Volume 266 — Illinois Reports

<p>1. Wills—rule where devise over depends upon mere death of first taker. Where there is a devise simpliciter to one person and in case of his death to another, there being no contingent or doubtful circumstances connected with such death, it will be held that testator intended the death of the first taker to precede his own.</p> <p>2. Same—rule where a devise over depends upon the death of first taker under particular circumstances. Where there is a devise simpliciter to one person with a devise over to another in case of the death of the first taker under circumstances which may or may not take place, the devise over, unless controlled by some other provisions of the will, will take effect upon the death of the first taker, under the circumstances specified, at any time, either before or after the death of the testator.</p> <p>3. Same—vested and contingent remainders defined. A vested remainder is one which throughout its continuance gives to the remainder-man or his heirs the right to the immediate possession, whenever and however the preceding estates may terminate, while a contingent remainder is an estate which is not ready to come into possession at any moment the prior estate may end.</p> <p>4. Same-—the law favors the vesting of estates. A will should be construed in view of the rule that the law favors the vesting of estates and that they are regarded as vested unless a contrary intention appears.</p> <p>5- Same—■present capacity to take effect in possession distinguishes vested from contingent remainder. • The present capacity to take effect in possession if the possession were to 'become vacant by the termination of the preceding estate, either prematurely or by the death of the life tenant, is the quality which distinguishes a vested from a contingent remainder.</p> <p>6. Same—zvhen children have vested remainder subject to the executory devises over. Where a life estate is devised to the testator’s wife and after her death the land is to go to the testator’s children, “share and share.alike, and shall any of my children die, then the children of such deceased child, should any children be surviving such deceased child, to take the share of the parent so deceased; and should any of my children die leaving no issue, then the share of such deceased child shall be equally divided among my surviving children,” the testator’s children take a vested remainder which is subject to the executory devises over during the lifetime of the life tenant. (Kleinhans v. Kleinhans, 253 Ill. 620, and Golladay v. Knock, 235 id. 412, distinguished.)</p> <p>7. Same—when death without issue means death before the life tenant. If a particular estate precedes a gift over, the latter. will usually take effect if the contingency happens during the period of the preceding estate; and in such case death without issue means death before the' death of the life tenant, unless the will shows that the testator intended to refer to a later date.</p> <p>8. Deeds—determinable quality of estate follows a conveyance thereof. Where the testator’s children are given a vested remainder in land subject to the life estate of the widow, and subject, also, to executory devises over to the children of any child who may die during the continuance of the life estate, and to the surviving children if any child shall die without issue during such time, any conveyance by such children is subject to the executory devises over, and the devises over aré not destructible, even though the life tenant and all the children, all of whom were living when the will was made and were adults at the time of the testator’s death, join in the deed.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.</p>

<p>1. Practice—when an appearance is general. An appearance for any other purpose than to question the jurisdiction of the court is general.</p> <p>2. Taxes—question of sufficiency of notice is waived by Ming objections to merits.- On application for judgment and order of sale for taxes the question of the sufficiency of the description of the objector’s property in the advertisement notice of the delinquent list is waived by the filing.of objections going to the merits of the tax.</p> <p>3. Same—property of a cemetery association is subject to special tax unless exempt by its charter. The property of a cemetery association is subject to a special tax for a local improvement unless it is exempt by its charter, and a judgment and order of sale are authorized where it is not shown that any of the land ordered sold is used for burial purposes.</p> <p>4. Same—an objection not made in trial court cannot be considered by Supreme Court. An objection, on application for judgment and order of sale for. a special sewer tax, that there was a change in the location of the improvement after the judgment of confirmation, cannot be considered by the Supreme Court where it was not made in the trial court.</p>

<p>1. Taxes—county board has power to levy tax for State aid roads. The county board has power to levy a tax to raise the county’s share of the money necessary for State aid roads. (People v. Kankakee and Seneca Railroad Co. 265 Ill. 497, followed.)</p> <p>2. Same—amount voluntarily paid to satisfy one tax cannot be set off against other taxes. An amount voluntarily paid by a railroad company in labor to satisfy a road district tax cannot be set off against a road and bridge tax subsequently levied under the act of 1913.</p> <p>3. Same—when judgment is not against property not liable for tax. A judgment against property of a railroad company for road and bridge taxes of certain towns which is rendered against “the aforesaid tract or tracts or lots of land * * * in favor of the People of the State of Illinois for the sums annexed to each, being the amount of taxes, interest, penalties and costs due severally thereon,” and which orders that “the said several tracts or lots of land, or as much of each of them as shall be sufficient to satisfy the amount of taxes, interest, penalties and costs annexed to them severally, to be sold as the law directs,” is a judgment against the company’s property in each taxing district for taxes unpaid thereon as shown by the delinquent list, and is not a judgment against all of the company’s property in the county for the road and bridge taxes of the towns.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.</p>

<p>1. Dram-shops—what tends to prove that the deceased died of delirium tremens. Evidence that the deceased was greatly intoxicated when he came home a few days before his death, that he had been habitually intoxicated for a long time, that he was in a state of great nervous excitement and was delirious, and that his delirium was attended with delusions characteristic of delirium tremens, tends to show that the deceased was afflicted with delirium tremens, notwithstanding his attending physician testified that he attributed the delirium to erysipelas and did not know whether the deceased had delirium tremens.</p> <p>2. Same—what is not material in action for damages for injury to means of support. If the income received by the deceased and applied to the support of himself and wife was, by means of intoxication caused by the defendants, reduced and not applied to their support, there is an injury to the wife’s means of support; and it is not material whether or not the support furnished the wife was suitable to her condition in life.</p> <p>3. Same—when decree of divorce cannot be attacked collaterally. A decree of divorce rendered by a circuit court in Illinois is not void and open to collateral attack because it contains no finding that the complainant was a resident of the county where the decree was rendered, as the absence of such finding is not equivalent to an affirmative showing that the complainant was not a resident of the county and that the decree was therefore void for want of jurisdiction.</p> <p>4. Same—when instruction need not set out section 9 of Dram-shop act in full. Where the declaration counts only upon an injury to the plaintiff’s means of support, an instruction which does not attempt to direct a verdict but is intended merely to state the statutory basis for the action need not set out section 9 of the Dram-shop act in full, but only such parts thereof as are applicable to the case.</p>

<p>1. Taxes—what obligations by school district are payable from building fund. Under section 189 of the School law all obligations incurred for the improvement, repair or benefit of school buildings and property, and for any special taxes or special assessments levied upon the property, are payable from the building fund,.</p> <p>2. Same—an alleged contemplated diversion of a building fund is not ground for denying judgment for tax. An alleged contemplated diversion to educational purposes of the fund raised by a tax for building purposes is not ground for refusing to give judgment for such tax, as the tax-payer has an adequate remedy in equity to prevent such alleged diversion.</p> <p>3. Same—a tax-payer charging fraud on account of excessive levy must clearly prove it. A taxpayer charging that a tax levy is fraudulent because it is excessive has the burden of proving his charge by the most clear and convincing proof.</p> <p>4. Same—what does not show that tax levy for building purposes is fraudulent. The fact that the school board, in estimating the amount needed for building purposes as the basis for a tax, has exceeded the amount which is definitely known to be needed for such purposes, does not render the tax for building purposes fraudulent unless the amount so levied is grossly in excess of the amount required.</p>

<p>1. Appeals and Errors—rule when judgment is reversed and cause remanded. Where a judgment is reversed and the cause is remanded with specific directions the trial court must carry out such directions, but if no specific directions are given the question as to what further proceedings can be had that are consistent with the opinion must be determined from the nature of the case.</p> <p>2. Special assessments—zvhat objection is a legal one as distinguished from one for the jury. The question whether a special assessment of particular property is an unjust proportion of the cost of the improvement as compared with the assessment of other parcels of land is a .legal objection for the determination of the court and not one to be submitted to the jury.</p> <p>3. Same—when court cannot sustain an objection after cause is remanded. Where the objector in a special assessment case files numerous printed objections and thereafter states in court what objections he intends to rely upon, the objections not relied upon are waived, and if the judgment dismissing the petition is reversed by the Supreme Court with directions to overrule the legal objections, the trial court, upon re-docketing the cause, must overrule all the legal objections, both those considered by the Supreme Court and those which might have been raised and considered^</p>

