Volume 268 — Illinois Reports

<p>Writ or Error to the Circuit Court of Wabash county; the Hon. E. E. Newlin, Judge, presiding.</p>

<p>1. Pleading—no indexible rule as to what constitutes multifariousness can be laid down. There is no settled and inflexible rule which determines whether a pleading is multifarious but the question must be determined largely by the circumstances of each particular case.</p> <p>2. Same—objection of multifariousness frequently raises question of convenience. The objection of multifariousness frequently raises merely a question of convenience in conducting the suit and calls for the exercise by the court of its discretion as to whether the various causes set forth in the bill shall be tried in a single suit or be divided, or whether a defendant who is a necessary party in repect to some matters covered by the bill is so connected with the other matters involved as to make him a proper party in respect to them.</p> <p>3. Same—tests used in determining multifariousness. Among the tests used in determining whether a bill is multifarious are whether the bill improperly joins distinct and independent matters, thereby confounding them, whether the causes of action united in the bill require separate defenses or separate decrees, or whether the bill, fairly, construed, shows a single object and seeks to enforce one common right.</p> <p>4. Same—a bill joining different claims against different defendants may be multifarious. A bill which joins different claims against different defendants may be multifarious, since ordinarily a claim against two or more defendants cannot properly be united with a separate claim against one, only, and distinct claims against two or more defendants on individual accounts cannot be joined.</p> <p>5. Same—when bill may be objected to as multifarious. A bill may be objected to as multifarious if it alleges a claim against a defendant in his individual capacity and another claim against him as an heir, for the debt of his ancestor, or where the bill joins two distinct claims—one against an executor and one against the heir.</p> <p>6. Same—what is more commonly understood by term “multifariousnessWhat is more commonly understood by the term “multifariousness,” as applied to a bill, is where a party is able to say that he has been brought in as a defendant upon a record with a large portion of which he has no connection whatever.</p>

<p>Appeal from the Circuit Court of Pike county; the Hon. Albert Akers, Judge, presiding.</p>

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

<p>1. Railroads—when relief granted to shipper is within scope of complaint. Where a shipper complains to the Public Utilities Commission that the rate charged by a railroad for transporting cars of coal and manure from connecting lines to the shipper’s place of business is unreasonable and excessive and there is a prayer for general relief, the commission may determine that such rate is unreasonable and excessive even though there is a specific prayer in the complaint that the commission establish a through rate from the mines, which the commission declines to do.</p> <p>2. Same—what is not interference with inter-State commerce. The State Public Utilities Commission has power, on complaint being made, to fix a reasonable rate for hauling coal and manure in car-load lots to a point within this State from the junction point within this State at which such cars are received from the forwarding carriers, even though some cars may come from points outside the State, where neither the complaint nor the order of the commission purports to relate to inter-State shipments but only to shipments originating in this State.</p> <p>3. Same—when Congress may determine what rate shall be applied. If by reason of the interblending of the inter-State and intra-State operations of inter-State carriers adequate regulation of inter-State rates cannot be maintained without affecting intraState rates, Congress is entitled to determine what regulation shall be applied.</p> <p>4. Same—limits of power of courts to review order fixing rates. The power to fix rates for transportation is legislative, whether exercised directly by the legislature or by an administrative board under delegated authority, and the power of the courts to review the conclusion of the legislature or administrative board is limited to determining whether the board has acted within the scope of its authority, or the order is without foundation in the evidence, or a constitutional right of the carrier has been infringed by fixing rates which are confiscatory or insufficient to pay the cost of traffic and return a reasonable profit to the carrier on the investment.</p>

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

<p>1. Appeals and Errors—rwhen alleged violation of “due process of law” provision is not ground for direct appeal. A direct appeal to the Supreme Court cannot be sustained upon the ground that the trial court’s denial of a writ of mandamus to compel the placing of appellant’s name upon the roll as a beneficiary of the police pension fund has deprived appellant of his property without due process of law, since appellant, at the time of his discharge from the police force, had no vested interest either in his unearned salary or in the pension fund. “ '</p> <p>2. Same—when cause must be transferred to Appellate Court. On appeal to the Supreme Court by one whose petition for a writ of mandamus to compel the placing of his name on the roll as a beneficiary of the police pension fund is denied, if the only real, undecided question is whether", under the facts alleged in his petition, the appellant is entitled to receive a pension from such fund, the cause must be transferred to the Appellate Court.</p>

<p>Laches—when delay for seven years after attaining majority will bar setting aside sale. A delay of seven years after complainant attained his majority in filing a bill to set aside an administrator’s sale made thirty years before the bill was filed will bar relief, where the complainant had such knowledge when he attained majority that he could have ascertained all the facts had he exercised reasonable diligence and where the alleged irregularities in the sale resulted in no loss to the estate.</p>

