Volume 267 — Illinois Reports

Writ or Error to the Branch “B” Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. William E. Dryer, Judge, presiding.

Writ op Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

<p>This case is controlled by the decision in Cook v. Board of Directors of School District No. 80, 266 Ill. 164.</p>

<p>1. Taxes—cotmty may levy tax for State aid roads—purpose of section 22 of Roads and Bridges act of 1913. A county may, under its general power to levy taxes.for county purposes, levy a tax for State aid roads, as section 22 of the Roads and Bridges law of 1913 relates to the appropriation of funds for the share of the county in the construction of a State aid road along a designated route which has been determined upon.</p> <p>2. Same—what is properly included in a tax for ditching to drain roads. In levying a tax, under section '58 of the Roads and Bridges law of 1913, for ditching to drain roads it is proper for the highway commissioners to include an amount sufficient to pay an assessment against the township under the Drainage law. (People v. Wabash Railroad Co. 256 Ill. 394, followed.)</p> <p>3. Same-—when description of railroad property in delinquent list and judgment is sufficient. If the description of railroad property in the delinquent list and judgment would be sufficient to enable a competent surveyor to find and identify the property the description complies with the law, as a railroad is a fixed and continuous monument in the description of lands.</p>

<p>1. Practice—motions and orders in a chancery proceeding are part of the record proper.' The motions and orders made in the course of a chancery proceeding are a part of the record proper, and are as much out of place in the certificate of evidence as the pleadings and rulings thereon would be in a bill of exceptions in an action at law.</p> <p>2. Same—function of a certificate of evidence. The function of a certificate of evidence is to preserve and set forth the evidence offered, received and considered or rejected by the chancellor on the hearing, and its only object is to preserve matters which are not a part of the record proper.</p> <p>3. Same—oral announcements or remarks by the chancellor do not constitute the decree. Oral announcements or remarks by the chancellor expressing his opinion on the question at issue do not constitute the decree, and they are of no binding force or effect unless they are embodied in the decree and filed with the clerk, to be entered of record.</p> <p>4. Specific performance—when court may order conveyance from holder of legal title to equitable owners assignee. One who has a valid, existing contract with the owners of the legal title to convey lands to him is the equitable owner and may assign his contract or execute a new contract for the sale of the land to a third party, and if the latter performs her part of the contract, a court of equity, upon a bill by her for specific performance, to which the holders of the legal title are made parties and under which they are brought into court, may decree a conveyance from the holders of the legal title directly to the complainant.</p> <p>5. Contracts—when contract is for the sale of land. A contract made between the equitable owner of land and a third party, by which the former agrees to sell and the latter agrees to buy certain described real estate for a specified consideration and upon specified terms, is a contract for the sale of land which may be specifically enforced, notwithstanding a provision for the furnishing of articles of agreement for a warranty deed in the event the proposed purchaser elects to pay the balance of the purchase price in deferred payments of monthly installments of $25 or more, as the purchaser may waive such provision and elect to pay the balance in full and demand a deed.</p> <p>6. Appeals and errors—when question is not open to review. A question raised in the argument is not open to review in the Supreriie Court where there is no assignment of error which presents such question.</p>

<p>1. Criminal „LAW—statute requiring defendant to be furnished with copy of indictment and list of witnesses is directory. The statute requiring a defendant to be furnished with a copy of the indictment and a list of the jurors and witnesses before arraignment is directory, and before a defendant can take advantage of a failure to comply with the statute he must demand such copy and list and preserve the evidence of his demand by bill of exceptions.</p> <p>2. Same—when fact that defendant was arraigned may be inferred from the record. Where the record shows that the defendant was present in court and attended by his counsel and that he entered a plea, it may be inferred that the law was complied with and' that the defendant was duly arraigned and called upon to plead to the indictment.</p> <p>3. Same—it is sufficient if the record shows that the defendant was “duly admonished" by the court. The ■ requirement that the court shall fully explain to a defendant the consequence of his entering a plea of guilty is complied with where the record shows- that the defendant was “duly admonished by the court” and persisted in his plea of guilty, as the words “duly admonished,” when so used, have a well defined meaning.</p> <p>4. Same—the record need not show affirmatively that the court examined witnesses on plea of guilty. The record in a criminal case, where_ the defendant has pleaded guilty, need not show affirmatively that the court examined witnesses in mitigation Or aggravation of the offense, and if it is claimed the court failed to perform its duty in that regard or that the punishment is more severe than the circumstances warrant, such matters must be made to appear by a bill of exceptions.</p>

<p>1. Wills—one charging undue influence and a lack of mental capacity must sustain such charges by proof. One attacking the validity of a will upon the ground of undue influence and lack of testamentary capacity must sustain his charges by proof.</p> <p>2. Same—what does not justify holding a will invalids The mere facts that the testator was sick, feeble and advanced in years, and that he made an unequal, and to a certain extent an unnatural, division of his property, are not sufficient to defeat the will.</p> <p>3. Same-—when the courts cannot declare a will void. Where • neither fraud nor undue influence is shown, the courts cannot declare a will void merely because the testator gives the bulk of his property to a relative by marriage in preference to blood relatives.</p> <p>4. Same—undue influence means wrongful influence. Influence secured through kiritiness, care, solicitation or flattery is hot such undue influence as justifies setting aside a will, as influence, to be undue, must go to the extent of depriving the testator of his free agency.</p>

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

<p>1. Contracts—the rule that courts will look to interpretation by parties applies in case of ambiguity, only. The rule that courts will look to the interpretation placed upon a written contract by the parties thereto only applies where, from .the ambiguity of the words used, a doubt arises as to proper meaning of the contract.</p> <p>2. Party watts—when party is not estopped to enforce contract according to its terms. Where a party-wall agreement clearly requires a solid wall throughout its entire length and height, the mere fact that one of the parties to .the contract makes no obj ection, at the time, to the acts of the other party in leaving openings and otherwise violating the contract when adding to the height of the wall as originally constructed, does not estop the first party from enforcing the contract according to its terms when she desires to make use of the additional wall for her building.</p> <p>3. Same—zvhat does not justify breach of party-wall contract. Where a party-wall agreement gives one party an easement of passage over the other’s land, the act of the latter in constructing a stairway which is an obstruction to the easement of passage can not be justified upon the ground that the stairway was intended as a fire-escape, which the law required,</p>

<p>Writ of Error to the Branch “B” Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.</p>

