Volume 265 — Illinois Reports

<p>1. Criminal law—paragraph 285 of Criminal Code was not intended to abrogate the common law rule as to insane defendant. Paragraph 285 of the Criminal Code, providing that when a person becomes insane after the commission of the crime he shall not be tried for the offense during the continuance of the insanity, was" not intended to abrogate the common law rule that no person can be compelled to plead to a criminal charge and be placed on trial for the crime while insane.</p> <p>2. Same—limits of inquiry where question of defendant’s sanity is tried as a preliminary issue. Where a trial is ordered to determine the. question of the sanity of a defendant who is claimed to be insane at the time he is to be arraigned on a criminal charge, the inquiry is limited to the question whether he is insane at the time of the empaneling of the jury, and it is beyond the province-of the jury to find that he has become insane since the commission of the crime.</p> <p>3. Same—-when admission of a verdict in insanity trial is reversible error. Where the only defense in a murder trial is the insanity of the defendant when the crime was committed, it is reversible error to admit in evidence the verdict of a jury on the question of the defendant’s sanity at the time he was to be arraigned on a former trial on the same charge, which verdict contains a finding that the defendant had become insane since the commission of the crime.</p> <p>4. Same—qualified expert may state his opinion as to hozo long insanity had existed. A qualified expert on insanity who has examined the defendant in a murder trial should be permitted to state his opinion, if he has one, as to how long the insanity of the defendant had existed prior to the time the witness made his examination.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William G. Cochran, Judge, presiding.</p>

<p>1. Constitutional law-—what is meant by the “subject” of an act. The “subject” of an act, as that word is used in the constitution, means the matter or thing forming the groundwork of the act, and it may contain many parts which grow out of it and are germane to it, and which, if traced back, will lead the mind to the subject as the generic head.</p> <p>2. Same—the Wash-room act of 1913 embraces but one subject. The Wash-room act of 1913 embraces but. the one subject of providing -wash-rooms, and the act is not invalid because the providing of the wash-rooms may have the double effect of protecting the health of employees and securing the public comfort.</p> <p>3. Same—when act is not invalid though title embraces more than one subject. If an act embraces but one subject which is expressed in its title the act is not invalid, even though the title expresses more than one subject.</p> <p>4. Same—when act must be assumed to have been intended to cover defects in former law. Where an act has been held unconstitutional by the Supreme Court and the legislature subsequently passes a new act on the same subject, it must be assumed that the legislature had before it the decision of the Supreme Court and intended by the new act to remedy the defects pointed out in the former law.</p> <p>5. Sams—Wash-room act of 1913 is not invalid as class legislation. The Wash-room act of 1913, properly construed, applies to all employments in which conditions exist that make such a law necessary and not merely to the employments enumerated and employments identical thereto, and is not invalid as class or special legislation.</p> <p>6. Same—Wash-room act of ipi3 not invalid because it interferes with property rights. The Wash-room act of 1913 is” a valid exercise by the legislature of the police power of the State, and is therefore not invalid because it interferes to some extent with property rights.</p> <p>7. Mines—Wash-room act of ipi3 is not ambiguous or uncertain. The Wash-room act of 1913 is not ambiguous or uncertain, as it applies to the employments specifically mentioned in the act and to all other like business of a permanent character where the same conditions prevail and where there are the same reasons why the law should apply.</p>

<p>1. Easements—what necessary to establish easement of private roadway.' To establish an easement of a private roadway over railroad tracks requires proof of the existence of the same elements that must be proved to establish a highway by prescription, and the use must have been adverse, uninterrupted, continuous and under a claim of right.</p> <p>2. Eminent domain—when defendant is not entitled to damages for destruction of private roadway. In condemnation the defendant is not entitled to damages for the destruction of a private roadway to his property over the petitioner’s tracks even though the same has been in use for forty years, where there is nothing in the record to show that such use has not been entirely permissive, as an adverse right cannot grow out of a permissive use.</p> <p>3. Same—when proof of what was paid for tract of land is not admissible. In a proceeding to condemn a strip-off of a tract of land for right of way purposes it is not competent for the petitioner to prove what the defendant’s ancestor paid for the entire tract some sixteen years before the condemnation proceeding.</p>

<p>1. Taxes—returns of hard roads tax election must be canvassed by supervisor, assessor and collector. While there is no provision in the Township Organization act or the Hard Roads act requiring the canvassing board designated in section 7 of article 7 of the Township Organization act to canvass the returns of an election on the proposition to levy a hard roads tax and to issue bonds for hard roads, yet it must be held that the legislature intended the returns to be canvassed by such board.</p> <p>2. Same—failure of a proper canvassing board to canvass returns is not fatal to the tax. If there is no question but that the vote of the people at a hard roads tax election was in favor of the proposition, the tax should not be defeated, on application for judgment and order of sale, because the returns were canvassed by the town clerk and a justice of the peace instead of by the proper canvassing board.</p> <p>3. Same—what not a valid objection to bond tax. It is not a valid objection to a hard roads bond tax that the highway commissioners did not hold a meeting to determine what action they should take in respect to presenting a petition to the supervisor of the town'and did not make any record in relation thereto. (People v. Gough, 260 Ill. 542, followed.)</p>

<p>Res judicata—a judgment in forcible detainer does not bar action of ejectment. A judgment in a forcible entry and detainer case adjudicates only the question of the right, to immediate possession and is. not a bar to an action of ejectment; nor can it be applied as an estoppel, except as to the question actually litigated and determined.</p>

<p>1. Pleading—when defendant is not relieved from admission in answer withdrawn by leave of court. The fact -that' the defendant’s original answer in a partition suit is withdrawn by leave of court does not relieve the defendant from the effect of an admission therein that the complainant was entitled to partition, where the record does not show that the order granting such leave was based upon an affidavit that the admission was improvidently made.</p> <p>2. Partnership'—how question whether real estate is partnership property is determined. Whether real estate is partnership property or not depends largely upon the intention of the partners, which may be shown by their acts and conduct or by proving an express agreement; and the mere fact of the use of the land by the firm does not make it partnership property, nor is it necessarily the individual property of the members of the firm because the title is held by them as individuals.</p> <p>3. Partition—fact that real estate is leased does not prevent' partition. The fact that the real estate sought to be' partitioned is leased to a tenant for a period of ten years, with an option to purchase, does not deprive a co-tenant of his right to partition, in the absence of any other circumstances tending to show an estoppel upon his part to claim partition. (Martin v. Martin, 170 Ill. 639, distinguished.)</p>

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

<p>1. Res judicata—in equity, former recovery must be pleaded ter entitle record of former case to admission. In equity the record of a former adjudication cannot be introduced in evidence by the defendant unless the former adjudication has been set up or relied upon by answer or plea, if an opportunity for doing so has been afforded the defendant.</p> <p>2. Same—burden of establishing an estoppel is on him who invokes it. The burden of establishing an estoppel is upon him who invokes it, and where a judgment in a former proceeding is relied .upon, it must appear that the court had jurisdiction to, and did, adjudicate the precise question claimed to be settled.</p> <p>3. Same-—what recital in decree does not show jurisdiction of person. Jurisdiction of the person of a defendant is not shown by a recital in the decree that he answered the bill, where the, record shows- he was insane before his appearance was entered and an answer filed by an attorney, who entered the appearance at the request of the insane defendant’s wife and who does not appear from the record to have been appointed guardian ad litem.</p> <p>4. Insane persons—when conveyance will be set aside without requiring return of consideration. Where an insane grantor does not receive the consideration paid nor any benefit therefrom the conveyance will be set aside in equity without any return or offer to return the consideration, even though the grantee may not have known the grantor was insane.</p>