<p>1. Taxes—express power to levy a tax need not be conferred every time a new duty is imposed upon county. It is not necessary, every time a new duty involving the expenditure of money is imposed upon a county, expressly to authorize a tax to raise funds to carry out this purpose.</p> <p>2. Same—county board has power to levy a tax for State aid roads. The Roads and Bridges act of 1913 makes the construction of State aid roads a county purpose, and the county board, under its general powers, may levy a tax for State aid roads.</p> <p>3. Same—sections 15 and 22 of Roads and Bridges act were not intended to authorise levy of tax. Sections 15 and 22 of the Roads and Bridges act of 1913 were intended to authorize the levy of a tax for State aid roads, and they have nothing to do with the levy of such tax except as the appropriation of funds therein referred to presupposes an antecedent levy.</p> <p>4. Same— extension of tax must be in accordance with the law then existing. The extension of a tax against property is essential to the completion of the levy, and the extension must be in accordance with the law in force at the time it is made.</p> <p>5. Same—under the act of 1913 a hard roads tax must be certified by the highway commissioners to the county clerk. Under the Roads and Bridges act of 1913 the hard roads tax levied under the act of 1883 must be certified by the highway commissioners to the county clerk, and the county clerk is without authority to extend such tax on the certificate of the town clerk made in accordance with the provisions of the act of 1883 before its repeal by the act of 1913.</p>

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

<p>Writ oe Error to- the Circuit Court of Vermilion county; the Hon. E. R E. Kimbrough, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>1. Elections—purpose of section 58 of the Primary law. The purpose of section 58 of the Primary Election law is, that when two members of the board of assessors of Cook county are to be elected to fill vacancies, one of which is caused by the expiration of the term of office of the'member residing outside of the city of Chicago, the candidate for the office held by such member, who receives the highest number of votes, must be nominated and have his name placed on the official ballot, even though there may be candidates for the office held by the retiring member from the city who have more votes than he has.</p> <p>2. Same—petition for nomination fixes status of petitioner as a candidate. One who files a petition as a candidate for nomination for the office of member of the board of assessors of Cook county at an election at which two -members are to be chosen, one of whom must not be a resident of the city of Chicago, which petition states the residence of the petitioner to be in the city of Chicago, cannot, by thereafter moving to a point in Cook comity outside of the city of Chicago, render himself eligible for nomination for the office of member of said board from the county outside of the city without filing a new petition, as the petition filed by him fixes his status as a candidate for the office of the retiring city member.</p> <p>3. Same—the Primary Election law does not fix any qualifications for office. The Primary Election law fixes no qualifications for office but only provides a method for nominating candidates to be voted for which applies equally to all persons, and no constitutional limitation is violated by providing such method.</p> <p>4. Constitutional law—board of assessors provision of section j8 'of Primary law is not invalid. The provision of section 58 of the Primary Election law relating to the nomination of candidates for member of the board of assessors of Cook county when one member is to be elected from the county outside of the city of Chicago does not delegate any judicial power to the canvassing board, nor does it operate as an amendment of the Revenue law by requiring a residence qualification for members of the board of assessors not required by such law.</p>

<p>1. Evidence—partnership signature not presumed to have been written after partnership ceased. Where the signature to a copy of the certificate appended to an abstract of title is proved to be in the handwriting of one member of the firm it need not be proved that the signature was attached before the partnership terminated, as it will not be presumed that a partner signed the firm name when there was no firm. (Loehde v. Glos, 265 Ill. 401, followed.)</p> <p>2. Registration oe titee—consent of person other than husband or wife need not be acknowledged. Section 13 of the act relating to registration of titles, which gives a form of consent to the decree by the husband or wife of the applicant, together with a form of acknowledgment, does not require that the consent of persons other than such husband or wife be acknowledged.</p> <p>3. Same—an applicant must establish title good as against the •world. The act authorizing registration of title is not intended as a substitute for a bill in equity to remove a cloud from title, and before an applicant is entitled to initial registration he must establish a title good as against the world.</p> <p>4. Same—when a receiver has such title as entitles him to apply for registration. Where a receiver is appointed by the circuit court under a bill for the dissolution of a corporation and the closing up of its business and is expressly authorized to cause to be removed clouds upon the title to property of the corporation, which is ordered to convey to him all of its property, and the title in fee to a lot owned by the corporation is conveyed to him by a special commissioner appointed by the court to make the conveyance, the receiver has such a fee simple title as entitles him to apply for initial registration thereof.</p>

<p>Appeal from the County Court of Crawford county ; the Hon. John C. Maxwell, Judge, presiding.</p>

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

<p>1. Powers—unauthorised exercise of power of sale does not effect a conversion of the land into money. A contract for the sale of real estate, executed by an attorney in fact of the owner under a power of sale which was not absolute but only authorized a sale of the land “if necessary,” does not effect an equitable conversion of the land into money where no necessity for the sale existed, and the contract cannot be enforced after the owner’s death.</p> <p>2. Same—;party dealing zvith an attorney in fact must knozv his authority. One purchasing land from the attorney in fact of the owner is bound to know the attorney is acting within his powers.</p> <p>3. Costs—decree for costs to be paid by executor in due course of administration should not order execution. A decree requiring an executor to pay one-half the costs “in due course of administration” should not order that an execution issue against the executor for costs.</p>

<p>Appeal from the County Court of Fayette county; the Hon. J. H. Webb, Judge, presiding.</p>

<p>1. Taxes—county board has power to levy taxes for State aid roads. The county board, under its general powers of taxation, may levy a tax to raise money for State aid roads, and is not limited to the issuing of bonds pursuant to a vote of the people, as provided in section 22 of the Roads and Bridges act of 1913.</p> <p>2. Same—amount voluntarily paid in labor to satisfy road district tax cannot be set off against tax levied under new law. The amount paid in labor to satisfy a road district tax cannot be set off against a road and bridge tax thereafter levied under the new Roads and Bridges act of 1913.</p> <p>3. Same-—when a road district tax■ is invalid. A road district tax attempted to be levied by the county board against land after the law authorizing such levy had. been repealed by the new Roads and Bridges act in force July 1, 1913, is invalid, as there is no saving clause in the new law.</p>

<p>Appeal from the County Court of Warren county; the Hon. L. E. Murphy, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.</p>

<p>Appeal from the County Court of Champaign county; the Hon. William G. Spurgin, Judge, presiding.</p>

<p>Special assessments—when a concrete retaining wall is not part of sidewalk. A concrete retaining wall which holds the earth filling and cinder foundation for a cement sidewalk in place and which forms a support for the inner edge of the sidewalk, the cost of such wall being greater than the cost of the walk itself, cannot be said to be a part of the sidewalk to the extent of exempting the proposed improvement from a public hearing, under section 7 of the Local Improvement act.</p>

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

<p>Criminal law—information for contributing to delinquency of child must aver that defendant stood in loco parentis. The act of 1905, (Laws of 1905, p. 19,) providing for the punishment of persons' contributing to the delinquency of children, applie's only to the persons standing in the relations named in the act or in loco parentis, and the fact of such relation must be averred in an indictment or information charging a violation of the act. (People v. Melville, 265 Ill. 176, followed.)</p> <p>Writ of Error to the Branch "C” Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding.</p>

<p>1. Taxes'—Cook county commissioners have no power to levy tax for loss and cost in tax collection. The board of commissioners of Cook county has no power to levy a tax to cover the cost and loss due to the operation of the tax extension laws.</p> <p>2. Same—the county clerk in extending taxes cannot disregard item levied by county commissioners. An item of over three million dollars appropriated by the Cook county commissioners for “loss and cost in tax collection rebate general tax fund,” and levied as “rebate general tax fund—amount appropriated for loss occasioned by operation of the tax extension laws,” cannot be justified on the ground that it was not intended as a tax levy .but only as an item to be used as a balance weight in the scaling process, as the; county clerk, in extending the taxes, is a mere ministerial officer, and could not disregard any item levied by the board or treat it other than as an item duly appropriated and levied for the purpose designated. -</p> <p>3. Same—the county clerk in scaling taxes cannot take whole excess from, any one item. The county clerk, in scaling taxes to reduce the total levy of the county so as to bring it within the inaximum of seventy-five cents, has no authority to take the whole of the excess from any one item, even though the item is levied as an amount appropriated for loss occasioned by operation of the tax extension laws.</p> <p>4. Same—statute requiring Cook county commissioners to pass appropriation hill within first quarter of fiscal year is mandatory. The statute requiring the board of commissioners of Cook county to' pass its appropriation bill within the first quarter of the fiscal year is mandatory, and while the board has power,, within a reasonable time after the expiration of such quarter, to reconsider the vote as to items vetoed by the president of the board, near the expiration of the quarter, such power is limited to reconsidering the vote by which the vetoed items were originally passed, and does not include power to add new items or increase the amounts of vetoed ones, or substitute other items for the ones vetoed.</p>

<p>. Appeal from the Circuit Court of Lake county; the Hon. Charles Whitney, Judge, presiding.</p>