<p>1. Statutes—zvhat is meant by construing a statute strictly. Construing a statute strictly means simply that the statute should be confined to such subjects or applications as are obviously within its terms and purposes.</p> <p>2. Same—intention of the legislature is what is to be determined. The intention of the legislature is to be gathered from the necessity or reason of the enactment, with the meaning of the words enlarged or restricted according to their real intent; and in determining the meaning of a statute the courts will keep in mind the circumstances surrounding its enactment and the objects sought to be attained.</p> <p>3. Railroads—the Public Utilities Commission has pozver to require grade of old road to be raised. The Public Utilities Commission has all the powers formerly possessed by the Railroad and Warehouse Commission and also enlarged powers conferred by section 58 of the Public Utilities act, and in granting an application for the crossing of one railroad by another it has power to require the raising of the grade of the old railroad.</p> <p>4. Same—present condition of the law as to railroads crossing each other at grade. Under the law as it now exists, where one railroad desires to cross another at grade, damages must be paid, as before, by the petitioning company, but the plans and specifications for such crossing must be submitted to and approved by the Public Utilities Commission before compensation can be ascertained in eminent domain proceedings, and also must be so submitted and approved by such commission before a grade crossing can be put in by- agreement of the railroads affected.</p> <p>5. Same—Public Utilities Commission has full power over the crossing of railroads. The Public Utilities Commission has full power and authority over the method, manner and mode of grade or elevated crossings of steam railroads as well as other railroads and public highways, and to fix the location and prescribe the •conditions as to the physical construction and arrangement of the crossing, including the elevation or depression of the grade of any existing railroad, if that is the most reasonable method of constructing the crossing.</p> <p>6. Same—one railroad company cannot take property of another without compensation. Before a railroad company can take the property of another for a crossing it must either agree with the other as to the damages for the crossing, or must in eminent domain proceedings settle the amount of compensation it is legally required to pay for taking the crossing under the proposed plan.</p> <p>7. Same—legislature has not intended to abolish grade crossings of railroads. In passing the Crossings act of 1907, and other statutes, it has not been the intention of the legislature to entirely abolish the crossing of one railroad by another at grade, but only to prevent such crossings as needlessly or uselessly impede or endanger travel or transportation on the railroads crossed.</p> <p>8. Same—the question whether there shall be a grade crossing rests with Public Utilities Commission. The authority to decide whether or not there shall be a grade crossing of one railroad by another at a given point rests with the Public Utilities Commission, and its decision on such question will not be set aside by the courts if it is supported by the weight of the testimony.</p>

<p>1. Eminent domain—when a proceeding must be regarded as abandoned under the statute. Section 10 of the Eminent Domain act, as amended in 1897, (Laws of 1897, p. 217,) declares a condemnation proceeding abandoned unless the petitioner pays the amount awarded as compensation within the time specified in the condemnation judgment, and it is therefore no longer a question of fact whether the lapse of time is sufficient to justify the court in holding that the proceeding has been abandoned by failure to make payment.</p> <p>2. Same—time for making payment begins to run from time the court pronounces judgment. A condemnation proceeding is a pro- . ceeding at law and not in chancery, and as the judgment in a suit at law becomes effective at the time it is pronounced, the time for making payment, as. specified in the condemnation judgment, begins to run when the judgment is pronounced and is not postponed until the time the .judgment order is signed by the judge and filed with the clerk.</p> <p>3. Same—purpose of the proviso to section 10 of the Eminent Domain act. The purpose of the proviso to section 10 of the Eminent Domain act, as amended in 1897, was to entitle the defendant to an order requiring the petitioner to pay the expenses incurred by the defendant in making his defense if the petitioner either voluntarily dismisses the petition or fails to make payment of the compensation within the time fixed by the judgment.</p>

<p>1. Eminent domain—the Eminent Domain act requires nothing of a defendant. No pleading is required of a defendant in a condemnation proceeding, nor is it necessary to enter a default against the defendants notified by publication, as the only inquiry is the amount of compensation, and a defendant may participate in the hearing on such question, introduce evidence and take any other appropriate action without answer or pleading.</p> <p>2. Same—section 19 of Chancery act does not apply to a condemnation judgment. Section 19 of the Chancery act, which permits a defendant who has been notified by publication, only, to come in within one year from the entry of the decree and ask leave to defend, has no reference to a condemnation judgment, as condemnation proceedings are wholly statutory and the only provisions of the Chancery act incorporated in the Eminent Domain act are those referring to the service of summons and publication of notice.</p>

<p>1. Equity—when it is not error to consolidate suit for partition and suit for divorce. If after the filing of a bill for partition by the complainant against his wife he files a bill for divorce against her, which requires the court to take the real estate into consideration and to adjust the property rights of the parties, it is not error to consolidate the two proceedings, especially where the parties were given separate hearings in the two cases before the same chancellor.</p> <p>2. Divorce—when decree will not be reversed on the evidence. A decree granting a divorce will not be reversed on the evidence where the evidence is ample to justify the decree and there is- no such preponderance in favor of the unsuccessful party as would justify disturbing the findings of the chancellor, who saw and heard the witnesses.</p> <p>3. Same—court, in divorce case, has power to dispose of the homestead. In a divorce case the court has power to determine which of the parties shall be entitled to the use of the homestead and may dispose of the homestead estate according to the equities of the case.</p> <p>4. Same—the court has pozver to allozo alimony in gross. In a divorce case the court has power to allow alimony in gross, and the amount to be allowed and whether in money or in property, real or personal, are matters largely within the 'discretion of the chancellor but subject to correction when that discretion is improperly exercised.</p> <p>5. Same—party at fault forfeits right of dower. The party at fault in a divorce case forfeits, while the party not at fault retains, the right of dower.</p> <p>6. Same—court may award alimony under a general prayer for relief. Under a general prayer for relief in a bill for divorce by the wife the court has power to award alimony in accordance with the facts alleged in the bill and established by the evidence.</p> <p>7. Trusts—when doctrine of resulting trust has no application. Where a deed to land is made to husband and wife with the knowledge and consent of both, the doctrine of resulting trust has no application, whether the money paid at the time of the purchase was the money of the wife or was partly hers and partly her husband’s, the amount which each paid being in dispute.</p>

Writ op Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Menard county; the Hon. Harry Higbee, Judge, presiding.

