Volume 271 — Illinois Reports

<p>1. Limitations — what mtist be proved by one claiming title under the Statute of Limitations. One claiming title by adverse possession under the Statute of Limitations has the burden of proving that his possession for the statutory period was not only actual, visible, notorious and exclusive, continuous and under claim or color of title, but also that it was adverse to the true owner, as no possession that is not adverse can ripen into a title under the statute.</p> <p>2. Same — the presumption is that possession is subservient to rights of owner of record title. ' The presumption of law is that the possession of real estate is subservient to the rights of the owner of the record title, and where the possession has been consistent with his title, nothing but a clear, unequivocal and notorious disclaimer and disavowal of the title of such owner will render the possession, however long continued, adverse to him.</p> <p>3. Same — effect when the original possession was permissive. Where the original possession of land by a railroad company was permissive and consistent with the title of the true owner, the possession will not become adverse, so as to start the running of the Statute of Limitations, until there is some act by the company, of which the true owner has notice, which amounts to a practical ouster of the true owner.</p> <p>4. Ejectment — when defense of'adverse possession is not established. In an action of ejectment against a railroad company by the holder of the record title to the land the defense of the twenty year Statute of Limitations is not established, where the proof shows that the possession was originally permissive and consistent with the title of the true owner, and the defendant fails to show by clear proof that the character of such possession ever changed so as to become adverse.</p>

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

<p>Appeal from the Appellate Court for the First District; — heard in that court on writ of error to the Circuit Court of Cook county; the Hon. J. Sterling Pomeroy, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Stephenson county; the Hon. Oscar E. Heard, Judge, presiding.</p>

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

<p>Appeal from the County Court of Shelby county; the Hon. A. J. SteidlEy, Judge, presiding.</p>

<p>1. Deeds — when deed to homestead premises conveys nothing. A deed to homestead premises worth less than $1000 conveys nothing where the wife does not join in the deed, and the deed may be' set aside at the suit of the grantor’s administrator in a proceeding to sell real estate to pay debts.</p> <p>2. Trusts — what does not show a resulting trust. The mere fact that a son loans his father the money to buy land the title to which was taken in the name of the father does not establish a resulting trust, particularly where the father, more than five years after the purchase, made a deed to the land to the son reserving a life estate in himself.</p> <p>3. Homestead — homestead premises may be sold zvith consent of widow. While the estate of homestead cannot be severed from the fee during the continuance' of the homestead estate, yet section 101 of the Administration act authorizes the court, with the consent of the person entitled to the homestead estate, to order a sale of the homestead and fee together and to divide the proceeds of the sale, giving to the person entitled to the homestead estate the cash value of the same.</p> <p>4. Witnesses — when son of decedent is incompetent to testify in suit by administrator. In a proceeding by an administrator to sell land to pay debts and to set aside a deed from the decedent to his son, the son is incompetent to testify in his own behalf to establish a resulting trust in the land in his favor.</p>

<p>1. Police power — police power defined. The police power is that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society.</p> <p>2. Same — a rightful exercise of police power is not a violation of the fourteenth amendment. A rightful exercise of the police power is not a violation of the fourteenth amendment to the Federal constitution even though property interests are involved.</p> <p>3. Same — police power, though broad, is not without its restrictions. The police power, though far reaching, is not without its restrictions, and rights of property will not be permitted to be arbitrarily invaded under the guise of police regulations.</p> <p>4. Same — what question is for the court. While courts will not pass upon the wisdom of an act involving the exercise of police power, they will pass upon the question whether such act has a substantial relation to the police power.</p> <p>5. Same — ivhen cottrt must hold statute or ordinance void. If it is manifest to the court that a statute or ordinance, sustainable only under the police power, is merely an invasion of property rights under the guise of the police power, it is the duty of the court to hold the statute or ordinance void.</p> <p>6. Constitutional law — right of an individual to pursue .an innocent calling. Under the State and Federal constitutions an individual may pursue all such callings or occupations as are innocent in themselves and not hurtful to the public, and the legislature cannot interfere with such right.</p> <p>7. Same — sections 1 and 2 of the Second-hand Mattress law of 1915 are unconstiUttional. Sections 1 and 2 of the act of 1915, (Laws of 1915, p. 375,) which relate to second-hand mattresses, quilts and bed comforters, are unconstitutional in prohibiting the sale of second-hand mattresses, quilts and comforters notwithstanding they may have been sterilized or re-made from sterilized second-hand material.</p> <p>8. Same — sections 1 and 2 of the Second-hand Mattress act of 1915 are class legislation. Sections I and 2 of the act of 1915, (Laws of 1915, p. 375,) which prohibit the sale of second-hand mattresses, quilts or bed comforters, or of such articles when made of material which has become second-hand by use about the person, are class legislation, in that they do not apply to pillows.</p> <p>.. 9. Samt — ‘legislature cannot arbitrarily destroy property. The legislature cannot arbitrarily destroy property, or any substantial interest therein, under the guise of a health regulation or for the o'stensible purpose of preventing fraud and deceit.</p>