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

<p>1. Statutes—strict construction does not require giving words their narrozvest possible meaning. While the rule of strict construction, as applied to a statute, requires that the statute shall be confined to such subjects or applications as are obviously within its terms and purposes, it does not prevent giving the words employed in the statute their full meaning.</p> <p>2. Same-^relative word need not always be read as represent- ■ ing the last antecedent. The grammatical construction of a statute is not the only mode of its interpretation, and a relative word will not be read' as representing the last antecedent exclusively, where the context and clear intention of the legislature require it to represent several or one more remote.</p> <p>3. Same—intention of legislature does not depend solely upon the words used. The intention of the legislature is to be gathered from the necessity or reason for the enactment and the meaning of the words, enlarged or restricted according to the real intent, and the courts will not look only to the words employed, but also to the evil to be remedied by the act and the object to be attained.</p> <p>4. Same—attention should not be confined to the one clause or section to be construed. A statute is passed as a whole and not in parts or sections, and hence each part or section should be construed in connection with every other part or section, and it is not proper to confine the attention to the one part or section to be construed.</p> <p>5. Same—statute should ordinarily be given prospective effect, only. A statute should not be construed to have a retroactive operation unless the language employed is so clear as to admit of no other construction.</p> <p>6. Descent—section 7 of the Adoption act construed as to right of adoptive parents and their heirs to inherit. Section 7 of the Adoption act, providing that the preceding section, which gives to the adoptive parents and their heirs the right to inherit from the adopted child, shall apply “where a child has heretofore been declared by any court to have been adopted or where such adoption has been declared or assumed in any deed or last will,” applies to deeds or wills made after the passage of the Adoption act, as the word “heretofore” will not be construed as limiting the application to deeds and wills made before the passage of the act.</p>

<p>Appeal from the County Court of Grundy county; the Hon. George Bedford, Judge, presiding.</p>

<p>1. Public utilities commission—State Public Utilities Commission has power to enforce paragraph 50 of- the Railroads act. Under section 79 of the Public Utilities act, making it the duty of the State Public Utilities Commission to enforce the provisions of the constitution and the statutes affecting public utilities, where the enforcement of such provisions is not vested in some other tribunal or officer, such commission has power to enforce paragraph 50 of the general Railroads act, relating to maintaining depots in towns and villages having a population of two hundred or more.</p> <p>2. Railroads—paragraph 50 of Railroads act applies though village is unincorporated. Paragraph 50 of the general Railroads act, requiring railroad companies to maintain depots in towns or villages having a population of two hundred or more, applies to a village having the required population even though it is not incorporated.</p> <p>3. Same—count of population not limited to persons living on platted lots. In determining the population of an unincorporated village the count is not limited to persons living on the platted lots, where all the residences in the village are in one group and there is no line of demarcation, other than that some of the residences are on platted lots while others are not.</p> <p>4. Same—provisions of paragraph 50 of Railroads act must be enforced unless the result will be confiscatory. The provisions of paragraph 50 of the general Railroads act relating to maintaining depots in towns and villages must be enforced by the State Public Utilities Commission unless the result of such enforcement will be confiscatory, and the burden is upon the objecting railroad company to show such result.</p> <p>5. Same—the orders of State Public Utilities Commission must be 'reasonable. The Public Utilities act does not give to the commission such arbitrary powers as will result in confiscation of the property of utility companies, but expressly requires that the orders of the commission shall be lawful and reasonable and provides for a review of its orders by the courts.</p>

<p>1. Appropriations—the Appropriations act applies to appropriations to the Illinois Farmers’ Institute. The fact that the act creating the Illinois Farmers’ Institute provides that its board of directors shall have sole care and disposal of all sums that may be appropriated by the State to sustain the organization does not exempt such corporation frorii the provisions of section 2 of the Appropriations act of 1913, which requires certified pay-rolls for the employees of such corporation and itemized bills for other expenses before warrants in payment shall be drawn by the Auditor of Public Accounts.</p> <p>2. Illinois Farmers’ Institute—the employees of the Illinois Farmers’ Institute are not subject to the State Civil Service act. Neither the corporation, the Illinois Farmers’ Institute, nor its members, officers or employees, are officers of the State or any political subdivision thereof, nor is the corporation, its board of directors or employees in the service of the State, and not being in the State service such employees are not subject to the provisions of the State Civil Service act.</p> <p>3. Constitutional law—power to appoint to office in State government cannot be given to voluntary associations. Voluntary organizations cannot appoint to office in the State government nor can the legislature give them power to do so.</p> <p>4. Same—what appropriations are included in title of the Appropriations act. Appropriations to individuals and voluntary associations not in the service of the State and for expenses which would not come within a narrow definition of the term “expenses of the State government,” as used in the title of the Appropriations act, are nevertheless fairly included within such term if they are proper charges assumed, in the discretion of the General Assembly, as expenses of the State governmejit.</p> <p>5. Appeals and errors—when interest of the State authorizes a direct appeal to the Supreme Court. The interest of the State in a mandamus proceeding to compel the Auditor of Public Accounts to draw warrants on the State Treasurer for sums appropriated to the petitioner without compliance by the petitioner with either the Appropriations act of 1913 or the State Civil Service act authorizes a direct appeal to the Supreme Court from the judgment of the trial court.dismissing the petition.</p>

<p>1. Deeds—whether a condition is precedent or subsequent is a question of intention. Whether a condition in a deed is precedent or subsequent is a question of intention and not of phrase or form, as the same words may create either and there are no technical or precise words used to distinguish one from the other.</p> <p>2. Same—character of condition depends upon the time of performance. If the language of the particular clause or of the whole instrument shows that the act upon which the estate depends must be performed before the estate vests the condition is precedent, but if, on the contrary, the act does not necessarily precede the vesting of the estate but may accompany or follow it the condition is subsequent.</p> <p>3. Same—when court may look to the circumstances. If it is doubtful from the language used in a deed whether a condition is precedent or subsequent, the court may consider the circumstances connected with the transaction, and also the situation of the parties, in arriving at the intention.</p> <p>4. Same—when provision may be construed to be a covenant and not a condition. If from the language employed in a deed it is doubtful whether the provision is a condition or a covenant the provision will be construed as a covenant.</p> <p>5. Same—fact that word “condition” is_ used is not important. The fact that the word “condition” is used in a deed with reference to the performance of an act by the grante'e is not important in determining whether the provision is a condition precedent or subsequent, nor is it conclusive that the provision was intended as a condition rather- than a covenant.</p> <p>6. Same—rule where no time is prescribed in which condition is to be performed. Where no time is prescribed in which a condition is to be performed, the general rule is that the performance must be within a reasonable time.</p> <p>7. Same—language construed as not creating condition precedent. A provision in a warranty deed that the conveyance is subject to .the condition that the grantee thereby agrees to pay to each of the five named children of the grantor the sum of $500, is not, in view of the circumstances of this case, a condition precedent, and the performance thereof is not essential to the vesting of the estate in the grantee.</p>