Jesse A. Baldwin, Judge, presiding. A suit in equity was brought to restrain the city of Chicago from interfering with the possession by appellant of two triangular pieces of ground situated in the northwestern part of said city. The suit was brought by the City Fuel Company, which later was consolidated with the Consumers Company, and an order was entered changing the name of the complainant in the bill to Consumers Company.

<p>1. Equity—complainant must show an actual existing interest in subject matter of the suit. The complainant in a proceeding in equity must show an actual existing interest in the subject matter of the suit and will not be permitted to maintain a bill for part of a matter, only, so as to expose the defendant to being harassed by repeated litigations concerning the same thing.</p> <p>2. Same—when heirs-at-law cannot maintain a bill to set aside deeds. Heirs-at-law cannot maintain a bill to set aside deeds of their ancestor upon the ground of want of mental capacity and the use of undue influence where no attempt is made to set aside the will of the ancestor, which, by a codicil made two days after the deeds were executed, expressly ratified the deeds, as in such case the setting aside of the will is essential to the matter of the complainant’s interest in the land.</p> <p>3. Same—when the setting aside of deeds and the setting aside of a will must be combined in one suit. Where a testator, by a codicil made two days after the execution of deeds, expressly ratifies such deeds, which conveyed the lands substantially in accordance with the provisions of the will itself, heirs of the testator who seek to recover the lands upon the ground that the testator was mentally incompetent to make the deeds and that undue influence was used, must combine in one bill the setting aside of the deeds and the setting aside of the will.</p> <p>4. Same—court may take notice of complainant’s lack of interest at the hearing. While an objection that the complainant has no interest in the suit should regularly be taken by demurrer if the defect appears on the face of the bill or by plea or answer if the defect does not so appear, yet the court itself may take notice of such want of interest if it appears at the hearing.</p> <p>5. Wills—when incorrect description in will may be rejected. If a clause in a will employs two descriptions in making- a devise of land, one of which is correct and the other incorrect, the incorrect description may be rejected as surplusage.</p> <p>6. Same—when misdescription of land in will is without effect. Where the testator, after devising land by an incorrect description, makes a deed to the devisee in which the land is correctly described, and adds a codicil to the will expressly ratifying the deeds, the misdescription in the will is without effect.</p>

<p>Appeal from the Circuit Court of Lawrence county; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>Appeal from the Appellate Coitrt for the Second District ;—heard in that court on appeal from the Circuit Court of Rock Island county; the Hon. F. D. Ramsay, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.

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

<p>1. Wiees—when presumptions will he indulged in favor of due execution and attestation of a will. Where a will has apparently been executed in due form and the signatures of the testator and attesting witnesses are admitted to be genuine, no presumption will be indulged to destroy the validity of the instrument but every reasonable presumption will be indulged in favor of its due execution and attestation.</p> <p>2. Same—what makes a prima facie case in favor of due execution of a will. Where it appears that the signature to the will produced for probate is the genuine signature of the testator and that the two subscribing witnesses signed in his presence, a prima facie case is made in favor of the due execution of the will; -and this prima facie case is not overcome by the mere fact that the subscribing witnesses testify that they failed to notice whether the will was signed.</p> <p>3. Same—when mistake in date of the attestation clause is not fatal. The fact that the date both in the testamentary clause and in the attestation clause is December 25, whereas the subscribing witness who remembers the transaction testifies that both witnesses signed the attestation clause on December 24, does not render the will invalid upon the alleged ground the will was therefore not signed by the testator when it was attested, where the other evidence tends to show that the will was signed by the testator at the time it was attested and that the date in both clauses should have been December 24.</p> <p>4. Same—what does not authorize denying prohate of will. If a will is apparently regular in form and the signatures of the testator and of the subscribing witnesses are admittedly genuine, the facts that one of the witnesses has no recollection of the transaction although the other remembers that both witnesses signed together in the presence of the testator and at his request, but neither recollects whether the testator actually said that the instrument was- his will or remembers having seen his signature thereto, do not justify denying probate in the circuit court if the other evidence tends to show the will was signed before it was attested and was represented to be the will of the testator.</p>

<p>Motor vehicles—a city cannot require license fee for the use of an automobile not a truck or commercial vehicle. An ordinance requiring the owner of an automobile, not a truck or commercial vehicle, to pay an annual license fee for such automobile is in direct conflict with section 12 of the Motor Vehicle act of 1911 and is invalid. (City of Chicago v. Francis, 262 111. 331, followed.)</p>

<p>1. Fraud—what necessary to constitute such misrepresentation as justifies rescinding contract. A misrepresentation, to constitute fraud sufficient to authorize rescission of a contract in equity, must be a false statement of a material fact, known or believed by the party making it to be untrue and made by him for the purpose of inducing action by the other party, who believes the representation to be true and relies upon it to his injury.</p> <p>2. Same—fraudulent representation may sometimes he in reference to a matter of opinion. Where a party states a matter not as an expression of opinion but as an "affirmation of a fact material to the transaction, so that the other party may reasonably treat it as a fact and rely and act upon it as such, then the statement becomes an affirmation of fact, and may be a fraudulent representation even though the statement might otherwise be only an opinion.</p> <p>3. Same—what is not such a representation of value as constitutes fraud. A representation by the proposed vendors of land to the proposed purchaser, who has seen the land, that in their opinion the land is worth $25 per acre, is not such a representation as constitutes fraud, particularly where the weight of the evidence shows that the land is worth approximately that amount.</p>

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

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

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

<p>Writ op Error to the Circuit Court of Macon county; the Hon. W. K. Whitfield, Judge, presiding.</p>

' Writ oe Error to the Branch “D” Appellate Court for the Eirst District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. William E. DevER, Judge, presiding.