<p>1. Ante-nuptial contracts—after a marriage engagement the relationship of the parties is fiduciary. After a marriage engagement is entered into, the relationship between the parties is a confidential and fiduciary one, requiring just and fair dealing.</p> <p>2. Same—complainant must prove allegation that marriage engagement had been entered into. The complainant in a bill to set aside an ante-nuptial contract must prove the allegation of her bill that a marriage engagement had been entered into before the contract was made, otherwise no fiduciary relation is established, and the defendants are not called upon to prove that complainant knew the extent and value of the property, or circumstances sufficient to charge her with knowledge.</p> <p>3. Same-—failure to expressly deny material allegation of bill does not obviate necessity of proof. An allegation in a bill to set aside an ante-nuptial contract, that an engagement of marriage had been entered into before the contract was made, is a material one, and the failure of the answer to expressly deny the allegation does not admit it nor relieve the complainant from the duty of proving it.</p> <p>4. Same—when recital of contract does not show existence of marriage engagement. A recital in an ante-nuptial contract that the “parties are about to enter into a contract of marriage,” does not show that an engagement of marriage had existed before the contract was made.</p> <p>5. Same—when sale of part of property does not rescind ante-nuptial contract. The fact that the wife voluntarily joins the husband in a conveyance of two vacant lots which were a part of the homestead premises, which the wife was to have the use of for life according to the provisions of an ante-nuptial contract, amounts only to a waiver by the wife, as to such lots, of the provisions of the contract but does not operate to rescind the contract, even though it is not shown she received any part of the consideration.</p>

<p>' Appeal from the County Court of Massac county; the Hon. William F. Smith, Judge, presiding.</p>

<p>1. Elections—rule as to service where necessary party to an election contest has left the State. Where a necessary party to a proceeding to contest an election is not within the State, service may be had upon him in the same manner as is provided in cases in chancery.</p> <p>2. Same—who is not a necessary party to an election contest. Where there are three candidates for an office, and the one receiving the least number of votes makes no claim to the office and his rights can in no way be prejudiced by a contest between the other two candidates, he is not a necessary party to such contest.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Appeal from the County Court of Jefferson county; the Hon. A. D. Webb, Judge, presiding.</p>

<p>1. Taxes—the statute req^iiring items for county purposes to be stated separately must receive reasonable construction. The statute requiring the purposes for which county taxes are levied to be stated separately must receive a reasonable construction in view of the object of the statute, which is to afford tax-payers an opportunity to object to an unjust tax.</p> <p>2. Same—when items of a county tax are sufficiently specific. Items of a county tax “for repairs upon, and care, support and maintenance of, court house, $4000,” and “for repairs upon, and care, support and maintenance of, the county jail, $3500,” are, under the facts shown by the record of this case, separated sufficiently to comply with the statute.</p> <p>3. Same—county board has power to levy a tax for State aid roads. A county board has power to levy a tax for State aid roads under its general power to levy taxes for county purposes. (People v. Kankakee and Seneca Railroad Co. 265 Ill. 497, followed.)</p>

<p>1. Deeds—a statutory zvarranty deed is deemed to convey a fee unless a less estate is limited. Under section 13 of the Conveyances act a statutory warranty deed is deemed to convey the fee unless a less estate is limited in express words or results by operation of law.</p> <p>2. Same—when a statutory warranty deed conveys a life estate, only. A statutory warranty deed to the grantor’s three daughters', (naming them,) the land “to be for a homestead for the above named grantees, and given with the understanding that if one should die then to be owned and held by the other two, and after the death of the second then to be owned and controlled by the other cine during the term of her natural life,” conveys to the survivor a lifen estate, only.</p> <p>3. Same—-extent to which evidence of extrinsic circumstances is admissible. In construing a deed evidence of the circumstances surrounding the grantor is admissible only for the purpose of identifying the subjects and objects of the grant and not to change the meaning of the language used, and such evidence is of no assistance where neither the subject matter nor the donee of the grant is in doubt.</p>

<p>Taxes—amount paid in labor to satisfy road district tax can not be set off against a road tax levied under the new law. The amount voluntarily paid in labor to satisfy., a road district tax can not be set off against a road and bridge tax levied under the new Roads and Bridges act of 1913.</p>

<p>Writ oe Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. M. L. McKinuEy, Judge, presiding..</p>

<p>Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Rock Island county; the Hon. R. W. Olmsted, Judge, presiding.</p>

<p>Writ oe Error to the County Court of DuPage county; the Hon. Charles D. Clark, Judge, presiding.</p>

<p>Appeal from the County Court of Iroquois county; the Hon. John H. Gillan, Judge, presiding.</p>

<p>Appeal from the County Court of Richland county; the Hon. S. C. Lewis, Judge, presiding.</p>

<p>■ Registration of title—title by twenty years’ open and actual possession is absolute and may be registered. One who has been in the open, adverse and exclusive possession of improved premises for more than twenty years, in full compliance with section 1 of the Statute of Limitations, has the same rights as any other absolute owner of land, and is entitled to have his title registered regardless of whether the deed under which he claims constitutes color of title.</p>

<p>Writ op Error to the County Court of Crawford county; the Hon. John C. Maxwell, Judge, presiding.</p>

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

<p>Appeal from the County Court of Williamson county; the Hon. Wiley F.- Slater, Judge, presiding.</p>

<p>Writ of Error to the Appellate Court for the Eirst District;—heard in that court on appeal from the Municipal Court of Chicago ; the Hon. W. N. Cottrbbb, Judge, presiding.</p>

<p>Writ of Error to the. Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of LaSalle county; the Hon. William Hawthorne, Judge, presiding.</p>

Appear from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Appellant, Charles F. Forster, filed his bill in the superior court of Cook county August 16, 1911, .against appellee, the Brown Hoisting Machinery Company. The bill was subsequently twice amended, and a demurrer to the second amended bill was sustained and the bill dismissed for want of equity.

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

<p>Appeal from the Circuit Court of Cook countythe Hon. AdElor J. Petit, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.</p>

<p>1. Criminal law—when a person cannot escape consequences of killing by setting up claim of self-defense. A person who seeks and brings on an assault, and who, when he finds the person assaulted is armed and ready to defend himself, produces a weapon and kills him, cannot escape the consequences of the killing by setting up a claim of self-defense.</p> <p>2. Same—when the Supreme Court will not reverse on the evidence. It is only when the Supreme Court is able to say, from a careful consideration of the whole testimony, that there is clearly a reasonable and well founded doubt of the guilt of the accused, that it will interfere on the ground that the evidence does not support the verdict.</p> <p>3. Same—when instruction as to what does not justify killing is not erroneous. An instruction given at the request of the People,. stating that although the jury might believe, from the evidence, that the deceased had a club and spade with him at the time and immediately before he was killed, that fact, alone, would not justify the accused in killing him, is not erroneous because it does not mention the fact, testified to by the accused, that the deceased had struck the accused with the spade and had raised the spade to strike him again, where such facts are mentioned in other instructions for the People on the same subject of self-defense.</p> <p>4. Same—what necessary to justify killing though the deceased was the assailant. The mere fact that the deceased was the assailant and had struck the accused with a spade and was about to strike him again does not justify the accused in striking the deceased a mortal blow with a club, provided such mortal blow was not necessary, or apparently necessary, in order to save the life of the accused or prevent his receiving great bodily harm.</p> <p>5. Same—when refusal of an instruction stating difference between murder and manslaughter is harmless. The refusal of an instruction stating the difference between murder and manslaughter is harmless, where the jury found the accused guilty of manslaughter, only.</p> <p>6. Same—instruction as to impeaching zvitness should refer to his “reputation” for veracity and not to his "character." An instruction upon the subject of the impeachment of a witness should refer to the “reputation” of the witness for truth and veracity and not to the “character” of the witness in respect to such matter.</p>