<p>1. Statutes — rule where it is claimed an amendatory act does not identify act amended. Where it is claimed that an amendatoryact is invalid because it does not identify the act amended, the rule for the guidance of the courts is to ascertain the intention of the legislature and not its mistakes, and if the legislature has expressed its purpose intelligently the act must be upheld.</p> <p>2. Same — amendatory act of 1903, changing terms of cotirt, is valid. The act of 1903, which does not purport to quote the title of the act amended but is entitled “An act to amend section 7 of chapter 37 of an act fixing the terms of holding court in the several judicial circuits of the State of Illinois, exclusive of Cook county, approved June 11, 1897, and in force July 1, 1897,” sufficiently identifies the act amended, even though the words “of chapter 37” must be rejected as surplusage because the act amended has no chapters, the reference evidently being to the chapter of Hurd’s Statutes, in which the act appears.</p> <p>3. Criminal law — when expert should be allowed to state his opinion as to what drug the accused had taken. In a murder trial, where it is claimed some tablets the accused had taken previous to the homicide were cocaine or some other delirifacient drug and it is impossible to show by direct evidence what the tablets were, the court should permit properly qualified experts to answer hypothetical questions based upon the symptoms and condition of the accused as shown by the evidence, and give their opinion as to what drug the accused had taken, if any.</p> <p>4. Same — expert should be allowed to apply opinion to concrete case. Where an expert witness who has examined the accused in jail testifies to his physical characteristics and to the general effects of cocaine upon a human being and has stated that the effects of the drug upon persons lasted from a few minutes to several days, he should be allowed to give his opinion as to how long the effect of the drug would last upon the accused and whether it would cause a loss of consciousness or memory.</p> <p>5. Same — when an expert should be allowed to state opinion as to what the accused was suffering from. In a murder trial, where a physician residing in the same town with the accused and who treated the accused’s eyes the day after the homicide has testified to the appearance and actions of the accused, and that he, the witness, is familiar with the effect of cocaine and other like drugs and has made a study of them, he should be allowed to state the symptoms of cocaine poisoning, and to give his opinion, from symptoms testified to and stated in a hypothetical question, as to what the accused was suffering from when he saw him.</p> <p>6. Same — 'the court should not permit the People to introduce certain class of testimony denied to accused. If the court has refused to allow witnesses for the accused, who saw him while he was in jail, to testify as to what they noticed about his actions or whether there was anything peculiar about his eyes, it should also refuse to allow other witnesses, who were present on the same occasion and who are called by the People, to answer the same character of questions.</p> <p>7. Same — accused should be allowed to tell when he put his revolver in his pocket. In a murder trial, to rebut any inference that might be drawn against the accused from the fact that he had a revolver in his possession at the time of the killing, the accused should be allowed to state that he had put his revolver in his pocket in the morning when he was leaving the town, which was at a time when he could not have anticipated meeting the deceased.</p> <p>8. Same — accused should be permitted to show he took drug involuntarily. Where it is claimed, in a murder trial, that the accused was suffering from cocaine poisoning or from the effect of some other drug contained in some tablets given him by an acquaintance, the accused should be permitted to state, as bearing on the question of his taking the drug voluntarily or involuntarily, that his acquaintance told him the tablets were breath perfumers.</p> <p>9. Same — instructions should not ignore defense of self-defense. Instructions which substantially inform the jury that a homicide under the conditions stated therein would be murder are improper, as ignoring the defense of self-defense sought to be established by evidence, even though such defense may not have been made out.</p> <p>10. Same — when instruction is erroneous in ignoring defense of insanity. Where insanity from the effect of cocaine or some other drug is one of the defenses in a murder trial, it is error to give an instruction stating that it is sufficient to entitle the People to a conviction if the jury believe, from the evidence, that every material allegation in the indictment, or any count thereof, has been proved beyond a reasonable doubt.</p> <p>11. Same — accused does not have burden of proving insanity. It is not necessary, before the jury can acquit on the ground of insanity, that the evidence should show that the accused was not of sound mind, as it is sufficient if from the evidence there is a reasonable doubt of his sanity.</p> <p>12. Same — what instruction should be given for the defendant. An instruction having proper basis in the evidence should be given which states that if the jury.believe, from the evidence, “that the shooting alleged to have been done by the defendant was done .at a time when the defendant was affected by and labored under an attack of a brief or temporary madness or insanity, the result of an involuntary taking by the defendant of some drug preceding the act, and that he was thereby rendered unconscious of what he was doing, that would constitute, in law, a complete and entire defense to the whole prosecution, and he should under such state of proof be acquitted.”</p> <p>13. Same — one may act without intention or may intentionally kill without committing murder. While every sane person must be supposed to intend the ordinary and natural consequences of his act, yet he may act without intention, and one may intentionally kill another in self-defense and not be guilty of murder.</p> <p>14. Same — deliberate use of deadly weapon does not always imply malice. The deliberate and intentional use of a deadly weapon by which one is killed does not always imply malice so as to make the killing murder.</p> <p>Farmer, C. J., dissenting.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding.</p>

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

<p>1. Practice — exceptions to legal conclusions of the master are neither necessary nor proper. The question whether a master in chancery has drawn an incorrect legal conclusion from the facts is heard by the chancellor without exceptions, and exceptions to such legal conclusions are therefore neither necessary nor proper.</p> <p>2. Wires — mere fact that widow qualifies as executrix without bond does not defeat her right to renounce the will. The mere fact that the widow accepts the appointment as executrix of her decased husband’s will without bond and begins the undertaking of carrying the will into execution does not amount to an election to take under the will or raise an estoppel to prevent her subsequently renouncing the provisions of the will in her favor and electing to take under the statute.</p> <p>3. Same — general rule as to sequestration to compensate disappointed devisees. Where a devisee having the right of election exercises such right, a court of equity will take hold of that which is relinquished to compensate, as far as may be, the disappointed devisees and apply it in place of the devise or devises defeated.</p> <p>4. Same — as a general rule, residuary devises abate before specific devises. Where legacies or devises are abated on account of ah election by the widow to take under the statute, the court will reduce legacies and devises of the same class proportionately; but specific legacies or devises are not in the same class as those which are residuary, and, as a general rule, the latter will abate before the specific ones.</p> <p>5. Same — when undivided half of tract of land is properly sequestered to compensate specific devisee. Where a testator owning three 80-acre tracts of equal value devises one tract to his widow and one tract to a certain person for life with remainder to the heirs of his body and in default of such heirs to the residuary devisees, who are given the residue of the property, it is proper for the court, when the widow renounces the will and elects to take one-half the land under the statute, there being no children, to lay hold of the undivided half of the tract relinquished by the widow and apply it on the specific devise of the other tract, half of which was taken from the devisees by the renunciation.</p>

<p>Writ OE Error to the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding.</p>

<p>Writ or Error to the Criminal Court of Cook county, the Elon. John M. O’Connor, Judge, presiding.</p>

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

<p>1. Erections — jurisdiction to hear an election contest is purely statutory. Any authority of a court to hear and determine an election contest must be found in the statute, as jurisdiction in such cases is purely statutory.</p> <p>2. Same — the county court cannot hear contest of election on proposition to discontimie high school district. Neither section 98 of the Election law nor section 26 of the School law authorizes the county court to hear and determine a contest of an election upon the proposition to discontinue a township high school district. (Misch v. Rtissell, 136 Ill. 22, distinguished.)</p>

Writ or Error to the Appellate Court for the Second District; — heard in that court on appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.

<p>Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding.</p>

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

Writ or Error to the Appellate Court for the Second District; — heard in that court on writ of error to the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.