<p>1. Municipal corporations—a city has no inherent poveer to license any occupation. A city has no inherent power to license any occupation or to require the payment of a tax for the privilege of engaging in the same, but such power must be expressly granted or he a necessary incident to. the powers so granted.</p> <p>2. Same—a city has no power to require license to engage in 'business of furnishing private detectives. Neither clause 66 nor clause 68 of section 1 of, article 5 of the Cities and Villages act, with reference to prescribing the duties of the police and the passage of necessary police ordinances, authorizes a city to require a license to engage in the business of furnishing private detectives for hire, nor is such power otherwise conferred upon a city.</p> <p>3. Same—power to pass police ordinances is not a delegation of all the police power of the State. Clause 66 of section 1 of article 5 of the Cities and Villages act, authorizing a city to pass and enforce all necessary police ordinances, is not a grant of all the police power of the State, but only of such police power as may be properly exercised in reference to the subjects and occupations enumerated in other clauses of section i.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, 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 McLean county; the Hon. Colostin D. Myers, Judge, presiding.

<p>Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.</p>

<p>1. Drainage—section 25 of Farm Drainage act, providing for appeal to the circuit court, was repealed by the act of 1909. Section 25 of the Farm Drainage act, which provided for an appeal to the circuit court if either party was dissatisfied with the classification, was repealed by the act of 1909, which gives the circuit courts concurrent jurisdiction with the county courts in matters' pertaining to the organization of drainage districts and provides for an appeal to the Supreme Court from either court.</p> <p>2. Same—what objection cannot be considered by county court on hearing objections to classification. On appeal to the county "court from a re-classification of lands in a mutual drainage district, an objection that the district has ceased to exist because its territory has been embraced in a subsequently organized levee district cannot be considered.</p> <p>3. Same—re-classification of lands must be in accordance with justice and right. If the lands embraced in a mutual drainage district are subsequently crossed by a railroad there may be a basis for a re-classification of the lands under the proviso to section 21 of the Farm Drainage act, added in 1891, but such re-classification must, under the statute, be of all the lands of the district in accordance with justice and right, classifying the land occupied by the railroad as railroad property.</p> <p>4. Same—court need not call a jury if there is no legal classification. The county court, on appeal from a re-classification of lands in a mutual drainage district, must determine, before calling a jury, whether there is any legal classification, and if there is not, then there is no error in refusing a demand for a jury.</p>

<p>Appeal from the Circuit Court of Scott county; the Hon. Norman L. Jones, Judge, presiding.</p>

<p>1. Disbarment—it is the duty of attorneys to aid in establishing truth and administering justice. Attorneys at law are officers of the court, and as such it is their duty to aid in the establishment of truth and the administration of justice.</p> <p>2. Same—license to practice law is guaranty of licensee’s fitness to assume responsibility. A license to practice law is a guaranty by the Supreme Court that, so far as the court is advised, the licensee is a fit person to assume the responsibilities of his profession, receive and safe-keep the confidences of others and aid them in the care and management of their legal affairs.</p> <p>3. Same—Supreme ' Court has inherent pozver to revoke license to practice law. To the extent the Supreme Court has guaranteed the integrity and responsibility of a licensee to practice law it possesses inherent power to revoke the license whenever it is clearly proven that the licensee is no longer worthy, of the trust and confidence the license indicates he was entitled to receive.</p>

<p>1. Judicial sales—inadequacy of price, coupled with circumstances of unfairness, may justify setting aside a sale. While inadequacy of price is not, alone, sufficient to justify a decree setting aside a judicial sale, yet where the inadequacy of price is established, circumstances indicating unfairness in the purchaser may authorize such decree.</p> <p>2. Same—when decree setting aside sale is proper. A decree setting aside a partition sale and ordering a re-sale under a proper guaranty of an advance in the bids is authorized, where it is shown that the only bidder was one of the persons who appraised the land, and that he arranged with two other men who had come to the sale intending to bid on the land, that they would enter into a partnership in purchasing the land and that he would bid it in in his own name at two-thirds of the appraised value.</p>

<p>Appeals and Errors—power of the Supreme Court to dis7niss actio7i when dis7nissing appeal. If, pending appeal to the Supreme Court from a judgment of the Appellate Court affirming a decree enjoining the enforcement of a by-law of a benefit society, it is shown that the by-law has been repealed and that the time for taking a referendum vote to restore the by-law has passed, the Supreme Court may, on dismissing the appeal, dismiss the action.</p>

■ Appeal from the Branch “B” Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago1; the Hon. Joseph P. Rafferty, Judge, presiding.