<p>1. Wn.ES—when a legatee receives property impressed with a trust. A legatee who receives personal property by will under his assurance that he will transfer it to or hold it for the use and benefit of another, takes it impressed with a trust, not merely by reason of his oral promise but because the bequest was induced thereby.</p> <p>2. Same—when a trust in personal property may be proved by parol evidence. If at the time of making his will the testator has formed the intention that a legacy thereby given shall be disposed of in a particular manner not disclosed by the will but assented to by the legatee at or before, or possibly subsequent, to the making of the will, a court of equity will allow such trust to be proved by the admissions of the legatee or other parol evidence; and such action does not amount to changing the will by verbal agreement or revoking it by spoken words.</p> <p>3. Inheritance tax—only beneficial interest is taxable. An inheritance tax is not a tax upon the property itself but upon the right to succeed to the property, and only the beneficial interest passing from the decedent to the heir or legatee and vesting at the time of the death is taxable.</p> <p>4. Same—what constitutes a beneficial interest. A beneficial interest in an estate is such an interest as a devisee or legatee takes solely for his own use and benefit and not merely as the holder of the title for the use of another.</p> <p>5. Same—equitable principles may be invoked to determine the qtiestion of beneficial interest. While proceedings to collect inheritance taxes are statutory, yet equitable principles may be invoked in deciding the question as to what persons have received the beneficial interests which are taxable.</p> <p>6. Same—when legatee is not liable for inheritance tax. The legatee of the testator’s entire personal estate is not liable for an inheritance tax, even though the will gives him the title without mentioning any conditions, where the gift was made upon the understanding that the legatee would hold the legal title, only, and would distribute the property among various persons and institutions in accordance with a memorandum prepared by the testator; and the existence of such trust may be proved by parol evidence in a proceeding to collect the inheritance tax.</p> <p>7. Same—when the question of inheritance tax is not affected by time of making declaration of trust’. If the legatee of personal property receives the same upon the understanding between him and the testator that he will hold the title in trust, the trust attaches at the moment of the testator’s death; and the question of the inheritance tax is not affected by the fact that the legatee did not execute any declaration of trust until long after testator’s death.</p> <p>8. Same—when the appellee cannot question rulings by cross-errors. A judgment for inheritance taxes is a separate judgment as to each item of the tax, and upon appeal by the People with reference to one item the appellee cannot, by cross-error, question the rulings of the court as to other distinct and independent items.</p>

<p>1. Taxes—when objection that delinquent notice fails to state the year for which lands were assessed is without force. An objection that the notice published with the delinquent tax list fails to state the year or years for which the lands were assessed is without force, wh.ere the notice states that the lands and lots in the list are those upon which the several taxes and special assessments “remain due and unpaid for the year 1913.”</p> <p>2. Same—statute does not recpuire that collector shall separate total tax into items. The statute only requires that the published delinquent list shall state the total amount of taxes claimed to be due upon each tract of land, and does not require the collector to separate the total tax into its component items.</p> <p>3. Same—collector is only required to state name of owner if known to him. The provision of the.statute requiring the name of the owner of delinquent lands to be stated in the delinquent list must be complied with if possible, but the provision applies only when the name- of the owner is known to the collector.</p> <p>4. Same—term “Wm. Gross Bst." is not the name of owner of land. The term “Wm. Gross Est.” is not the name of the owner of land within the meaning of the statute, but it will be presumed, in the absence of evidence to the contrary, that the collector, in using such term, did not know the name of the owner, and, if such is the case, the failure to state the name of the owner is not a valid objection to the delinquent list.</p> <p>5. Same—when objection that collector did not make a prima facie case cannot be raised. An objection that the collector did not make a prima facie case because the delinquent list was not properly verified cannot be raised on appeal, .where the only objections raised in the court below were under a limited appearance questioning the jurisdiction of the court to entertain the application for judgment.</p>

<p>1. Wins—express words of limitation are not necessary to create cross-remainders. It is not necessary that there be express words of limitation in a will in order to create cross-remainders, and they will be implied where necessary to carry out the testator’s intention.</p> <p>2. Same—when provision of will creates implied cross-remainders. A devise of land to the testator’s' two sons, to share alike the rent and income during their natural lives, subject to the life estate of the testator’s widow, and after the death of the two sons the land to be sold and the proceeds divided equally among the testator’s grandchildren, there being no express disposition made of the estate of the life tenant who should die first, creates a life estate in each of the sons with an implied cross-remainder to the survivor, determinable upon his death. (Cheney v. Teese, 108 Ill. 473, and Fussey v. White, 113 id. 637, distinguished.)»</p>

<p>' Original petition for mandamus.</p>

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

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

<p>1. Constitutional law-—courts cannot set aside law as being contrary to public interest. Where the legislature has acted upon a subject upon which it has power to legislate the courts have no power to set aside the law as being contrary to public interest, as the General Assembly is the sole guardian of the public interest and welfare.</p> <p>2. Same—legislature had power to prohibit name of candidate from appearing twice on same ballot. The provision of section 8 of the Ballot act which requires a candidate whose name appears on more than one certificate of nomination or petition for the same office to elect under which of the political party appellations he desires his name to appear upon the ballot is not unconstitutional, as the candidate has the right to have his name appear once upon the ballot, and every voter is thereby given an opportunity to vote for him.</p> <p>3. Elections—legislative policy has been to preserve integrity of political parties. The provisions of the Ballot law and of the various primary election laws which have been enacted by the legislature manifest a clear purpose upon the part of the legislature to enforce and perpetuate- an existing party system of government and to maintain the integrity of political parties, and such purpose is within the power of the legislature.</p> <p>4. Same—person cannot be a candidate of two political parties for same office on the official ballot. The provisions of section 8 of the Ballot law have been repealed by the Primary Election act only as to those which are wholly inconsistent with that act, and the provision which precludes a person from being the candidate of more than one political party for the same office on the official ballot has not been repealed and still governs the official ballot.</p>

<p>1. Constitutional law-—when a law is uniform.' A law is uniform when all persons brought within the relation and circumstances provided for are' affected alike.</p> <p>2. Same—what is a general law. A general law is one framed in general terms and restricted to no locality, operating equally upon all of a group of objects, which, having regard to the purpose of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves.</p> <p>3. Same—purpose of the provisions of the constitution relating to fees of township officers. The purpose of sections 11 and 12 of article 10 of the constitution, in so far as they apply to township officers, was that the fees of such officers should be uniform, in order to bring about a. reasonable compensation for services actually rendered, and that such uniformity might be based upon a classification of counties, by population, into three classes.</p> <p>4. Same—amendment authorising board of auditors to fix com-, pensation of the town collector is invalid. The last proviso to section 36 of the Fees and Salaries act, authorizing the board of town officers to fix the town collector’s compensation at a less amount than is provided in such section for town collectors in the three classes of counties into which the State is divided, is in violation of sections 11 and 12 of article 10 of the constitution, and is invalid.</p>

<p>1. Taxes—form prescribed by law for tax judgment sale, redemption and forfeiture record is mandatory. The form prescribed by the statute for the tax judgment sale, redemption and forfeiture recprd is mandatory and must be strictly followed.</p> <p>2. Tax deeds—tax deed issued on a void judgment is void. A judgment for taxes in which only.figures are used, without the dollar mark or any other means of determining what the figures stand for,—whether for ■ dollars, cents or mills,—is a nullity and void; and a tax deed issued upon such a judgment is also illegal and void.</p> <p>3. Same—affidavit required by section 217 of the Revenue act is jurisdictional. The-affidavit required by section 217 of the Revenue law is jurisdictional, and if no proper affidavit is filed the tax deed issued thereon is null and void.</p> <p>■4. Same—affidavit required by section 217 of the Revenue law must state facts positively. The affidavit required by section 217 of the Revenue law must show a compliance with the provisions of section 216 of said act by direct and positive statements of fact, arid the matter of such compliance must not be left to inference from doubtful or equivocal language.</p> <p>"5. Abstracts oE title—abstract presumed to have been signed on day it bears date. It is a presumption of law, subject to rebuttal, that abstracts, like other documénts, were made, written and signed on the days they bear date.</p>

<p>1. Drainage—highway' commissioners do not have sole power to grant right of way for drainage ditch. Highway commissioners have power to provide such drainage as is needed for the purposes of the highway although the fee is in the owner of the adjoining land; but while drainage commissioners must obtain the consent of the highway commissioners to lay a tile in the highway for the benefit of the lands of the district, they must also obtain a right of way from the owner of the fee in the land in the highway in which the tile is to be laid.</p> <p>2. Same—owner of fee in highway not required to take initiative to have his damages assessed. Where drainage commissioners have not obtained a right of way from the owner of the fee in land in a public highway in which the commissioners propose to lay a tile for the benefit of the lands of the district, such owner may, under section 17a of the Levee act, present the question of his damages on the hearing of the confirmation of the assessment roll, but he is not obliged to do so in order to protect his constitutional right to compensation.</p> <p>3. Same—when injunction to prevent laying of drainage tile is a proper remedy. Where drainage, commissioners, for the benefit of. the lands of the district, are about to lay tile in land lying in a public highway, the fee of which is in the adjoining owner, without having acquired a right of way by condemnation or otherwise, except that they have acquired the consent of the highway commissioners, the adjoining owner may enjoin the laying of the tile until he has received the compensation to which he is entitled under the constitution.</p>

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

<p>Appeal from the Circuit Court of Menard county; the Hon. Guy R. Williams, Judge, presiding.</p>