<p>1. Police pensions—pensions are in the nature of bounties of the government. Pensions are in the nature of bounties of the government, which it has the right to give, withhold, distribute or recall at its discretion; and this is true although the party claiming the right to a pension may have had a percentage of his salary applied to the pension fund.</p> <p>2. Same—person acquires no vested, right to the police pension fund as against subsequent change in the lavs. The fact that at the time a person became a member of the police force the law then in force entitled him to a pension after ten years’ service does not give him a vested right to a pension under such conditions, regardless of a subsequent change in the law with respect to the term of service and other conditions with which it is not claimed he has complied.</p>

<p>Appeal from the County Court of DuPage county; the Hon. Charles D. Clark, Judge, presiding.</p>

Charles Whitney, Judge, presiding. Appellant filed her bill in chancery in the circuit court of Lake county, Illinois, against appellee, for an injunction to restrain him from interfering with her in the exercise of her rights which she claimed in the nature of an easement in certain water facilities and a way thereto, situated on the lands of appellee.

<p>Writ or Error to the Circuit Court of Woodford county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>Taxes—State Board of Equalization cannot make an arbitrary assessment of capital stock. The State Board of Equalization has no right arbitrarily to assess the capital stock of a corporation in disregard of its own rules for assessing the capital stock of all corporations and without reference to the requirements of such rules or any attempt to ascertain the actual value of such capital stock b.y any of the methods open to it.</p>

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

<p>Appear from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.</p>

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

<p>Writ op Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.</p>

<p>1. Deeds—when a deed stands as mere security for money advanced. Where a purchaser of land assigns his contract to a third person as security for payments to be made on the contract, and the assignee, on completing the payments, takes from the original vendor an absolute deed of conveyance, the deed will stand as mere security for the money advanced.</p> <p>2. Appeals and errors—when a freehold is not involved. A freehold is not involved on appeal from a decree holding a deed to be mere security for payments made by the complainant and ordering a conveyance to be made to him upon payment of the amount found due, as the complainant may or may not pay such balance.</p>

<p>1. Special assessments—failure to hold a public hearing does not render an ordinance and all proceedings void. Where an ordinance provides for the construction of a sidewalk with a berme of earth a public hearing is required, but the failure to hold such hearing does not render the ordinance and all other proceedings void, and such objection cannot be urged on the hearing under section 84 of the Improvement act, concerning the final certificate of the completion of the improvement.</p> <p>2. Same—failure to hold public hearing does not deprive county court of jurisdiction. It will be presumed when the board of local improvements recommends an ordinance for an improvement that a public hearing has been had if one is necessary, and the fact that no public hearing has been had does not deprive the county court of jurisdiction of the subject matter, and its judgment of confirmation is not, therefore, void but merely erroneous.</p>

<p>1. Drainage—record need not show affirmatively that commissioners have examined'all the land. While every fact essential to the jurisdiction of the county court to organize a drainage district under the Levee act -must affirmatively appear in the record, yet the examination of the land by the commissioners, as required by section 9, is not a jurisdictional fact and need not affirmatively appear in the record.</p> <p>2. Same—when failure of officer signing jurat to give his official character is not fatal. The failure of the-officer signing the jurat to an affidavit to state, after his signature, his official character is not fatal, where it appears from other papers in the record, including the file-mark on the affidavit itself, that such officer was county clerk and clerk of the county court.</p> <p>3. Same—zvhat does not invalidate the clerk’s notice of hearing. Under the Levee act the duty rests upon the cleric of the county court, upon the filing of a petition to organize a drainage district, to fix a time and place for hearing without any order of the court, arid the facts that a petition is presented to the court and the court enters an order setting the same time and place as fixed by the clerk for the hearing does not invalidate the notice of the clerk even though the order is faulty.</p> <p>4. Same—district may determine width of right of way needed. A levee drainage district, being a corporation having the power of eminent domain, may in good faith determine for itself the width of the right of way needed for its ditches, and the courts will not interfere with its determination in that regard unless' it appears there has been an abuse of discretion.</p> <p>5. Same—ozvner’s use of right of way not occupied by ditch is limited. Under the Levee act the owner of land through which a right of way for a ditch is condemned owns the. fee after condemnation, but he has only such right to use the land as is not inconsistent with the easement required by the drainage district.</p>

<p>Appeal from the Branch “B” Appellate Court for the First District;—-heard in that court on writ of error to--the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.</p>

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

<p>1. Evidence—what evidence is prima facie sufficient to establish a forgery. In a civil case, proof that the indorsement on a check or draft is not in the handwriting of the purported indorser is sufficient, prima facie, to establish a forgery and justify a judgment based upon the fact of such forgery without proof, in the first instance, that the party writing the indorsement was not authorized to do so.</p> <p>2. Same—when defendant cannot object to entries in books of account. Where the defendant in a civil suit offers in evidence entries in the plaintiff’s books of account to establish credits in the defendant’s favor on the assumption that the entries were competent evidence of admissions by the plaintiff, the defendant cannot deprive the plaintiff of the benefit of other entries in the books relating to the same subject matter by objecting to such entries on the ground that it appeared the books had not been honestly kept.</p> <p>3. Bills and notes—what does not defeat action to recover because of forged indorsements. In a civil suit to recover the amount of certain checks and drafts cashed by the defendant on alleged forged indorsements of the< plaintiff’s name, the fact that plaintiff might have brought actions against the makers or other indorsers does not affect the right of action against the defendant.</p> <p>4. Same—general rule as to indorsement of commercial paper. The general rule is, that a person or corporation called upon to act upon the faith of a written instrument, including an indorsement of commercial paper, must ascertain its genuineness at his peril; and this rule rests upon public policy and is necessary for the security of commercial transactions.</p> <p>5. Same—when express company is liable because of forged indorsements. Where an express company, in payment for money orders, accepts checks and drafts payable to a business corporation and bearing indorsements forged by an employee of the corporation, who converted the money orders to his own use, the express company is liable to the corporation for the amount of such checks and drafts, notwithstanding the corporation might have prevented the fraud had it used care in examining its books, which were kept by the employee, there being no question in the case of authority or apparent authority to make the indorsements as agent.</p> <p>6. Negligence—where there is no legal duty to exercise care there is no negligence in law'. While negligence is frequently defined as the failure to exercise that degree of care which ordinarily prudent persons are accustomed to exercise under like circumstances, yet it is an essential ingredient that there be a violation of a legal duty, and where there is no legal duty to exercise care there is no negligence in law.</p>