<p>Appeal from the County Court of Woodford county; the Hon. Arthur C. Fort, Judge, presiding.</p>

<p>1. Executors and administrators—what necessary to sustain decree granting prayer of petition to sell real estate. Since the practice in proceedings to sell real estate to pay debts must, under section 101 of the Administration act, be as in cases in chancery, it is necessary, in order to sustain a decree granting affirmative relief in such a proceeding, that the evidence on which the decree is based be preserved in the record or that the decree find facts which justify the relief. (Therens v. Therens, 267 Ill. 592, explained.)</p> <p>2. Judgments and decrees—what is not a sufficient finding to justify relief. Where it is admitted by the pleadings in a proceeding by an executor to sell land to pay debts that the legal title was in the deceased but the answer charges the existence of a resulting trust in favor of the widow, based upon facts pleaded, a finding in the decree that the deceased was the owner of the land, there being no finding whatever with reference to the facts or to the matters of defense set up in the answer, will not justify the granting of the prayer of the petition.</p>

<p>1. Appeals and errors—abstract of record must be complete. An abstract of record must be full and complete- and in accordance with the rules of the court, and the court will not explore, the record to find errors to sustain the assignments of error.</p> <p>2. Criminal law—when indictment will not be quashed. An indictment is good which charges the offense of mayhem in the words of the statute with reference to the act and the intent, and a motion to quash the indictment will be overruled.</p> <p>3. Same—intent is a question for the jury to determine from the evidence. The question whether the accused had the intent to commit the crime with which he is charged is a question for the jury among other facts in the case, and the jury are not bound to accept the testimony of the accused on that point.</p> <p>4. Same—what may show criminal intent. Criminal intent may be manifested by the circumstances connected with the perpetration of the offense, without any positive testimony as to such intent.</p>

<p>1. Wills—courts endeavor to give effect to the testator’s intention. In construing a will the chief purpose of the courts is to ascertain the intention of the testator and give effect thereto if it can be done without violating some established rule of law or public policy, and to find the true intention the will and codicils and all of their parts must be construed together.</p> <p>2. Same—clauses providing for reversion in case of death of the legatees without issue construed. Clauses of a will providing “that in case any of my said children die without issue that the provisions made in this will for such children shall revert to my estate, to be distributed- in accordance with the provisions of this will,” and “that none of the proceeds of my estate herein provided for my said children shall go to or be possessed or enjoyed by any person or persons not related to me by blood,” do not necessarily mean that none of the proceeds of the testator’s property shall ever be held by strangers to the blood, but rather that the proceeds, at the time they are distributed, shall not go direct to strangers.</p> <p>3. Same—usual meaning of the words “death without issue.” The general rule is that words in a will referring to the death of the legatee “without issue” mean death without issue either before or after the death of the testator, but the context of the will may be such as to show that the testator intended to limit the meaning of the words to death without issue during the lifetime of the testator.</p> <p>4. Same—construction of words "death without issue” where fund is in trustee. Where the fund created by a will is vested in a trustee, who is directed to distribute it at a certain time, so that the trusts then determine, and the legatees who are to take upon the death of prior legatees “without issue” are contemplated as taking through the medium of the same trustee, the words “death without issue” mean death without issue before the time of distribution, and if the prior legatees are living at the time of distribution they are entitled to take, regardless of whether they have children. (Lachenmyer v. Gehlbach, 266 Ill. 11, approved.)</p> <p>5. Same—when interests of minors do not vest until time of distribution. Where a will provides that the trustee shall hold the shares of minor children until they become of age, using the income for their education, and further provides that in case any of the testator’s children shall die without issue their shares shall revert to the estate, to be distributed in accordance with the will, the interests of t;he minors do not vest until they become of age.</p>

<p>Appeal from the Branch "B” Appellate Court for the First District;—heard in that courf on appeal from the Superior Court of Cook county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>1. Registration oe title—when court may order title to be registered subject to incumbrance. The court may, in a proceeding under the act concerning land titles, order the registrar of titles to confirm and register a title subject to the possible claims against the estate of a former owner up to a certain date, with directions that such incumbrance be noted, and in what manner, upon the certificate of title to be issued by the registrar.</p> <p>2. Same—when delay in filing application does not destroy efficacy of affidavit. Where a statement made in the application to register title is sworn to on February 16 and the application is not filed until the 27th, such lapse of time is not sufficient to destroy the efficacy of the affidavit.</p> <p>3. Same—when defendants to an application cannot complain of jurisdiction. The defendants to an application to register title, if they have answered the application and the evidence is sufficient to show that the applicant’s title was good against the world, can not complain of the decree because other defendants who were defaulted were not properly served with process or otherwise brought into court.</p> <p>4. Same—when exceptions to examiner’s report will be considered as having been raised in the lower court. Where objections to the examiner’s report are specific and are ordered to stand as exceptions in the circuit court they will be considered as having been raised in that court, even though it does not appear that counsel argued before the court the basis of such exceptions.</p> <p>5. Same—when the order to register land title will be reversed with directions. Where it is conceded that the order fixing the amount for which the owner of a tax deed should be reimbursed is erroneous, the judgment and order of the circuit court to register the title will be reversed with directions to make a proper computation of this amount.</p> <p>6. Practice—when a party is bound by portion of the record brought tip. Under section 81 of the Practice act, requiring a party to give five days’ notice before filing a praecipe for a record and requiring the opposite party to do the same if he desires to file a praecipe for an additional record, when a party fails to ask for any additional portion of the record he acquiesces in the judgment of his opponent that every part of the record necessary to properly present the questions raised on appeal has been certified to the reviewing court, and he is bound by that record on the appeal, and the presumption that, errors appearing upon that portion of the record presented are cured by other parts of the record not brought up for review does not apply.</p>

Writ op Error'to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.

