apply. The rule that a judgment is not a lien upon property which has been conveyed in fraud of creditors because such a conveyance is good between the parties and the grantor retains tio equitable title, so that an equitable lien can only be secured by a proceeding to set aside the fraudulent conveyance, has no application where there is a secret trust and the grantor is still the real owner, nor in the case of an attachment, as the Statute of Frauds makes a conveyance with intent to delay or defraud creditors void as against creditors.</p> <p>4. Same—creditors may treat conveyance in fraud of creditors as void. Under the Attachment act creditors have a right to treat a conveyance in fraud of creditors as void, and the moment a creditor levies his attachment it is an election to treat the conveyance as void, and the attachment becomes a lien against the lands with like effect as though the conveyance had not been made.</p> <p>5. Same—provisions of the Conveyances act as to notice do not govern lien of attachment. The provisions of the Conveyances act, under which convejrances from strangers to the legal title do not give constructive notice to persons examining the record of conveyances, do not govern the effect of the filing of the certificate of levy of an attachment upon an equitable interest in land, as the plain language of the Attachment act makes the certificate effective from the time of filing, as against creditors and bona fide purchasers without notice.</p> <p>6. Same—attachment lien not lost upon return of special execution unsatisfied. The purpose of an attachment is to hold the property and secure priority of lien, and where the attachment creditor files a bill to set aside conveyances by which the premises have been conveyed after the filing of the certificate of levy upon an equitable interest in the premises, the power of the court to grant relief is not lost because a special execution is returned unsatisfied after the bill was filed and there is no provision in the statute for an alias special execution.</p> <p>7. Same—it is the judgment li'en, and not the attachment lien, that can be enforced. It is the judgment lien, and not the attachment lien, that can be enforced against the property attached, but the attachment lien remains effectual for the purpose of preserving the priority of lien.</p>

<p>1. Municipal, corporations—when notice to city of personal injury is, in general, sufficient. The notice required by statute to be given to a city by a party injured who claims damages from the city is, in general, sufficient if it gives enough information to the city authorities to enable them, by the exercise of reasonable intelligence and diligence, to locate the place of the injury and ascertain conditions alleged to have existed which caused the injury.</p> <p>2. Same—what is not a fatal defect in notice to a city of personal injury. The fact that the notice to a city, sent by a person injured by stepping into a'hole in the sidewalk at the south-east corner of certain intersecting streets, merely states that the injury occurred “at or near the corner” of such intersecting streets, without specifying which corner of the intersection, does not render the notice fatally defective.</p>

Writ oe Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. TuThiee, Judge, presiding.

Writ op Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Clark county; the Hon. E. R. E. Kimbrough, Judge, presiding.

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

<p>Appeal from the Circuit Court of McHenry county; the Hon. C. H. Donnelly, Judge, presiding.</p>

<p>1. OmcEs—when the term of office zvill begin to run from date of appointment. When the law does not fix any time for the. commencement of a term of office to be filled by appointment the term will begin to run from the date of the appointment.</p> <p>2. Same—term of office of a member of the Chicago board of education begins to run from the date of appointment. The term of office of a member of the Chicago board of education begins to run from the date of-his appointment, as the statute upon the subject fixes no time when the term of office is to begin although it does fix the length of the term.</p> <p>3. Same—person cannot resign an office before he is elected or appointed. A person cannot resign an office before he has become an officer by election or appointment.</p> <p>4. Same—resignation made before the appointment is invalid. Where the law confers upon a mayor of a city the power to appoint but not to remove an officer, the power to remove cannot be</p> <p>conferred by requiring a contemplated appointee to sign a blank form of resignation and deliver it to the mayor before the appointment is made, and in such case the supposed resignation is invalid when signed and does not become valid by lapse of time nor a fail-</p> <p>ure upon the part of the appointee to demand a return of the paper after his appointment. ■ ■</p> <p>5. Judgments and decrees—when a judgment is not suspended by appeal bond or supersedeas bond. A judgment of ouster by the superior court of Cook county in a quo warranto proceeding is self-executing and requires no process to enforce it, and an appeal bond or supersedeas bond does not operate to suspend such a judgment, and in such .case the persons whose title to office is established by the judgment are entitled to a writ of mandamus to' compel their recognition as officers while an appeal from the quo warranto judgment is pending.</p>