<p>This case is controlled by the decision in People v. Cincinnati, Lafayette and Chicago Railroad Co. 270 Ill. 516.</p>

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

<p>1. Taxes — city cannot evade statutory limit of taxation bv permitting liability to be fixed by judgment. A city cannot evade the 'statutory limitation of taxation for general purposes of $1.20 on each $100 assessed valuation by permitting a legal liability to be fixed by a judgment and adding'to the rate for general purposes a rate sufficient to pay the amount of the judgment.</p> <p>2. Same — when the certificate of highway commissioners may be amended. Where the certificate of highway commissioners to the county clerk shows that two meetings were held, at one of which the road and bridge tax rate was fixed and at the other the amount necessary to be raised was determined, but by an apparently clerical error the same date is given for both meetings, the certificate may be amended, on application for judgment and order of sale, to show the fact the meetings were held on different dates.</p> <p>3. Same — board of supervisors may amend its records though there has been a change in the office of county clerk. The board of supervisors, at its June meeting, may, by resolution, amend the record of its September meeting to show the approval by the board, at that time, of the certificates of levies for road and bridge purposes, where such action was, in fact, taken at the September meeting but the record thereof omitted by the county clerk; and the fact that there is a different county clerk when the June meeting is held does not affect the right of the board to make the amendment, nor is such right dependent upon an order of the court under section 191 of the Revenue act.</p> <p>4. Amendments — right of collective body to amend its records. A collective body having a clerk employed or authorized by law to keep its records has control over them and may amend them at any time according to the fact even though they have once been approved, and such body may direct its clerk to make the amendment, and when so acting under its direction it is immaterial whether or not the clerk was the individual filling the office at the time of the transaction recorded.</p>

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

<p>Appeal from the County Court of Piatt county; the Hon. William A. Doss, Judge, presiding.</p>

<p>1. Taxes — written objections need not be preserved by bill of exceptions. Written objections to the collector’s application for judgment and order of sale are a part of the record and are preserved for review on appeal if included in the certified transcript of the record, and they need not be saved by a bill of exceptions.</p> <p>2. Same — the highway commissioners’ certificate for road and bridge taxes need only state amount. The certificate of the highway commissioners for the road and bridge tax need only state the amount required and need not certify the tax rate nor itemize the various purposes for which the tax is required.</p> <p>3. Same — when record of commissioners shows sufficient determination of amount. The record of a meeting of highway commissioners showing that a meeting was held “and it was decided to make a levy of $6500, which was done. Following is a copy of the certificate of tax levy,” which copy states that the commissioners have determined that the sum of $6500 shall be levied for the proper construction, maintenance and repair of roads and bridges, shows a sufficient determination of the amount required. (People v. Cincinnati, Lafayette and Chicago Railroad Co. 270 Ill. 516, followed.)</p> <p>4. Same — when record of highzvay commissioners is sufficient. A record consisting of a copy, of the certificate of the highway commissioners stating that they have determined the amount necessary to be raised by taxation for the construction, maintenance and repair of roads and bridges, is a sufficient record of their action in determining the amount given in the certificate. (People v. Cincinnati, Lafayette and Chicago Railroad Co. 270 Ill. 516, followed.)</p> <p>5. Same — record of first meeting of commissioners need not show for what tax the rate is fixed. The record of the meeting of highway commissioners required by section 50 of the Roads and Bridges act of 1913 need not state for what tax the rate is fixed, as there is only one tax for which the commissioners are authorized to fix a rate.</p> <p>6. The other question involved is controlled by the decision in People v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. {ante, p. 203.)</p>

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

<p>Appeal from the County Court of Macon county ;■ the Hon. John H. McCoy, Judge, presiding.</p>

<p>1. Practice — when notice of motion to restore Mes is required. After judgment has been entered the court has no jurisdiction to enter an order restoring files in the cause alleged to have been lost, except upon notice to the parties interested and upon satisfactory evidence that the original files have been lost and that the files supplied are substantial copies of the originals.</p> <p>■2. Same — rulé as to restoring Mes lost before judgment. In the progress of a case and before judgment, if a paper is lost a copy can be substituted only on proof of the loss and that the substituted paper is a substantial copy.</p> <p>3. Same — 'when no notice of motion to restore lost Mes is necessary. If the original will is in the files when the order of the probate court is entered and when the circuit court acquires jurisdiction of the case on appeal but it is subsequently lost, the lost will may be supplied upon proper proof and without notice to the adverse party, if there is no rule of the circuit court requiring notice of motions.</p> <p>4. Same — when an appeal is perfected the parties must follow it without further notice. Where an appeal is perfected in the lower court the parties must follow the appeal without further notice, and are in the court to which the appeal is taken without service of process and for all purposes.</p> <p>5. Same — when action of court in restoring Mes is not saved for review. The question whether the. court acted upon sufficient evidence in permitting alleged lost files to be restored upon motion is not saved for review when no bill of exceptions is taken.</p> <p>6. Wiees — what is not a proceeding to establish a lost or destroyed will. If the original will is lost after the circuit court has acquired jurisdiction'of an appeal from the order of the probate court, the fact that it becomes necessary to restore the files by substituting a copy of the will does not deprive the circuit court of jurisdiction on the alleged ground that.the proceeding is one to establish a lost or destroyed will.</p> <p>7. Same — when objection that an appeal bond is to wrong party cannot be entertained. An objection that the bond, on appeal from an order of the probate court denying the probate of a will, should have run to the adverse party instead of to the estate of the testatrix cannot be entertained in the Supreme Court, where the record does not show any objection to the bond or any motion to dismiss for an insufficient bond.</p> <p>8. Same — what evidence sufficient to show death of testatrix. In a proceeding to probate a will, the fact that the witnesses refer to the testatrix, with whom they were acquainted, as “Mahaly Rardin, deceased,” constitutes sufficient evidence of her death.</p> <p>9. Same — when will is properly admitted to probate. A will in proper form is properly admitted to probate where the attestation clause contains all the particulars of a good attestation and one witness testifies to all the requirements of the law, while the other witness, though he does not remember the circumstances, testifies that his signature is genuine and that he knows he asked the testatrix if the instrument was her will, because when witnessing wills he always went through the regular formalities and asked the necessary questions.</p>

<p>1. Taxes — what is a sufficient record of action of highway commissioners. A record which contains a certificate of the highway commissioners showing that they have determined the amount required for the construction, maintenance and repair of roads and bridges is a sufficient record of their action. (People v. Cincinnati, Lafayette and Chicago Railroad Co. 270 Ill. 516, followed.)</p> <p>2. Same — highway commissioners’ certificate need not state the rate nor itemize amount. The certificate of highway commissioners of the amount required for road and bridge purposes need not state the rate of the tax nor itemize the amount. (People v. Wabash Railroad Co. ante, p. 206, followed.)</p> <p>3. The other question involved is controlled by the decision in People v. Wabash Railroad Co. (ante, p. 206.)</p>

