Volume 264 — Illinois Reports

<p>‘ 1. Taxes—what property is subject to taxation under the general Revenue act. The property subject to taxation under the general Revenue act is such as has a situs in this State.</p> <p>2. Same—general Revenue act does not authorise taxing net receipts of insurance company not on hand April 1. The general Revenue act authorizes the listing and taxation of such part of the net receipts of a foreign casualty company as is on hand or in the banks of the county on April 1, but does not authorize the taxation of net receipts which may have been absorbed by losses or transmitted to the home office of the company in another State before April 1.</p> <p>3. Insurance—purpose of act of May 1, 1879. The purpose of the act of May 1, 1879, was to extend the provisions of the act of 1869 governing fire, marine and inland navigation insurance companies so that its conditions and requirements with reference to engaging in business in Illinois should apply to all insurance companies, other than life, desiring to do business in Illinois, but it was not intended to subject them to all the provisions of the law governing fire, marine and inland navigation companies, including the liability of their net receipts to taxation.</p> <p>4. Same—net receipts of foreign casualty insurance company are not subject to taxation. The yearly net receipts of the local agencies of a foreign casualty company are not subject to taxation in Illinois, as there is no statute which in clear and unambiguous language provides for such a tax.</p> <p>g. Statutes-—a statute authorising a special tax is construed most strongly against the 'State. The language of a statute will not be extended beyond its clear import in order to subject particular property to a tax, and in case of doubt the statute will be construed most strongly against the State and in favor of the citizen.</p>

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

<p>Appeals and errors—when no question of freehold is involved. No freehold is involved where the controversy is whether a quitclaim deed was intended by the parties as an absolute deed or as mere security for the grantor’s indebtedness; and this is true, regardless of whether the trial court holds the conveyance to be a deed or a mortgage.</p>

<p>1. Dedication—-common law dedication is only complete upon acceptance—how acceptance is shown. An express acceptance of a common law dedication may be shown by some order, resolution or action of the public authorities made and entered of record, or it may be implied by acts of the public authorities recognizing the existence of the offered street and treating it as a public highway, but in either event the proof of acceptance must be unequivocal, clear and satisfactory.</p> <p>2. Same—what is not sufficient to show acceptance of common law offer of dedication. The fact that the map department of a city, some twenty years after the filing of a plat of a subdivision, made a map reproducing the plat and filed the same as part of the records of the map department of the city, does not, of itself, show an acceptance by the city of a common law offer to dedicate a strip shown on the plat for public use as a street, even though the map made by the city gives appropriate street numbers to property adjoining the strip.</p> <p>3. Same—death of one of dedicators before- acceptance revokes offer. If one of the makers of a plat evidencing a common law offer of dedication dies before the dedication is accepted the offer of dedication is revoked by implication.</p> <p>4. Same—when an acceptance of part of streets does not raise the presumption of acceptance of others. The fact that a city has opened and improved certain streets lying north of a road dividing a subdivision does not raise any presumption that strips shown on the plat south of the dividing road were accepted by the city as streets, where for more than thirty years such strips have been in the open, continuous, adverse and undisputed possession of private owners without any attempt by the city to improve them as streets.</p>

<p>1. Corporations'—when effect of consolidation is' to create new corporation. Every consolidation, purchase or merger of corporations must have statutory authority, and where the statute merely provides for the consolidation of domestic corporations, the original corporations, as such, cease to exist and a new corporation is created, with all the property, effects, rights and franchises held and enjoyed by either of the old corporations.</p> <p>2. Same—rule that authority of a trustee cannot he delegated does not apply to corporation trustee. The rule that the authority of a trustee in matters involving the exercise of discretion and judgment cannot be delegated by the trustee or by the courts rests upon the ground that the selection of a trustee implies personal confidence in his discretion and judgment, but the rule cannot be applied to a corporation trustee, as the element of confidence in the judgment and discretion of an individual is wanting.</p> <p>3. Same—when consolidated corporation is entitled to execute trust. Where the trust corporation designated as trustee by a will is consolidated with another domestic corporation having the same character of powers, under the name of the latter, after the will was made but before the death of the testatrix, the new corporation formed by such consolidation has power to execute the trust.</p>

<p>Writ of Error to the Circuit Court of Franklin county; the Hon. J. R. Creighton, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.</p>

<p>1. Co-tenancy—outstanding title acquired by one co-tenant inures to benefit of all. A tenant in common in possession cannot acquire color of title in himself to the whole of the premises by procuring an outstanding adverse title, but the title so acquired inures to the benefit of all the tenants in common.</p> <p>2. Same—when rights of co-tenants are not barred by delay. Delay for less than the statutory period of limitation in asserting 'rights to. land will not bar the rights of co-tenants as against the co-tenant in possession, unless the delay is accompanied by some other element rendering it inequitable, to permit the assertion of such rights.</p>

<p>1. Special assessments—witness need not be an expert to testify to height of fill for sidewalk. A witness who knows the height of a proposed sidewalk above the surface of the objector’s lots may testify to that fact without qualifying as an engineer or an expert; nor should his evidence be excluded on account of his prejudice because of his being the attorney for the objector.</p> <p>2. Same—when sidewalk ordinance is invalid. An ordinance providing for the construction of a cement .sidewalk at a grade which will require a fill of from three to seven feet in front of the lots is invalid, where the ordinance makes no provision for any re- . taining wall or embankment to hold the fill in place. (City of Chicago v. Cummings; 250 Ill. 423, followed.)</p>

<p>1. Special taxation—when a new affidavit is not required on amendment of assessment roll. Where the commissioner amends an assessment roll pursuant to the order and direction of the county court no new affidavit to the assessment roll is required.</p> <p>2. Same—when benefits to railroad property are limited to restricted use. ■ Where railroad property is restricted to a particular use and cannot be legally applied to any other use, and is, in fact, devoted to the particular use at the time of the making of a local improvement, the measure of benefits which .the improvement will confer is the increased value of the property for the particular use.</p> <p>3. Same—increase in business of railroad cannot be considered in assessing benefits. In assessing benefits to a railroad right of way from the construction of a local improvement, probable increase in freight traffic and in the general business of the company cannot be considered.</p> <p>4. Same—opinions as to benefits must be based upon proper elements. Opinions of witnesses as to benefits to property from a local improvement are admissible but they must result from a consideration of lawful elements, and their testimony should be excluded, on motion, where it appears to be based upon a consideration of improper elements.</p> <p>5. Same—when the increased value for erecting coal sheds and structures cannot be considered. The increased value of a railroad right of way in connection with the use of a coal shed erected thereon, or for the erection of other coal sheds and similar structures, cannot be considered, where the evidence shows that plans have been definitely decided upon and the work started and well carried forward which will require the use of the entire portion of such right of way for additional tracks.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Dean Franklin, Judge, presiding.

<p>1. Insane persons—rule as to dealing with insane person. A person who has been adjudged insane may, after being restored to reason, disaffirm and have set aside a contract entered into while he was insane, but if the party who dealt with him did so in good faith and without notice of his insanity, the party seeking disaffirmance must return, or offer to return, what he has received under the contract.</p> <p>2. Same—when chancellor’s finding that party was not insane will he sustained. A finding by the chancellor that the party seeking to disaffirm a contract-was not insane when the contract was made will be upheld on appeal, where the number of witnesses testifying on each side is about the same and their opportunities for observation apparently equal, and the finding cannot be said to be unwarranted by the evidence.</p>

Oscar E. Heard, Judge, presiding. Martha E. Peek died in June, 1912, leaving a will, which was admitted to probate. Her heirs filed a bill to have the fourth paragraph of the will declared void. The court dismissed the bill for want of equity, and the complainants appealed.

<p>1. Drainage—when property owner may file cross-petition for damages. If the petition to confirm a levee drainage assessment does not fully set out the property to be taken for which no compensation has been made and the property which, though not taken, is damaged, the owner of such property has a right to file a cross-petition for damages and to have the question of damages considered by the jury empaneled to consider the question of benefits.</p> <p>2. Same—the question of damage to property taken by improvement may be raised by objections. If property of an owner in a levee district is to be actually taken by the proposed drainage improvement but no compensation has been made, and the facts do not appear in the petition to confirm the assessment, the owner may raise the question by objections in such proceeding.</p> <p>3. Same—what amounts to a taking of property. If the proposed change by a levee drainage district in the channel of a creek under a railroad bridge will add burdens which are not imposed by law upon the railroad company with respect to keeping the channel open and unobstructed, then there is a taking or damaging of the company’s property for public use for which compensation must be made. (People v. Chicago and Eastern Illinois Railroad Co. 262 Ill. 492, followed.)</p> <p>4. Same—zvhen a railroad company is not required to enlarge channel without compensation. A railroad company is bound to keep the channel of a natural water-course of such size as to afford a passage for all waters which naturally flow through such channel, even though such flow is increased by the construction of drainage ditches; but this does not mean that the channel must be enlarged without compensation to the company for property taken or damaged if the natural course of the stream is reversed by artificial means.</p>

<p>1. Eminent domain—question of title should be tried by the court before jury is empaneled. In a condemnation case the question of the title to the land is preliminary to the question of damages and should ordinarily be determined by the court before the jury is empaneled, as the only question for the jury is the matter of compensation to the owner of the property sought to be taken or damaged.</p> <p>2. Same—damages to land not taken are limited to such as are reasonable and probable. . The assessment of damages to land not actually taken for right of way should be confined to such damages as are reasonable and probable; and this does not include danger of crossing the railroad with teams or danger to members of the family of the owner of the land.</p> <p>3. Same—the asking price of land in vicinity is not admissible. While actual, voluntary sales of similar land in the vicinity of that condemned may be proved upon the question of compensation and bona fide offers' may be proved if there are no sales, yet it is not proper to admit in evidence the asking price of land in the vicinity.</p> <p>4. Same—general rule as to damages to land not taken. The damages which may be allowed for land not taken must be direct and proximate and not possible, only, and nothing should be allowed for imaginative or speculative damages or those which are remóte and inappreciable.</p> <p>5. Same—what are not proper elements of damage. The danger to the owner of the land or his stock of getting run over by trains and killed is not a proper element of damage to land not taken for the railroad right of way; nor.is it proper to show that the view of a public highway from the owner’s house will be obstructed by the building of the railroad embankment, except where the proof is restricted to the particular tract of land upon which the house is located.</p>