<p>1. Husband and wire—wife may elect to take dower or lands conveyed by jointure. Where, after marriage, a husband conveys or causes to be conveyed to his wife a particular tract of land, which by written agreement the wife is to accept in lieu of dower in the husband’s other property, the conveyance is by way of jointure, and the wife may, after the death of the husband, elect as to whether she will take dower or the land conveyed.</p> <p>2. Same—when a renunciation of agreement is without effect. Where a husband and wife, by an agreement entered into after marriage, release to each other all rights or interests which either may acquire in the property of the other by reason of the marriage relation but there is no conveyance of land accompanying the agreement, there is nothing which calls for an election on the part of the wife, and the fact that within one year after the husband’s death she files with the county clerk a renunciation of the agreement is without effect.</p> <p>3. Same—wife may, by post-nuptial contract, bar her right to dower. A wife may by contract with her husband, made after marriage, release to him all her rights and interests in his property which she would have by reason of the marriage relation, including her right to dower, in consideration of a similar release by the husband of all his rights and interests in her property. (Hieser v. Sutter, 195 Ill. 378, distinguished; Carling v. Peebles, 215 id. 96, explained.)</p>

<p>1. Eminent domain—-no issue of ownership or title should be submitted to the jury. In condemnation cases the province of the jury is merely to ascertain and report just compensation for the land taken or damaged, and no issue of ownership or title should be presented to the jury, as the question of title is a preliminary one, to be determined before the jury is empaneled.</p> <p>2. Same—what evidence should not be submitted to jury in condemnation case. In a condemnation case, evidence as to whether the defendant owns the land merely to the bank of a river or to the thread of the stream, or whether she has acquired riparian rights, should not be submitted to the jury,</p> <p>3. Same—admissibility of evidence of voluntary sales of similar lands in the vicinity. Evidence of voluntary sales of similar land in the vicinity of that condemned is admissible upon the question of the value of the land condemned, subject to the sound discretion of the court with respect to the degree of similarity of the lands and the nearness as to time and distance.</p> <p>4. Same—evidence of sales not voluntary or for money is not admissible. To render evidence of sales of other property competent in a condemnation case the sales must have been voluntary and not forced and must have been for money, and not, in whole or in part, by way of exchange or for other considerations.</p> <p>5. Same—when property cannot be said to have been damaged. In a condemnation proceeding the measure of damages to property not taken is the difference between the value of the land before the construction of the improvement and its value after such construction, and if the land is worth as much after the improvement as before, then it is not damaged.</p> <p>6. Same—when property is specially benefited. If property is enhanced in value by reason of the improvement, as distinguished from a benefit to the whole community at large, it is specially benefited notwithstanding other pieces of property near the improvement are likewise benefited, as each piece of property enhanced in value by the improvement is specially benefited within itself, irrespective of the benefit conferred upon other properties.</p> <p>7. Same—what is meant by the term “general benefits.” By the term “general benefits,” as used in Illinois, is meant those intangible benefits which are supposed to flow to the general public from a particular improvement; but their effect upon a particular piece of property is impossible of ascertainment in money value, and they are too speculative to be considered on the question of damages to the remainder.</p> <p>8. Same—special benefits do not become general because common to other property. Special benefits to particular property do not become general benefits because they are common to other property in the vicinity, and they must be considered in determining whether or not the particular property has been damaged, and if it has, the extent of the depreciation.</p> <p>9. Waters—party alleging that stream is navigable must prove that fact. One who alleges that a certain stream is navigable has the burden of showing that fact.</p> <p>10. Same—what is necessary to render a stream navigable in fact. To be navigable in fact a stream of water must, in its ordinary and natural condition, furnish a highway over which commerce is or may be carried on in the customary mode in which such commerce is conducted by water.</p> <p>11. Same—to be navigable in fact a stream must furnish channel of practical utility for commerce. To be navigable in fact a stream must afford a channel for useful commerce and of practical utility to the public as such, and it is not sufficient that there is enough water in certain seasons of the year to float row boats and small launches.</p>

<p>1. Trusts—presumption that conveyance of legal title to wife of purchaser is a gift may be rebutted. The presumption that a conveyance of the legal title to the wife of the person who furnished the consideration was intended as a gift or advancement is not conclusive but may be rebutted.</p> <p>2. Same—when equity will enforce a trust irrespective of section p of the Statute of Frauds. Where a conveyance of the legal title is made to the wife pursuant to an oral agreement with her husband, who furnished the consideration, that she will hold the property as the joint homestead of herself and husband as long as she shall live and will make a will devising the property to her husband at her death, or, in case he be dead, to his two sons, a constructive trust is created by reason of the fiduciary relationship of the parties, which a court of equity will enforce notwithstanding section 9 of the Statute of Frauds.</p>

<p>Writ of Error to the .Branch “D” Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.</p>

<p>Appeal from the County Court of Montgomery county; the Hon. John L. Dryer, Judge, presiding.</p>

<p>1. Criminal law—instructions not based upon evidence should not be given. On the trial of an issue of fact, only such instructions should be given as are based upon legitimate evidence, and if irrelevant instructions stating correct abstract rules of law calculated to mislead the jury are given, it will be reversible error.</p> <p>2. Same—when giving instructions defining manslaughter in a murder trial is reversible error. Where there is no evidence whatever which would reduce the crime of murder to manslaughter but the testimony is such that the defendant must be either innocent or guilty of murder, it is reversible error to give instructions defining the crime of manslaughter, which the jury followed in finding the defendant guilty of such crime, even though the judgment would not have been reversed had no such instruction been given.</p>

<p>Taxes—three mill park tax is additional to the $1.20 which a city may levy annually. The three mill park tax-which cities and villages having a population of less than 50,000 are authorized to levy must be held, in view of the act of 1913 concerning the reduction of tax levies for city and village purposes, to be in addition to-the rate of $1.20 on the $100 assessed valuation which cities and villages may levy annually for corporate purposes.</p>

<p>1. Wins—when devisee takes a life estate, only. A devise of all the property of the testatrix “for and during her natural life,” with directions that she shall have full control of the property and use the same as she shall desire, and what remains shall go to the nearest of kin of the testatrix living at the death of such devisee, gives the devisee a life estate, only.</p> <p>2. Inheritance tax—when net value of life estate shoidd be taxed at five per cent. Where the testatrix bequeaths all of her property, which is all personalty, to a stranger in the blood for life, with power to control and use the same as she shall see fit and what remains to go to the nearest of kin of the testatrix living at the death of the life tenant, the net value of the life estate, if it exceeds $20,000 and is less than $50,000, should be taxed at five per cent.</p> <p>3. Same-—the rule for assessing tax on contingent remainder. Where a testatrix bequeaths all of her property, which consists of personalty, to a stranger in the blood for life, with a contingent remainder to such of the nephews and nieces of the testatrix as may be alive at the death of the life tenant, the remainder, after deducting the net value of the life estate and one exemption of $2000, which is the exemption allowed in case of a transfer to a nephew or niece, should be taxed at two per cent.</p>

<p>This case is controlled by the decision in People v. Wabash Railroad Co. (ante, p. 30.)</p>

<p>Appear from the Circuit Court of LaSalle county; the Hon. Joe A. Davis, Judge, presiding.</p>