<p>1. Taxes — what need not be contained in certificate of amount required for road and bridge taxes. The certificate of the highway commissioners of the amount required, for road and bridge purposes need only state in a lump sum the amount required for the purpose of construction, maintenance and repair of roads and bridges, and need not state the rate of tax determined upon nor any jurisdictional facts relative to the levy.</p> <p>2. Same- — when the record of board of supervisors shows sufficient approval of levies. The record of the meeting of the|county board showing the adoption of a resolution by the board approving “the road and bridge levies of each and all the townships (which are now on file and presented by the clerk before this board,)” etc., shows a sufficient approval of certificates of highway commissioners on file and indorsed approved. (People v. Illinois Central Railroad Co. 266 Ill. 636, distinguished.)</p>

<p>Appeal from the County Court of Pulaski county; the Hon. Fred Hood, Judge, presiding.</p>

<p>Appeal from the County Court of Coles county; the Hon. John P. Harrah, Judge, presiding.</p>

<p>1. Taxes — statute requires highway commissioners to hold two meetings. The Roads and Bridges law of' 1913 requires the highway commissioners to hold two meetings, the first to determine the rate and the second to determine and certify the amount necessary to be raised; and it is necessary that the certificate of the amount shall be in dollars and cents, and not merely the percentage on each $100 assessed valuation of taxable property.</p> <p>2. The objection to the county tax “for fees and salaries of county officials” was held not to be good in People v. Illinois Central Railroad Co. {post, p. 236.)</p> <p>Cooke, J., dissenting.</p>

Appear from the Appellate Court for the Fourth District ; — heard in that court on appeal from the Circuit Court of Madison county; the Hon. W. E. Hadrey, Judge, presiding.

<p>1. Taxes — county cannot levy tax to pay the “salaries” of officers who are paid out of the fees earned. A county can make no levy to pay the “salaries” of the county clerk, circuit clerk, sheriff and treasurer, which are paid out of fées earned and collected.</p> <p>2. Same — county may levy tax to pay deficiencies in salaries of officers paid out of fees earned. A county may make a levy to pay deficiencies for which it is liable in the salaries of county officers who are paid out of fees earned and collected, provided such officers have earned fees from the county to that amount.</p> <p>3. Same — when gross sum may be levied for' different purposes. .There is no valid objection to levying a gross sum for several different purposes where the several purposes are properly embraced within some general designation, as the statute does not contemplate that each particular claim for which the tax is levied shall be separately stated.</p> <p>4. Same — tax for fees and salaries may be levied in one sum. The fact that the compensation to county officers'must be made in some cases by the payment of salaries and in others by the payment of fees for services rendered does not make the fees and salaries for which a tax levy is made,- purposes so distinct that they cannot be included in a levy of a lump sum for “salaries.”</p> <p>5. Same — meeting to determine tax rate is essential to validity of road and bridge tax. Under the Roads and Bridges act a meeting of the highway commissioners between the first Tuesday in August and the first Tuesday in September to determine the tax rate is essential to the validity of the tax.</p> <p>6. Same — when town clerk may amend record of meeting. The town clerk has power, at the direction of one commissioner, to amend the record of a meeting of highway commissioners so as to show that the road tax rate was fixed at such meeting if such amendment is in accordance with the fact as shown by the testimony, and the amended record may be introduced in evidence on application for judgment and order of sale.</p>

<p>Appeal from the Circuit Court of Douglas county; the Hon. Franklin H. Boggs, Judge, presiding.</p>

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

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

<p>1. Homestead — when widow has no homestead interest to protect. Where the grantor in a deed, which reserves a life estate in him, subsequently marries and dies before the deed is set aside, his widow has no homestead interest to protect, for the reason that his estate, being for life, terminated at his death.</p> <p>2. Deeds — when a widow has no standing to set aside a deed. Where a parent makes a deed to a child in consideration of future support, care and nursing during the declining years of the grant- or’s life and there is a breach of the contract, courts may presume that the contract was made in the first instance with the fraudulent intention of not performing it, and the deed may be avoided at the suit of the grantor; but if the grantor marries after making the deed and fails to file any bill to set aside the deed before his death, his widow has no standing, as devisee of all his property, to maintain such bill. (McClelland v. McClelland, 176 Ill. 83, distinguished.)</p>

<p>1. Municipal corporations — effect where stakes of the original survey of street cannot be located. Where none of the stakes of the original survey of a street can be located or their precise location otherwise ascertained, the conduct of lot owners in building and maintaining their improvements within a certain line and the conduct of the city in maintaining a sidewalk with reference to the same line must be given great weight in determining the location of the street line.</p> <p>2. Attorneys' liens — when attorney’s lien attaches to certificate of evidence. Where attorneys who have been conducting a case are discharged while the certificate of evidence, which has not ;yet been filed, is in their hands for the purpose of perfecting an appeal or suing out a writ of error, they have a retaining lien on the certificate of evidence for their fees, and on the hearing to determine the amount of fees the client is not entitled to a jury trial.</p>

Writ oe 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. John P. Mc-Goorty, Judge, presiding.

<p>1. Registration or title — proof must shove whether premises are occupied or unoccupied. An application for initial registration of title must allege, and the proof must show, whether the premises are occupied' or unoccupied.</p> <p>2. Same — zvhat sufficient proof that premises were unoccupied. In a proceeding to register title to premises which are alleged in the petition to be unoccupied, testimony of a witness that he had made an examination of the premises, that there were no improvements upon it and that the premises,had never been occupied by anybody sufficiently shows that they were unoccupied, even though it appears on cross-examination that he made one examination a year before jthe application was made but was not asked when, if ever, he made any other visit.</p> <p>3. Same — testimony that premises are “unoccupied” means the same as such zvord means in the statute. Since the act concerning registration of titles uses the words “occupied” and “unoccupied” with reference to the condition of the premises, testimony of a witness that premises were “unoccupied” means whatever the statute means in that re'spect, whether the word “occupied” should or should not be construed as synonymous with “possession.”</p>

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

<p>Writ oE Error to the Circuit Court of Kankakee count}'; the Hon. Arthur W. DesELM, Judge, presiding.</p>