<p>1. Forfeiture—court of equity will never affirmatively enforce a forfeiture or penalty. A court of equity will not affirmatively enforce- a forfeiture at the suit of the party entitled thereto but will leave him to his legal remedies, if any, even though the case may be one in which no equitable relief would be given the defaulting .party against the forfeiture.</p> <p>2. Same—the question of jurisdiction of equity to affirmatively enforce a forfeiture cannot be waived. The question of the jurisdiction of a court of equity of a bill to affirmatively enforce a forfeiture cannot be waived by failure to raise the objection by answer or demurrer,’ as the subject matter of such a bill is wholly foreign to equity jurisdiction.</p> <p>3. Contracts—contracts in partial restraint of trade may be valid. Contracts in partial restraint of trade may be valid if they are reasonable as to time, place, terms, etc., and manifest ’an intention' to protect the party relying upon the covenant in the reasonable restraint of unjust discrimination against him.</p> <p>4. Same—when reasonableness of contract as betiveen the parties is no test of its validity. Even though a contract in partial restaint of trade be fair and reasonable as between the parties, yet if it is so injurious to the public interests that public policy requires that it shall not be enforced it will be declared void.</p> <p>5. Same—in construing contracts in partial restraint of trade the interests of the public are paramount. Every contract in partial restraint of trade must be judged according to its own special circumstances, and the question whether it is reasonable or is contrary to public policy is one of law; but in construing such contracts the interests of the public must be held paramount.</p> <p>6. Same—when a party will be held to strict interpretation of language used. One who complains of an infraction of a contract in restraint of trade will be held to a strict interpretation of the language used in the agreement.</p> <p>7. Same—-when contract in partial restraint of trade is void.. A contract between the proprietor of a dental establishment, who was not a licensed dentist, and the licensed dentist employed by him to run the business, is void as against public policy, where it provides that such licensed dentist, after he ceases to be connected with the other party, will never, without the latter’s written consent, practice dentistry, directly or indirectly, on behalf of himself or others, in the particular city where the business is located or within twenty-five miles thereof. .</p> <p>8. Equity—when court of equity cannot retain jurisdiction to determine a controversy. If the allegations of a bill which authorized the court to take jurisdiction are not proved and no relief as to them is decreed, the court cannot retain jurisdiction of another branch of the case which, standing alone, it has no jurisdiction to hear and determine.</p>

<p>1. Appeals and errors—jurisdiction of the subject matter can not be waived by the parties. Jurisdiction of the subject matter is derived from the constitution or the statute, and cannot be conferred by consent of the parties or by their failure to raise the question in the court of review.</p> <p>2. Same—the right to redeem from a conveyance claimed to be a mortgage is not a freehold. The question of the right to redeem under a conveyance claimed to be a mortgage does not involve a freehold, for the reason that a decree in favor of the party claiming the right of redemption merely establishes his right to redeem, which right he may or may not avail himself of.</p> <p>3. Same—what is not included in word “freehold.” The word “freehold” does not include the mere right to do that which in equity will entitle a party to a freehold.</p>

<p>1. Criminal law—corpus delicti may be proved by circumstantial evidence. Circumstantial evidence may be resorted to for the purpose of proving the corpus delicti in the same way and to the same extent that it may be for the purpose of connecting the accused with the offense.</p> <p>2. Same—when action of trial court in admitting evidence can not be considered by Supreme Court. The action of the trial court in admitting evidence in a criminal case cannot be considered by the Supreme Court, where no question was raised on the trial by objecting to the evidence when offered, or by moving to exclude it, or otherwise.</p> <p>3. Same—question of qualification of experts is largely within discretion of trial court. The question of the qualification of expert witnesses rests largely in the discretion of the trial court and will not be reviewed except where there is a clear abuse of such discretion.</p> <p>4. Same—when it is not error to admit testimony as to what a third person said to the zvitness. It is not error to admit testimony by a police officer that a certain railroad employee stated to him, in the presence of the accused, that he recognized the accused as the man who came to the railroad station on a certain night with a lady and inquired about trains, even though the employee testifies on the trial that he was not sure he recognized the accused as the man but thought he looked like him, where the accused himself admitted he was there. „</p> <p>5. Same—when the statements of third persons are admissible. Statements made by third persons, in the presence of .the accused, connecting him with the crime charged against him, and which he does not deny but by his own actions and statements at the time expressly ratifies, are admissible in evidence against him.</p> <p>6. Same—testimony of a witness who heard confession taken down is admissible. A police officer who was present when the accused made a confession of his guilt, which was taken down in shorthand and afterwards transcribed in typewriting but not signed by the accused, may testify as to what was said by the accused with reference to the crime charged.</p> <p>7. Same—when accused cannot complain that parts of his confession were excluded. The accused cannot complain that parts of his confession concerning his commission of other crimes not in any way connected with or tending to prove the crime charged were not allowed to go to the jury, where his counsel not only acquiesced in the action of the trial court at the time but demanded that the court should so rule.</p> <p>8. Same—when part of confession relating to other crimes not admissible. Where the accused, in confessing the crime charged, also confesses numerous other alleged crimes having no connection with the crime charged, the part of the confession relating to such crimes, if severable from the part relating to the crime charged, is not admissible, and it is not error, after motions for new trial and in arrest of judgment are overruled, to refuse to allow the accused to introduce such part of the confession on the theory that it would show he was insane.</p> <p>g. Same-—when the People are not required to prove sanity of accused. Every man-is presumed to be sane, and, in the absence of evidence of facts coming from either side which may raise a doubt as to the sanity of one accused of crime, the People are not required to prove his sanity.</p> <p>io. Same—what facts are not necessarily evidence that the accused was insane. The facts that the accused is shown to be of depraved character and abandoned habits and has committed an unnatural and atrocious crime do not necessarily amount to evidence of his insanity.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholfield, Judge, presiding.

<p>1. Criminal law—when failure to use word "said” or "aforesaid” does not render indictment uncertain. Where an indictment for giving false testimony before the grand jury avers that it became and was material to investigate and ascertain whether any game had been played with cards, for money, “in the city of Sullivan, in the township of "Sullivan and within the county of Moultrie,” the fact that thereafter the city of Sullivan is referred to without the word “said” or “aforesaid” does not render the indictment uncertain. (Prichard v. People, 149 Ill. 50, distinguished.)</p> <p>2. Same—indictment for perjury may set out the substance of the false testimony. Under our statute it is sufficient for an indictment for perjury to allege the substance of the false testimony. (Wilkinson v. People, 226 Ill. 135, explained.)</p> <p>3. Same-—indictment cannot be impeached by affidavit of one of the grand jurors. The law does not permit a member of the gland jury which returned an indictment to impeach the indictment by his affidavit.</p> <p>4. Same—perjury may be assigned on false answer though witness could have refused to anszver. Where a question is put to a witness before the grand jury which, if answered truly, will disclose criminal conduct on his part, he may claim his privilege and decline to answer, but if he chooses to answer and his answer is willfully false, perjury may be assigned .upon it.</p> <p>5. Same—zvhen fact that the grand jury was selected at proper meeting of supervisors need not be proved. An indictment for perjury in giving false testimony before a grand jury need not, under the statute, allege that such grand jury was selected at a meeting of the board of supervisors properly convened, and as such matter need not be alleged it need not be proved on the trial.</p> <p>6. Same—fact that the court gives instructions as to the law is not an invasion of province of jury. The fact that the court, in a criminal case, gives instructions to the jury on questions of law does not amount to an invasion of the province of the jury, which in criminal cases is the judge of the law as well as the facts.</p> <p>7. Same—Criminal Code does not recognize a plea of nolo contendere. Under the Criminal Code the accused, upon being arraigned, may declare orally, by himself or his counsel, that he is-not guilty, or he may enter a plea of guilty, and if he stands mute or refuses to plead, the court is required to order a plea of “not guilty” to be entered, but the plea of nolo contendere is not recognized by the Criminal Code.</p> <p>8. Same—when record of conviction for another offense is not admissible. On the trial of one charged with testifying falsely before the grand jury, to the effect that he was never present when any game of cards was played, for money, in a certain city, the record of the conviction of the accused for gaming, under an indictment covering the whole county in which said city was located, is not admissible.</p>

<p>1. Pleading—when a statement of claim in municipal court is sufficient to sustain action under a statute. A statement of a claim in the municipal court of Chicago in a case of the fourth class, which alleges, in substance, that the plaintiff sustained injuries on a certain date while in the employ of the defendant as a common laborer, by reason of the defendant’s failure to furnish him a proper, safe and sufficient scaffold on which to work, is sufficient to sustain an action under the Employment act even though the statement of claim makes no reference to such statute; and such statement is also sufficient to apprise the defendant of the nature of the case.</p> <p>2. Master and servant—what not necessary to authorise recovery for violation of Employment act. In order to recover, under the Employment act, -for an injury due to an unsafe scaffold, it is not essential to show that the employer knew, or had good reason to suppose, that the scaffold was not constructed in a safe, suitable and proper manner, and that notice of such fact was brought to his attention by complaint of the employee, or otherwise.</p> <p>3. Same—provision of Employment act as to safe scaffolds is mandatory. The language of the Employment act that scaffolds shall be so constructed as to be safe and afford adequate protection to the person working thereon is mandatory, and the employer can not escape liability for a violation of the statute in constructing an unsafe and dangerous scaffold, even though he may have believed the scaffold was safe.</p> <p>4. Same—zoillful violation of Employment act does not require “a reckless disregard” of its provisions. To constitute a willful violation of the Employment act it is not necessary that there should be “a reckless disregard” of its provisions, and the employer is liable not only when the dangerous conditions are known to him, but also when by the exercise of reasonable care he could have discovered them.</p> <p>■ 5. Negligence—what constitutes proximate cause is ordinarily a question of fact for the jury. What constitutes the proximate cause of an injury is ordinarily a question of fact for the jury, to be determined from a consideration of all the attending facts and circumstances shown in evidence.</p>