<p>1. Constitutional law—section 13 of article 4 was not intended to apply to every act affecting prior laws. Section 13 of article 4 of the constitution, providing that no law shall be-revived or amended by reference to its title, only, etc., was not intended to apply to every enactment that may affect prior laws.</p> <p>2. Same-—when act is not within the meaning of section 13 of article 4. If an act can properly be held to be a complete act of the legislature on the subject with which it deals it is not within the meaning of section 13 of article 4 of the constitution, providing that no act shall be amended by reference to its title, only.</p> <p>3. Same—High School law of 1913 does not contravene section 13 of article 4. The High School law of 1913, providing for the transfer of pupils to a high school when there is ■ no high school in the district where they reside, is complete in itself and does not contravene section 13 of article 4 of the constitution.</p> <p>4. Schools—High School law of 1913 need not be read in connection with section 121 of School law. The High School act of 1913, concerning the transfer of pupils to a high school, need not be read in connection with section 121 of the School law, as the requirement in the act of 1913 that the tuition shall be paid by the district from which the pupils are transferred does not require the aid of any other portion of the School law, but the tuition may be collected in any mode provided by law for enforcing similar obligations.</p> <p>5. Same—neither the parents nor the school directors can arbitrarily select high school. The provision of the High School act of 1913 that the parent or guardian shall select the high school to be attended, subject to the approval of the school directors of the home district, does not give either the parent or guardian or the school directors arbitrary power to select the high school to be attended, and if the parent or guardian and the school directors disagree, the matter must be determined by the court according to the circumstances.</p>

<p>1. Specific performance—oral contract must be certain and definite and be clearly established. In order to entitle a party to specific performance of an oral contract to convey land the contract must be certain and definite in its terms and be established by clear evidence, and it is also essential that it be established by clear and convincing proof that the promisee went into possession under the alleged contract and made valuable improvements with his own means upon the faith of the promise and with the knowl-« edge of the promisor.</p> <p>2. Same—clearer proof is required where alleged contract is between father and son than between strangers. Clearer proof is required to establish the elements necessary to justify the enforcement of an oral contract to convey or devise land where the complainant is the son of the alleged promisor, who has been dead for several years before the filing of the bill to enforce the contract, which is claimed to have been made some twenty years before the father’s death. •</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding.</p>

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

<p>1. Taxes—a grade for a sidewalk must be fixed by ordinance. A sidewalk ordinance, either directly or by reference to another ordinance, must fix the grade for the sidewalk, as the establishment of the grade is a legislative function, which the city council cannot delegate to a committee or an official of the city, and if no grade is established the ordinance is fatally defective.</p> <p>2. Same—what overcomes the prima facie case made by the collector. The prima facie case made by the collector, on application for judgment and order of sale for a special sidewalk tax, is overcome where the general ordinance referred to by the sidewalk ordinance as fixing the grade for the sidewalk is introduced in evidence and shows that no grade was fixed for any sidewalk.</p> <p>3. Same—when an appeal will not be dismissed because objection to tax is not more specific. A party objecting to a tax should make his objections sufficiently specific to show the points upon which a decision is asked, but if no motion is made-by the People to make the objections more specific and the objections made- can fairly be construed to cover the points raised, the Supreme Court will not dismiss the appeal because the objections were not made more specific.</p> <p>4. Appeals and errors—if appellee considers the abstract insufficient he should file an additional one. If the appellee considers that the abstract of record prepared by the appellant does not sufficiently set out the evidence he should ‘file an additional abstract setting out the additional evidence upbn which he relies.i,. .</p>

<p>Special taxation—special tax for sidewalk is invalid if grade for the walk is not fixed. Where the ordinance for the construction of a sidewalk by special taxation under the Sidewalk act does not fix the grade for the walk but refers to a general ordinance, which, when introduced in evidence, contains no provision fixing the grade for the walk or the street nor any reference to any other ordinance which does fix the grade, and no other proof is offered showing that such grade has ever been fixed by an ordinance, the tax is invalid. (People v. Meerts, ante, p. 210, followed.)</p>

<p>1. Damages—when injury to land from overflow is not necessarily temporary. The mere fact that.in times of low water lands are not flooded and are only flooded when the water is high and the river out of its banks does not necessarily establish that .the injury to the land is temporary, only.</p> <p>2. Same—nominal damages cannot be recovered if the action is barred by Statute of Limitations. Where a legal right has been invaded, although there may be no evidence of actual damages, the plaintiff may recover nominal damages, but the Statute of Limitations, applies to all damages and bars a recovery where the statutory period for bringing the action has elapsed.</p>

<p>Appeals from the County Court of Macon county; the Hons. O. W. Smith and Fred C. Hill, Judges, presiding.</p>

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

<p>1. Duress-—what does not constitute duress. Mere annoyance or vexation, or a quarrel or cruelty at a previous time, does not constitute duress, but there must be such compulsion affecting the mind of the party executing the instrument that its execution is not the voluntary act of the maker.</p> <p>2. Same—when previous acts of cruelty cannot be relied upon to show duress. Acts of cruelty by a husband to his wife at the tipie she refused to execute certain deeds cannot be relied upon to show duress at a subsequent time, when the wife, accompanied by friends, met the husband in a lawyer’s office, where she signed a contract and deed with the object of making a peaceful settlement and providing for the support of herself and her children.</p> <p>•3. Parties—when minor children should be made parties to a bill to set aside deed. Where a husband and wife, for the purpose of making provision for the separate maintenance of the wife, execute a contract and a deed conveying a life estate in a farm to the wife with remainder to her minor children, and the wife subsequently files a bill to rescind the transaction for fraud on the ground that the deed should have conveyed her a fee, the children are interested in sustaining the conveyance as to the remainder, and as the defendant cannot be placed in statu quo without setting aside the deed as a whole, the children should be made parties.</p> <p>4. Same—when litigation will not be prolonged to allow new parties to be brought in. Although children of the complainant are not made parties to a bill by her to set aside, for fraud, a conveyance to her of a life estate with remainder to her children, the Supreme Court will not prolong the litigation to allow the children to be made parties, where all the facts concerning the transaction were proved at the hearing but are not sufficient to sustain the decree setting aside the deed, as in such case the decree will be reversed on the merits of the case.</p>

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

<p>Insurance—injury received in ñght in which insured was the assailant is not within accident policy. Where the holder of an accident insurance policy voluntarily and deliberately assaults another person and in the fist fight which follows is knocked down and receives a broken leg, his injury is not within the terms of the policy, which insures against “injuries effected exclusively by external, violent and accidental means,” as the insured was bound to anticipate some injury even though he could not have foreseen its precise form and although he intended to completely disable the other person with the first blow.</p>