<p>1. Witnesses — when widow may testify in partition suit. In a suit for partition and the assignment of homestead and dower to the widow, the latter, if she has no other interest in the controversy, may testify except as to admissions or conversations of her deceased husband or matters of which she acquired knowledge from the existence of the marriage relation.</p> <p>2. Same — when neither the complainant nor cross-complainant is competent. Where one brings a partition suit claiming as coheir with the defendant, his sister, and the latter files a cross-bill claiming as sole heir on the theory that the brother’s right to inherit had been extinguished by reason of a release of his expectancy, neither the complainant nor the cross-complainant is a competent witness in his or her own behalf.</p> <p>3. Reae property — release to ancestor of expectancy as an heir extinguishes right to inherit. A release to the ancestor, by an heir, of his expectancy as an heir operates, not as a contract or as a transfer or conveyance either to the ancestor or the other heirs, but as an extinguishment of the right of the prospective heir to take any estate by descent and obliterates his right to inherit. (Donough v. Garland, 269 Ill. 365, followed.)</p> <p>4. Same — the expectancy of an inheritance may be released by parol — Statute of Frauds. Where a father executes a deed for a tract of land to one of his children, who accepts and takes possession of the land upon the express understanding and agreement that it is in lieu of all claims the child may have in the residue of the father’s estate, the contract is binding' though it rests in parol, and the Statute of Frauds is no defense.</p> <p>5. Same — agreement by prospective heir to release expectancy must be certain and unambiguous. An agreement by a prospective heir with his ancestor to take certain property conveyed to him as in full of his expectancy in the grantor’s estate must be certain and unambiguous and be proved with a reasonable degree of certainty, but when it is so proved it will be enforced. .</p>

<p>Writ of Error to the County Court of Winnebago county; the ITo-n. Louis M. Reckhow, Judge, presiding.</p>

<p>1. Statutes — courts are not confined to literal meaning of the •words used. In construing' a statute the courts are not confined to the literal meaning of the words used, and if the intention can be collected from the statute, words may be modified or altered so as to obviate any inconsistency with such intention.</p> <p>2. Same — construction leading to absurd consequences should be avoided. Where great inconvenience or absurd consequences will result from a particular construction of a statute such construction should be avoided, unless the meaning of the legislature is so plain that avoidance is impossible.</p> <p>3. Same — attention should not be confined to particular section of statute to be construed. A statute is passed as a whole and not in parts or sections, hence each part or section should be construed in connection with every other part or section in order to ascertain the real intention of the legislature.</p> <p>4. Workmen’s compensation — when farm laborers are not covered by Workmen’s Compensation act. Farm laborers engaged in general farming are not covered by the Workmen’s Compensation act unless the farmer has elected to accept the act under the provisions of section 1.</p> <p>5. Same — zvhat occupations are included in paragraph (b) of section 3 of Workmcn’s Compensation act. Paragraph (b) of section 3 of the Workmen’s Compensation act of 1913 was only intended to include such occupation, enterprise or business of the employer as may properly be considered extra-hazardous.</p> <p>6. Same — zvhat is meant by the word “enterprise.’’ The word “enterprise,” as used in paragraph (6) of section 3 of the Workmen’s Compensation act of 1913, must be regarded as meaning a work of some importance that may properly be considered as arduous or hazardous, and cannot be said to embrace the building of a broom-corn shed on a farm.</p> <p>7. Same — zvhat injury is not covered by Workmen’s Compensation act of 1913. Where a carpenter is employed by a farmer to assist in building a broom-corn shed on the farm, an injury to the carpenter due to a piece of steel flying from a hammer he was using and which destroys the sight of one eye is not within the Workmen’s Compensation act of 1913, where the farmer had not elected to accept the act.</p> <p>8. Same — decision of the Industrial Board is not dual if it was without jurisdiction. The decision of the Industrial Board is binding upon questions of fact only when it is acting within its powers, and it is without jurisdiction to apply the Workmen’s Compensation act to persons not subject to its provisions.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.</p>

<p>1. Appeals and Errors — appeal under the Workmen’s Compensation act of ipil does not go from county to circuit cotirt. Under the Workmen’s Compensation act of 1911 an appeal from a judgment of the county court dismissing an appeal from the decision of arbitrators lies to the Supreme Court if a constitutional question is involved and is not required to be taken from the county court to the circuit court.</p> <p>2. Constitutional law — the Workmen’s Compensation act of ipil zvas constitutionally passed. The Workmen’s Compensation act of 1911 was passed by the legislature with due observance of the requirements of the "constitution. (Dragovich v. Irocjuois Iron Co. 269 Ill. 478, followed.)</p>

<p>Appeal from the County Court of Moultrie county; the Hon. J. T. Grider, Judge, presiding.</p>

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

<p>1. - Winns — rule against perpctidties stated. No interest subject to a condition precedent is valid unless the condition must be fulfilled, if 'at all, within twenty-one years after some life in being at the creation of the interest, and if the contingent event upon which the estate is limited can possibly happen beyond that time the interest is too remote and its creation is' prohibited.</p> <p>2. Same — effect when remainder to a class is to take effect at termination of life in being. A gift to a class which will take effect, if at all, as a legal remainder of real estate at the termination of a life in being is not within the rule against perpetuities.</p> <p>3. Same — when interest is not within the rule against perpetuities. A devise to a named grandchild of the life use of certain land with remainder in fee to the heirs of her body, but if she dies without a child then the remainder to go to the testator’s great-grandchildren as a class, creates two remainders in fee simple, as alternatives, on such a contingency that only one of them can vest but which requires that either one or the other must- vest, at the latest, upon the death of the life tenant; and if the life tenant was in being when the will was made and at the death of the testator the devise is not within the- rule against perpetuities.</p> <p>. 4. Same — when great-grandchild dying before the life tenant’s death takes no interest. Where an alternative remainder to the testator’s great-grandchildren as a class, based on the contingency of the death of the life .tenant without leaving a child or' children, is not, in terms, immediate, and there is no language in the will limiting the gift to those members of the class in existence at the death of the testator, the gift to the class is confined to those members, only, who are in being at the death of the life tenant, and a member of the class who dies before the death of the life tenant takes no interest.</p> <p>5. Same — what remainders are descendible. If a remainder is vested in a member of a class the maximum number of which is .to be ascertained in the future, and will therefore open to let in new members, it will descend to heirs; and a contingent remainder is descendible where the contingency is not as to the persons who will take the ultimate remainder in case it shall ever vest.</p>

Writ op Error to the Appellate Court for the Third District; — heard in that court on writ of error to the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.

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

Writ or Error to the Appellate Court for the First District; — heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding-.