<p>1. Criminal law—when a motion for discharge for delay in prosecution is properly overruled. A motion for discharge for delay in prosecution upon the ground that the accused had once been in custody for more than four months under a former indictment charging him with the same offense is properly overruled, where such former indictment would not have authorized a conviction of the offense charged in the new indictment.</p> <p>2. Same—when former indictment does not authorise conviction of offense charged in new one. A former indictment which charges the offense of forging certain school scrip for the sum of $100, there being no date, number of the warrant or name of the payee in the copy of the instrument set out in the indictment, would not authorize a conviction for forging a warrant for the sum of $45, bearing a certain number and date and containing the name of the payee.</p> <p>3. Same—what competent in a forgery case to show intent. In a prosecution for forging the indorsement .of the name of the payee in a certain school warrant, where the accused admits the forgery but attempts to explain it as having been done with an honest purpose, proof that the accused, at about the same time, forged the indorsements upon other school warrants is admissible, as tending to show intent and guilty knowledge.</p> <p>4. Same—when the People cannot be required to elect. The People cannot be required to elect as to which count of an indictment they will rely upon for a conviction where each count is predicated upon the alleged act of the accused in issuing, indorsing and uttering the same school warrant.</p> <p>5. Same—when introduction of records of conviction for other forgeries is proper. In a prosecution for forging the indorsement on certain school scrip, if the accused becomes a witness in his own behalf it is proper, for the purpose of affecting his credibility, to admit in evidence the records of other cases' in which the accused plead guilty to the offense of forgery.</p> <p>6. Same—when instruction is not objectionable as singling out the testimony of the accused. An instruction dealing solely with the matter of the weight to be given to the testimony of the accused, which concludes with the statement that if the jury shall find that he has willfully testified falsely to a material matter they have a right to disregard his testimony in so far as it is not corroborated by other credible evidence or facts and circumstances, is not objectionable because such statement is not made applicable to all the witnesses.</p> <p>7. Same—proof of other crimes need not be established beyond reasonable doubt. Where proof of other crimes similar to 'the one charged is admitted for the purpose of showing intent and guilty knowledge, it is not necessary that such other crimes shall be established beyond a reasonable doubt in order to authorize a conviction for the crime charged, provided there is other sufficient evidence.</p> <p>8. Same—when refusal of an instruction on circumstantial evidence is proper. . The refusal of an instruction stating the rule as to what is required where circumstantial evidence is relied upon for a conviction is properly refused, where the conviction of the accused was not sought upon circumstantial evidence but there was direct evidence tending to prove his guilt.</p> <p>9. Same—when Supreme Court cannot consider alleged error in allowing book to go to jury. Alleged error in allowing a book containing transactions of the school board to go to the jury in a criminal case without effectively concealing such portions thereof as were not admitted in evidence cannot be considered by the Supreme Court, where such portions as are claimed should have been concealed are not before it.</p> <p>10. Same—Statute of Limitations does not run against crime of forgery—effect of punishment for other forgeries. The Statute of Limitations does not run against the crime of forgery, and the facts that the accused has been punished for pther forgeries, has served a term in the penitentiary and has been paroled and pardoned, do not justify the Supreme Court in reversing a judgment of conviction for another forgery committed at about the same time as those for which he has been punished.</p>

<p>Confidence game—charge that accused obtained money is not sustained by proof that he received a check. A charge that the accused obtained money by means of the confidence game is not sustained by proof that what he obtained from the victim was a check; and this is true though he afterwards cashed the check at a bank. (Lory v. People, 229 Ill. 268, and People v. Warfield, 261 id. 293, followed.)</p>

<p>■1. Equity—courts of equity were established to protect and enforce equitable rights. Courts of equity were' established to protect and enforce equitable rights as well as to administer equitable remedies which courts of law were unable to grant, and whenever the primary right or interest to be maintained or enforced is purely equitable, created by equity and not by law, the jurisdiction of equity is exclusive.</p> <p>2. Same—the jurisdiction of a court of law to protect equitable rights must be conferred by statute. Courts of law have no jurisdiction of cases in which the right to be maintained, protected or enforced is purely equitable, unless such jurisdiction has been conferred by statute.</p> <p>3. Same—right of tax-payer to prevent misapplication of public money is purely equitable. The right of' a tax-payer to prevent a misapplication of public money by á public official and to compel the latter to restore public funds already misapplied is purely equitable, as the legal right and title to the money are not in him and his right cannot be enforced in-a court of law.</p> <p>4. Same—tax-payer may maintain bill to enjoin misapplication of public money by the county treasurer. A tax-payer may, on behalf of himself and other tax-payers, maintain a bill to enjoin the county treasurer from misapplying public money in his hands and to compel him to restore .public money already misapplied, where the money so misapplied must be made up by taxation.</p> <p>5. Same—fact that tax-payer has not contributed to fund does not preclude him from preventing its misapplication. The fact that a tax-payer has not contributed to the amount of inheritance taxes collected by the county treasurer does not preclude him from maintaining a bill to enjoin a threatened misapplication of such funds by the county treasurer and to compel, him.to restore a portion of such funds already misapplied.</p> <p>6. Same—tax-payer not precluded from bringing suit because State Auditor might have done so. The right of a tax-payer to protect his interest in public money by enjoining a threatened misapplication thereof by the county treasurer is not precluded by the fact that the State Auditor might, under the statute, have instituted a suit in the name of the State.</p> <p>7. OeeicES—a public officer must perform duties for salary annexed to the office. A public officer accepts an office cum onere, and must perform the duties then and" thereafter imposed upon him by law for the salary annexed to the office, so long as he chooses to retain the office.</p> <p>8. Same—'-duty of receiving and paying over inheritance taxes is merely an added duty of the county treasurer. The duty of a county treasurer to receive and pay over inheritance taxes is merely added to the duties of his office which he must perform for the salary fixed by law.</p> <p>9- Constitutional law—section zi of Inheritance Tax law, as applied to treasurer of Cook county, is invalid. Section 21 of the Inheritance Tax law, which authorizes a county treasurer to retain two per cent of the amount of inheritance taxes collected by him, as compensation for such service, is, as applied to the treasurer of Cook county, in violation of section 9 of article 10 of the constitution, which provides that such officer shall receive as his only compensation a salary fixed by law.</p> <p>10. Fees and salaries—when county has no interest in money withheld by county treasurer. If a law authorizing a county treasurer to retain á commission on money collected for the State is •held unconstitutional the money so retained belongs to the State, and the commission authorized to be retained is not a fee or perquisite of the county treasurer’s office in which the county has any interest.</p>