<p>1. Easements—when water power becomes appurtenant to water lots. Where parties construct dams on lands then owned by them as tenants in common, for the purpose of developing water power to be used upon water lots which they also own as tenants in common, and thereafter effect a voluntary partition by exchanging deeds allotting to certain of the water lots specific portions of the water and in addition thereto conveying to each grantee “one-half of all the' remaining water in said mill-race,” the water power thus granted is not limited to the amounts specifically allotted to the particular water lots, but all water power not specifically allotted becomes appurtenant to the water lots conveyed by the deeds which have no specific allotment, and can only be severed therefrom by the owners thereof.</p> <p>2. Same—when water power rights appurtenant to water lots are not severed by deeds. Water power rights which have become appurtenant to water lots, after the construction of the dams, by an exchange of deeds between the tenants in common of the lands on which the dams were built and of the water lots, do not become severed from the water lots by subsequent deeds conveying lands in which the easement in favor of the water lots had been created and purporting to grant water power rights, where the conveyances of such lands have all included a portion of the water lots to which the water power rights were appurtenant.</p> <p>3. Same—when original easement of water power is enlarged. Where a navigation company, for a good consideration and with ■the consent of the owners of water lots, increases the height of the original dam, and, in consequence, the amount of water diverted to the water lots, the original easement is enlarged so as to entitle the owners of the water lots to have the dam maintained at its new height and to the unobstructed flow of the amount of water diverted thereby.</p> <p>4. Same—what does not show that the grantor treated water power rights as distinct from ownership of water lots. A provision in a deed conveying the grantor’s interest in a certain water lot, which specifically limits the quantity of water to be used by the grantee, does not show that the grantor regarded the water power rights as distinct from the ownership of the water lots, where, at the time, the grantor owned the major portion of the water lots, and had, therefore, the right to apportion to any of such lots such portion as it saw fit of the amount of water power appurtenant to all of its lots.</p> <p>5. Same—when water power passes by conveyance of water lots. Where a grantor conveys all of the water lots owned by him, “with all water power privileges belonging, incident and appurtenant thereto,” and without limiting the water power to be used in connection therewith, all the water power over which the grantor has control, either as owner of the water lots or as owner of the land on which the dam developing the power is located, passes to the grantee, in the absence of any contrary intention manifested in the deed.</p>

John M. O’Connor, Judge, presiding. The appellant, who is the widow of Octave Bigoness, filed her bill in the superior court of Cook county, the object of which was that she might be permitted to redeem certain real estate formerly owned by her deceased husband, from mortgages thereon and decrees of foreclosure and sales thereunder, and might be adjudged to be entitled to dower in the premises.

<p>1. Master and servant—when rule as to assumption of risk by continuing to use defective appliance does not apply. The rule as to the assumption of risk by a servant by continuing to use a defective appliance with knowledge on his part of the defect does not apply where the servant is not only relying upon the master’s promise to repair but upon his assurance that the repairs have been made.</p> <p>2. Same—the questions of assumed risk and contributory negligence are distinct. The questions of contributory negligence and assumed risk may both arise under the facts of a case yet they be separate and distinct, as the question of assumed risk only arises by virtue of the employment or by continuance in such employment with, knowledge of the defect or danger.</p> <p>3. Same—general rule as to assumption of risk. A servant is regarded as voluntarily assuming the risks resulting from the use of defective machinery if such defects are as well known to him as to the master, and where the danger from the defects is also known to him or is so obvious to a person of ordinary intelligence that the law will charge him with knowledge of the danger.</p> <p>4. Same—what questions' may arise where servant continues to work after learning of extraordinary danger. Where a servant continues to work after learning he is exposed to extraordinary danger arising from a defective condition of some instrumentality used by his master, there may be presented both the question whether he has elected to include the additional” risk among those which he is deemed to have accepted by virtue of his contractual relation, and the question whether, under the circumstances, he has used prudence in remaining in the position where he must incur the new hazard.</p> <p>5. Same—question of assumed risk does not arise where servant does dangerous work in obedience to command. The question of assumed risk does not arise where a servant performs dangerous work in obedience to a command of the master, but the question in such case is one of contributory negligence, depending upon whether the danger was so great that a person of ordinary prudence would not have incurred it.</p> <p>6. Same-—when question is one of contributory negligence and not of assumed risk. The risk of a defect is not assumed by the servant where he calls the attention of the master to the defect and receives a promise of repair, as he may then remain in service a reasonable time under such promise; but in such case it is a question fdr the jury to say what is a reasonable time, and the question, in case of injury, is one of contributory negligence.</p> <p>7. Same—when servant may rely upon assurance that repairs have been made. Where a reasonable time has elapsed to repair a defect complained of by the servant and he is assured by the master that the repairs have been made, the servant has a right to rely upon such assurance until he discovers that the repairs have not been made;</p> <p>8. Same—when servant is not required to stop work immediately. Where a locomotive engineer complains of a defect, which the round-house foreman promises to repair when the engine is brought in on Saturday night and which the foreman assures him has been repaired when the engine is taken out on Monday morning, the fact that the engineer, after running the engine a few hours, discovers that it is working much as it did before the alleged repair does not require that he immediately cease working with the engine in order to avoid the' imputation of assumed risk or contributory negligence, particularly where the defective part is so located as to require an extended inspection by the engineer to • discover whether the repair had, in fact, been made.</p> <p>9. Pleading—when omission of the word "not” from count of declaration is not fatal. The omission of the word “not” from an allegation, to the effect that the plaintiff went to work “with said engine [not] knowing'that said engine had not been repaired,” is not fatal to a recovery, where a reading of the whole count leaves no doubt as to its real meaning, and the record shows that the count was treated by both parties as containing the word “not” until after the jury returned their verdict.</p> <p>10. Same—when parties cannot complain that the facts proven are not within the scope of the pleadings. Where both parties to a suit submit instructions declaring the rules of law applicable to the facts proven and request the jury to return their verdict in accordance with those rules of law as applied to the facts proven, neither party can be heard to complain that such facts were not within the scope of the allegations of the pleadings under which they were allowed to be proven.</p> <p>11. Same—when one defendant cannot raise question that the plaintiff was not its servant. Where the two railroad companies sued for personal injury join in a plea of the general issue, which is the only plea filed to a declaration charging that the plaintiff was in the employ of both companies, and the evidence tends to prove such charge, one company cannot, on appeal, raise the question that the trial court should have directed a verdict of not guilty as to it because the evidence did not show that the plaintiff was its servant.</p> <p>12. Evidence—what is not an improper examination of medical experts. Where there is no dispute that the plaintiff was injured in the manner claimed, it is not improper to allow plaintiff’s counsel to inquire of medical experts whether or not they saw any connection between the injury, the condition that followed and the present condition of the plaintiff, and to permit the answers that in their opinion the violence of the alleged accident resulted in the present condition.</p> <p>13. Same—when a refusal to allow defendant’s physicians to make examination of injury in presence of jury is not error. The fact that the plaintiff is allowed to exhibit his injured leg to the jury does not require the court to permit the defendant’s physicians to make an examination of the plaintiff’s leg in the presence of the jury, and a refusal to grant such permission is not error, particularly where the plaintiff offered to submit to an examination by the physician of the defendant who had previously examined him and treated him for the injury.</p>