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

<p>AppEae from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.</p>

<p>1. Registration or titee — what is sufficient to show that premises were unoccupied. Testimony by a witness who saw the property several months before the application to register title was filed and also several months after, that the first time he saw the property it was unoccupied and unfenced and there were no signs of anything having been on it, and that the last time he saw the property it was in- the same condition except that it was covered with snow, is sufficient to show that the premises were unoccupied when the application was filed.</p> <p>2. Same — what proof must accompany offer of abstract of title. Where an abstract of title is offered in evidence under the Torrens law it must be accompanied by proof that it was issued in the ordinary course of business by a maker of abstracts, which may be shown by proving the signature in the manner pointed out by the act and by further proving the maker thereof was known to be or generally reputed to have been in the business of making abstracts of title for hire at the date shown on the abstract or at the actual date of the issuance thereof; and in case the abstract is one issued by a recorder of deeds, similar proof must be made that it was issued in the ordinary course of business by a maker of abstracts.</p> <p>3. Same — ivhen a county recorder is a maker of abstracts. A county recorder is not necessarily a maker of abstracts, but if he engages in that business as a private enterprise for hire or is required by the county board to keep abstract books and furnish abstracts, and he complies with such requirement, he is a maker of abstracts.</p> <p>4. Same — when mle does not apply that court will take judicial notice of a county office, its incumbent and seal. The rule that the court will take judicial notice of the office of county recorder and of its incumbent and seal does not apply to an abstract of tit-le made by the recorder, and to entitle such abstract to admission in evidence under the Torrens law it must not only be shown that the recorder is a maker of abstracts bi.it his signature must be proved, as provided in the act, and it must be shown that he was in the business of making abstracts for hire at the date shown upon the abstract or at the- actual date of issuance thereof.</p>

<p>1. Constitutional law — fozirteenth amendment of the Federal constitution does not interfere with police power of the State. The fourteenth amendment of the Federal constitution was not designed to interfere with the exercise of the police power of the State, and it is only where the State arbitrarily and unnecessarily interferes with private business or imposes unusual s£nd unnecessary restrictions upon lawful occupations that legislation will be declared to be in contravention of-such amendment.</p> <p>2. Same — what necessary to authorise exercise of police power by the State to abate nuisance. To justify a State in exercising its police power for the destruction or abatement of what may be determined to be a public nuisance, it must appear that the interest of the public generally, as distinguished from a particular class, requires the interference of the State, and that the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.</p> <p>3. Same — sections 2 and 8 of the act to prevent spread of contagious diseases among animals are valid. Sections 2 and 8 of the act for the suppression and prevention' of the spread of contagious and infectious diseases among domestic animals, as amended in 1915, (Laws of 1915, p. 3,) which authorize the killing of infected cattle by the order of the Board of Live Stock Commissioners and fix the method of compensating the owner, are not in violation of the State or Federal constitution.</p> <p>4. Nuisances — when party has no constitutional right to hearing before property is destroyed. Cattle afflicted with a dangerous and contagious disease are a public nuisance the abatement of which often requires prompt and summary proceedings, and the owner of such cattle has no constitutional right to a hearing before the cattle are destroyed in pursuance of a statute authorizing the matter to be investigated and dealt with in a summary manner by a board created for that purpose.</p> <p>5. Same — when court of equity zvill not interfere to prevent destruction of property. Where the State, in the valid exercise of its police power, has provided for the destruction of property which is a public nuisance dangerous to the health and welfare of the public, a court of equity will not interfere to restrain public officers from performing the duties enjoined upon them, but the remedy* if any, of the owner of the property is at law. ■ • •</p> <p>6. Same — whether a disease is contagious and dangerous is a legislative question. Whether a certain disease with which cattle are afflicted is a dangerous and contagious disease and whether particular cattle are afflicted with such disease are questions to be determined by the legislature in the manner provided by it, and if the statute itself is valid a court of equity will not assume to decide such questions, but will leave their determination to the authorities in whom that power has been vested by the legislature.</p>

<p>1. Taxes — record of meeting of commissioners may be amended in accordance with the fact. The record of a meeting of highway commissioners and the certificate of the commissioners for the road and bridge tax may be amended to show that the rate of taxation was fixed at such meeting, where the evidence shows that such action was actually taken by the commissioners.</p> <p>2. The other questions involved are controlled by the decision in People v. Illinois Central Railroad Co. (ante, p. 236.)</p>

<p>1. Wiees — the expression “credible witnesses" means competent witnesses. The provision of the Statute of Wills that a will must be attested in the presence of the testator or testatrix by two or more “credible witnesses,” means witnesses who at the time were competent, in law, to testify concerning the subject matter.</p> <p>2. Same — test of competency of zmtnesses to a will. The test of competency of a witness to a will is whether he will gain or lose financially as a direct result of the establishing of the instrument as a will.</p> <p>3. Same — executor is incompetent to attest a will as a witness. One who is appointed executor by a will is incompetent to attest it as a witness, because he will gain commissions allowed by law if the will is established, but if his interest as executor is his only interest section 8 of the Wills act removes his incompetency, as under that section he may be compelled to testify if there are not sufficient witnesses without him, and the appointment as executor will be void.</p> <p>4. Same — stockholder in bank which is made exeetttor is within section 8. A stockholder in a bank at the time a will is executed appointing the bank executor is incompetent to attest the will, but as he receives his beneficial interest directly from the will he is within section 8 of the Wills act and may be compelled to testify, with the result that- the appointment of the bank as executor is nullified and its stockholders become competent, generally, as witnesses. (Smith, v. Goodell, 258 Ill. 145, distinguished.)</p> <p>- 5. Same — people who have known the testator should be allozved to give their opinions. People who have known the testator for a great many years, have transacted business with him, talked with him on various subjects and.had visited him in the hospital where he was when he executed a codicil to his will, should be allowed to give their opinions as to his being of sound mind.</p> <p>6. Evidence — stockholders cannot testify for the corporation against heirs or devisees. • Stockholders are the owners of the income and earnings of the corporation and are directly interested therein, and, as a general rule, unaffected by any special statutory provision, they are incompetent to testify for the benefit of the corporation against heirs, devisees or legatees.</p> <p>Cooke, J., dissenting.</p>

<p>Pleading — a statement of claim in municipal court against city for tort need not allege giving notice. A statement of claim in the ■municipal court in an action of the fourth class against a city for a tort need not allege the giving of the statutory notice of the injury, even though such averment is necessary in a common law declaration, and the addition of such averment to the statement does not make a new cause of action within the contemplation of section 40 of the Municipal Court act. (Gillman v. Chicago Railways Co. 268 Ill. 305, explained.)</p> <p>Cartwright, Dunn and Cooke, JJ., dissenting.’</p>