<p>1. Elections—Primary Flection law was intended to provide a means for nomination of candidates by political parties. The Primary Election law of 1910, as amended in 1913, was intended to provide a means whereby each political party may be able to make nominations of candidates of its choice for the various offices therein designated, including candidates for judicial offices, and the provisions of the act must be given effect unless they are incapable of enforcement.</p> <p>2. Same—-time when result of primary election must be communicated to officer charged with duty of printing ballots. Under section 19 of the Ballot act of 1891 the result of all primary elections must be officially communicated to the officer or officers whose duty it is to cause the printing and distribution of the ballots at least five days before the time fixed by law for holding the election.</p> <p>3. Same—zvhen result must be officially determined under sections 56 and 57 of Primary Flection law. In the case of candidates for office who are to be nominated under the Primary Election law and whose certificates of election are to be issued by the Governor, the final canvass of the votes must be .made and the result of the primary be officially determined by the State canvassing board in accordance with the provisions of sections 56 and 57 of the Primary Election law.</p> <p>4. Same—effect of amendment of section 6 of Primary Flection law in 1913. The amendment, in 1913, of section 6 of the Primary Election law of 1910, by which amendment the former provision for holding a primary for the nomination of candidates for judicial offices to be filled at an election held on the first Monday of June was omitted, was to leave candidates for such offices under the general provision of such section for a primary to be held three weeks preceding the date of the election.</p> <p>5. Same—provision for a primary three weeks before election cannot be enforced as to judicial offices. The general provision of section 6 of the Primary Election act, as amended in 1913, for a primary election to be held three weeks preceding the election for the offices coming under such provision, is, in view of the other provisions of the act and section 19 of the Ballot act, incapable of enforcement as to judicial offices, as under such provisions a total of thirty-one days must elapse between the date of the primary and the date of the election for such offices.</p> <p>6. Same—section 6 of the Primary Election law is inoperative and void as applied to judicial offices. The provision of section 6 of the Primary .Election law for a primary three weeks before the election is so inconsistent with and repugnant to the other provisions of such law, and with section 19 of the Ballot act of 1891, as to render it wholly inoperative and void in so far as it attempts to provide for the nomination of candidates for judicial offices.</p> <p>7. Same—the nomination of candidates for judicial offices must be made under the Ballot act of 1891. As the provision of section 6 of the Primary Election law, as amended in 1913, for a primary three weeks before the election is inoperative and void as applied to judicial offices, the nomination of candidates for such offices must be held to be. controlled by the Ballot act of 1891, which has been continued in force except as to those offices which were taken out of the 'Ballot act by the Primary Election law.</p> <p>8. Same—purpose of provision for nomination of candidates by petition. The purpose of section 63 of the Primary Election law was to provide a means for the nomination, by petition, of such independent candidates as do not desire to be candidates of political parties, and in view of the expressed intention of the legislature to make the Primary Election act applicable to the nomination of candidates of political parties for judicial offices, the fact that the legislature has failed to make such intention effective does not confine the nominations of candidates for judicial offices to independent nominations by petition, unless it could be said there was no other law under which the nominations could be made.</p> <p>9. Same—Primary Election law did not expressly or by implication repeal the Ballot act of 1891. The Primary Election law did not, expressly or by implication, repeal the provisions of the Ballot act of 1891 for the nomination of candidates for office, but the effect of such law was to remove from the operation of the Ballot act the nomination of all candidates for elective offices except candidates for township officers in certain townships, but as to such nominations the Ballot act of 1891 was continued in force, and its provisions are applicable to nominations for judicial offices which the Primary Election law attempted to provide for by a method which is incapable of enforcement.</p> <p>10. Constitutional law—when act of legislature must be declared void. If an act of the legislature is so vague and uncertain in its terms as to convey no meaning, or if it is so conflicting and inconsistent in its provisions that it cannot be executed, it must be held void; so, also, where there is an absolute contradiction between the principal provisions of the act, or where the act cannot be administered because of its uncertainty or ambiguity.</p> <p>11. Same—courts cannot supply a meaning not ascertainable from the act. It is the duty of the courts to ascertain the meaning of and give effect to every constitutional enactment of the legislature, but they cannot supply omissions or remedy defects in matters committed to the legislature, nor can they supply the meaning of an act where no meaning can be ascertained therefrom with judicial certainty.</p> <p>12. Same—when act is void though it appears on its face to have a meaning. An act of the legislature is void where its language appears, on its face, to have a meaning but it is impossible to give it any precise or intelligible application in the circumstances under which it is intended to operate.</p> <p>13. Statutes—the rule as to repeal of former law by later one. It is only where a statute is expressly repealed or where all cases are removed from under its operation and the statute is thereby abrogated by a later act that the former act is repealed by the later one.</p> <p>14. Same—when provision that an act repealed cannot be revived by repeal of the repealing act does not apply. Where the effect of a later act is not to entirely abrogate a former one but merely to withdraw from the operation of the earlier act a portion of the cases included within its- terms, leaving the earlier act in force as to cases not provided for by the later law, the provision of section 3 of the act relating to the construction of statutes has no application, and the repeal of the later law has the effect of again bringing the cases therein provided for under the operation of the original act.</p>

<p>1. Damages—when a refusal to permit proof of condition of property at time of trial is not error. Where the trial of an action for damages to real estate from the construction and operation of an elevated railroad does not take place until some sixteen years after the railroad was put in operation, it is not error to restrict the proof with respect to sales or long-term leases of the property to a period of six years after the road was put in operation and to refuse to permit such proof up to the time of the trial; and the fact that there were no sales or long-term leases during such period does not affect the reasonableness of the limitation.</p> <p>2. Same—when refusal of evidence to prove that decrease in rents was due to mismanagement is not error. In an action for damages to real estate from the construction and operation of an elevated railroad, it is not error to refuse to allow the defendant, for the purpose of showing that the. decreased amount of rent received from the building was due to mismanagement, to prove that-for ten years after the railroad was put in operation the building produced only $3300 rent per year, while the following year, under new management, it produced $8300, as such proof is too remote in point of time.</p> <p>3. Same—when the court may limit the number of' witnesses. Although the controlling issue in a case is the .effect of the construction and operation of an elevated railroad upon the market value of the plaintiff’s property, the court has power, in the exercise of sound, discretion, to limit the number of witnesses whose opinions are desired upon such main issue.</p> <p>4. Same—signing of a frontage consent to construction of elevated railroad does not release damages. The signing of a frontage consent by a property owner to the construction of an elevated railroad does not amount to a release of damages nor an admission that there would be no damages, and proof that such a release was signed is immaterial.</p> <p>5. Same—when the recovery of interest is unauthorized. In an action for damages to real estate from the construction and operation of an elevated railroad it is error to authorize the jury, if they found damages for the plaintiff, to include a sum equal to five per cent per annum upon the amount of damages. (City of Chicago v. Allcock, 86 Ill. 384, adhered to.)</p> <p>6. Same—when instruction as to considering elements of benefits or damages is erroneous. In an action for damages to real estate from the construction and operation of an elevated railroad it is error to instruct the jury that they are to consider only such elements of damages or benefits which in an appreciable degree are capable of estimation in dollars and cents.</p> <p>y. Same—what instructions as to question of damages need not be given. In an action for damages to real estate from the construction and operation of an elevated railroad it is not error to refuse instructions stating that any diminution in value of the property due to financial panic not the fault of the defendant should not be considered, nor should evidence of value during certain years previous to the construction of the railroad, if such value was merely the temporary effect of the location in the city of a world’s exposition, be taken as the test of the value of the plaintiff’s property before the construction of the railroad, as such instructions are objectionable in isolating certain facts and calling attention to them.</p> <p>8. Same—what must be considered by the jury as special benefit. If the evidence shows that the effect of an elevated railroad in front of the plaintiff’s property is to create a great increase in the number of persons passing the premises who get off or take trains there, and that the effect of such additional travel is to increase the market value of the premises, such enhancement in value must be considered by the jury in determining the question of damages to plaintiff’s property from the construction and operation of the railroad. (Bidorado, Marion and Southwestern Railroad Co. v. Everett, 225 Ill. 529, explained.)</p> <p>9. Same—when an instruction as to burden of proof is properly refused. In an action for damages to real estate from the construction and operation of an elevated railroad the whole issue is damage or no damage, and the burden of proof upon such issue is upon the plaintiff; and it is proper to refuse an instruction stating that if the jury find, from the evidence, that the property was damaged, and the amount thereof, then the burden’of showing any offset to or reduction of such damages by reason of travel facilities furnished by the railroad to the property in question is upon the defendant.</p>

<p>Writ oe Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook .county; the Hon. Adelor J. Petit, Judge, presiding.</p>

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

<p>1. Railroads—State has exclusive jurisdiction over commerce within its borders. Congress may exercise exclusive jurisdiction over inter-State commerce, and having done so, the regulations supersede all regulation by the State; but the State has exclusive jurisdiction over commerce within its borders, and each is independent of the other within its legitimate sphere.</p> <p>2. Same—when contract for switching service will be enforced as to State commerce. A contract between a terminal railroad company and a customer, based upon good consideration, fixing a maximum switching charge of one dollar a car, is valid and binding as to switching service wholly within the State and which is in no way a part' of inter-State commerce, even though, as to interState commerce, the contract cannot be enforced because the company has adopted a switching tariff of two dollars per car, established by a freight committee of which the company is a member.</p>

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

<p>Writ op Error to the County Court of Hamilton county; the Hon. Isaac H. Webb, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Morgan county; the Hon. J. J. Cooke, Judge, presiding.