<p>1. Wills—zvhat does not show that testator was not of sound mind. The fact that the testator by his will disposed of the entire interest in a farm whereas he only owned a one-half interest therein is not a conclusive circumstance that he did not possess testamentary capacity, where there is abundant evidence that he was of sound mind and memory.</p> <p>2. Same—when failure of testator to dispose of personal property is not material. Failure of the testator to dispose of his personal property by his will is not a circumstance indicating want of testamentary capacity, where the attorney who drew the will called his attention to the fact, upon which the testator stated that he only wanted to dispose of his land by the' will.</p> <p>3. Same—what does not show undue influence. The fact that the testator’s son, who was one of the principal beneficiaries of the will, wrote the memorandum from which the will was prepared does not show undue influence, where it is also shown that the testator, who was unable to read or write, took the memorandum to a lawyer, who read it over to him and discussed it with him and thereafter prepared the draft of the will.</p>

<p>1. Schools—in whom title to school property is vested. Title to school property is vested, under the statute, in the trustees of the township within which the property is located, and is held in trust for the use of the inhabitants of the several school districts to which the property belongs.</p> <p>2. Same—fact that school district is in two_ townships does not create joint ownership. The fact that a school district is in two townships does not create a joint ownership of school property between the trustees of the two townships but the legal title is in the trustees of the township where the property is located.</p> <p>3. Eminent domain—formal orders adjptirning hearing of a condemnation proceeding in vacation are unnecessary. Jurisdiction over a condemnation proceeding begun in vacation does not depend upon the entry of formal orders of continuance when it becomes necessary to adjourn the hearing from day to day or from time to time, and it is sufficient, where the parties are before the court, if the announcement of adjournment is publicly made from the bench.</p> <p>4. Same—circuit or county court hearing condemnation case in vacation is not governed by rules applied to justices of peace. The circuit or county court, when hearing a condemnation proceeding in vacation, is still a court of record, and is not governed by the rule applied to” justices of the peace, who have no stated terms of court, that their dockets must contain evidence of all that has taken place, including adjournments.</p> <p>5. Same—when amount of a condemnation verdict will stand on appeal. Where the jury in a condemnation proceeding have viewed the premises, the evidence as to damages is conflicting and the verdict is well within the range of the evidence, the verdict will not ordinarily be interfered with on appeal, as being insufficient or excessive.</p> <p>6. Challenge—zuhat is not ground for challenge to the array. The fact that one of the jurors in a condemnation case is not a freeholder is not ground for a challenge to the array, although the challenge should be sustained as to the disqualified juror.</p>

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

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

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

<p>Appeal from the County Court of Lawrence county; the Hon. Jasper A. Benson, Judge, presiding.</p>

<p>Appeal from the County Court of Kankakee county,; the. Hon. A. W. DESELM, Judge, presiding.</p>

<p>Writ oE Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Franklin county; the Hon. J. R. Creighton, Judge, presiding.</p>