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

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

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

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.</p>

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

Charles M. Foell, Judge, presiding. Appellee filed its bill in chancery in the superior court of Cook county to enforce the specific performance of a contract for the sale of certain real estate and to recover the title and possession of said real estate, which was described in the bill, consisting of a lot with a three-story flat-building thereon, used for residence purposes, known as No. 121 East Fifty-fifth street, in the city of Chicago.- After interposing a demurrer to…

<p>1. Taxes—assessment under section 62 of Farm Drainage act should not include interest on bonds. The assessment levied under section 62 of the Farm Drainage act, where a special district has been organized, is intended to be only for the amount required for the construction and completion of the contemplated improvement, and it should not include an amount for interest on bonds.</p> <p>2. Same—levy for interest must be made in accordance with section •fo'of Farm Drainage act. After the levy of the assessment under section 62 of the Farm Drainage act in a special district the matter of dividing the ■ assessment into installments may be considered by the commissioners, and if such course is decided upon, the commissioners must proceed under section 70 of such act in making a l.evy for interest.</p> <p>3. Same—when tax to pay interest is illegal. Under section 70 of the Farm. Drainage act a tax to pay interest on bonds is a new rtax, which can only be levied by the commissioners or the Auditor of Public Accounts in the manner provided by the statute, and a tax extended without a proper certificate from such officer or officers, as the case may be, is illegal.</p> <p>4. Same—taxing officers are presumed to have performed their duty. In the absence of any showing that the provisions of sections 62 and 63 of the Farm Draináge act were not complied with in extending a tax to pay an installment of bonded indebtedness, it must be presumed that the officers whose duty it was to levy and extend such tax performed their duty and that the tax was legally levied.</p> <p>5. Same—items mentioned in section 70 of the Farm Drainage act should be stated separately in commissioners’ certificate. Section 70 of the Farm Drainage act does not refer to the principal indebtedness due, but the items mentioned in such section, such as interest accrued, past due interest and amounts necessary to be levied, if any, to keep the work in repair for the ensuing year, are amounts the tax-payers are entitled to know about and should be stated separately in the certificate of the commissioners.</p> <p>6. Same—provision for extending a drainage tax the same as other taxes applies only to items mentioned in section 70. The statute does not require that drainage taxes shall necessarily be extended by the county clerk on the collector’s books the same as other taxes for State, county and municipal purposes, as that provision is found in section 70 of the Farm Drainage act and applies only to the items mentioned therein.</p> <p>7. Same—section 27 of the Farm Drainage act was repealed by the amendatory act of 1901. Section 27 of the Farm Drainage act, which allowed an appeal to the county court from the special assessment roll or tax list, was repealed by the amendatory Cact of 1901.</p> <p>8. Same—when party is not estopped to show his land was assessed more than benefited. The fact that an owner of land in a special farm drainage-district has paid two prior assessments levied to pay interest upon the amount of the drainage tax does not preclude him, upon application for. judgment of sale for an installment of the tax, from introducing evidence to show that his land has been assessed more than it was benefited.</p>

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

<p>1. Carriers—the contracting carrier is liable for negligence of the connecting carrier. Where a common carrier contracts to deliver goods at a certain destination all connecting carriers become agents for the contracting carrier and it is responsible for their negligence or default.</p> <p>2. Appeals and errors—when question whether stock yards company was a common carrier is settled. Whether the stock yards company to which the contracting carrier delivered a shipment of hogs was a common carrier is a question which is settled by a judgment of the Appellate Court affirming the judgment of the lower court entered in accordance with the verdict of the jury, if there is any evidence fairly tending to support the judgment.</p> <p>3. Same—when question of sufficiency or weight of evidence cannot be raised in Supreme Court. On appeal from a judgment of the Appellate Court affirming a judgment of the trial court entered in accordance with the verdict of the jury in a suit at law, the questions whether the evidence is sufficient to support the verdict or whether the verdict is against the weight of the evidence cannot be raised in the Supreme Court.</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. McKinley, Judge, presiding.

Writ oe Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of LaSalle county; the Hon. Joe A. Davis, Judge, presiding.

<p>1. Taxes—tax,es must be uniform in respect to persons within the taxing district. Section 9 of article 9 of the constitution authorizes the General Assembly to vest municipal corporations with authority to assess añd collect taxes for corporate purposes but requires that such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same.</p> <p>2. Same—when tax cannot be said to be uniform as to persons within taxing district. A tax cannot be said to be uniform in respect to persons within the jurisdiction of the táxing body when one person within such jurisdiction has to pay a tax and another person in precisely the same circumstances, except as to his place of residence within such jurisdiction, is exempt.</p> <p>3. Constitutional law—poll-tax provision of the Road law of 1913 is unconstitutional. The provision of section 55 of the Roads and Bridges act of 1913 which exempts from the poll tax authorized by such section to be levied by the commissioners of highways persons residing within the limits of cities or incorporated villages is unconstitutional, as a resident of a city or incorporated village is as much a resident of the township as a person living in the township outside of such city or village.</p>

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.

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

<p>o i. Railroads—effect of the Crossings act of i88p. The act of 1889, relating to the crossing of one railroad by another, (Laws of 1889, p. 223,) did not repeal section 19 of the general Railroads act, but its effect was to withdraw from the company seeking the crossing the arbitrary power of selecting the place and manner of crossing and to confer upon the Railroad and Warehouse Commission the power to prescribe the place and manner of crossing if the parties failed to agree.</p> <p>2. Same—effect of amendment of the Crossings act in 1907. The amendment, in 1907, of section 1 of the Crossings act of 1889 (Laws of 1907, p. 475,) was to withdraw from the railroad company desiring to make the crossing the right to agree with the other company with reference thereto, and to impose upon the Railroad and Warehouse Commission, in every instance, the duty of determining at what place and in what manner a proposed crossing shall be made.</p> <p>3. Same—the right of one railroad to cross another still exists. The right of one railroad to cross another, as conferred by sec-, tion 19 of the general Railroads act, still exists notwithstanding the Crossings act of 1889 and its amendment in 1907; but such right is subject to the power of the Ijt.ailroad and Warehouse Commission, not to deny the crossing, but to say that it shall be made at such a place and in such manner as will not unnecessarily impede or endanger travel on the road to be crossed.</p>