<p>1. Bills of exceptions—party who presents bill in time is not prejudiced by delay of judge. A party who, within the time prescribed for filing the same,' presents his bill of ■ exceptions to the judge who tried the cause will not be prejudiced by the neglect or refusal of the- judge to sign the bill of exceptions until after such time has expired.</p> <p>2. Same-—time when a bill of exceptions was signed must affirmatively appear from the record. The time when a bill of exceptions was settled and signed must be shown, affirmatively on the record, and should, on its face, appear to have been taken and signed at the trial.</p> <p>3. Same—mere absence of trial judge does not authorise another judge to sign bill of exceptions. The provision of section 81 of the Practice act which authorizes a judge other than the trial judge to sign a bill of exceptions in case the trial judge is unable -to sign the bill “by reason of death, sickness or other disability,’’ means a “disability” of a .physical or’ mental nature by which the trial judge is disabled from performing his judicial functions, and does not include the mere absence of the trial judge from the district or circuit.</p> <p>4. Same—a judge other than the trial judge may extend time for filing a bill of exceptions. In the absence of the trial judge another judge of the same court or circuit may, within the time granted for filing the bill of exceptions, extend such time by an order of record, and the bill may thereafter be signed by the trial judge without a nunc pro tunc order; or if the other judge does not extend the time but merely marks the bill as presented, such entry would be sufficient to .furnish a basis for a nunc pro tunc order by the trial judge in signing the bill, provided it was recited that the entry was made by the other judge while he was presiding in the court, and that due diligence had been shown by the appellant in seeking to present the bill to the trial judge before presenting it to the other.</p> <p>5. Same—rule when trial judge signs a bill of exceptions nunc pro tunc. If the trial judge signs a bill of exceptions nunc pro tunc as of the date of the presentation of the bill to another judge, there must be sufficient matters in the record itself to show affirmatively that the trial judge was authorized, under the law, to enter such order, where the record itself shows that the bill was not actually signed within the time granted for filing the bill, and if no such authority is shown the bill is not properly in the record.</p>

<p>Appeal from the County Court of Saline county; the Hon. K. C. Ronalds, Judge, presiding.</p>

<p>Appeal from the Circuit Court.of McHenry county; the Hon. Charles Whitney, Judge, presiding.</p>

<p>1. Public utilities commission—hearing must be had before physical railroad connections can be compelled. Before physical railroad connections can be compelled by the State Public Utilities Commission between two railroads there must be a hearing, and while technical rules of evidence are not required to be followed, the hearing must be open to the public, all parties interested must be given an opportunity to present evidence, a record must be kept of all the proceedings and the testimony ■ must be taken down.</p> <p>2. Same—in requiring track connections the board does not act in a mere administrative manner. In requiring track connections between two railways the State Public Utilities Commission does not act in a mere administrative manner, and as the order of the commission results in the taking of property the persons interested must not be denied the right to show that the order is unjust and unreasonable.</p> <p>3. Same—final order compelling track connections must not be made on an ex parte examination. A final order by the State Public Utilities Commission compelling track connections between two railroads must be based upon evidence presented at a public hearing, with full opportunity to the parties to present evidence and cross-examine witnesses, and should not be based upon an ex parte examination or an investigation by agents of the commission.</p>

<p>1. Special assessments—when objection that ordinance docs not provide outlet for sewer is not sustained. An objection that an ordinance for the construction of a storm and surface sewer does not provide an outlet for the sewer is not sustained by the record, where the ordinance shows the outlet of the sewer and the proof shows that such outlet is a natural water-course of sufficient capacity to carry off the water, and there is no .objection that the city has not the right to use the water-course.</p> <p>2. Same—when description of catch-basin covers is indefinite. A description of catch-basin covers as weighing not less than 325 pounds and “of an approved pattern” is not sufficiently definite to comply with the statute.</p> <p>3. Same—when an indefinite description is not aided by subsequent ordinance. The uncertainty of description of catch-basin covers, due to the use of the words “of an approved pattern,” is not cured by an ordinance, passed long after the ordinance for the improvement, providing what the words “of an approved pattern” shall mean when used in any ordinance with reference to catch-basin covers.</p>

<p>1. Special taxation—description of an improvement may be aided by plan and profile attached to ordinance. The description of an improvement may be aided and made certain by a plan and profile attached to and made a part of the ordinance to the same extent as though the plan and profile had been incorporated at length in the body of the ordinance.</p> <p>2. Same—number of driveways or entrances to private property is not an essential matter of description. The fact that an ordinance for the construction of a pavement with combined curb and gutter is uncertain as to the number of private driveways that may be constructed by owners of property along the line of the improvement does not render the ordinance either defective or void, where the ordinance provides that openings in the curb for such driveways may be made by order of the board of local improvements without additional cost to the city.</p> <p>3. Same—it is not improper to vest improvement board with discretion as to number of private driveways. A provision in an ordinance for the construction of a pavement and combined curb and gutter that openings in the curb for private driveways may be made by order of the board of local improvements without additional cost to the city is not an improper delegation of discretionary power.</p> <p>4. Same—what is not a delegation of discretionary power. A provision in a paving ordinance that after the roadway has been rolled and compacted a sufficient quantity of half-inch stone or torpedo sand shall be spread upon the surface to protect the roadway while it is becoming set, is an exercise of discretion by the city council and not a delegation of discretionary power to the contractor or any other person. (People v. Birch, 201 Ill. 81, distinguished.)</p> <p>5. Same—when an objection that ordinance fails to specify the amount of special tax levied is untenable. An objection that an ordinance for the construction of an improvement is void because it fails to specify the amount of special tax levied upon the property is untenable, where the ordinance provides that the whole cost of the improvement, including a specific sum for the cost of making, levying and collecting the tax, shall be levied upon the property contiguous to and abutting upon the improvement.</p> <p>6. Same—city council’s decision that whole cost shall be paid by special taxation of abutting property is conclusive. The determination of a city council that the whole cost of an improvement shall be paid by special taxation of abutting property in proportion to frontage, and that nothing shall be assessed as public benefits, is conclusive.</p> <p>7. Same-r-when amendment of the special tax roll is proper. Where the commissioner has spread a special tax against an entire lot abutting upon an improvement, but it is shown, when the tax roll is offered in evidence, that the person named as owner of such lot does not own a strip of the lot on the end farthest from the line .of the improvement, it is proper to amend the roll so as to eliminate the portion of the lot not abutting upon the line of the improvement.</p> <p>8. Same—grade ordinance need not be set out in improvement ordinance. It is not necessary to set out a grade ordinance in an ordinance for improving a street, but if the written objections filed make the point that no grade is fixed it is necessary to proye the existence of the grade.</p>

<p>1. Warehouses—what equivalent to statement that goods will be delivered to depositor or his order. A statement in a warehouse receipt that the goods are subject to the order of the depositor upon payment of all charges and the surrender of the certificate, properly endorsed, is equivalent to a statement that the goods will be delivered to the depositor or to his order.</p> <p>2. Same—when warehouse receipt sufficiently states the location of the warehouse. The heading on a warehouse receipt reading, “Monarch Refrigerating Company, Michigan, Rush, Cass & Kinzie Streets,” followed by a date line reading, “Chicago, Oct. 2, 1907,” sufficiently states the location of the warehouse.</p> <p>3. Same—failure to state rate of storage charges does not render a warehouse receipt non-negotiable. Failure of a warehouse receipt to state the rate of storage charges does not render the receipt non-negotiable, as warehouse receipts do not necessarily lose their negotiability because they fail to state all the terms required by section 2 of the Warehouse Receipts act of 1907.</p> <p>4. Same—section 2 of Warehouse Receipts act was intended to protect holders and purchasers. The requirements of section 2 of the Warehouse Receipts act were imposed for the benefit of the holders of the receipts and purchasers from them, and it was not intended that a failure to observe such requirements would render the receipts non-negotiable or void in the hands of the holder.</p> <p>5. Same—distinction between negotiable and non-negotiable receipts. Under sections 4 and 5 of the Warehouse Receipts act of 1907 a receipt which states that the goods will be delivered to the depositor or another specified person is non-negotiable, while a receipt which states that they will be delivered to the bearer or to the order of the person named in the receipt, is negotiable.</p> <p>6. Same—when the warehouseman is liable as for conversion of the goods. Under section 41 of the Warehouse Receipts act a purchaser of a negotiable receipt acquires title to the goods, and under sections 10 and 11 of such act the warehouseman, by surrendering them to another person without taking up and canceling the receipt, becomes liable to the purchaser as for the conversion of the goods.</p> <p>7. Same—when goods in warehouse are not subject to attachment. Under section 25 of the Warehouse Receipts act, goods for which a negotiable receipt has been issued cannot, while in the possession of the warehouseman, be attached by garnishment or-otherwise, or be levied upon under an execution, unless the receipt be first surrendered to the warehouseman or its negotiation be enjoined, and the warehouseman cannot be compelled to deliver up the actual possession until the receipt is surrendered to him or impounded by the court.</p> <p>8. Same—a warehouseman must see that no jtidgment is rendered against him as garnishee. Where a warehouseman, after issuing a negotiable receipt, is summoned as garnishee in an attachment suit against the depositor to which a purchaser of the receipt is not a party, it is his duty to see that no judgment is rendered against him, and if judgment is erroneously entered against him he must secure a reversal of it in order to protect himself, as he cannot rely upon the attachment judgment, and the execution issued thereon, as a defense to an action of trover brought by the purchaser of the receipt.</p>