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

<p>x. Statute op Frauds—what is necessary to take oral contract out of .the Statute of Frauds. To take an oral contract relating to land out of the Statute of Frauds by part performance the contract and its terms must be established by clear and unequivocal evidence, and the acts relied upon as part performance must have been done under the contract itself and for the sole purpose of performing it.</p> <p>2. Same—acts of part performance must refer exclusively to the contract. Acts of part performance relied upon to take an oral contract relating to land out of the Statute of Frauds must refer exclusively to the contract, and be such as cannot be explained consistently with any other contract than the one alleged and such as would not have been performed but for the contract. .</p> <p>3. Same—possession must be taken under the contract. To take an oral contract relating to land out of the Statute of Frauds possession must be taken under the contract, and it is not sufficient that the alleged vendee was previously in possession.</p> <p>4. Trusts—'when no resulting trust exists in favor of husband. No resulting trust in favor of the husband exists in land conveyed to his wife, where he neither paid anything nor became liable to pay anything on the purchase price.</p>

<p>1. Statutes—the doctrine of episdem generis. Where general words follow particular and specific words in a statute the general words must be construed to include only things of the same kind as those indicated by the particular and specific words, unless there is something in the statute to show that such rule . should not be applied.</p> <p>2. Delinquent children—the act of 1905 applies only to one standing in loco parentis to delinquent child. Before a person can be punished for contributing to the delinquency of a child under the act of 1905 (Laws of 1905, p. 189,) the information must al- ' lege that such person stood in loco parentis to the delinquent child, as the words, “any other person,” used in the act, are limited by the preceding specific words, “any parent or parents, or legal guardian or person having the custody of any dependent, neglected or delinquent child.”</p>

<p>Writ of Error to the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Pope county; the Hon. W. W. Duncan, Judge, presiding.</p> <p>This case is a controversy between two railroad companies about the possession of a parcel of ground and the right to occupy it for the construction and operation of a railroad thereon. The ground is a narrow pass north of Golconda, in Pope county, which extends along the Ohio . river between the river on one side and high rocky bluffs on the other. Each company claims the exclusive right to build a railroad through this pass, and on February 6, 1913, the Golconda Northern Railway, claiming to be in possession of the pass engaged in the construction of its railroad, filed a bill against the Gulf Lines Connecting Railroad of Illinois for an injunction to restrain the latter from interfering with, obstructing or hindering the former in the construction of its railroad through the pass. A preliminary injunction was allowed, an answer was filed, a motion to dissolve the injunction was overruled, and after a hearing upon the pleadings and evidence the injunction granted was dissolved, the bill was dismissed for want of equity and a writ of restitution was awarded to the defendant, restoring it to the same possession of the premises as it had when the original bill was filed, so as to leave both parties in the same position as to the possession of the premises as they were when the suit was begun.. The complainant appealed, and by agreement of the parties an order was made for the preservation of the premises in the same condition until the final determination of the appeal.</p> <p>• The Toledo, St. Louis and New Orleans Railroad Company, to whose rights the appellee claims to have succeeded, was incorporated on March 18, 1902, for the. purpose of building a railroad from a point in Shelby county to a point on the Ohio river in Massac county, near Brookport. On July 23, 1909, it filed in the recorder’s office of Pope county a map of - its adopted, located lines through that county. Besides making a survey and marking this location it had procured many deeds for the right of way,, including conveyances from the owners of all the lands within the pass in controversy. During the summer of 1909 it cleared its right of way through the pass, to its full extent, of the heavy timber with which it was covered. This company did not complete the construction of any part of its railroad, and being unable to finish and put it in operation within ten years from the filing of its articles of association, as required by the Railroad Corporation act, on March 5, 1912, it executed two deeds purporting to convey all of its property, real and personal, including the right of way over the pass in question, to the appellee, the Gulf Lines Connecting Railroad of Illinois, which had been incorporated on January 22, 1912, for the purpose of building a railroad from a point in Vermilion county to a point on the Ohio river near Brookport. Immediately after the execution of these conveyances the appellee employed surveyors, who went upon the right of way,e including the premises in question, and ascertained the old lines, finding most of the old stakes,—enough to follow the entire line and identify it. The right of way which had been cleared, though overgrown with four years’ growth'of timber and underbrush, was well defined. A detailed report of the character and cost of construction was made by the engi-’ neer and a contract was entered into for the construction work. On Monday, November 25, 1912, the appellee’s engineer, with a party of assistants, was engaged in surveying, beginning at the north end of the pass, re-tracing the old lines, cross-sectioning and setting grade stakes for the construction force to go to work grading. This work continued throughout the week. On Friday night, November 29, the construction outfit, having been brought from Metropolis by boat, was unloaded on the premises in controversy, and from that time until the filing of the bill the work of grading and construction through the pass was actively prosecuted by the contractors.</p> <p>The appellant was organized as a corporation on March 13, 1909, for the purpose of building a railroad from Golconda to a point on the Ohio river near Elizabethtown, in Hardin county. It surveyed and located its line through the pass in controversy, procured a part of the right of way, and in August, 1912, began the work of construction about a mile from the river north of the north end of the pass. About the first of October the appellant’s construction force reached the river, and in November had arrived at the north end of the pass and was working there with teams. Between November 20 and 25 the appellant’s engineer began surveying through the pass from the north and met the appellee’s engineer engaged in the same work. On November 26 the appellant began to fence in the whole pass by attaching two wires to posts and trees along each side of the right of way, and by Saturday, November 30, completed this fencing. Guards were posted, and notices forbidding trespassing, signed by the appellant’s president, were put up. The appellee’s surveyors were at work on the right of way during all of the time the appellant was stringing these wires around them. No attention was paid to the fencing or the notices, and during December, January and February each company had a force of men at work in the disputed territory, grading and laying ties and rails, and each interfered with the work of the other, throwing off .the ties and rails and tearing down the grades of the other where they obstructed the work of the respective parties.'</p>

<p>Information to disbar.</p>

<p>Writ or Error to the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.</p>

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

<p>1. Witnesses—when relationship of a witness to complainants does not disqualify her. The fact that a witness offered in a will contest case is the mother of the complainants does not make her an interested party nor constitute any objection to her testifying if she is otherwise qualified.</p> <p>2. Same—when widow of testator cannot testify. In a will contest case the widow of the testator is not a competent witness to testify to the mental condition of the testator, even though she has been divorced from him for some time, where her testimony concerns conversations, facts and circumstances occurring during the time the marital relation existed, the knowledge of which she obtained only by means of such relation.</p> <p>3. Appeals and Errors—when objection to action in refusing instructions cannot be considered. An objection to the action of the court in refusing certain instructions in a will contest case cannot be considered on appeal, where such objection was not assigned as one of the grounds of the motion for a new trial.</p>

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

<p>1. Contracts—when question whether default is in a vital matter is for the court. Where there is a failure to comply with a particular provision of a contract and there is no agreement that the breach, of such provision shall operate as .a discharge, it is a question for the court whether the default is in a matter which is vital to the contract.</p> <p>2. Leases—what provision of lease is vital. Where a landlord leases a store room for a jewelry and art shop and inserts in the lease a provision that the lessor agrees, during the term of the lease, not to rent any other store in its building to any tenant making a specialty of selling pearls, such provision is vital to the contract, and upon a breach thereof the tenant may surrender the premises and is not liable for further rent.</p> <p>3. Same—when lease constitutes a bi-lateral contract. A lease executed by both lessor and lessee, which contains covenants to be performed by each of them, is a bi-lateral contract.</p> <p>4. Same—what is not a compliance by lessor with covenant not to rent to particular class of tenants. A covenant in a lease of a store by which the lessor agrees not to lease any other store in its building to any tenant making a specialty of selling pearls is not complied with merely by inserting in the lease of another store a- provision prohibiting the tenant from making a specialty of selling pearls, and if the lessor fails to enforce such prohibition the first lessee may terminate his lease and surrender possession and is not limited to an action of damages for breach of the contract.</p>

<p>Appeal from the Branch- “B” Appellate Court for the First District;—heard in that court on appeal from the ■ Superior Court of Cook county; the Hon. Richard E.</p>

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

Writ oe Error to the Branch “D” Appellate Court for the First- District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Charles W. Walker, Judge, presiding.