<p>1. Taxes—what is power to levy tax. The power to levy a tax is the power to exact a contribution for a public purpose, and to levy a tax is to impose or assess it upon property and collect it by authority of law.</p> <p>2. Same—township park tax is not to be voted by the electors at the town meeting. Section 8 of the act of 1911, relating to parks in towns or townships, which provides that the board of park commissioners may levy a township park tax “in the manner that other town or township taxes are required to be levied and collected,” does not mean that such tax must be voted by the electors at the annual town meeting.</p> <p>3. Same—legal existence of board of park commissioners can not be questioned in a proceeding to collect tax. The legal existence of the board of park commissioners cannot be questioned in a proceeding to collect a township park tax levied by it.</p> <p>4. Same—when an objection will not be considered by Supreme Court. An objection to a tax will not be considered by the Supreme Court in reviewing a judgment for the tax where such objection is not included in the written objections in the county court and was not passed upon there.</p>

<p>Appeal from the Circuit Court of Henderson county; the Hon. Robert J. Grier, Judge, presiding.</p>

<p>"Writ or Error to the Branch “B” Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.</p>

<p>1. Fees and salaries—right to salary is attached to and. follows the legal title to the office. The right to the salary is attached to and follows the legal title to the office; and this is true irrespective of the question by whom the services were, in fact, actually rendered.</p> <p>2. Same—salary of commissioner of a city is not dependent upon services performed. The fact that the duties of one of the commissioners -in a city under the commission form of government may have been performed by the other commissioners or by an interloper or intruder does not preclude such commissioner’s right to receive his salary, as section 30 of the act concerning the commission form of government cannot be construed as making the salary of the commissioner dependent upon services performed.</p> <p>3. Same—mere neglect of duties does not constitute abandonment of office. Mere neglect on the part of a municipal officer to perform his official duties, without any affirmative action showing an intention to abandon the office, will not operate as an abandonment of the office so as to justify a refusal to pay him his salary.</p> <p>4. Municipal corporations—remedy where commissioner neglects to perform his ditties. Where a commissioner in a city under the commission form of government neglects to perform his duties the law provides a remedy by which the electors may remove him from office; but this power cannot be exercised- by the mayor and the other commissioners, nor can they refuse to pay him his salary.</p> <p>5. Statutes—statute must be construed as a whole. A statute is not to be construed as so many isolated words, phrases, clauses or sentences but is to be construed as a whole, having reference to the connection in which the words are used and the intention of the legislature as disclosed ’from a consideration of the act in all its parts.</p>

<p>Criminal law-—when court should set aside a judgment and sentence and allow plea of not guilty. A judgment and sentence on a plea of guilty should be set aside and a plea of not guilty be received where it appears the prisoner, being a young man and a first offender, plead guilty in reliance upon the statement ‘"of the police officer who arrested him that if he plead guilty he would be released on probation; and this is true notwithstanding, the court fully advised him as to the consequences of a plea of guilty, as the question of release on probation would not arise until after plea and judgment.</p>

<p>Appeal from the Circuit Court of Massac county; the Hon. William M. Clemens, Judge, presiding.</p>

<p>Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding.</p>

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

<p>1. Public utilities—whether a certain business is a public utility does not depend upon legislative definition. Whether a given business or industry is a public utility depends not upon legislative definition but upon the public character of the business or service rendered, which makes its regulation a matter of public consequence and concern because it affects the whole community.</p> <p>2. Same—cold storage warehouse conducted for compensation is a public titility. A cold storage warehouse which is conducted by the owner at fixed .rates of compensation for all shippers and customers who may choose to avail themselves of the service offered is-a public utility within the meaning of the Public Utilities act, and is subject to regulation as to rates of storage and other provisions for the protection of producers and shippers.</p> <p>3. Same—effect of legislative definition of word “warehouse” in section 10 of the Public Utilities act. Considering the Public Utilities act as a whole, it is apparent that the legislature, by defining, in section 10 of said act, the word “warehouse” as including all elevators or storehouses where grain is stored 'for compensation, whether kept separate or not, did not intend thereby to exclude from the act all elevators or storehouses where commodities other than grain are stored for compensation.</p> <p>„ 4. Same—Public Utilities Commission has power to fix reasonable rates and charges. Section 33 of article 4 of the Public Utilities act authorizes the Public Utilities Commission to determine and fix reasonable rates and'Charges for all services performed by the public utilities of the State that are subject to the provisions of the act.</p> <p>5. Constitutional law—what does not render Public Utili-. ties act invalid. The fact the Public Utilities act defines certain words and terms used therein and explains their meaning as employed in the act does not render the act invalid as including matters not embraced in its title. (People v. McBride, 234 Ill. 146, followed.)</p> <p>6. Statutes—when maxim “expressio unius est exclusio alterius” will not be applied. The maxim "expressio unius est ex-clusio alterius” will not be applied, in construing a statute, to the extent of overriding a different intent therein clearly expressed.</p> <p>7. Same—the several provisions of a statute should be construed together. The several provisions of a statute should be construed together in the light of the general object of the act so as to give effect to the main intent and purpose of the legislature as therein expressed, and when this intention can be collected from the statute, words may be modified, altered 'or supplied so as to obviate any repugnancy or inconsistency with such intention, although in so doing particular provisions may not be read or construed according to'their literal meaning.</p>

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

Writ op Error.to the Branch “B” Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.

<p>Writ of Error to the Circuit Court of Hardin county; the Hon. W. H. Green, Judge, presiding.</p>

<p>Writ of Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.</p>

<p>Appear from the Circuit Court of DeKalb county; the Hon. Mazzini Slusser, Judge, presiding.</p>

<p>1. Eminent domain—a petition should allege that property is necessary for the public use specified. A petition to condemn land for a park should allege that the property sought to be condemned is necessary for the public use specified.</p> <p>2. Same—question of the petitioner’s abuse of power is a preliminary one. The question of abuse of power by the petitioner in condemning property for a park is a preliminary one, to be heard by the court before the jury trial.</p> <p>3. Same—when motion to dismiss petition should be allowed. A motion to dismiss a condemnation petition upon the ground that the land sought to be condemned is not necessary for the public use should be allowed, where the petition does not clearly allege the necessity for the use of the property and no evidence is offered showing such necessity.</p> <p>4. Appeals and errors—abstract of record must be assumed to be correct. The abstract of record filed by'the appellant must be assumed by the Supreme Court to be correct, as it is the duty of the appellee, if such abstract is incorrect or insufficient to present the errors relied upon, to prepare and file an additional abstract.</p> <p>5. Same—when party cannot raise question that bill of exceptions was not signed by right judge. Where á bill of exceptions signed by a certain judge and containing a statement that it contains all the evidence heard on the trial is O. IC.’d by counsel, who also signs a stipulation that such bill of exceptions may be incorporated into the record instead of a copy, the party represented by such counsel cannot raise the question that another judge, who did not sign the bill of exceptions, heard a part of the evidence, there being nothing in the abstract to show that such was the fact.</p> <p>6. Evidence—evidence as to long-term leases of other property may or may not be competent in condemnation. In a condemnation case, evidence as to long-term leases of property other than that condemned, or the rental value of other property, may or may not be competent, depending upon the degree of similarity between the properties and the nearness in respect to time and distance; but a lease for a term of fifteen years can hardly be said to be a “long-term lease,” as such term is ordinarily understood.</p>