<p>1. Taxes—tax to improve main ditch of drainage district can not be charged against one sub-district, only. Under section 43 of the Farm Drainage act sub-districts may be created, with the right to tax such ^ub-districts for the cost of constructing lateral drains in the sub-district connecting with the main ditch, but the cost of improving the main ditch, even though the improvement is within the limits of the sub-district, must be borne by the entire district. (People v. Wilder, 257 Ill. 304, followed.)</p> <p>2. Same—when land cannot be assessed as entire tract wiihoiit deducting area of right of way for ditch. Where a drainage district has a deed to a right of way twenty feet wide for a ditch across a tract of land, the fact that the proposed improvement consists of converting the open ditch into a tile drain does not authorize assessing .the land as an entire tract, on the theory that the proposed change will enable the land owner to use all the land, including the right of way, where it is not shown that the district has re-conveyed the right of way to the land owner.</p>

<p>1. Elections—a proceeding to contest an election is subject to chancery rules. While a proceeding to contest an election is not an action at law or a suit in equity, still, under the statute, it is to all intents and purposes a chancery proceeding and subject to chancery rules, except as otherwise provided by statute.</p> <p>2. Same—jurisdiction of contest proceeding attaches when the petition is filed. Jurisdiction of a proceeding to contest an election attaches when the petition is filed, and after it is once vested it cannot be divested by subsequent events.</p> <p>3. Same—signers of petition to contest election on bond issue not entitled to withdraw names. Signers of a petition to contest an election upon the proposition of issuing bonds have no right to withdraw their names after the time for instituting the contest proceeding has expired and thereby defeat the jurisdiction acquired by the court when the petition was filed.</p> <p>4. Practice—the question whether causes shall be consolidated rests largely in discretion of court. The question whether causes involving the same questions shall be consolidated in the trial court is one resting largely in the sound judicial discretion of that court.</p>

<p>1. Constitutional law—provisions of statute limiting roads which may be State aid roads are not invalid. The provisions of that portion of the Roads and Bridges act of 1913 relating to State aid roads which limit the percentage of road mileage in counties of different classes and limit the designation of such roads to “highways connecting the principal cities and trading points .in each county with each other,” etc., are not invalid as local or special legislation, as the classification adopted in fixing such mileage and in designating the roads is reasonable and well- founded.</p> <p>2. Same—State Aid Roads lazo is not invalid as a special law relating to roads' or regulating township affairs. That portion of the Roads and Bridges act of 1913 relating to State aid roads applies to all highways in the State within the description or classes specified in the act, and such law is not invalid as a local or special law relating to laying out highways or regulating county or township "affairs.</p> <p>3. Same—what is not required to make a law a general law. The requirement of the constitution that laws shall be general does not mean that every statute shall affect alike every person and locality in the State.</p> <p>4. Same—when classification is not inz'alid because it applies to only one county. If the condition^ existing in any county at the time of the passage of an act furnish a reasonable basis for making it apply only to that county and the classification is reasonably appropriate for the purpose of the legislation, it is not essential to the validity of such classification that the conditions upon which it is based be such that they may at some future time obtain in every other county in the State.</p> <p>5. Same—proviso to section 15a of an act relating to State aid roads is not invalid. The proviso to section 15a of article 4 of the Roads and Bridges act of 1913, (Laws of 1913, p. 528,) which provides for allowing to a county twenty-five per cent of the amount collected in such county for roads and bridges,, provided such county collects more than forty per cent of the total amount appropriated by the General Assembly for building roads, is not invalid because it affects Cook county, alone.</p> <p>6. Same—sections 15a and 15b do not attempt to appropriate money out of State treasury. Sections 150 and 15b of article 4 of the Roads and Bridges act merely provide a plan for apportioning among the different counties of the State the fund appropriated for suclr purpose by the acts of June 26, 27 and 28, 1913, and such sections do not attempt to' appropriate money from the State treasury.</p> <p>7. Same—"building, and maintaining” State aid roads may be provided for in one item of appropriation bill. The building and maintaining of State aid roads do not constitute such separate and distinct matters as are required by the constitution to be separately itemized in a bill ■ making an appropriation for that purpose.</p> <p>8. Same—act relating to State aid roads does not violate section 20 of article 4 of constitution. The act relating to State aid roads does not violate section 20 of article 4 of the constitution, which prohibits the State from paying, assuming or becoming responsible for the debts or liabilities of any public or other corporation, association or individual and from loaning its credit for such purpose.</p>

<p>Laches—when unreasonable delay will bar relief. Equity will assist such, only, as are diligent in asserting their rights or who can offer a just excuse for delay in asserting them, and unreasonable delay, not explained by any equitable circumstances, will bar any relief.</p>

<p>Writ or 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. James C. Martin, Judge, presiding.</p>

<p>Writ of Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding.</p>

<p>1. Judicial sales—what is not a sufficient posting of notices m three public places. The posting of notices of an execution sale upon three doors of the court house is merely a posting of the notices in one place, and is not a compliance with the statute requiring the posting of notices in at least three of the most public places in the county.</p> <p>2. Same—publication for three successive weeks does not mean on same day of each week. The statute, requiring the publication of notice for three successive weeks does not mean that the'publication must be made on the same day of each week.</p> <p>3. Same—when the oath taken by appraisers is sufficient. The statute requiring that the officer having an execution against homestead premises shall summon three householders as commissioners, who shall, upon oath to be administered to them by the officer, appraise the premises, does not mean that such officer, only, can administer the oath, and it is sufficient if the oath is administered by the clerk of the circuit court.</p> <p>4. Same-—when purchaser's want of notice of irregularity does not preclude setting aside of sale. Section 15 of the act relating to judgments, decrees and executions, which provides that no irregularity on the part of the sheriff or other officer having the execution shall affect the validity of a sale under it unless it shall be made to appear that the purchaser had notice thereof, does not mean that a court of equity may not set aside a sale on account of gross irregularities in making it, especially when combined with gross inadequacy of price.</p> <p>5. Same—effect where party fails to have sale set aside during period of redemption. If the debtor might have had the sale of his homestead set aside on presentation of the facts to the court within the year allowed for redemption but fails to exercise that right, he must show strong equitable grounds for setting aside the sheriff’s deed to the purchaser at the sale, and if his own conduct has been inequitable, in addition to the neglect of his remedy, relief may be denied.</p> <p>6. Same—-fact that sheriff’s deed has been made does not absolutely bar relief. There is no invariable rule of equity that relief will not be granted after a sheriff’s deed has been'made, and where gross inadequacy of price is shown to exist, the court will take hold of serious irregularities or circumstances of unfairness toward the debtor in order to grant relief. a</p> <p>7. Same—zvhen execution sale of homestead should be set aside. An execution sale of homestead premises for a grossly inadequate price, coupled with serious irregularities, should be set aside, notwithstanding the debtor, who was in possession of the premises, took no steps to set the sale aside before the sheriff’s deed was made at the expiration of the period of redemption, where the debtor refused to accept the $1000 tendered to him for his homestead estate and before filing his bill tendered to the purchaser the full amount of his bid, with six per cent interest, together with the accrued costs .of the forcible detainer suit the purchaser was prosecuting against him.</p>

C. D. Myers, Judge, presiding. This is an appeal by the complainants from á decree of the circuit court of McLean county dismissing a bill for the partition of 120 acres of land iñ that county and quieting the title to the property in fee simple in- two of the defendants in accordance with the prayer of a cross-bill filed by them.

<p>1. Equity—party cannot make one case by his bill and another by his proofs. One who alleges in his bill to foreclose a trust deed that the maker of the note was indebted to her husband, and, being so indebted, in consideration thereof made the note, is not entitled, without amendment, to take advantage of proof, if any, that the note was accommodation paper.</p> <p>2. Conflict of laws—validity of instrument affecting title to land depends upon law of State where land lies. The validity, construction, force and effect of instruments affecting the title to land depend upon the laws of the State where the land lies; but if the note secured by a trust deed is void, the trust deed, which is intended to secure the note, cannot be enforced. •</p> <p>3. Same—validity of contract is determined by the law of the place where it is made. The validity of a contract is to be determined by the law of the place where it is made, but if a party is not competent to contract, the contract is not valid and will not be enforced in another State in which it would have been valid if made there.</p> <p>4. Bills and notes—note takes effect from time of its delivery. A note takes effect from the time of its delivery and not from its date, as until the maker parts with the possession and control of the instrument he may cancel it or dispose of it, as he pleases, and the note is not executed until delivered.</p> <p>5. Same—when note must be regarded as made and delivered in Florida. Where a married woman, having a permanent residence in Illinois, is temporarily in Florida, and while there receives a promissory note from her husband which he requests her to sign and transmit to him by United States mail, the note must be regarded as made and -delivered in Florida when the wife signs the note and deposits it in the United States mail in Florida, directed to her husband.</p> <p>6. Same—when note by married woman is void. The fact that the permanent residence of a married woman is in Illinois, where she has legal capacity to execute a promissory note, does not enable her, while temporarily in another State, to execute a note there contrary to the laws of such State, and a note executed by her under such circumstances is void.</p>

Writ on 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. William E. Dever, Judge, presiding.