<p>1. Drainage—act of ipi3, with reference to connection of adjoining districts, is constitutional. The act of 1913, with reference to connection of adjoining districts, (Hurd’s Stat. 1913, p. 1001,) is constitutional, notwithstanding it is retrospective in its operation. (North Fork Drainage District v. Rector Drainage District, 266 Ill. 536, adhered to.)</p> <p>2. Same—when the question of legality of organisation cannot be raised. The question of the legality of the organization of a drainage district cannot be raised in a proceeding by such district against another district to compel the latter, under the act of 1913, to contribute its share of the cost of certain work.</p> <p>3. Pleading—it is not the office of a demurrer to set out facts. A demurrer involves only such facts as are alleged in the pleading demurred to and raises only questions of law as to the sufficiency of the pleadings which arise on the face thereof, and it is not the province of a demurrer to set out new facts.</p>

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

<p>Writ or Error to the Circuit Court of DeKalb county; the Hon. Clinton F. Irwin, Judge, presiding.</p>

<p>1. Statutes—each part or section should be construed in connection with every other part or section. A statute is passed as a whole and not in parts, and hence each part or section should be construed in connection with every other part or section, and in seeking the intent of the legislature the courts always consider the language used, the evil to be remedied and object to be obtained.</p> <p>2. Drainage—power of commissioners to create sub-districts. The provision of section 43 of the Farm Drainage act that the commissioners may, at their option, “divide the district into as many sub-districts as there are separate areas,” does not mean that no sub-district can be created for any separate area unless sub-districts are also created for the other separate areas, but only that the commissioners shall not create more sub-districts than there are separate areas in the district, and hence it is lawful for the commissioners to create one or more sub-districts for separate areas without creating sub-districts for remaining separate areas.</p>

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

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

<p>Appeal from 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. Harry M. Fisher, Judge, presiding.</p>

<p>Writ of Error to the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding.</p>

<p>1. Jurisdiction—the State cannot exercise jurisdiction over a person not within its territory. Every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory, but no State can exercise direct jurisdiction and authority over persons and property not within its territory.</p> <p>2. Same—what necessary to render jurisdiction of State court effectual. To render the jurisdiction of a State court effectual in any case it is necessary that the thing in controversy or the parties interested be subjected to the process of the court.</p> <p>. 3. Same—extent of the "full faith and credit” provision of the Federal constitution. The provision of the Federal constitution requiring each State to give full faith and credit to the judicial proceedings of every other State does not preclude the courts of one State from inquiring into the jurisdiction of the court of the State where the judicial proceedings were had.</p> <p>4. Same—effect where individual or partnership does business in a foreign State. By doing business in a foreign State an individual submits the property which he sends into the foreign State to the jurisdiction of its courts, but he does not submit himself to the jurisdiction of such courts in personal actions by service of process on his agent; and the same rule applies to partnerships.</p> <p>5. Same—State statute providing for service on agent of nonresident partnership is invalid. A State statute which authorizes a personal action to be brought against a non-resident partnership by service of summons upon an agent of the partnership is in conflict with the Federal constitution, and a judgment so recovered in a foreign State against an Illinois partnership will not be enforced by the courts of Illinois.</p> <p>6. Partnership—partnership is not legal entity distinct from the persons composing it. The theory that a partnership is a legal entity distinct and separate from the persons composing it is not recognized by the courts of Illinois or of the United States.</p>

<p>Writ of Error to the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.</p>

<p>1. Special assessments—when provision as to grading parkways is not invalid. A provision in a paving ordinance that the grading of the parkways shall be done in a certain manner but that no grading of the parkways is to be done where no sidewalks shall exist at the time of making the improvement does not render the matter of grading so uncertain as to preclude an estimate of the cost of grading with reasonable certainty and is not invalid.</p> <p>2. Same—the estimate and ordinance should be read together. The fact that the ordinance does not specify the material of which certain stakes to be driven behind the curb of oak planks were to be made is not fatal to the validity of the ordinance, where the estimate specifies such material as cedar, so that, reading the ordinance and estimate together, as should be done, there is no uncertainty.</p> <p>3. Same—when cost of labor need not be stated in a separate item. Where the estimate of cost contains a statement that it includes all labor, materials and all other expenses attending the making of the improvement, the cost of labor need not be stated in a separate item.</p> <p>4. Same—what is not a fatal defect in the estimate. That the estimate, which includes an item of the cost of six hundred feet of wooden curb supported by cedar posts, fails to state the size, length and number of posts and the distance between them is not a fatal objection, where the ordinance fixes the size, length and distance between the posts, so. that the number is merely a matter of computation.</p> <p>5. Same—what is not a variance between estimate and ordinance. The fact that the estimate does not mention the grading of parkways or the cost of the same does not constitute a variance between the estimate and the ordinance providing for such grading, where.the estimate gives the total number of cubic yards of grading and purports to include all the grading necessary for the construction of the improvement.</p>

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

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

<p>Res judicata—what additional evidence does not make a new case on the second trial. Where a decree dismissing a bill to set aside a sheriff’s deed is reversed upon the ground that the three notices of the sheriff’s sale were all posted at the county court house instead of at the three most public places in the county, as required by law, additional proof on the second trial showing that the notices were posted on bill-boards at different entrances to the court house, and showing the distance between the bill-boards and their relative location at the different entrances, does not make a new case.</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. Charles M. Foell, Judge, presiding. „</p>