<p>1. Quo warranto—court must be asked in some zvay to carry demurrer back to information. A demurrer to a plea in a quo zvarranio proceeding reaches back through the whole record and attaches to the first substantial defect in the pleadings, but such 'defect must be pointed out to the court if it exists and the court must be asked in some way to carry the demurrer back.</p> <p>2. Same—right of signers of petition to consolidate school districts io withdraw signatures. Persons signing a petition to consolidate school districts have a right to withdraw their signatures prior to any action being taken on the petition.</p> <p>3. Same—effect when People reply to pleas by re-affirming the usurpation. Where the pleas to an information in the nature of quo warranto show upon their face a legal organization the People may reply by re-affirming the usurpation, and this will impose upon the defendants the burden of proving the facts alleged ill the pleas.</p> <p>4. Same—matters alleged in pleas by way of inducement are not subject to traverse. Replications which deny matters of inducement alleged in the pleas and tender an issue are bad, for the reason that facts alleged by way of inducement are not subject to traverse; and replications which deny matter of inducement and conclude with a verification are bad for both reasons.</p> <p>5. Same—when it is error to overrule demurrer to replication. Where a replication amounts to a mere averment that the matters and things alleged in the pleas are not true and applies only to matters of inducement the replication is bad, and it is error to overrule a demurrer thereto.</p> <p>6. Schools—petitions hazjing necessary majority of legal voters are essential to the jurisdiction to create new district. Petitions signed by a majority of the legal voters of two school districts are essential to the jurisdiction of the board of trustees to consolidate the districts and create a new district, and if certain signers of the petitions withdraw their signatures before any action is taken oil the petition and the withdrawal leaves the petitions without sufficient signers, the order of the board creating a new district is null and void.</p> <p>7. Same—purpose of serving copy of petitions to consolidate school districts. The purpose of serving copies of the petitions to consolidate school districts is to afford an opportunity for the districts concerned to appear and present reasons for or against the allowance of the petitions; and it is not sufficient to serve such copies on the clerks of the district boards if such clerks have signed the petitions for such consolidation.</p> <p>8. Appeals and errors—when a pidgment should not he reversed, for error in rulings on pleadings. Error in rulings upon the pleadings is not ground for reversal of a judgment of ouster in a quo warranto proceeding where all the evidence competent under any pleadings that could be filed was admitted.</p>

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

<p>1. Railroads.—when Federal Employers’ Liability act does not apply. Under the decision of the Supreme Court of the United States in Illinois Central Railroad Co. v. Behrens, 233 U. S. 473, the provisions of the Federal Employers’ Liability act are limited to injuries occurring while the particular service in which the employee was engaged was a part of inter-State commerce.</p> <p>2. Practice—when request for a peremptory instruction presents a question of law. A request for a peremptory instruction to direct a verdict for the defendant railroad company as to counts of the declaration relying upon the Federal Employers’ Liability act presents a question of law, where there are no disputed facts in the evidence on that question and no room for two conclusions from the evidence, under the law as laid down by the Supreme Court of the United States.</p> <p>3. Same—when right to assign error on refusal of peremptory instruction is not waived. The right of a defendant to assign error on the ruling of the trial court refusing a peremptory instruction is not waived by the defendant subsequently requesting an instruction based upon the view of the law taken by the court.</p> <p>4. Same—limit on authority of the Appellate Court to make a finding of facts. The authority of the Appellate Court to make a finding of facts is limited to cases where it finds the facts wholly' or in part different from the finding of the trial court.</p> <p>5. Same—when Appellate Court has no authority to find that the plaintiff was guilty of contributory negligence. Where there are counts charging a violation of the Federal Employers’ Liability act and a count charging common law negligence, but in addition to the general verdict of guilty there is a special finding that the plaintiff and the defendant at the time of the accident were engaged in inter-State commerce, such finding precludes any liability under the common law count, but the Appellate Court, on reversing the judgment because it finds that the parties were not engaged in inter-State commerce, cannot make a finding that the plaintiff was guilty of contributory negligence and make such finding the basis of a final judgment in that court.</p> <p>6. Same—what is not a finding by the jury that plaintiff was negligent. Where the court assumes in a special interrogatory that the plaintiff was guilty of contributory negligence and asks the jury how much should be deducted on that account from the damages sustained, which intérrogatory is answered, “$5000,” the answer so made cannot be regarded as a finding by the jury that the plaintiff was guilty of contributory negligence.</p>

<p>1. Quo warranto—office of information in nature of quo warranto. The office of an information in the nature of quo warranto is not to tender an issue of fact, but merely to call upon the defendants, in general terms, to show by what warrant they are exercising the privilege claimed, and it is sufficient to allege, generally, that they are exercising the same without lawful authority.</p> <p>2. Same—the People are not required to set out any specific facts. In an information in the nature of quo warranto the People are not required to set out any specific facts upon which to base the charge that the defendants are exercising a certain privilege without lawful authority, but the defendants must in their plea either disclaim or justify, and if they justify they must set out such facts’as will refute the charge.</p> <p>3. .Same—what is sufficient ground for information in quo warranto. An information in the nature of quo warranto to test the legality of the annexation of lands under section 42 of the Farm Drainage act may rest solely upon the ground that the annexed lands had not been connected with the ditches of the district, and it is not necessary for the People to either allege or prove fraud by the defendants.</p> <p>4. Same—pleading to an information waives alleged error in overruling a demurrer. By pleading to an information in the nature of quo warranto the defendants waive their right to assign as error the overruling of a demurrer to the information based upon the alleged ground that the information was double, in that it charged the defendants with separate and distinct usurpations as to each tract of land claimed to have been annexed to defendants’ drainage district without authority of law.</p> <p>5. Same—what must he shown to justify annexing lands to a drainage district. Where the defendant drainage commissioners attempt to justify their action in'annexing the lands of the relators to the district, under section 42 of the Farm Drainage act, on the ground that the relators had connected their lands with the ditches of the district, it is incumbent upon the defendants to prove such connection as to each tract in controversy.</p> <p>6. Drainage—what must he proven to show connection zvith ditches of district. In order to establish that a tract of land lying outside a farm drainage district has been connected by the owner with the ditches of the district, it is not sufficient to show, merely, that the waters from such land ultimately pass into and through the district ditches, but it must further be shown that an artificial ditch has been constructed leading from the land directly into the district ditch or into some ditch which has theretofore been artificially connected with the drainage ditch.</p> <p>7. Same—what does not amount to connection zvith ditches of the district. Where the lands in a drainage district as originally formed have always been servient, as to drainage, to lands not included in the district, the fact that the owners of the latter lands collect the surface waters upon their respective tracts and by means of tile drains or open ditches conduct them, in the natural course of drainage, into natural water-courses which directly or indirectly empty into the ditches of the district, does not amount to a connection of the lands with the ditches of the district, as meant by section 42' of the Farm Drainage act.</p>