<p>1. Criminal LAW'—uncorroborated testimony of an accomplice may warrant a conviction. While the testimony of an accomplice is always acted upon with the greatest caution, yet a conviction may be had upon the uncorroborated testimony of an accomplice if it is of a character to satisfy the jury, beyond a reasonable doubt, of the guilt of the accused.</p> <p>2. Same—what reference to the right of an accused to testify is not ground for reversal. Where there are two defendants, one of whom testifies but the other does not, an instruction prefaced with the statement that “one accused and on trial charged with the commission of a crime may testify in his own behalf or not, as he pleases,” and which then proceeds to state that if he does testify the same rules apply to him as to other witnesses, is not ground for reversal, although the prefatory statement is unnecessary, (Baker v. People, 105 Ill. 452, distinguished.)</p> <p>3. Same—the State’s attorney has a right to refer to evidence as uncontradicted. The fact that the accused introduces no evideuce does not preclude the State’s attorney from presenting the State’s evidence to the jury as wholly uncontradicted, where such is the fact and no reference is made to the failure of the accused to testify in his own behalf.</p> <p>4. Same—what sufficient averment of ownership of building in indictment for arson. -In an indictment for arson, if the building was occupied, it is sufficient to allege that it is the property of the owner, lessee or the occupant.</p> <p>5. Same—when conviction will be sustained though chief witness is an accomplice. A conviction will be sustained eve’n though the chief witness is an accomplice whose conduct and character are such as to discredit him, where his. testimony is sufficiently corroborated to warrant the jury in believing him.</p>

<p>1. Eminent domain—holder of tax title is a proper parly to a condemnation proceeding. The holder of a tax title is a proper party to a condemnation proceeding, as the statute requires the petition to set forth the names of all persons interested in the property, as owners or otherwise, as appearing of record.</p> <p>2. Same—petitioner has the right to have question of validity of tax title determined. A tax deed either conveys the paramount title or it conveys nothing, and a petitioner seeking to condemn the land has a right to have that question determined, for upon it depends the important question of the ownership of the land.</p> <p>3. Same—what is an admission that defendant’s title is invalid: A statement in an answer to a condemnation petition that the party answering believes his trust deed is ineffectual to convey to him a fee simple title because his interest was derived from the holder of a tax title, but that he acquired, by the conveyance, a valid interest in the tax title of his grantor, is an admission that his title as appearing of record is invalid and that he is entitled to no portion of the compensation to be awarded in the condemnation proceeding.</p> <p>4. Same—a condemnation proceeding is a proceeding at law. The proceeding for condemning private property, for public use is entirely statutory and is a proceeding at law, having nothing equitable in its nature, and the practice in such proceeding is according to the practice which prevails in courts of law.</p> <p>5. Same—in condemnation the burden of preserving the evidence is upon the party complaining of error. The fact that the court, in a condemnation proceeding, is not restricted to deciding legal titles but may ascertain all rights of the respective owners, whether legal or equitable, does not change the proceeding from one at law to one in chancery, and it is incumbent upon the party complaining of error in the decision of the question of title to preserve the evidence by a bill of exceptions, as in other cases at law.</p>

<p>1. Tax deeds—statute requiring notice to occupant of premises must be strictly followed. Section 216 of the Revenue law, providing that before a tax deed is issued to the purchaser of land at a tax sale such purchaser shall serve, or cause to be served, a notice oh every person in actual possession or occupancy of the land, if upon diligent inquiry they can be found in the county, at least three ■ months before the expiration of the period of redemption, must be strictly complied with.</p> <p>2. Same—when affidavit that owner of premises could not be found upon diligent inquiry is overcome. A statement in an affidavit by the purchaser, of land at a tax sale that personal notice was not served because the person in the possession or occupancy of the premises could not, upon diligent inquiry, be found in the county, is overcome by testimony of the owner of the legal title that he resided on the premises in question for four years, which covered the entire period of redemption, during which time his name was in the city directory, showing that he resided on the premises, and that during the spring and summer of each year he was in the city all the time except Saturdays and Sundays.</p> <p>3. Same—what is meant by words “diligent inquiryas used in section 216 of Revenue act. The words “diligent inquiry,” used in section 216 of the Revenue act with reference to service of personal notice upon the occupant of premises sold for taxes, mean what an ordinary business man or other person would understand them to mean if he sent an employee to a certain house to find the occupant, and it cannot be said that an employee would discharge his duty in that regard if he went to the house on Saturdays and Sundays, only.</p> <p>4. Same—what amounts to such tender as justifies charging subsequent costs to defendant. If, after notice that tender will be made in open court, the defendant fails to appear, upon which the • court orders the money due the defendant and the unknown owners to be deposited with the clerk, which is done and notice given to the defendant of such deposit, there is a sufficient tender to justify charging the defendant with subsequent costs.</p>

<p>1. Contracts—if both parties sign a contract they■ assent to everything in it. Where a contract is signed by both parties both are regarded as having assented to everything in it.</p> <p>2. Same—what is not an agreement to pay $10,000. A contract whereby the first party acknowledges the receipt of $1500 from the second party as part payment on $10,000 worth of stock which the second party had promised the first party, the first party agreeing to allow the second party a, specified time to pay the balance of $8500, in default of which he is to forfeit payments already made but if he pays the full amount he is to be released from his promise to the first party, is not an agreement by the second party to pay $10,000, or any other sum, but is an agreement that if he does pay the $10,000 he will be released from his promise to deliver the stock, and if he fails to make full payment he will forfeit payments made.</p>

<p>1. Cloud on title—when an objection that the bill contains no allegation as to occupancy is waived. If any averment concerning the possession or occupancy of the premises is required in a case where the removal of a cloud from title is not the sole object of the bill, the want of such, averment is waived where the defendants, instead of demurring specially for that cause, answer the bill and proceed to a hearing without objection.</p> <p>2. Courts—primary purpose of constitutional amendment contemplating creation of municipal court of Chicago. The primary purpose manifest from the constitutional amendment contemplating the creation of the municipal court of Chicago was the creation of a court with the jurisdiction and functions of "justices of the peace and police magistrates and the abolishing of those offices for the territory within the city.</p> <p>3. Same—when municipal court of Chicago is not of same class or grade as circuit courts. While the municipal court of Chicago has been given jurisdiction of certain classes of cases in which jurisdiction had been exercised by the county and circuit courts, yet its principal jurisdiction corresponds to that of justices of the peace and police magistrates outside of the city, and in the exercise of such jurisdiction it cannot be regarded as of the same class or grade as circuit courts.</p> <p>4. Same—what must be done before judgment in fourth-class case becomes a lien on real estate. Under section 63 of the Municipal Court act, before a judgment of the municipal court can become a lien upon real estate it is necessary, first, that a transcript of the judgment shall be filed in the office of the recorder; and second, that an execution shall be levied and a certificate of such levy filed in the recorder’s office.</p> <p>5. Constitutional law—provision of section 63 of Municipal Court act as to liens of judgments in fourth-class cases is valid. The provision of section 63 of the Municipal Court act which specifies the time when judgments of the municipal court in cases other than those of the first or second class shall become liens upon real estate is not in conflict with section 29 of article 6 of the constitution, requiring the force and effect of judgments of courts of the same class or grade, so far as regulated by law, to be uniform.</p>

<p>1. Contracts—what contract is not, on its face, illegal. A contract whereby one party agrees to pay compensation to another for the latter’s services in procuring the return of money and property belonging to the first party which is being wrongfully withheld from him by other persons is “not, on its face, illegal nor against public policy.</p> <p>.2. Same-—one whose property is stolen is not limited to criminal prosecution. One whose property is stolen may sue for the property and secure legal services and other aid for its recovery, and he has a right to negotiate for its return if he does nothing having the object or effect of concealing crime or having a tendency to hinder or prevent a criminal prosecution.</p> <p>3. Same—when contract for recovery of property is valid. If the sole object of a contract is for the recovery of property, even by a compromise of a civil liability, it is valid.</p> <p>4. Same—what- constitutes the compounding of a criminal offense. The offense of compounding a criminal offense consists of perverting public justice in some way by making a bargain to allow the criminal to escape conviction or showing some favor to him for that purpose.</p> <p>5. Same—what is essential to a plea intended to allege concealment of a crime.' A plea intended to present the defense that the contract sued upon was made for the purpose of concealing a crime, must, in the absence of any pending prosecution, allege that-</p> <p>, a crime has been committed, and a plea which fails to allege either the commission of the crime or the pending prosecution is bad.</p> <p>6. Same—what is required to make contract champertous. To make a contract champertous there must be an agreement that the costs and expenses of the litigation, or some part of them, are to be paid by one who is not a party to the suit.</p> <p>7. Pleading—a defective replication amounts to the same thing as a demurrer. A defective replication amounts to the same thing as a demurrer to the plea the replication professes to answer, and if the facts alleged in the plea constitute a defense to the cause of action alleged in the declaration, a judgment in bar against the plaintiff is proper.</p> <p>8. Same—when court should not enter judgment in bar against plaintiff. If a plea is defective in substance and does not allege facts constituting a-defense to the cause of action it is error to give judgment in bar against the plaintiff, even though he has waived all formal defects in the plea by not demurring and by not asking to have the demurrer to his defective replication carried back to the plea.</p> <p>9. Same—a demurrer tesis sufficiency of all preceding pleadings. A demurrer tests the sufficiency of all pleadings which precede the demurrer, and the court should not give judgment in fayor of the party who is first to commit an error.</p>