<p>Appeal from the Circuit Court of Sangamon county ; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Executors and administrators—land cannot be purchased for estate as an investment. An administrator cannot, nor can an executor unless so authorized by the will, use the funds of the estate to purchase land as an investment, for the benefit of the estate.</p> <p>2. Same—when administrator or executor may purchase land. An administrator or executor may in good faith and in the exercise of sound judgment acquire title to real estate for the purpose of conserving and protecting the estate, and land thus acquired is not the property of the executor or administrator but is to be subjected to the payment of debts and legacies and to distribution, like personal property, and for this purpose the executor or administrator may sell the land and convey good title by deed.</p> <p>3. -Same—when executors buy land to conserve estate they do not take as tenants in common. Where executors buy land to conserve the estate and the deed is made to them by name, as executors of the estate, they do not take title as tenants in common but as joint tenants in their representative capacity, and on the death of one of them a conveyance by the survivor will divest the executors of all their interest in the land.</p> <p>4. Abstracts of titee—a merchantable title does not mean a perfect title. An abstract, in order to show a merchantable title, is not required to show a perfect chain of title from the government, and it may show a merchantable title although there may be a possibility of a defect.</p> <p>5. Specific performance—character of defect which will justify refusal to perform. To justify a refusal to perform a contract to convey land upon the ground that the abstract furnished fails to show a merchantable title in the vendor, the defect complained of must be sufficient to cast a cloud upon the title which would render it suspicious in the minds of reasonable men.</p> <p>6. Same—when an apparent defect in the title is cured by affidavit. Where an abstract of title shows a conveyance of the land to two named persons as executors of a certain estate and a subsequent conveyance by one of such persons as sole surviving executor of the said estate, the apparent defect in the title is cured by an affidavit showing that the land was purchased by the executors to conserve the estate, and that the executor who did not sign the subsequent deed had died before it was made.</p>

<p>1. Municipal corporations—authority of cities over streets depends on their charter powers. The authority of municipalities over streets and the uses to which they may legitimately be put, depends, within constitutional limitations, entirely upon the charter powers of the municipalities granted by the legislature.</p> <p>2. Same—public uses of streets must be extended to meet public necessities. The public uses to which a city street may be applied cannot be limited by arbitrary rules but must be extended to meet public wants and necessities occasioned by the enlarged uses to which the abutting property is devoted.</p> <p>3. Same—what is included in right of travel. The right of the public in the city streets .necessarily includes every kind of travel and communication for the movement or transportation of persons or property which is reasonable and proper; and this includes not only travel on the surface of the street but below it.</p> <p>4. Same—courts rule more strictly with regard to encroachments above the surface of the street than below it. With reference to encroachments in a street the courts rule more strictly where the encroachments are above the surface of the street than when they are below it.</p> <p>5. Same—power of city to permit adjacent owners to use the space beneath street. A city has the power to permit the owners of adjacent property to use the space beneath the surface of a street, even though the fee is in the city, in any manner not inconsistent with the public necessities as to street purposes.</p> <p>6. Same—cities have a limited power to declare general policy as to control of streets. Cities, within certain general limitations, have authority to declare the general policy with regard to the control of their streets, and in the absence of a contrary showing the Supreme Court will presume that the municipal authorities, in passing upon matters of this kind, have acted for the best interests of the city.</p> <p>7. Same—when ordinance granting right to construct tunnels under street is not ultra vires nor unconstitutional. An ordinance granting to a corporation owning mercantile buildings upon both sides of a street the right to construct tunnels under the street connecting the basements and sub-basements of the buildings for the use of employees and the public in passing from one building to the other and for transporting goods, is not ultra vires nor unconstitutional as granting a special and exclusive privilege to the corporation, where there is no harmful interference with the present public use of such space and the rights of the public as to future use are amply safeguarded by the ordinance, which provides for its revocation, at any time, by the city council without recourse by the corporation, which must then remove the tunnels and restore conditions at its own expense.</p>

<p>1. Judgments and decrees—judgment exists from the time the court acts. A judgment exists from the time the court acts, even though the judgment may not have been formally written up by the clerk, as the statutes contemplate that judgments, decrees and orders of the court may not be immediately entered of record, and direct the clerk to enter them before final adjournment of the term or as soon thereafter as practicable.</p> <p>2. Same—judgment need not be formally written up before the execution is issued. It is not essential to the validity of an execution that the judgment' shall have been formally written upon the record of the proceedings of the court before the execution is issued.</p> <p>3. Same—Supreme Court will take judicial notice tlpat record of court proceedings is frequently not written up during the term. The Supreme Court will take judicial notice that the record of the proceedings of a court is frequently not written up during the term, and it is neither customary nor necessary to await such writing before execution may issue.</p> <p>4. Same—failure of the clerk to write up judgment within a particular time does not invalidate the execution or judgment. If the entries in the book of the judge’s minute clerk, the docket of the clerk and the judgment docket are sufficient memoranda from which the clerk can formally write up the judgment, or if, without .such entries, the judgment was actually rendered, the clerk is authorized to issue an execution, and his failure to write up- the judgment within a particular time, although it may subject him to a penalty, does not affect the binding force of the judgment nor invalidate the execution.</p> <p>5. Same—court loses power over its judgments after the lapse of the term. A judgment is under the control of the court until the lapse of the term at which it is rendered, but after the term the court has no power to change, increase, reduce, vacate, modify or interfere with such judgment, whether the judgment is right or wrong, and even though it has not been formally written up by the clerk. ,</p> <p>6. Same—clerk may write up judgment after next succeeding term without nunc pro tunc order. The statute imposing a penalty upon the clerk for failure to write up a judgment by the next succeeding term does not limit the time in which a judgment may be written up, and the clerk may thereafter, without a nunc pro tunc order, write up a judgment which it was his duty to record at the time it was renderedbut if the judgment was rendered during the term of a former clerk, an order of the court authorizing the new clerk to enter the judgment would be necessary.</p> <p>7. Same—when constitutional provision with reference to preservation of court proceedings in English language does not apply. The constitutional provision with reference to the preservation of court proceedings in the English language does not apply to minutes and notes which are no part of the record but are memoranda from which the record is made.</p> <p>8. Same—when mandamus will issue to compel court to expunge an order. The circuit court is without power to enter an order that a judgment rendered at a previous term shall not be written up, and if such an order is made it is void and a writ of mandamus will be granted to expunge the same.</p> <p>9. Same—whether court should vacate judgment for errors of fact cannot be determined by mandamus. Whether the facts alleged in a motion to vacate a judgment entered at a previous term for errors of fact not appearing in the record are sufficient to require the court to vacate the judgment is a question which can not be determined by the Supreme Court on petition for a writ of mandamus, but the jurisdiction of such court can only be exercised by means of a writ of error after the trial court has given judgment on the motion.</p>

<p>1. Taxes—purpose of section 56 of Roads and Bridges act of 1913, concerning approval of tax by county board. The purpose of the provision of section 56 of the Roads and Bridges act of 1913 vesting in the county board a supervisory power over the road and bridge taxes certified to by the highway commissioners, was to safeguard the interests of the tax-payers by requiring the county board to exercise its judgment upon the levy and approve the same, or a part thereof, in its discretion.</p> <p>2. Same—approval of county board is necessary to valid road and bridge tax. The approval, by the county board, of the road and bridge taxes in any town or road district is necessary to a valid levy under section 56 of the Roads and Bridges law of 1913.</p> <p>3. Same—what is not an approval by county board of road and bridge taxes. A general direction in the resolution of the county board that the county clerk shall extend on the tax books “all State, county, town, road and bridge,' school and all other authorized taxes that are or may be certified to him by the proper authorities,” does not amount to an approval by the county board of the road and bridge taxes certified by the highway commissioners, as there can be no delegation to the county clerk of duties to be performed by the county board.</p> <p>4. Same—record is the best evidence of proceedings of county board. The county board is a body corporate, has a clerk and is required to keep a record of its proceedings, and the record is therefore the best evidence of what is done by such board.</p> <p>5. Same—levies for building purposes and educational purposes are distinct. The limitation fixed by statute as to the rate which may be levied for building purposes and educational purposes, respectively, must he observed, and it is not lawful to supplement a shortage in the fund for one purpose by an excessive an& unnecessary levy for the other.</p> <p>6. Same—effect where amount levied for building purposes is slightly in excess of amount needed. If the board of education, acting in good faith, estimates the amount it will require for building purposes, the fact that such estimate proves to be slightly in excess of the■ amount actually needed does not justify a refusal to pay the tax.</p> <p>7. Same—what competent as tending to show excessive levy fot building purposes. Where it is claimed, and there is evidence tending to show, that the amount levied for building purposes is greatly in excess of the amount actually needed, it is competent to show that the amount levied for educational purposes is less than the amount required for such purposes.</p> <p>8. Same—when tax for building purposes is illegal. A tax for building purposes which is largely in excess of the amount which is really required for such purposes cannot be said to be legally levied* even though the rate is within the limit fixed by statute. (People v. Hassler, 262 Ill. 133, distinguished.)</p>