<p>Appeal from the Circuit Court of Moultrie county; the H011.' W. G. Cochran, Judge, presiding.</p>

<p>1. Negligence—the essential elements of actionable negligence. The essential elements of actionable negligence are, first, a duty imposed by law to exercise care in favor of the person for whose benefit the duty is imposed; second, the failure to perform that duty; and third, a consequent injury so connected with the failure to perform the duty that the failure is the proximate cause of the injury.</p> <p>2. Same—what necessary to constitute proximate cause. To make a breach of duty the proximate cause of an injury the injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen might occur as a probable result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which might result from his act.</p> <p>3. Same—when negligence is not the proximate cause of an injury. If the negligence complained of does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury.</p> <p>4. Same—when violation of ordinance against selling guns to minors does not create liability. The mere violation of an ordinance prohibiting the sale of guns to minors does not render the seller liable for an injury caused by the purchaser, a boy fifteen years old, who, while shooting with the gun at a target on the fence in his back yard, shot a person walking in the alley, where there is no averment in the declaration that the.purchaser of the gun was inexperienced in the use of fire-arms or unfit in anywise to handle or use them.</p> <p>5. Appeals and Errors—when party need not state zvhat he expects lo prove. Where a question is in proper form and clearly admits of an answer relative to the issue and favorable to the party calling the witness, the party is not bound to state the facts proposed to be proved by the answer when an objection is sustained to the question unless the court requires him to do so.</p> <p>6. Same—when right to urge a ruling on evidence as error is waived. The right to urge as error a ruling on evidence is waived where the written motion for new trial makes no mention of any ruling on the admission or exclusion of evidence.</p>

Writ or Error to the Branch “B” Appellate Court for the Eirst District;—heard in that court on appeal from the Circuit. Court of Cook county; the Hon.. DuanR J. .Carnes, Judge, presiding.

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

<p>1. Drainage—when limit of thirty cents per acre for annual assessment does not apply. Under section 26% of the Levee act, as amended in 1913, the limit of thirty cents per acre for the annual assessment does not apply to districts which had at the time of the amendment, or might thereafter have, pumping plants, the only limit in such case being that the amount cannot exceed the benefit to the land.</p> <p>2. Same—effect where district has made no adequate provision for operating pimping plant. The fact that a levee drainage dis-, trict has made no adequate provision for operating a pumping ■ plant does not preclude confirmation of an assessment to construct such plant and ditches leading thereto, as the commissioners have power, under sections 17^2 and 26^2 of the Levee act, as amended in 1913, to make adequate provision for such operation by annual assessments, and to do so is their imperative duty, which may, if necessary, be enforced by mandamus.</p>

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

<p>Writ or Error to the Circuit Court of Cook county; the Hon! Jesse A. Baldwin, Judge, presiding.</p>

Charles B. Campbell, Judge, presiding. On September 2, 1910, appellant, J. Edward Kinsella, filed a bill in chancery in the circuit court of Kankakee county against appellees, Abe Olds and L. P. Swannell, and others, for the purpose of quieting title in him to certain tracts of land situated in sections 14, 15, 16, 21, 22 and 23, in township 31, in that county.

<p>Appear from the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding.</p>

<p>1. Evidence—partnership signature not presumed to have been written after partnership ceased. Where the signature to the certificate to xan abstract of title is proved to be in the handwriting of one member of the firm it is not necessary to prove that the signature was attached before the partnership ceased to exist, as it will not be presumed that the partner signed the firm name when there was no firm.</p> <p>2. Same—zvhen objection must point out alleged unintelligible matter in abstract of title. An objection that an abstract of title contains matter, in the form of isolated letters, figures and words, which makes the document unintelligible “except in certain parts thereof,” is properly overruled where no attempt is made to point out the unintelligible portions so their meaning can be explained.</p> <p>3. .Constitutional law—meaning of provision requiring use of English language in judicial proceedings. The constitutional provision that judicial proceedings shall be' preserved and published in no other than the English language refers to the preservation and publication of the record history of a cause, while the provision that such proceedings shall be conducted in the English language does not mean that the oral testimony, depositions and documentary evidence shall be in the English language, but only that their meaning shall be explained in the English language to the court and jury.</p>

<p>1. Appeals and errors—bill of exceptions is not necessary to a review of errors in the record proper. The purpose of a bill of exceptions is to enable a party to have a review of matters which would otherwise not be of record, but no bill of exceptions is necessary or proper for the purpose of a review of errors assigned upon the record proper, and such errors may be considered notwithstanding the party does not avail himself of the privilege of filing a bill of exceptions.</p> <p>2. Quo warranto—when corporation is not a proper party defendant. Where a quo warranto proceeding is against an existing corporation for a misuse of its franchise or an usurpation of powers not conferred the information should be against the corporation, and if it appears and pleads in its corporate character its corporate existence cannot afterward be controverted; but where the purpose of the proceeding is to challenge the existence of a corporation by calling upon individuals to show by what right they claim to hold and exercise the franchise of a corporation the corporation itself is not a proper party.</p> <p>3. Same—People have right to inquire into title by which corporate franchise is claimed. A corporate franchise proceeds from the sovereign power,, and the People have the right at all times to inquire into the title by which such a franchise is claimed or exercised and to a judgment' of ouster if the franchise was improperly-granted, and the statute expressly authorizes the Attorney General or State’s attorney of the proper county to prosecute, by leave of court, an information in the nature of quo warranto to try the right to the franchise claimed.</p> <p>4. Same—prosecution by information in quo warranto is within section 33 of article 6 of the constitution. A prosecution by information in the nature of quo warranto is within section 33 of article 6 of the constitution, requiring all prosecutions to be carried on “in the name and by the authority of the People of the State of Illinois” and to conclude “against the peace and dignity of the same,” but there may be a compliance with such provision though the words are not in the precise form contained in the constitution.</p> <p>5. Corporations—payment of one-half of the capital stock is a condition precedent to lawful organization. The provision of the statute authorizing the Secretary of State to issue a certificate of complete organization upon the filing of a sworn report of the commissioners that at least one-half the capital stock has been paid in, contemplates that such report shall be true and that the payment of one-half the capital stock shall be a condition precedent to the lawful organization of the corporation, and if such report is false in that respect the People may in a direct proceeding successfully attack the corporate existence of the supposed corporation. (Foster v. Hip Lung Ying Kee & Co. 243 Ill. 163, distinguished.)</p>