<p>1. Sureties—what not such a violation of contract as releases surety company. ' The fact that the commissioner of public works did not require the contractor on tunnel work to install a compressed air plant, as required by his contract with the city, is not such a material violation of the contract as releases the surety company which signed the contractor’s bond, where it does not appear from tlie evidence that the installation of such a plant would have cheapened or facilitated the work or that it would have been anything but an additional expense to the contractor.</p> <p>2. Same—when city’s payment of reserve^ to other persons than contractor does not release the surety. The surety company on the bond of a contractor for tunnel work is not released from liability because the city, after the contractor had defaulted, used the fifteen per cent reserve which it had retained under the contract, to pay for labor, material and supplies which it became necessar)' to use in pumping water and sewage from the excavation for the tunnel and preserving the work so far as it had gone.</p> <p>3. Same—what is necessary in order to release surety company from liability. In order to release a surety company from liability on a public contractor’s bond because of departures from the terftis of the contract, the departures must be in material matters which operate in some way to prejudice the rights of the company, and technical violations, not operating in any way to the injury of the surety company, will not release it.</p>

<p>1. Constitutional law—purpose of section 13 of article 4 of constitution. The purpose of section 13 of article 4 of the constitution, requiring an amendatory act to insert the section amended, was to enable the meaning of enactments directly amending prior statutes to be ascertained by an examination of the enactments themselves, without the necessity of examining all prior statutes on .the subject to ascertain the effect of the amendment.</p> <p>2. Same—rule where act is complete in itself and does not purport to be amendatory. An act which is complete within itself and does not purport, either in its title or in the body thereof, to amend or revive any other act, is valid, though it may by implication modify or repeal prior existing statutes.</p> <p>3. Same—Woman’s Suffrage act of 1913 does not violate section tj of article 4 of the constitution. The Woman’s Suffrage act of 1913 (Laws of 1913, p. 333,) is not invalid as in violation of section 13 of article 4 of the constitution, upon the ground that it amends section 65 of the Election law without inserting that section at length in the act, as the Woman’s Suffrage act is complete in itself, does not purport to amend any other act, is intelligible on its face, requires no further legislation to make it effective, and has for its only object the granting to women of the right of suffrage so far as offices and subjects mentioned in it are concerned.</p> <p>4. Same—constitution is not a grant but a limitation of power. The Illinois constitution is not a grant of power to the legislature but is a limitation on such power, and, except as to such restrictions as the constitution has imposed by express terms or by necessary implication, legislative power of the legislature is unlimited.</p> <p>5. Same—if constitution has prescribed qualifications of electors the legislature cannot change them. The right of suffrage is not a natural right but exists only by positive law, and if the constitution has prescribed the qualifications of electors such qualifications cannot be changed by the legislature.</p> <p>6. Same—section 1 of article 7 of the constitution, concerning qualifications of electors, construed. The qualifications of electors prescribed by section 1 of article 7 of the constitution apply to the elections provided for in that instrument but do not apply to other elections provided for only by statute, and which are therefore wholly within the control of the legislature.</p> <p>7. Same—Woman’s Suffrage act of 1913 does not violate section 1 of article 7 of the constitution. The Woman’s Suffrage act of 1913 (Laws of 1913, p. 333,) does not violate section 1 of article 7 of the constitution, as all of the offices mentioned in such act are within the control of the legislature, none of them being of constitutional origin, and it is competent for the legislature to declare the manner of filling them and by whom the incumbents shall be elected. (People v. English, 139 Ill. 622, and Plummer v. Yost, 144 id. 68, adhered to.)</p> <p>8. Same—school directors, school trustees and boards of education are political officers. School directors, school trustees and boards of education are political officers engaged in administering that portion of the government of the State committed to them, and there is no authority for classifying them as .philanthropic or non-political officers, as the public school system was not established as a charity or from philanthropical motives but in the interest of good government, as a part of the government itself.</p> <p>9. Same—legislature had no power to authorise women to vote at referendum elections provided for in constitution. The provision of the Woman’s Suffrage act of 1913 permitting women to vote on “all questions or propositions submitted to a vote of the electors of such municipalities or other political divisions of the State” covers every referendum election, including those provided for in the constitution, and in so far as it includes referendum elections provided for in the constitution the act is invalid, but its invalidity is confined to that matter alone, and the act is valid in so far as it applies to elections for offices or on propositions provided for by statute, alone.</p> <p>10. Stare decisis—Supreme Court should not overrule long established decision of constitutional question. A deliberate decision of the Supreme Court upon the constitutional power of the legislature, which has stood unchallenged for many years and under which the highest political rights have been exercised without question, should not be overruled because the judges constituting the Supreme Court at a later period may hold views different from those held by the judges who constituted the court when the decision was made.</p>

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Macon county; the Hon. W. G. Cochran, Judge, presiding.

<p>1. Deeds—deed made by a person who has not been adjudged insane is not void. A deed made by a person who has never been adjudged insane is not void, although it may be voidable, in a proper forum, in case such insanity is established.</p> <p>2. Ejectment-—in Illinois only legal titles are tried in ejectment. In Illinois only legal titles are triable in an action of ejectment and equitable titles are not considered.</p> <p>3. Same—evidence of mental incapacity of. grantor is not admissible in ejectment. In Illinois, where the distinction between common law and chancery is maintained, it is not permissible, in an action of ejectment, to attack a deed, regular in form, upon the ground that the grantor, though he was never adjudged insane, was mentally incompetent to execute the deed, as the remedy in such case is in a court of equity, where the rights of all parties concerned may be adjusted and protected.</p> <p>4. Evidence—recital of consideration is prima facie evidence that the grantor received the amount. The recital of consideration in a deed is prima facie evidence that the grantor received the amount named.</p> <p>5. Stipulations—what is not a waiver of right to object to admission of evidence. A provision in a stipulation entered into by the parties after the beginning of an ejectment suit, to the effect that both parties waive the statutory right to new trial, is not a waiver by the defendants of the right to raise the question of the competency of evidence introduced to show that the grantor, in two of the deeds through which the defendants claim title, was mentally incompetent to make the deeds though he had never been adjudged insane.</p>

<p>This case is controlled by the decision in Irme gar v. Tazewell County, (ante, p. 172.)</p>

<p>1. Statutes—rule of construction where a statute of another State is adopted. Where a statute is adopted from another State or country and the same has been previously construed by the courts of such State or country, the statute is deemed, as a general rule, to have been adopted with the4 construction so given to it.</p> <p>2. Inheritance tax—ivords “in contemplation of death” construed. The words “in contemplation of death,” used, in the Inheritance Tax statute, do not mean the general expectation of all rational mortals that they will die sometime, but means an apprehension of death arising from some existing infirmity or impending peril.</p> <p>3. Same—what transfers made before passage of Inheritance Tax act of 1909 are taxable. Under the proper construction of the language of clause 3 of section 1 of the Inheritance Tax act of 1909, providing that such tax shall also be imposed “when any such person or corporation becomes beneficially entitled, in possession or expectancy, to any property, or the income therefrom, by any such transfer, whether made before or after the passage of this act” the only transfers made before the law took effect which are taxable are wills, (where death occurred after the law went into effect,) and gifts or voluntary transfers “made in contemplation of death,” (when the death occurred after the statute became operative.)</p> <p>4. Same—what interests are and are not subject to Inheritance Tax act. Where the owner of bonds deposits them with a trustee under trust agreements made before the Inheritance Tax act of 1909 took effect, by virtue of which agreements the donor’s children are given a vested interest in the bonds in equal shares, subject only to the life interest in the income, which by the agreements was to be paid to the donor while he lived and at his death to be paid to' a named person for life, the interests of the children are not subject to tax under clause 3 of section 1 of the Inheritance Tax act of 1909 though the donor did not die until after the act took effect, where such trust agreements were not made “in contemplation of death;” but the contingent life estate of the person whose interest begins at the death of the donor is subject to tax under said clause 3.</p> <p>5. Remainders—what does not convert a vested interest into a contingent remainder. If the children of the owner of certain bonds are by the execution of a trust agreement and the delivery of the bonds to the trustee given an unconditional vested interest in such bonds in equal shares, subject only to the life estates in the income, the possibility that both remainder-men may die before the life tenants does not convert the vested interest into a contingent remainder.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.

<p>1. Practice—party need not wait until after final judgment before presenting bill of exceptions in municipal court. Section 38 of the Municipal Court act, providing that a bill of exceptions may be tendered to the judge at any time within sixty days after the entry of a final order or judgment, does not require a party to wait until after final judgment before presenting a bill of exceptions with reference to motions and rulings thereon and having it settled.</p> <p>2. Same—what is a proper method of bringing rules of municipal court to attention of Supreme Court. Attaching to the bill of exceptions a pamphlet containing rules of the municipal court of Chicago, certified by the judge, is a proper method of bringing such rules to the attention of the Supreme Court as a part of the record, but only such rules as are applicable to the case should be so certified.</p> <p>3. Same—when term "practice” will be held to include "pleadings.” While the term “practice” does not in a strict sense include “pleadings,” yet as used in section 34 of article 4 of the constitution and in paragraph 9 of section 28 of the Municipal Court act it was • intended to include pleadings, and under said paragraph 9, providing that the judges may by rule provide that the “practice” in cases of the first class shall be the same as is provided in the act for cases of the fourth class, a rule is authorized dispensing with a declaration in a first-class case, notwithstanding a declaration is expressly provided for in the act.</p> <p>4. Insurance—a contract strictly one of re-insurance is merely one of indemnity. A contract which is strictly one of re-insurance is merely one of indemnity of the first insurer against the risk which it has already assumed, and it creates no privity of contract between the re-insurer and the person insured.</p> <p>5. Same—when there is no privity of contract between insured and re-insurer. Unless a contract of re-insurance either expressly stipulates that the original insured person can bring suit against the re-insurer or there is something in the contract indicating such intention, there is no privity of contract existing between the insured and the re-insurer.</p> <p>6. Same—when insured may sue the re-insurér. Where the re-insurer undertakes, in its contract of re-insurance, to assume and guarantee the policies of the first insurer, it undertakes to discharge the obligations of the first insurer to its policyholders and the insured may sue the re-insurer.</p> <p>7. Same—the insured may accept the obligation imposed upon the re-insurer by its contract. An insurance company cannot, by a contract of re-insurance, transfer its liability to the re-insurer and compel a policyholder to accept the latter as the insurer, but the insurer has an election to repudiate the transfer if he sees .fit or to accept the obligation imposed upon the re-insurer by its contract.</p> <p>8. Same—clause making policy incontestable after one year is valid. A clause in an insurance policy that it shall be incontestable after one year from the date of its issue, provided the premiums are duly paid, is a valid provision, and after one year bars the defense that the policy was procured by fraud.</p>