<p>1. Executors and administrators—extent to which practice in chancery applies to administrator’s sale. The meaning of the provision of section 101 of the Administration act that the practice with reference to petitions by administrators to sell land to pay debts shall be the same as in cases in chancery is, that after the petition is filed and service is had as provided in the Administration act, then the court proceedings in matters relating to the appearance of the parties, the pleadings, hearing and continuances shall be in accordance with general chancery practice except where otherwise provided by the Administration act.</p> <p>2. Same—section 19 of Chancery act, relating to opening decree within three years, does not apply to sale to pay debts. Section 19 of the Chancery act, which permits a person who has not received the copy of the notice sent by mail to come in within one year after notice in writing given him of the decree, or within three years after such decree, and petition the court to be heard and answer the bill, etc., does not apply to a proceeding by an administrator to sell land to pay debts.</p>

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

<p>1. Judgments and decrees—purchaser relying on decree will be protected even though it is afterwards reversed. Where a decree affecting the title to land has been rendered by a court of equity, a purchaser who buys in good faith and in reliance upon the decree before a writ of error is sued out or other action taken to avoid it will be protected, notwithstanding the decree is subsequently reversed.</p> <p>2. Same—suing out of writ of error not made a supersedeas is not notice. The suing out of a writ of error is not notice to an innocent purchaser until after the reversal of the decree and remandment of the cause where the writ of error was not made a supersedeas.</p> <p>3. Same—on collateral attack all presumptions are in favor of the decree. A proceeding to register title is collateral to a former proceeding by the applicant in the circuit court to set aside a deed, and in such collateral proceeding every presumption will be indulged in favor of the decree setting aside the deed.</p> <p>4. Same—erroneous decree not void if court had jurisdiction of subject matter. If a bill states a case belonging to a general class which is within the jurisdiction of a court of equity jurisdiction of the subject matter attaches, and no error committed by the court will render the decree void, but the decree, however erroneous, is binding upon the parties until reversed or annulled and is not open to collateral attack.</p> <p>5. Same—finding that parties have been duly notified cannot be contradicted except by the record. Where a decree attacked in a collateral proceeding finds that the parties have been duly notified, such finding, like any other judicial determination, can not be contradicted or varied beyond or outside the record itself.</p>

<p>This case is controlled by the decision in Railroad and Warehouse Commission v. Peoria and Pekin Union Railway Co. (ante, p. 462.)</p>

<p>1. Evidence—statements of owner of land in disparagement of title are admissible against him and his grantee. A sale bill caused to be printed by the owner of land, in which he states that his farm contains a certain number of acres, is admissible in evidence against a subsequent grantee of the land in an action of ejectment to recover a tract of land originally a part of the farm and conveyed by the owner by metes and bounds before the making of the sale bill.</p> <p>2. Limitations—when an instruction as to bar of twenty year statute is erroneous. An instruction in an action of ejectment is erroneous which tells the jury, in effect, that if the plaintiffs became seized .of the legal title to the piece of land in controversy more than twenty years prior to the commencement of the suit their right to bring ejectment was barred, where one of the principal controversies in the case is whether the possession of the defendant and his grantor has been adverse or permissive.</p> <p>3. Same—permissive possession does not satisfy the Statute of Limitations. Possession of a strip of land by permission of the owner of the legal title cannot be made the basis of a claim of title under the Statute of Limitations, as the possession contemplated by such statute must be adverse, and the question whether possession is permissive or adverse is one of fact.</p> <p>4. Instructions—rule where some instructions state the law incorrectly. While instructions may supplement each other yet each one must state the law correctly as far as it goes and all must be in harmony, since, if some instructions state the law incorrectly and others correctly, a court of review cannot say which instructions the jury followed.</p> <p>5. Deeds—in case of doubt a provision will be construed as a covenant rather than a condition. If it is doubtful from the language used whether a provision in a deed was intended as a covenant or a condition subsequent the provision will be construed to be a covenant, particularly where there is no re-entry clause or other words or terms which are the usual indications of an intent to create a condition subsequent.</p>

<p>1. Deeds—delivery is essential to render a deed operative as a conveyance. The delivery of a deed is an essential part of its execution and is indispensable to render it operative as a' conveyance, and in determining whether there has been a delivery the intention of the grantor is the controlling element.</p> <p>2. Same—when presumption of delivery of voluntary conveyance cannot prevail. The presumption in favor of the delivery of a voluntary conveyance from father to daughter cannot prevail where the evidence shows that the father kept control of the deed for thirteen years, then made a will giving her a life estate, only, and subsequently decided to give the land absolutely to a third party and attempted to do so.</p> <p>3. Same—when rule as to presumption of acceptance of deed does not apply. The rule that an acceptance, by the grantee, of á voluntary conveyance which is of benefit to the grantee and imposes no burdens will be presumed even though the grantee had no knowledge of the existence of the deed until after the grantor’s death, does not apply where the grantor did not intend to confer any benefit upon the grantee but merely used the conveyance as a means of transferring title to a third party by having the deed recorded after the grantee had executed a quit-claim deed to the third party without knowledge that the other deed was in existence.</p> <p>4. Same—ordinary quit-claim deed does not pass an after acquired title. An ordinary quit-claim deed does not pass an after acquired title unless there are words in the deed expressing an intention to convey it, and if at the time the deed is executed the grantor has no title to the land and has no knowledge that there is in existence an unrecorded deed made by her father conveying the land to her the quit-claim conveys nothing, even though the father subsequently gives the unrecorded deed to the grantee in the quit-claim deed for the purpose of having it recorded concurrently with the quit-claim deed as a means of transferring title to such grantee; and if the daughter subsequently acquires title to the land by will she is entitled to have the two deeds removed as clouds upon such title.</p>

<p>Appeal from the City Court of Chicago Heights; the Hon. Charles H. Bowles, Judge, presiding.</p>

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

<p>1. Evidence—when parol evidence is admissible to show what was investigated on the trial. Where a former recovery is relied upon, parol evidence not contradictory of the record is admissible to show what was investigated on the trial .of the issue in the former case, if the record does not show the full and true state of the controversy and investigation.</p> <p>2. Taxes—when parol evidence is admissible to show why former application for judgment was denied. Where a judgment of the county court denying an application for judgment for a drainage assessment does not show on what ground the judgment was based, parol evidence is admissible, on application for judgment for a subsequent drainage assessment against the same land, to' show that the former judgment was based on the ground that the land had already been assessed in" excess of the benefits received by the improvement.</p> <p>3. Same—when judgment for tax must be denied though part of levy may be valid. Judgment for a- drainage assessment must be denied if part of the assessment is illegal even though part of it may be legal, provided the illegal part cannot be separated from the legal part.</p>