<p>1. Statutes—statute should be construed, if possible, to give meaning to all its words. A statute should be so construed, if possible, as to give effect to each word, clause and sentence, so that no word, clause or sentence shall be rendered superfluous, but it is also the rule that such construction should be adopted as will give effect to the intention of the legislature.</p> <p>2. Municipal corporations—city of Chicago has power to determine the amount of city funds to be deposited. Under the act of 1905, relating to the city of Chicago, the city council has powér to designate as many depositary banks as it deems necessary; and this power carries with it the authority to fix and determine the amount to be deposited with each depositary and to prescribe all necessary rules and regulations with respect thereto.</p> <p>3. Same—sections 64 and 66 of the Chicago code of 1911 are authorised by statute. The provisions of sections 64 and 66 of the Chicago code of 1911, relating to the designation, by the city council, of depositary banks in which the city treasurer shall deposit city funds, are authorized by the act of 1905, relating to the city of Chicago, and are not invalid, as interfering with the powers of the city treasurer conferred by the Cities and Villages act.</p> <p>4. Same—provision of the Chicago ordinance that comptroller shall designate the active bank is not invalid. The provision of section 64 of the Chicago code of 1911 that the city comptroller shall designate each month, as the active bank, one of the banks selected by the city council as depositary banks, is not invalid.</p> <p>5. Same-—-provisions of sections 64 and 66 of Chicago code apply to “school funds.” The provisions of sections 64 and 66 of the Chicago code of 1911 requiring the city treasurer to deposit city funds in depositary banks selected by the council and in the active bank designated by the comptroller apply to “school funds” of the city, as such funds are part of the city’s funds, notwithstanding section 137 of the School law requires the city treasurer to hold school moneys as a special fund.</p>

<p>1. Taxes—vahen a road district tax is invalid. A road district tax attempted to be levied under the former Roads and Bridges law after the same had been repealed by the new Roads and Bridges law in force July 1, 1913, is invalid and its collection cannot be enforced.</p> <p>2. Same—amount voluntarily paid for road district tax cannot be set off against other taxes. The fact that a railroad company volunarily pays a road district tax does not entitle it to have such payment credited upon a subsequent road and bridge tax levied under the act of 1913.</p>

<p>1. Trusts—when resulting trust arises. Where land is purchased and paid for with the money of one person but the. title is taken in the name of another who is not the child or the wife of the former, a resulting trust arises in favor of the person whose money paid for the land.</p> <p>2. Same—source from which person obtained the money is immaterial if it was her own. If the money paid by a young woman for land, the title to which was taken in the name of the mother of her affianced husband, was, in fact, her own money, it is not material that the money, or a part of it, was given to her by her affianced husband.</p> <p>3. Same—•what averments do not allege express trust. Averments that the complainant in the bill consented and agreed that the title to premises purchased with her money should be placed for the time being in a certain person in trust for complainant and that the premises were so conveyed by warranty deed to such person do not allege an express trust, there being no allegation that the grantee agreed to hold the title in trust or agreed to anything.</p> <p>4. Same—when statements of the husband do not affect wife’s right to have trust declared. Where a woman has purchased land and had the title conveyed to a third person to hold for her, her right to have a resulting trust declared is not affected by acts or statements of her husband, not authorized or assented to by her, designed to show that the title was conveyed in trust to aid the husband and wife in carrying on the illegal business of “bootlegging.”</p> <p>Same—when the record of the husband’s conviction is irrelevant. In a proceeding .to establish a resulting trust in favor of the complainant in land the title to which is in the name of the mother of complainant’s husband, the record of a conviction of the husband for maintaining a nuisance and ordering that “the place where such liquor was so sold be shut up and abated” is irrelevant and is properly denied admission in evidence.</p>

<p>Writ op Error to the Circuit Court of Saline county; the Hon. W. N. Butler, Judge, presiding.</p>

<p>. 1. Special taxation—when supervision of a sidewalk is controlled by general ordinance. Where a general sidewalk ordinance •provides that sidewalks shall thereafter be constructed under the general supervision of the city engineer and sidewalk committee, and a subsequent special ordinance for a sidewalk merely provides that the work shall be done under the Sidewalk act of 1875 as amended in 1905, without mentioning any officer or board to supervise the work, the supervision of the sidewalk is controlled by the general ordinance.</p> <p>2. Same—zvhat a compliance with statute as to filing a special tax list. The provision of the Sidewalk act requiring a special tax list to be prepared by the officer or board having charge of the construction of the sidewalk and filed in the office of such officer or board is complied with where the list is filed, as required by the special ordinance, in the office of the city engineer, who, with the sidewalk committee, had charge of the construction of the walk; and the fact that a copy of the list is filed in the office of> the city clerk does not affect the situation.</p> <p>3. Same—when bill of costs is sufficient. A bill of costs showing, in separate items, the cost of excavating, cost of materials and the cost of laying down and supervision of the work sufficiently complies with the Sidewalk act as amended in 1905, requiring the bill of costs to show the “cost of the construction and supervision” of the sidewalk.</p>

<p>1. Criminal law—statute relating to change of venue should be construed the same in civil and criminal cases. A statute relating to change of venue should receive a reasonable construction, and the construction should be the same in civil and criminal cases.</p> <p>2. Same—the rule as to a change of venue for prejudice of the judge. A party applying for a change of venue for prejudice of the judge obtains all the relief he is entitled to when another judge who has no interest in the case and is unprejudiced is called in to try the case.</p> <p>3. Same—change of venue for prejudice of judge does not require removal of case to another county. The statute providing for a change of Venue because of prejudice of the judge was not enacted for the purpose of allowing a change of venue from the county, as in case of prejudice of the inhabitants.</p> <p>4. Same—when result of examination of books and documents may be given by a witness. Where original evidence consists of numerous books, documents, papers and records which cannot be conveniently examined in open court and the fact to be proved is the general result of an.examination of the whole collection, evidence as to such result may be given by any competent person who has examined the originals, provided the result is capable of being ascertained by calculation.</p> <p>5. Same—when it is error to exclude warrants from the evidence. Where the employees of a city treasurer’s office, following the established custom prevailing in the office under previous administrations of other city treasurers, pay warrants in advance of their approval and allowance by the comptroller and city council, it is error, in a prosecution of the city treasurer for withholding city funds from his successor with criminal intent, to exclude from evidence such of the warrants as are not shown by direct evidence to have been paid to the persons named therein.</p> <p>6. .Same—when a motion to impound documents and permit an investigation should be allowed. In the prosecution of a city treasurer for withholding funds from his successor with criminal intent, a motion to impound the books and documents in the possession of the prosecution and permit an examination thereof by the accused before the trial should be allowed, where it appears that such an examination is necessary to give the defendant time to investigate the charges and procure the attendance of the necessary witnesses.</p> <p>y. Same—when motion for bill of particulars should be allowed. While the allowance of a motion for a bill of particulars rests within the sound discretion of the court, yet it should be allowed where the charge is so general that the accused cannot properly prepare his defense without a more specific statement of the charge.</p> <p>8. Same—rule as to allowing a private attorney to assist the State’s attorney. Whether private attorneys shall be allowed to assist the State’s attorney in prosecuting a criminal case rests largely in the discretion of the court under the particular facts and circumstances of the case, but it is the duty of the court to prevent oppression of, the accused and permit only such assistance as justice and fairness may require.</p> <p>9. Same—when it is error to allow private attorney to conduct prosecution. It is reversible error to allow a private attorney to practically conduct the prosecution of a city treasurer, where such attorney has been in the employ of the accused as his adviser during the administration of the accused, in matters closely related to and interwoven with the subject matter of the prosecution.</p> <p>10. Same—an attorney in the case is not disqualified to testify. The fact that a witness is employed as an attorney in the case does not preclude his testifying but only affects the question of the credibility of his testimony.</p> <p>©</p> <p>11. Same—-a client may waive privilege against disclosures by attorney. A client may waive the privilege against disclosure by his attorney of confidential matters, and does so when he voluntarily testifies thereto himself; but the waiver extends no further than the subject matter concerning which the client testifies.</p> <p>12. Same—statute requiring demand to turn over funds should be reasonably construed. While section 215 of the Criminal Code requires a demand upon a public officer to turn over funds to his successor, except under the circumstances coming within the proviso, yet the statute must be given a reasonable and practical construction as to what constitutes such demand.</p> <p>13. Same—instruction should not authorize 'jury to treat testimony of accused different from that of other witnesses. An instruction is objectionable which is so worded as to lead the jury to believe they may treat the testimony of the accused different from the testimony of other witnesses.</p> <p>14. Same—when testimony of accused cannot be disregarded. The right of the jury to disregard the uncorroborated testimony of the accused or any other witness is limited to cases where they believe, from the evidence, that the witness has willfully testified falsely to a matter material to the issues being tried.</p> <p>15. Same—when instruction on the presumption of innocence should be qualified. An instruction stating, in effect, that the rule which clothes every person with the presumption of innocence and imposes upon the State the burden of establishing his guilt beyond a reasonable doubt is not intended to aid anyone to escape who is, in fact, guilty of crime, should be qualified with the statement that such rule is a humane provision intended to prevent any innocent person from being unjustly punished.</p>