<p>1. Criminal law—when refusal to dismiss proceeding because extradition was for another offense is proper. Refusal to dismiss a criminal prosecution for the confidence game after a nolle prosequi as to the count charging larceny has been entered is proper, even though the accused claims he was extradited for larceny and that there was no provision authorizing extradition for the confidence game, where, from all that is shown by the record, the accused may have been found and arrested in the United States, the record merely showing an application by the State’s attorney to the Governor and a petition by the Governor to the Secretary of State of the United States.</p> <p>2. Same—permitting private attorney to assist prosecution is zvithin sound discretion of court. Permitting an attorney to act as special counsel to assist in the prosecution of a criminal case, even though he may be paid by private persons, is within the discretion of the trial court and is not ground for reversing the judgment of conviction, where it does not appear that the accused was prejudiced thereby by reason of any overmatching of his own counsel.</p> <p>3. Same—the corpus delicti may be proved by circumstantial evidence. While it is necessary, in a confidence game prosecution, to prove the falsity of the representations which were made to induce the victim to part with his money, in order to establish the corpus delicti of the crime, yet it is not necessary to prove such fact by direct evidence, and it is sufficient if the circumstances proven fully warrant the jury in' believing such representations were false and no attempt is made by the accused to explain them.</p> <p>4. Same—-fact that accused has taken part in a similar confidence game may be proved. In a prosecution for the confidence game it is not error, for the purpose of showing guilty knowledge by the accused, to permit a witness to tell of a previous transaction in which the accused, by a scheme similar to the one for which he is on trial, obtained a large sum of money from the witness.</p> <p>5. Same—zvitnesses whose names arc not upon the indictment may testify. The court, in its discretion, may permit witnesses to testify whose names are not on the indictment, and such action will not be held ground for reversal where the accused was not taken by surprise or prejudiced in any way in making his defense.</p> <p>6. Same—zvhen a refusal to admit competent evidence is not ground for reversal. Refusal to admit competent evidence, which, if believed, would have tended to discredit the testimony of the principal witness for the accused with reference to a certain part of his testimony, is not ground for reversal, where the material parts of his testimony are confirmed in so many .particulars by other witnesses that the jury, in the absence of any evidence on the part of the accused, was bound to return a verdict of guilty.</p>

<p>1. Criminal law—intent is part of charge of burglary. The crime of burglary, under the statute, consists of willfully and maliciously breaking and entering a building with intent to commit larceny or a felony, and not only must the entry be charged and proven, but also the intent to commit larceny or a felony.</p> <p>2. Same—what essential where the charge is burglary with intent to commit larceny. In an indictment for burglary, where it is charged that the breaking and entry were with intent to commit larceny, it must be alleged that the intent was to steal the property of some person.</p> <p>3. Same—what constitutes separate and distinct offenses. "An indictment charging the breaking and entering of a building with intent to steal the goods of named persons who were tenants of a certain floor of the building, charges an entirely different offense from an indictment charging the same defendants with breaking and entering the same building with intent to steal the property of other named persons who were tenants of another floor.</p> <p>4. Same-—what not admissible to sustain plea of former acquittal. The record of the indictment, trial and acquittal of the defendants of the charge of breaking and entering a certain building with intent to steal the goods of “Korach & Stickler” is not admissible to sustain a plea of former acquittal on the trial of the same defendants for breaking and entering the same building with intent to steal the goods of “Goldstein, Harris & Guthman.”</p> <p>5. Same-—when instruction as to testimony of policeman or detective is faulty. An instruction informing the jury that the business of a policeman or detective is a lawful one, and when such persons possess information bearing upon the question of guilt or innocence of a party on trial charged with crime it is their duty to appear and testify if called, which statement is then followed by a statement of the rule for judging their credibility, is faulty in singling out and calling attention to the testimony of particular witnesses; but the giving of such instruction is not necessarily ground for reversal.</p>

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

<p>1. Constitutional law—legislature has power to fix salary of State’s attorneys. Sections 25 and 32 of article 6 of the constitution clearly imply that the legislature shall have power, by general law, to fix the salary of State’s attorneys notwithstanding the provision of section 10 of article 10 of the constitution that the county board shall fix the compensation of county officers.</p> <p>2. Same—State’s Attorney Salary act not in violation of section 12 of article 10 of constitution. The State’s Attorney Salary act of 1912, as amended in 1913, (Laws of 1912, p. 88; Laws of 1913? P- 360;) is not invalid as being contrary to the provision of section 12 of article 10 of the constitution that the legislature shall regulate the fees of officers so as to reduce the same to a reasonable compensation for services actually rendered.</p> <p>3. State’s attorneys—chief purpose of State’s Attorney Salary act. The chief purpose of the State’s Attorney Salary act, as amended in 1913, is to provide a method for paying the State’s attorneys regular salaries at quarterly intervals, using therefor, so far as required, all the proceeds of fines, penalties and forfeitures collected by the various officials, the net proceeds of which had theretofore been paid over to the county superintendent of schools for general school purposes, and that the balance, if any, not so used should be paid over to the county superintendent of schools for general school purposes.</p> <p>. 4. Same—the State’s Attorney Salary act does not affect fines muring to others than the county superintendent of schools. The State’s Attorney Salary act of 1912, as amended in 1913, affects only such fines, penalties and forfeitures as had theretofore been paid over to the county superintendent of schools by the various officers collecting them, and does not apply to fines, penalties and forfeitures which by the various statutes are to be paid over, when collected, to officers or bodies other than .such county superintendent of schools.</p> <p>5. Same—clerks of courts and other officials may still receive fines. Clerks of courts,.justices of the peace and police magistrates may still receive fines, penalties and forfeitures in cases where, prior to the State’s Attorney Salary act of 1912, they collected them for the county superintendent of schools, but since the passage of said act they must pay such fines, penalties and forfeitures to the State’s attorney when collected.</p> <p>6. Statutes—general repealing clause adds nothing to effect of act. A general repealing clause adds nothing to the effect of the act, as all prior laws and parts of laws are impliedly repealed by irreconcilable conflicting provisions of the new law.</p> <p>y. Same—repeals by implication arc not favored. Repeals by implication are not favored, and both statutes will remain in force unless they are so repugnant that they cannot operate together.</p> <p>8. Same—courts will have regard for existing circumstances in construing law. In construing a statute the courts will have regard for existing circumstances, contemporaneous conditions, the objects sought to be attained by the statute and the necessity for its adoption.</p> <p>9. Same—a construction leading to .great inconvenience should be avoided. A construction which will lead to great inconvenience or absurd consequences should be avoided unless the meaning of the legislature is so plain that such avoidance is impossible.</p> <p>10. Same—rule where statutes are enacted at the same session. Statutes enacted at the same session of the legislature should receive a construction, if possible, which will give effect to each, as the presumption is that they were not intended to destroy each other unless the acts in express- terms so state.</p>

<p>1. Workmen’s compensation—provision for review of decision of the •industrial board by certiorari is invalid. The provision of clause (/) of section 19 of the Workmen’s Compensation act of 1913, that the Supreme Court may review .the decision of the industrial board as to questions of law by certiorari is invalid, as it is in violation of section 2 of article 6 of the constitution, which expressly limits the original jurisdiction of the Supreme Court to cases relating to the revenue, mandamus and habeas corpus.</p> <p>2. Same—industrial board’s decision may be reviewed by circuit court by certiorari. Circuit courts of Illinois have power, by certiorari, to review the decision of the industrial board in cases coming under the Workmen’s Compensation act of 1913, to the extent of determining whether such board has acted within its powers or has proceeded illegally.</p> <p>3. Certiorari—effect of the amendment of the Practice act in ipop, concerning certiorari. The amendment of the Practice act in 1909, concerning the issuing of a writ of certiorari by the Supreme Court to the Appellate Court, did not attempt to confer original jurisdiction on the Supreme Court in certiorari cases but only changed the method by which the Supreme Court shall exercise an appellate jurisdiction which has been conferred upon it.</p> <p>4. Same—Supreme Court can issue writ óf certiorari only in aid of its appellate jurisdiction. The Supreme Court, under the constitution, can issue a writ of certiorari only as auxiliary to, in aid of or to protect its appellate jurisdiction, and if no appellate jurisdiction has been conferred upon it by law in a particular class of cases it is without, power to issue the writ. (People v. Superior Court, 234 Ill. 186, adhered to.)</p>

<p>1. Constitutional law—when salary of a county officer need not be fixed by county board. Under sections 22 and 32 of article 6 of the constitution a county officer provided for in the constitution whose term of office, powers, duties and salary are to be such as may be prescribed by law is not within the class of county officers whose salaries must, under section 10 of article 10 of the constitution, be fixed by the county board. (Jimison v. Adams County, 130 Ill. 558, followed.)</p> <p>2. Same—State’s Attorney Salary act of 1912 is constitutional. The State’s Attorney Salary act of 1912 is fully áuthorized by sections 22 and 32 of article 6 of the constitution and is not in conflict with section 10' of article 10 of the constitution, requiring the salaries of county officers to be paid by the county board, as such section has no application to State’s attorneys.</p>