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

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

<p>1. Inheritance tax—what a sufficient showing, of record, that appraiser zvas appointed. The appointment of an appraiser is sufficiently shown by the record where the sworn report of the appraiser' recites that he was appointed appraiser on a certain day, and the order of the county judge approving the report and fixing the inheritance tax recites that the appraiser (naming him) had theretofore been duly appointed appraiser under and pursuant to the statute.</p> <p>2. Same—parties upon zvhom notice is served are chargeable with notice of subsequent proceedings. Owners of property who have been served with notice of the time and place of the appraisal of the property for inheritance' tax purposes are chargeable with notice of all subsequent proceedings, including the adjournments of the hearing from time to time, and it is not necessary that a new notice be served upon them after each adjournment.</p> <p>3. Same—when it zvill be presumed that appraiser’s report was filed in the office of clerk of county court. Where the order of the county judge directs the appraiser’s report to be filed in the office of the clerk of the county court, an endorsement on the back of the report reading, “Filed August 28, 1899—Philip Knopf, Clerk,” raises the presumption that the report was filed in the office of the clerk of the county court, even though such person was county clerk as well as clerk of the county court.</p> <p>4. Same—■when failure to appoint a guardian ad litem docs not invalidate inheritance tax against minor. The failure to appoint a guardian ad litem does not, ill a collateral proceeding, invalidate an inheritance tax against a minor, where the minor was personally served with notice of the time and place of the appraisement and was represented in that proceeding by his regular guardian.</p> <p>5. Same—market value of decedent’s property at time of his death is the basis for fixing tax. The market value of the property of the decedent at the time of his death is the basis upon which an</p> <p>c inheritance tax should be fixed, and no changes of title, transfers or agreements of those who succeed to the estate can affect the value of the tax, but error in fixing the tax on some other basis must be availed of by appeal from the order fixing the tax and can not be availed of in a collateral proceeding to collect the tax.</p> <p>6. Same—section 22 of Inheritance Tax act does not bar suit to collect tax due for over five years. The provision of section 22</p> <p>of the Inheritance Tax act of 1895 requiring that “all inheritance taxes shall be sued for within five years after they are due and legally demandable, otherwise they shall be presumed to be paid, and cease to be a lien as against any purchasers of real estate,” merely operates to release the lien which the first part of such section provides shall continue until the tax is settled and satisfied, and was not intended to bar a suit begun to collect the taxes more than five years after they were due and legally demandable. (Connell v. Crosby, 210 Ill. 380, distinguished.)</p>

<p>1. Wills.—codicil will be held to revoke will only when necessary. Courts will endeavor to construe a codicil so as to reconcile it with the will as far as possible, and the codicil will be held to revoke the will only when necessary to give effect to the provisions of the codicil.</p> <p>2. Same—what provision of will must be regarded as revoked by codicil. A provision of a will requiring the executor to have full control of certain devised land until an existing encumbrance thereon is paid from the rents and profits must be regarded as revoked by the provision of a codicil giving the land to the executor in trust, to sell and convey the same when he shall deem it for the best interest of the estate to do so.</p> <p>. 3. Trusts—when purchaser of trust property is not required to</p> <p>see to application of purchase money. The purchaser of land from a trustee is not required to see that the money is applied to the purposes of the trust even though he knew the land was trust estate, where the beneficiaries, who were all of age and under no disability, and without any fraud being practiced upon them, executed quit-claim deeds to the trustee to enable him to make the sale.</p> <p>4. Estoppel—-when beneficiaries are estopped to set aside sale because the trustee has not accounted to them. Beneficiaries who are all of age and under no disability, and who execute quit-claim deeds to the trustee of the land in order to enable him to sell the land, and who later, after the purchaser has been in possession of the land for almost a year, execute quit-claim deeds to him, without any fraud on his part, in order to enable him to obtain a loan on the land, are estopped to have the sale set aside on the ground that the trustee has not accounted to them for the purchase money.</p>

<p>1. Cloud on title—what is not sufficient prima facie proof of ownership. The mere introduction in evidence of a deed from a person who is not otherwise shown to have had possession of or title to the property, and without proof of possession taken or the exercise of acts of ownership - over the property by the grantee, is not sufficient prima facie proof of title to authorize the setting aside of a tax deed as a cloud on such title.</p> <p>2. Same—administratrix must prove ownership by deceased on petition to sell land for debts and to remove cloud. The probate court has jurisdiction to remove a cloud from the title of real estate sought to be sold by the administratrix to pay debts of the estate, but it is essential, in such case, that the administratrix make prima facie proof that the deceased had title to the land at his death.</p>