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

<p>1. Elections—county commissioners of Cook county are constitutional officers. The county commissioners of Cook county are constitutional officers as distinguished from legislative officers, so called, who are elected to offices which can be created by the legislature.</p> <p>2. Same—the legislature cannot change qualifications of electors for county commissioners. The legislature has no power to change the qualifications specified in section 1 of article 7 of the constitution for electors for county commissioners, notwithstanding section 7 of article 10 of the constitution provides that such commissioners shall be selected “in such manner as may be provided by law,” as the word “manner” refers only to the usual details required for holding an election.</p> <p>3. Same—women cannot vote for the county commissioners of Cook county nor for the president of such board. The Women’s Suffrage act of 1913 does not authorize women to vote for county commissioners of Cook county, nor can they; vote for the president of such board of commissioners even though such office is not provided for in the constitution, as the law requires that the president of the board must be one of the candidates for the office of county commissioner.</p>

<p>1. Taxes—amount voluntarily paid in labor cannot be set off against subsequent tax. The amount voluntarily paid in labor to satisfy a district road tax cannot be set off against a subsequent road and bridge tax levied under a new law.</p> <p>2. Same—what does not render special hard roads tax invalid. The fact that a special hard roads tax was put upon the tax books before it was due and judgment was for that reason refused, does not furnish a valid objection to such tax when it is put upon the next year’s tax books after it is due.</p> <p>3. Same—lien for taxes is confined to the property in the taxing district. The lien upon property for taxes is confined to the property in the taxing district, and hence a judgment against railroad property for a special hard roads tax of a certain town should be limited to the property of the railroad company in such town.</p>

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

<p>1. Taxes—item “for repairs of county property” is sufficiently definite. An item of a county tax “for repairs of county property” is sufficiently definite to meet the requirement of section 121 of the Revenue act as to the several purposes óf a county tax being stated separately.</p> <p>2. Same—items of “sinking fund, $1000, interest, $475” sufficiently state the' purpose of the tax. Items of a county tax for “sinking fund,g $1000, interest, $475,” sufficiently state the purpose of the tax in view of the language of the act of 1905 enabling county boards to issue bonds and levy a tax for accrued interest and a sufficient sum to be set apart as a sinking fund.</p> <p>3. Same—when pay of keeper of poor farm cannot be included in item for salaries of county officers. The keeper of the county poor farm, who obtains his place by being the lowest responsible bidder for performing the duties of such keeper, is not a county officer, and his pay cannot be included in a county tax item “for salaries of county officers.”</p> <p>4. Same—county board may include an estimated amount for salary of the State’s attorney. The county board may include in the county tax item “for salaries of county officers” a reasonable amount with which to pay the county’s portion of the State’s attorney’s salary in case the fees, fines, forfeitures and penalties paid into the county treasury are not sufficient for that purpose.</p> <p>5. Same—county board has the power to levy a tax for State aid roads. , A county board has power to levy a tax for State aid roads, and is not limited, in the matter of raising such fund, to section 22 of the Roads and Bridges act of 1913. (People v. Kankakee and Seneca Railroad Co. ante, p. 497, followed.)</p> <p>6. Same—when an objector cannot take advantage of failure to amend record. An objector cannot take advantage of the failure to amend a record in .accordance with leave granted by the court just before taking its noon recess, where he prevailed upon the' court, after the recess, to admit the record in evidence although the attorney for the People objected to its admission upon the ground that he had gone home to dinner during the recess and had not had time to make the amendment.</p>

<p>1. Wills—when the Supreme Court will review the evidence although no peremptory instruction was asked. In a will contest case brought directly to the Supreme Court the evidence will be reviewed regardless of whether a peremptory instruction was requested in the trial court, and the judgment will be reversed if in the judgment of the Supreme Court the judgment and verdict are clearly against the weight of the evidence. (Dowie v. Sutton, 227 Ill. 183, explained.)</p> <p>2. Same—what does not show that testator lacked testamentary capacity 011 the day he made his will. Testimony by a physician who treated the testator, two days after the will was made, for an abscess above the nose, to the effect that the testator was suffering intensely and that the witness did not think he was in a condition to transact ordinary business,- and that he judged from what he saw and what the testator said to him that such condition had lasted several days, does not necessarily show that the testator lacked testamentary capacity when the will was made.</p> <p>3. Same—mere infirmity and old age do not' necessarily show want, of testamentary capacity. To sustain a charge of want of testamentary capacity something more must be shown than mere infirmity or old age on the part of the testator.</p> <p>4. Same—unreasonable prejudice against relatives is not ordinarily ground for setting aside will. An unreasonable prejudice against relatives is not ordinarily ground for setting aside a will, unless it can be explained upon no other ground than that of an insane, delusion.</p> <p>3. Same—unequal division of testator’s property does not show want of testamentary capacity. An unequal division of the testator’s property among his heirs does not, of itself, justify holding that he did not possess testamentary capacity.'</p> <p>6. Same—fact that testator believed in a dream about hidden treasure does not invalidate will. The fact that the testator related a dream he had had about hidden treasure and said he believed he would find it is not ground for holding his will invalid, where such fact in no way appears to have influenced him in making the will.</p> <p>7. Same—what does not show want of testamentary capacity. The facts that the testator shed tears when conversing about his deceased daughter and grew excited at times when talking about business affairs do not show that he lacked testamentary capacity.</p> <p>8. Same—effect of proof that testator had hardening of the arteries. In determining the effect of proof that the testator, an old man, had hardening of the arteries, the question is not what the tendency of such disease is, but what the effect of such disease was in the particular case.</p> <p>9. Same—person capable of transacting ordinary business has testamentary capacity. A person who is capable of transacting ordinary business is capable of making a valid will.</p> <p>10. Same—a witness may state that he observed no change in mental condition of testator. A witness who was present when the will was made may state that he observed no change in the testator’s mental condition then from other times he had seen him.</p> <p>11. Same—when an instruction as to knowing the extent of property is improper. An instruction requiring, as a condition of possessing testamentary capacity, that the testator know, “without prompting,” the nature and extent of his property is improper, particularly where there is no evidence that he was prompted by anyone when he was making the will.</p> <p>12. Same—when instruction as to justice .of will is misleading. An instruction concerning the right of the testator to leave but a small amount of property to his only direct heir is misleading, where its tendency is to cause the jury to believe they had a right to decide whether the will was just or unjust as to the various relatives and give their verdict accordingly.</p>