<p>1. CoxstituTional i,aw—provision tending to promote purpose of act is within the title. The question whether a provision of an act is within the title is decided 011 the basis whether it tends to promote the object and purpose of the act as expressed in the title, and if the provision tends legitimately to accomplish the legislative purpose of the subject expressed in the title it is properly included in the act.</p> <p>2. Same—word “fees,” in original State’s Attorney Salary act, in force in 1912, includes '“forfeiUires." The word “fees,” in the original State’s Attorney Salary act, in force July 1, 1912, includes all compensation formerly paid to State’s attorneys, including not only fees collected from fines, but also fees and commissions collected from penalties and forfeitures; and hence the amendment of that act in 1913 is not invalid because it added the word “forfeitures” to the title and to section 4 of the original act.</p> <p>3. The other questions involved in this case are decided in the case of Hoyne v. Danisch, (ante, p. 467.)</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Corostin D. Myers, Judge, presiding.</p>

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

<p>1. Insurance—guaranty insurance defined. Guaranty insurance is a contract whereby one, for a consideration, agrees to indemnify another against loss arising from the want of integrity, fidelity or insolvency of employees and persons holding positions of trust, against insolvency of debtors, losses in trade, losses from nonpayment of notes and other evidences of indebtedness, or against breaches of contract.</p> <p>2. Same—a corporation to guarantee notes and mortgages may organize under the Siirety act. A corporation having for its object guaranteeing the payment of notes, bonds, coupons and other evidences of indebtedness secured by mortgage or deed of trust conveying real estate, may organize, in Illinois, under the Surety act of 1899, (Hurd’s Stat. 1913, p. 602,) authorizing the formation of corporations to guarantee the performance, by persons, firms and corporations, of contracts, bonds and undertakings of any kind.</p> <p>3. Same—section 1 of the Casualty act docs not apply to mortgage guaranty insurance. The organization of a corporation to guarantee the payment of notes, bonds and other evidences of indebtedness secured by real estate mortgage or deed of trust is not authorized by paragraph 7 of section 1 of the Casualty act, (Hurd’s Stat. 1913, p. 1466,) providing for the organization of corporations to insure against “any other casualty or insurance risk specified in the article of organization, which may lawfully be the subject of insurance and the formation of corporations for insuring against which is not otherwise provided for by these statutes.”</p> <p>4. Same—object of corporation not limited to words of Surety act. It is no objection to the oragnization of a corporation under the Surety act that the statement of the purposes of the corporation specifies the particular kind of contracts which the corporation intends to guarantee, even though the statement contains more than the exact language of the statute, provided such contracts are within the general language of the statute.</p> <p>5. Con stitutionae eaw—title to Surety act is broad enough to cover guaranty insurance. The title of the Surety act of 1899 (Hurd’s Stat. 1913, p. 602,) is broad enough to cover guaranty insurance, and the act is therefore not unconstitutional on the ground that the title does not cover the subject matter of the act.</p> <p>6. Mandamus—when mandamus will lie to compel insurance superintendent to act. Where a dispute arises between proposed incorporators and the insurance superintendent as to which of two statutes shall govern the organization of the corporation, the case is not one which merely involves the discretion of a public officer but it involves also the construction of the statutes, and in such case mandamus will lie to determine whether the insurance superintendent has correctly construed them.</p>

<p>Appeals and errors—zuhen constitutionality of a statute is not involved. The constitutionality of the Workmen’s Compensation act is not involved on appeal in a personal injury case, where the trial court, in giving the various instructions and in holding the act unconstitutional, merely adopted the theory of both parti.es.</p>

<p>1. Injunction—fraud for which collection of judgment will be enjoined must be in procuring the judgment. The fraud which will justify a court of equity in enjoining the collection of a judgment must be in the procurement of the judgment, and if there be fraud entering into the cause of action which vitiates it, that defense must be interposed in the action at law unless the party was by fraud prevented from interposing it.</p> <p>2. Same—party seeking to enjoin collection of judgment Must be free from negligence. While equity has the power to grant relief against a judgment obtained through fraud, accident or mistake, yet it is essential that complainant be free from negligence.</p> <p>3. Same—when bill to enjoin collection of judgment is properly dismissed. A bill to enjoin the collection of a judgment based upon a promisory note is properly dismissed, where the allegations of fraud are directed to the circumstances under which the note was given and are based upon alleged misrepresentation as to matters which were either matters of public record or facts which the complainant could have ascertained by the exercise of ordinary diligence.</p> <p>4. Same—section 8 of Injunction act governs award of damages on dissolving injunction against collection of judgment. Section 8 of the Injunction act, providing that, in case an injunction against the collection of a judgment is dissolved the complainant shall pay, exclusive of legal interest and costs, such damages as the court shall award, not exceeding ten per cent on such part of the judgment as may be released from the injunction, controls in case of the dissolution of injunctions against collecting judgments, and section 12 of said act does not apply.</p> <p>5- Same—the provision for damages in section 8 of the Injunction act was intended as a penalty. The provision for damages in section 8 of the Injunction act was intended as a penalty to be imposed upon a judgment debtor who wrongfully sues out an injunction to restrain the collection of the judgment, and under such section it is not necessary that the award of damages be based upon suggestion of damages and proof, as in the case of the compensatory damages provided for in section 12 of said act. (Reed v. New York Exchange Bank, 230 Ill. 50, overruled.)</p>

<p>1. Wills—in construing wills the court endeavors io give effect to intention of the testator. In construing wills the constant effort of the court is to give effect to the true intention of the testator as expressed by the language used in his will, and this is to be ascertained from a consideration of the will in all its parts, bearing in mind the scope and plan of the testator as expressed in the whole will.</p> <p>2. Same—presumption that zvords are used in technical sense is not conclusive. The presumption that words employed in a will are used in their technical sense is a mere rule of construction to 'aid the courts in ascertaining the testator’s intention where the language is obscure, and it is not resorted to where its application will defeat the intention of the testator as expressed in the.whole, will.</p> <p>3. Same—zvord "heirs” will not always be given its technical meaning. The word “heirs,” in its technical, legal sense, means those whom the law appoints to take the intestate estate,, but if it is apparent the word was not used in its strict' technical sense it will be given such meaning as will carry out testator’s intention.</p> <p>4. Same—when term "heirs-at-law” will not include the widow. Where a will gives the testator’s personal estate to his widow absolutely, gives her the fee in the homestead premises, and then creates a trust in the remaining real estate for the purpose of paying the income to the widow for life and at her death the trust estate to be conveyed to “my heirs-at-law living at the time of my death,” the word “heirs-at-law” will be held to include only the testator’s heirs-at-law by blood and will not include the widow, particularly where the body of the trust estate was expressly made exempt from any debts or liabilities created by her. (Downing v. Grigsby, 251 Ill. 568, distinguished.)</p>

<p>Wills—when proof of financial condition of legatee is properly excluded. Where a will makes an unequal division of the property of the testatrix arid a sister living within a block of the testatrix is bequeathed the sum of five dollars, only, the financial condition of such sister, if known to the testatrix, may be considered, with the will itself, upon the question of testamentary capacity, but unless there is proof, or offer of proof, that such financial condition was known to the testatrix, evidence in regard thereto is properly excluded.</p>

<p>1. Ordinances—what does not invalidate an ordinance creating offices. If a city council has power to create certain offices the ordinance creating such offices will not be held invalid, even though the ordinance may provide for filling the offices in an illegal manner.</p> <p>2. Injunction—when a bill to enjoin payment of salaries of officers will not lie. The fact that an ordinance, creating certain offices which the city had power to create may provide for the filling of such offices in an illegal manner does not authorize a bill to enjoin the payment of the salaries to the incumbents of such offices, provided the offices were created as required by law.</p>

<p>1. Highways—a court of equity has jurisdiction to enjoin obstruction of public highzvay. A court of equity has jurisdiction to enjoin the obstruction of a public highway at the suit of persons who are directly and injuriously affected. (City of Pana v. Central Washed Coal Co. 260 Ill. in, distinguished.)</p> <p>2. Same—acceptance of street by city may be express or implied. An express acceptance of a street by a city may be shown by some order, resolution or action of the public authorities made and entered of record, or an acceptance may be implied from the acts of the public authorities recognizing the existence of the street and treating it as a public way.</p> <p>3. Same—mere fact that deed of land to city was recorded does not constitute acceptance. The fact that a quit-claim deed to a city of a strip of land for a street was recorded and afterward taken from the recorder’s office by one of the officials of the city does not constitute an acceptance of the street.</p> <p>4. Same—what amounts to a practical revocation of quit-claim. deed to city. Where a quit-claim deed to a city of a strip of land for a street is subject, as to part of the strip, to a prior trust deed, the subsequent foreclosure of the trust deed amounts to a practical revocation of the offer to dedicate such portion of the strip.</p> <p>5. Same—question whether way will be of benefit to public is important on question of acceptance. The question whether a way will be of benefit to the public is important upon the question of acceptance, and when it appears that such way is not needed for public accommodation, stronger proof of acceptance is necessary than where the way would be of public benefit.</p> <p>6. Same—when fact that strip of land was not assessed for general taxes does not show acceptance by city. Before municipal authorities can be charged with responsibilities for the care and improvement of a strip of land as a street or highway there must be an acceptance of the offered dedication by the proper authorities, and the mere fact that the assessor failed to assess the strip for general taxes for over thirty years does not show acceptance by the city authorities.</p> <p>7. Same—what tends to show that city authorities did not consider that they had accepted street. The fact that a cement sidewalk and a pavement are laid in front of a strip of land and paid for, by special assessment, by persons claiming to own the strip tends to show that the city authorities did not consider that they had ever accepted the strip as a street.</p> <p>8. Same—whether there is an acceptance by user depends upon the facts. An acceptance of an offered dedication may be shown by user, but the question whether the user by the public is of such a nature as to constitute an acceptance is a question of fact, depending upon the circumstances of each particular case.</p> <p>9. Same—zvhat does not constitute estoppel to deny dedication as to private owners. The mere fact that the owners of a strip of land quit-claimed the same to the city for a street does not estop their successor in title from denying the dedication as against private owners, where ño conveyances were ever made with reference to the strip as a street or alley before a revocation of the offered dedication and nothing was done which has caused such private owners to act to their injury in reliance upon the deed.</p> <p>10. Equity—decree dismissing bill for injunction may reserve the question of damages. A decree dismissing a bill to enjoin the erection of a building on a strip of land claimed by the complainants to be a street but continuing the injunction in fore.e pending an appeal may properly reserve for future consideration the question of damages for wrongfully suing out the injunction.</p>