<p>1. Constitutional law — general rule as to power of legislature to enact curative lazvs. The only limitations upon the power of the legislature to enact curative laws to validate irregular or void proceedings of municipal corporations are, that the action ratified and confirmed must be one which it was lawful for the legislature to authorize in the first instance, and that the power must be so exercised as not to infringe upon or divest property rights and vested interests.</p> <p>2. .Same — the act of ipifi, to cure defective annexation proceedings, is not invalid as special legislation. The curative act of 1915, (Laws of 1915, p. 258,) which was passed for the purpose of validating annexation proceedings under the circumstances set forth in the act, is not invalid as being special legislation, as the act purports to be general and applies to all municipal corporations which have annexed territory under the circumstances set forth in the act.</p> <p>3. Municipal corporations — what defect in annexation proceeding is cured by act of ipi¡. The act of 1915 (Laws of 1915, p. 238,) is effective to cure a defect in an annexation proceeding under section 2 of the act of 1872, consisting of a failure to have a petition complying with the requirement of section 1 of said act in respect to the number of signatures of legal voters' and property owners, as it was within the power of the legislature, in the first instance, to ha’ve dispensed with such requirement.</p> <p>4. Same — municipal corporations are wholly subject to legislative control. The legislature not only has the power to determine the territory and boundaries of municipal corporations, but also to change or alter them by annexing or disconnecting territory, either with or without the consent of the corporate authorities of the municipality or the inhabitants of the territory affected.</p> <p>5. Same — sections 1 and 2 of act of 1872, concerning annexation, are in force. The fact that sections 4 to 8 of the act of 1872, concerning the annexation of territory to cities, towns and villages' and the uniting of cities, towns and villages, were held invalid by the Supreme Court in City of Galesburg v. Hawkinson, 75 Ill. 152, did not invalidate sections 1 and 2 of said act, as they relate to an entirely different purpose than do sections 4 to 8, and said sections 1 and 2 are therefore in force.</p> <p>6. Same — section 2 of act of 1872 was not repealed by the act of 1889. Section 2 of the act of 1872, providing a method by which One municipal corporation may be annexed to another on the initiative of the municipal authorities, was not repealed by the act of 1889, providing a method of annexation upon the initiative of the legal voters of the municipalities affected, as the two acts are distinct and not in conflict.</p> <p>7. Same — curative act of 1915 cures defects in- election due tor form of ballots. The curative act of 1915 (Taws of 1915, p. 258,) is sufficiently broad in its terms to cure a defect in an annexation election, arising from the fact that the ballots used were not in the form prescribed by the Ballot act.</p> <p>8. Same — when ordinance passed by city in view of annexing village will not be held void. An ordinance passed by a city in view of the annexation of a village, which provides for the making of certain improvements by the city, will not be held void so as to defeat the annexation proceeding unless it provides for the doing of things the city would have no power to do, and it is not fatal to the ordinance that difficulties may be encountered in carrying its provisions into effect.</p> <p>9. Same — city has power to agree to pave a street. A city may, in view of the annexation of a village by the city, agree, by ordinance, to pave a certain street by special assessment and bear a certain portion of the expense, even though the power to originate an improvement rests with the board of local improvements, and though the matter of adjusting the benefits to property assessed will have to be left until the improvement is made.</p> <p>io. SamR — what does not render pre-annexation ordinance invalid. The fact that the improvements which a city, agrees to construct in an ordinance passed with a view to the annexation of a village may require the city at some future time to incur an indebtedness which will require the authority of an appropriation ordinance does not render the ordinance void, particularly where it was ratified and approved at an election called for that purpose.</p> <p>Cartwright and Dunn, JJ., dissenting.</p>

<p>Appeal from the County Court of LaSalle county; the Hon. Henry Mayo, Judge, presiding.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. William C: DeWole, Judge, presiding.</p>

<p>1. Constitutional law — Forest Preserve act of 1913 is not an act to regulate county affairs. The fact that under the Forest Preserve act of 1913 a district may be organized which will embrace an entire county and-its affairs be administered by the same officers who conduct and manage the affairs of the county does not make the act one regulating county affairs within the meaning of the constitution, as the conservation of forests and the flora and fauna has not been recognized as a county purpose.</p> <p>2. Same — powers of counties are those prescribed by law. In Illinois, counties are involuntary municipal corporations organized for the purpose of aiding in the proper administration of the affairs of the State government, and the powers and functions of counties are those prescribed by law.</p> <p>3. Same — legislature may create any kind of corporation to aid in the administration of public affairs. The legislature may create any kind of a corporation it sees fit to aid in the administration of public affairs and endow such corporation and its officers with such powers and. functions as it deems necessary.</p> <p>4. Same — legislature may create two or more public corporations having same officers. The constitution does not prohibit the legislature from organizing two or more public corporations whose powers and functions shall be exercised by the same officers.</p> <p>5. Same — legislature has full power over office created by it. An office created by the legislature is wholly within its power, and, it may prescribe the powers and duties of the incumbent of such office and the manner of filling it, change the mode or manner of filling the office and impose additional duties upon officers already elected or appointed.</p> <p>6. Same — what does not render Forest Preserve act of 1913 a local or special law. The facts that forest preserve districts, under the Forest Preserve act of 1913, are confined to the territorial limits of the county in which a natural forest is located, and that the district cannot be organized unless it also contains a city, village or town, do not render the act invalid as a local or special law. (People v. Rinaker, 232 Ill. 266, distinguished.)</p> <p>7. Same — test in determining whether law is general. The fact that a law may be, or seem to be, arbitrary in some of its provisions does not make the same a local or special law, but the test is whether the law operates uniformly throughout the State upon all persons and localities under like circumstances, and if it does the law is general.</p> <p>8. Same — Forest Preserve act of ipi3 is not invalid as a special law regulating elections. The Forest Preserve act of 1913 is not invalid as a special act regulating elections, as the legislature, in providing for forest preserve districts, had the right to provide for the submission of the question of the organization of such a district to the legal voters of the proposed district and to prescribe the manner of conducting the election.</p> <p>9. Same — Forest Preserve act of ipi3 not invalid as authorizing tax for private purpose. Under the Forest Preserve act of 1913 the land acquired by the district becomes the property of the district and its improvement in accordance with the provisions of the act must be regarded as a public.purpose, and the act is therefore not invalid as authorizing the levying of taxes for a private purpose nor for a purpose from which the tax-payer receives no benefit. '</p> <p>10. Same — Forest Preserve act does not contain matters outside the scope of its title. The provisions of sections 5 and 6 of the Forest Preserve act of 1913 authorizing the creation of forest preserve districts for “the education, pleasure and recreation of the public” and the laying out of paths, driveways and roadways for the use of the forest preserve by the public, are within the scope of the title of the act and do not render the same invalid. (People v. Rinaker, 252 Ill. 266, explained.)</p> <p>11. Same — acquiring of lands is germane to the purpose of the Forest Preserve act of ipi3. The acquiring of lands containing natural forests and setting the -same aside as forest preserves are germane to the purpose of the Forest Preserve act of 1913 as expressed in its title, as it is not necessary that the title of an act shall minutely and exactly express every related matter which is included in the act.</p> <p>12. Same — what is meant by “subject” of an act. The “subject” of an act, as that term is used in the constitution, means the matter or thing forming the groundwork of the act, which may include many parts, so long as they are all germane to the act, and which, if traced back, will lead the mind to the subject of the act as the generic head.</p> <p>13. Same — Forest Preserve act of ipi3 is not invalid as being incapable of execution. The Forest Preserve act of 1913, while some of its terms may be open to criticism, is not so indefinite or incapable of execution as to render it invalid, and the question of the wisdom, policy or practicability of the act is-not one for the courts to determine.</p> <p>14. Forest preserves — act of 1913 authorizes issuing of bonds. Section 13 of the Forest Preserve act of 1913 is sufficient to authorize the issuing of bonds for the purpose of creating and managing a forest preserve district.</p> <p>15. Same — ordinance of a forest preserve district for issuing bonds must be published. Under section 11 of the Forest Preserve act of 1913 an ordinance of a forest preserve district authorizing the issuing of bonds is required to be published, where its effect is to appropriate money in the form of the credit of the district for the payment of the principal and interest of the bonds and to provide for a direct'annual tax to produce the funds required.</p> <p>16. Publication — publication of notice in newspaper printed in foreign language is not good. The publication of a notice or ordinance in a newspaper printed in a foreign language is not good, even though the notice or ordinance is printed in the English language in such newspaper.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. William K. Whitfield, Judge, presiding.</p>