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

<p>1. Taxes—an original assessment cannot be made by putting down a lump sum. In case of an original assessment the property must be listed, classified and valued according to the statute, and there is no authority for assessing a lump sum as the value of all the property of a tax-payer.</p> <p>2. Same—county supervisor of assessments, in changing assessments,. does not act as an original assessor. The language of the statute which' authorizes the county supervisor of assessments to make changes or alterations in the assessment of property “as though originally made,” does not mean that the supervisor, in changing or altering an assessment already made, acts as an original assessor. (St. Louis Merchants Bridge Co. v. Eisele, 263 Ill. 50, adhered to.)</p> <p>3. Same—county supervisor of assessments cannot change assessment without notice. The county supervisor of assessments must give notice before changing an assessment already made, as notice to the property owner is jurisdictional and must precede any change or re-assessment of property after an assessment has once been made. (People v. International Salt Co. 233 Ill. 223, distinguished.)</p>

<p>Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.</p>

<p>Appeal from the County Court of McHenry county; the Hon. David T. Smiley, Judge, presiding.</p>

<p>1. Appeals and errors—what is not a suit relating to revenue. An action of assumpsit by a county to recover from the county treasurer interest received on public money deposited in banks is not a suit relating to the revenue, such’as will authorize a direct appeal to the Supreme Court.</p> <p>2. Same—when constitutional question is not involved. Where the only question on the merits in a suit by a county against the county treasurer is whether interest received by the treasurer on public money deposited in banks is included in the term “fees or allowances,” used in section 10 of article 10 of the constitution, or in the term “fees, perquisites and emoluments,” used in section 52 of the Fees and Salaries act, no direct appeal to the Supreme Court is authorized.</p>

<p>1. Corporations—the law itself is the charter of a corporation. Where a corporation is formed under the general law, the law itself, and not the declaration of incorporation or the constitution and by-laws adopted for the corporate government, becomes the charter of the corporation and the measure of its powers.</p> <p>2. Same—telephone corporation has power of eminent domain. Where a partnership owning a telephone line operated for the benefit and at the expense of the members, only, incorporates under the general law, the corporation so formed assumes all the duties of a corporation and is entitled to exercise all its powers, including the power of eminent domain.</p> <p>3. Eminent domain—when an instruction .authorising nominal damages is not prejudicial. In a proceeding to condemn a right of way for a telephone line along a public highway the fee of. which is in a private owner, an instruction telling the jury that if they find, from the evidence, that the owner is damaged but from the evidence are unable to ascertain the amount of damages, then they should find as such damages a nominal sum, is not misleading, even though a witness for the petitioner has testified that the damage would amount to one dollar.</p>

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

<p>1. Evidence—when order of probate court establishing heir-ship is not competent evidence in circuit court. Where a suit to set aside a deed is begun in the lifetime of the grantor by her conservator, who charges fraud and undue influence, an order obtained in the probate court after the grantor’s death finding certain persons to be her heirs, which order was obtained without notice to the defendant in the chancery suit, is not competent evidence against such defendant when offered in the chancery suit.</p> <p>2. Same—an order of the probate court is binding upon those who offer it in evidence. An order of the probate court finding and establishing heirship is binding upon the parties who introduce it in evidence in a chancery proceeding, whether the probate court had jurisdiction to enter the order or not.</p> <p>3. Jurisdiction-—court first obtaining jurisdiction will retain it. The court first lawfully obtaining jurisdiction will retain it until the end of the controversy, and no other court, even of concurrent jurisdiction, has power to make findings or orders which will have any bearing upon the issues in the court originally entertaining the cause.</p> <p>4. Parties—when heirs seek to set aside deed of ancestor all should be made parties. In a proceeding in equity by the heirs to set aside the deed of an ancestor all known and unknown heirs should be parties to the bill, and particularly all persons who are named as heirs in an order of the probate court which the complainants themselves offered in evidence.</p> <p>5. Same—duty of court to have necessary parties brought in. It is the duty of the court to have the necessary parties brought in before entering the decree when the evidence discloses their existence and their supposed relationship to the decedent, and it is immaterial whether the defendant in a bill saves this point by proper pleadings.</p> <p>6. Same—in equity all claiming rights in the subject matter should be made parties. In equity all persons having or claiming equitable or legal rights in the subject matter should be made parties; and this rule is inflexible, yielding only when the parties are very numerous and so scattered that their names and places of residence cannot be ascertained without great and extraordinary difficulty.</p> <p>y. Same—when objection for want of proper parties may be taken. An objection that persons having or claiming equitable or legal rights in the subject matter of a chancery suit are not made parties may be taken at the trial or on appeal, for it is the duty of the court to refuse to proceed further with the suit when the want of such parties is brought to its attention.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. John M. NiEhaus, Judge, presiding.</p>

<p>1. Appeals and errors—when appeal is properly taken to the Supreme Court. The defendant in a suit by a county to recover inheritance tax fees withheld by him as county treasurer under the Inheritance Tax law is entitled to take an appeal to the Supreme Court from the judgment against him if at the time the appeal is taken the question involved has not been decided by the Supreme Court.</p> <p>2. Tees and salaries—county treasurer is not entitled to retain commissions in inheritance tax cases. Section 21 of the Inheritance Tax law, authorizing the county treasurer to retain two per cent of all taxes paid and accounted for under the act for his services in collecting and paying over the same, in addition to his salary allowed by law, is unconstitutional, and the county treasurer is, not entitled to retain such commissions. (Jones v. O’Connell, 266 Ill. 443, followed.)</p> <p>3. Same—county cannot recover inheritance tax commissions retained by county treasurer. Since section 21 of the Inheritance Tax law, authorizing the county treasurer to retain commissions, is unconstitutional, the entire inheritance tax collected by him must be paid to the State, and the county has no such interest, as a trustee for the State or otherwise, as entitles it to maintain a suit to recover from the county treasurer commissions retained under said section 21.</p>