<p>1. Taxes—district road tax levied after law was repealed is invalid. A district road tax not levied until after the law authorizing it had been repealed is invalid.</p> <p>2. Same—a county board has power to levy tax for State aid roads. A county board has power to levy a tax to raise money for State aid roads. (People v. Kankakee and Seneca Railroad Co. ante, p. 497; followed.)</p>

<p>Appeal from the County Court of Adams county; the Hon. Lyman McCarl, Judge, presiding.</p>

<p>Appeal from the Branch “B” Appellate Court for the First Districtheard in that court on appeal from the Municipal Court of Chicago ; the Hon. William N. Gem-mill, Judge, presiding.</p>

<p>1. Taxes—a county board may levy a tax for State aid roads. A county board may levy a tax for State aid roads under its general power to levy taxes for county purposes, and is not limited to the methods prescribed in section 22 of the Roads and Bridges act of 1913 for raising the money for such roads. (People v. Kankakee and Seneca Railroad Co. ante, p. 497, followed.)</p> <p>2. Same—what does not render tax for State aid roads illegal. The fact that there may be money in the county treasury available for State aid roads does not necessarily render illegal a tax levy for State aid roads, as it is the duty of a county board to use sound business judgment in the levying of taxes so that the county credit will not be impaired.</p>

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

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

<p>Appeal from the County Court of Clinton county; the Hon. James Allen, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding.

<p>Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.</p>

<p>1. Specific performance—what is meant by a “merchantable abstract of title.” A contract for the sale of land which requires the owner to convey the land “in fee simple, clear of all encumbrances whatever, by good and sufficient warranty deed,” the title to be shown by a certain date and at a later date the owner to deliver to the purchaser “a warranty deed and good merchantable abstract of title,” calls for an abstract of title showing a good merchantable title and not merely a merchantable abstract.</p> <p>2. Same—when refusal to accept a deed and abstract is not a ground for forfeiture. Where the owner of land has agreed to convey'the same in fee simple, free from all encumbrances, and to furnish an abstract showing a good merchantable title, he is not required to furnish an' abstract showing a perfect title of record, but if the abstract furnished by him does not show a connected title of record and is not supplemented by affidavits or proof supplying the facts necessary to show a good merchantable title, a refusal to accept the abstract, and the deed tendered therewith, does not justify the owner in declaring the contract forfeited.</p> <p>3. Same—what constitutes a valid objection to abstract of title. Where the abstract of title shows a certificate,of the purchase of the lands from the State by Noah C. Anderson 'but no patent of record, and the next conveyance of record is from Noah C. Amsden as grantor, the fact that there is no conveyance shown from Anderson to Amsden is a valid objection to the abstract of title, in the absence of anything showing identity of parties or possession of the land, who had been in possession or how long they had been in possession.</p>

<p>Appeal from the County Court of Brown county; the Hon. W. Y." Baker, Judge, presiding.</p>

<p>1. Taxes—district road tax does not become a tax against land until levied by board of supervisors. Where the commissioners of highways, under the laws that existed before July i, 1913, have determined how much money shall be raised by a district road tax and have made out and delivered the list the tax may be paid in labor, but it does not become a tax against land until the list has been delivered by the overseer to the supervisor and the board of supervisors has levied the tax.</p> <p>2. Same—tax not in accordance with law at time of levy is invalid. A district road tax attempted to be levied by the board of supervisors on the overseers’ delinquent lists after the repeal by the Roads and Bridges act of 1913 of the law authorizing such levy is invalid.</p> <p>3. The other question here involved is controlled by the decision in People v. Illinois Central Railroad Co. (ante, p. 429.)</p>

<p>■ Writ op Error to the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.</p>

Writ oe Error to the Branch “B” Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. William N. Gem mill, Judge, presiding.

<p>1. Special assessments—effect of a special finding that property is benefited no more than amount assessed. If a judgment confirming a special assessment contains a special finding that the property is benefited no more than it is assessed, such finding is a bar to any supplemental assessment to pay a deficiency in the cost of the improvement.</p> <p>2. Same—zvhen it is error to find specially that the property is benefited no more than assessed. Before the court is authorized to incorporate in a judgment of confirmation a special finding that the property is benefited no more than it is assessed there must be an issue made and a hearing had on evidence presented under such issue, and it is error to make such finding upon the mere statement of counsel for the property owner that’ he tenders such issue and desires the court to make a finding thereon.</p>

<p>Appeal from the County Court of Lee county; the Hon. Robert H. Scott, Judge, presiding.</p>

<p>Mandamus—courts do not take jtidicial notice of population of school district. Where the statutory provisions sought to be enforced by a petition for mandamus against school officers to compel them to hold an election are applicable only to school' districts of a "certain population, the petition must allege the population of the school district in which the election is sought, as the courts will not take judicial notice of that matter.</p>

<p>Appeal from the- County Court of Bureau county; the Hon. James R. Prichard, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding.</p>

<p>1. Taxes—Roads and Bridges act of 1913 changes method of certifying the hard roads tax. While such of the provisions of the Hard Roads act of 1883 as are retained unchanged in the Roads and Bridges act of 1913 must be regarded as having been continuously in force notwithstanding the express repeal of the Hard Roads act, yet the provision as to certifying the tax has been changed by the act of 1913 so as to require the highway commissioners to certify the tax directly to the county clerk, and unless the tax is certified in such manner it is invalid.</p> <p>2. The question of the validity of the road and bridge taxes here involved is controlled by the decision in People v. Illinois Central Railroad Co. (ante, p. 429.)</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. William B. ScholEiELD, Judge, presiding.</p>

<p>1. Appeals and errors—when refusal to permit proper questions to be answered is not harmful: Refusal of the court to permit proper questions to be answered is not harmful, where the facts sought to be proved by such questions are established by testimony of other witnesses which is in no way disputed.</p> <p>2. Instructions—instruction need not define “due and proper care and caution,” An instruction in an action for damages for wrongfully causing the death of the plaintiff’s intestate, which requires the jury, in order to return a verdict for the plaintiff, to find that the deceased was in the exercise of due and proper care and caution for her own safety at and just before the accident, is not erroneous because it does not define the words “due and proper care and caution.”</p>