<p>1. Equity—equity has jurisdiction to enjoin illegal sale by the sheriff of homestead premises. A court of equity has jurisdiction to enjoin a sale by the sheriff, on execution, of homestead premises, where the bill alleges that the two lots are occupied as a single parcel of property as the homestead of the complainant and his wife; that the value of the two lots does not exceed $1200; that the interest of complainant in the entire premises does not exceed one-half that amount, and that the sheriff is proceeding to sell the homestead without complying with section 10 of the statute on exemptions.</p> <p>2. Homestead—the homestead estate may extend to two lots. Where two lots are used together as one parcel of land comprising the homestead premises and are in the actual possession of the homesteader as his home, the homestead exemption will extend to both lots if the value of the one upon which the house stands is worth less than $1000.</p> <p>3. Same—fact that title is held jointly by husband and wife does not affect husband’s right to homestead. Where a husband and wife are joint tenants of the premises on which they reside as a homestead they are jointly seized of an estate of homestead in the land.</p>

<p>1. Disbarment—what constitutes unprofessional conduct. An attorney who advises a woman client, who is _inexperienced in business affairs, to loan a large sum of money to a manufacturing concern which he knows is in an experimental stage and is already experiencing financial troubles, with the result that most of the money was lost to the client, is guilty of a violation of his duty to his client, notwithstanding the attorney invested and lost his own money in the transaction.</p> <p>2. Same—when unauthorized use of funds is ground for suspension. An attorney who receives from his client a large sum of money belonging to an estate, which sum, with his client’s knowledge and consent, he deposits in his own account but within less than two months withdraws it for his personal use, except a small amount, is guilty of unprofessional conduct and will be suspended, notwithstanding he thereafter informed his client of the facts and several years later accounted for the money so used.</p>

<p>1. Corporations—the act of May 18, 1905, does not apply to-foreign corporation engaged in inter-State commerce. The act of May 18, 1905, (Laws of 1905, p. 124,) section 6 of which requires compliance by foreign corporations with the provisions of the act as a condition precedent to the right to bring suit in the courts of Illinois does not apply to a foreign corporation engaged only in inter-State commerce.</p> <p>2. Same—when foreign corporation may bring suit in Illinois. A foreign corporation which has not been transacting business in Illinois in violation of the act of May 18, 1905, is not required to comply with the provisions of such act before it can bring suit in the courts of Illinois.</p> <p>3. Appeaes and errors—court must refuse to direct verdict if evidence is in conflict. Upon a motion to direct a verdict for the defendant upon the ground that the plaintiff foreign corporation has been transacting business in Illinois in violation of the statute the court can consider only the evidence favorable to the plaintiff, and if such evidence is that it has .not been so transacting business in Illinois the court must refuse to direct the verdict, notwithstanding the evidence to the contrary.</p>

<p>■ 1. Civil, SERVICE—stenographer in classified service of city does not hold his position by contract. A stenographer in the classified service oí a city holds his position by virtue of appointment and not by contract, and it is within the power o'f the legislature to provide that a certain per cent of his salary shall be withheld each month and paid into a pension fund for city civil service employees.</p> <p>2. Same—Civil Service Pension Fund act applies only to those holding permanent positions. The Civil Service Pension Fund act of 1911 (Laws of 1911, p. 158,) applies only to those holding permanent positions in the city civil service, and such positions, whether called offices or places of employment, have substantially the same characteristics, without regard' to the character of the services rendered.</p> <p>3. Same—Civil Service Pension Fund act does not deprive employees of property. The Civil Service Pension Fund act of 1911, (Laws of 1911, p. 158,) in authorizing the deduction of the monthly salaries 'of city employees, does not deprive such employees of their property, as they have no property in their unearned salaries; and this is true although the employees acquire no vested interest in the fund created by the act.</p> <p>4. Same—Civil Service Pension Fund act does not make un- . reasonable discrimination. The Civil Service Pension Fund act of 1911 is not invalid as making an unreasonable discrimination between different classes of employees, in that laborers are excluded unless they desire to participate, as are also employees over sixty years of age at the time the law went into effect who had not been in the service of the city ten years.</p> <p>5- Same—what not ground for holding Civil Service Pension Fund act invalid. The Civil Service Pension Fund act of 1911 can not be held invalid upon the alleged grounds that the effect of the act is to „ appropriate public money to private use and to allow extra money to public .officers for services already performed.</p> <p>6. Same—Civil Service Pension Fund act is not invalid. The Civil Service Pension Fund act of 1911 is not invalid because it applies only to cities exceeding 100,000 in population, nor upon the alleged ground that the title does not sufficiently describe the purposes of the act.</p>

<p>1. Mechanics’ eiEns—foundation of mechanic’s lien is a valid contract. The foundation of the right to a mechanic’s lien is a valid contract with the owner of the lot or tract to be improved, or with his duly authorized agent, for the construction of an improvement thereon and the furnishing of material and labor, and while the lien is created by the statute and not by the contract, still a valid contract is essential to the creation of any lien under the statute.</p> <p>2. Same—the Mechanic’s Lien statute not intended to abridge right of contract. The Mechanic’s Lien statute was not intended to abridge or curtail the right of contract between the parties,' and where a contract between the original parties waives the right to a mechanic’s lien or is of such a character that no lien can accrue thereunder, the provisions of the Mechanic’s Lien law, in so far as they attempt to give a sub-contractor a lien in spite of the agreement of the original contractor, are unconstitutional and void.</p> <p>3. Same—clear language waiving all claim to a lien controls other provisions of contract. Clear language by which the original contractor agrees to deliver the work “free from all claims, liens and charges,” controls other provisions of the contract from which a sub-contractor might infer that he would have a lien, and as such language is a clear waiver of all claims for mechanics’ liens the sub-contractor is presumed to have contracted with full knowledge of that fact and acquires no additional rights by reason of the original contractor becoming bankrupt.</p> <p>4. Same—when owner’s right to have work delivered free from ail claims for liens is not forfeited. The right of the owner to the benefit of a clear provision of the contract that the original contractor will deliver the work free from all claims, liens and charges is not forfeited because the owner inserts in the contract provisions for his benefit allowing him to require the original contractor to furnish statements of indebtedness and authorizing the owner to withhold payments until such indebtedness is paid; nor is the owner obligated by such provisions to carry them out for the benefit of sub-contractors.</p> <p>5. Same—section 21 of the Mechanic’s Lien law is unconstitutional. Section 21 of the Mechanic’s Lien law, in so far as it attempts to give a sub-contractor a lien contrary to the clear .terms of the original contract, is unconstitutional. (Kelly v. Johnson, 251 Ill. 135, Cameron-Schfoth-Cameron Co. v. Geseke, id. 402, and Rittenhouse & Embree Co. v. Wrigley Co. ante, p. 40, adhered to.)</p>

<p>1. Municipal corporations—city possesses no inherent power to license any occupation. A city possesses 110 inherent power to license any occupation or to require the payment of a tax for engaging in the same, but such power must be expressly granted in its charter or be a necessary incident to the .powers so granted.</p> <p>2. Same—power to license sale of meats is incidental to regulating such sale. The power given to cities to regulate the sale of meats necessarily confers power to license the sale of meats as a means of regulation, but such power can be exercised only in connection with other proper regulations of the business.</p> <p>3. Same—city cannot, for purpose of revenue only, require a license for sale of meats. A city has no power to require a license for selling fresh meats where the imposition of the license is for revenue purposes only, there being no requirements in the ordinances of the city- with respect to the'inspection of the meats, the wholesomeness of the meats or the sanitary condition,of the places .where they are sold; nor can the ordinance requiring such license be- sustained as a health measure. (Kinsley v. City of Chicago, 124 Ill. 359, distinguished.)</p>

<p>Appeals and errors—when no freehold is involved in a proceeding to construe will. Where the testator devises his real estate to his executors in trust, with directions to sell the same and distribute the proceeds among the various beneficiaries in accordance with the provisions o£ the will, the gift to the beneficiaries is treated as one of money and not of land, and no freehold is involved in a proceeding to construe the will to determine the interests of the beneficiaries in the proceeds of the land in the hands of the executors.</p>

<p>This case is controlled by the decision in the case of People v. Miller, (ante, p. 148.)</p>

<p>1. Drainage—when assessment should not Joe confirmed. A levee drainage assessment should not be confirmed where there will be no benefit to the lands of the district unless another district shall construct an- outlet, which it has not obligated itself to do in such manner that the owners of lands in the former district can enforce the obligation.</p> <p>2. Same—when the entry of a judgment of confirmation is not harmless. The entry of a judgment confirming a levee drainage assessment against lands of the district which will not be benefited unless another district shall construct an outlet cannot be said to be harmless, even though the former district is prohibited from issuing bonds until a contract has been let for the construction of such outlet ditch, where the judgment provides that the assessments shall bear interest from the date ol‘ the judgment.</p>