<p>1. Criminal law—what may be shown as affecting credibility of prosecuting witness. If the prosecuting witness, in detailing where he had been before he was assaulted and robbed, testifies differently on the trial than he did on the hearing, it is competent, after laying a proper foundation, to prove such fact as affecting the credibility of the witness.</p> <p>2. Same—when refusal to allow proper proof will not reverse. Refusal to permit proper proof tending to affect the credibility of the prosecuting witness in a robbery case is not ground for reversal, where the testimony of the police officer who arrested the accused convincingly shows that the accused was the robber.</p>

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

<p>1. Bankruptcy—trustee not required to wait until formal allowance of claims before filing bill to set aside deeds. If a bank-. rupt has scheduled claims and no assets to pay them and the claims have been proved, the trustee in bankruptcy may maintain a bill to set aside deeds made by the bankrupt to defraud creditors, and it is not necessary that the claims be reduced to judgment or be formally allowed. (McKey v. Smith, 255 Ill. 465, explained.)</p> <p>2. Equity—court cannot order conveyance of land,not men-' tioned in bill. The fact that the law vests -a trustee in bankruptcy with title to the real estate of the bankrupt does not authorize the court, upon a bill by the trustee to set aside specific conveyances as in fraud of creditors, to direct the conveyance to the trustee of land not mentioned in the bill nor included in the relief prayed.</p> <p>3. Same—when a decree should direct conveyance subject to life estate of widow. A decree setting aside, at the suit of a trustee in bankruptcy, certain conveyances made by the bankrupt in .fraud of creditors is erroneous, where it directs a're-conveyance of the land without regard to the life estate of the bankrupt’s mother, which she had held for many years under a valid parol agreement establishing the limits of her homestead and dower interests.</p> <p>4. Reae property—the limits of homestead and dower interests may be ñxed by parol. The estates of homestead and dower are fixed by law and not by contract, but it is lawful for the heirs to make a parol agreement with the widow that she may retain possession of the farm for life as and for her homestead and dower interests.</p>

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

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

<p>1. Contracts—courts prefer construction which excludes idea of liquidated damages. In determining whether a sum named in a contract to secure performance should be treated as a penalty or liquidated damages courts lean towards a construction which will exclude the idea of liquidated damages and permit the parties to recover only damages actually sustained, and while the intention of the parties must be taken into consideration the language of the contract is not conclusive.</p> <p>2. Same—when provision for damages will be construed as a penalty. If it appears that the purpose of a provision fixing the amount of damages to be paid was inserted to secure the prompt performance of the agreement it will be treated as a penalty and no more than the actual damages proved can be recovered; so, also, where the sum stipulated is too great to be fairly allowed as compensation for the breach, the damages for which are not difficult of ascertainment.</p> <p>3. Same—sum deposited "as security” for the performance of lease is a penalty. Where a lease expressly provides that $2500 shall be deposited to be held by the lessor “as security” for the performance of the lease, and there is nothing in the other parts of the lease that is inconsistent with such statement, the sum will be regarded as a penalty and only such actual damages as are proved may be recovered.</p> <p>4. Appeals and errors-—failure to argue alleged errors in the Appellate Court is a waiver. Failure to argue in the briefs filed in the Appellate Court certain of the errors assigned there is a waiver or abandonment of such errors and they cannot be urged in the Supreme Court.</p>

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

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

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

<p>1. Criminal aaw—-defendant not requesting instruction he is entitled to cannot complain. If the defendant, under an indictment for assault with intent to murder, is entitled to an instruction that the jury may find him guilty of simple assault he should request such instruction, and in the absence of such request he cannot complain that it was not given.</p> <p>2. Same—when instructions are not erroneous in ignoring the circumstances of assault. Instructions which merely state, in general terms, the rules of law concerning reasonable doubt which have been declared in criminal cases generally, and which contain no hypothesis of fact, are not erroneous on the ground that they ignore the circumstances of the assault with which the defendant is charged.</p> <p>3. Same—when it is not error to give an instruction authorising conviction of assault with intent to murder. It is not error to give an instruction authorizing the jury to find the defendant guilty of assault with intent to murder where the instruction recites all the facts from which the legal conclusion of guilt would necessarily follow, and where the jury are given, forms of verdict for assault with intent to murder and assault with intent to do bodily harm.</p> <p>4. Same—malice may be implied as well as express. Deliberate intention is necessary to constitute express malice, but the law implies malice where no considerable provocation appears or where all circumstances show an abandoned and malignant heart.</p> <p>5. Same—when an instruction as to malice or intention being presumed is not erroneous. In a prosecution for assault with intent to murder, an instruction is not erroneous which states that intention may be inferred from the facts and circumstances shown by the evidence, and that if the shooting was done and deliberately done, and was likely to be attended with dangerous consequences, then the malice or intention requisite to make out the charge of the indictment would be presumed.</p> <p>6. Sam:E—when instruction is properly refused. In a prosecution for assault with intent to murder, an instruction is properly refused which directs the jury to find the defendant not guilty although he fired the shots at the prosecuting witness if they were fired without deliberation, thereby ignoring the malice implied by law from want of provocation or circumstances showing an abandoned and malignant heart.</p>

Writ or Error to the Appellate Court for the Third District;—heard in that court 011 appeal from the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding.

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.

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