<p>Writ oe Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.</p>

<p>1. Taxes — day for meeting to fix rate need not be fixed in advance at some other meeting. It is not necessary, under section 50 of the Roads and Bridges act of 1913, that the president of the highway commissioners name or designate at any regular or special meeting the time for the meeting to fix the rate of tax for road and bridge purposes, but the record must show the meeting, that the rate was then and there determined, what such rate is and for what year.</p> <p>2. Same — record of highway commissioners may be amended to show the fact. The record of the highway commissioners may be amended, upon a proper showing, to speak the truth, where it fails in certain particulars by the omissions of the clerk:</p> <p>3. Same — statute does not require record to be kept in any particular booh. The statute does not require the record of the high*way commissioners to be kept in any particular book or character of book, and the fact that the clerk has kept the record in the town auditor’s record book is not a valid objection to such record.</p> <p>4. Same — road tax at higher rate than fixed is illegal as to excess. It is proper for the county clerk to extend road and bridge taxes at the rate required to produce the amount certified by the highway commissioners, but if such rate exceeds the rate previously determined by the commissioners the tax is illegal as to the excess.</p>

<p>1. Damages — the benefits resulting from increased travel are proper to be considered. In determining whether premises have been damaged by reason of the construction and operation of an elevated railroad in a city, the benefits to the premises by reason of increased travel in front of the same, resulting from the operation of the railroad, are proper to be considered. (Brand v. Union Elevated Railroad Co. 258 Ill. 133, and Geohegan v. Union Elevated Railroad Co. 258' id. 352, and 266 id. 482, adhered to.)</p> <p>2. Same — fact that value of property for certain purpose is decreased is not material. In an action for damages to premises by the construction and operation of an elevated r-ailroad, the only issue before the jury is the effect of the construction and operation of the railroad upon the market value of the premises, and the fact that the • rental value of the building for the purpose it was. used when the railroad was constructed may have been-decreased or destroyed'is not material if the general market value of the premises has increased.</p> <p>3. Same — when permitting proof of increase in value covering a period of eight years is not error. Where an action for dam-1 ages to premises from the construction and operation of an elevated railroad is not begun until five years after the railroad was built and is not tried until twelve years later, it is not error to permit the defendant to prove the steady increase in market value of the premises for a period of eight years after the railroad was constructed and put in operation.</p> <p>Cartwright, J., dissenting.</p>

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

<p>1. Disbarment — depositions are competent evidence in disbarment proceeding. A proceeding to strike the name of an attorney from the roll of attorneys is not a criminal prosecution in which the accused has the right to meet the witnesses face to face, and it is proper, in order to sustain a count of the information charging the forging of the name of a person to a release of a mortgage, to admit the deposition of such person in evidence.-</p> <p>2. Same — power to disbar attorney should■ be exercised according to rules of law. The power to disbar an attorney should be exercised with sound and just discretion, according to the same rules of law that govern in the determination of other civil rights which,are brought before the court.</p> <p>3. Same — what is ground for disbarring attorney. An attorney who converts to his own use notes left with him for collection or safe keeping, who obtains a loan for himself by falsely representing that he wants the money for a client who was financially responsible and would give a note, and who uses, as collateral security, a certain note without delivering a deed to the makers of. the note, as he had agreed to do if he used the note to raise money, is guilty of unprofessional conduct and should be disbarred.</p>

<p>Writ of Error to the Circuit Court of Menard county; the Hon. Guy R. Williams, Judge, presiding.</p>

<p>Equity — section 50 of Chancery act does not authorise a bill to convert a legal estate into a trust estate. The'amendment in 1911 of section 50 of the Chancery act, which authorizes a court of equity to hear and determine 'bills to appoint trustees, etc., does not indicate that the added jurisdiction vested in courts of equity by such' section should extend beyond the administration of trust estates and does not authorize a court of equity to convert a legal estate into a trust estate.</p>

<p>1. Taxes — a board of review cannot make assessment of personal property in a lump sum. A board of review, in making an assessment, is required to make a list of the property assessed, setting down in the column opposite the separate kinds of property the assessed value thereof, and it has no authority to assess a lump sum as the value of all the property, without any designation as to the'character or kind of the same.</p> <p>2. Same — what must be shown by collector’s return in order to charge a personal tax against land. In order to charge a personal property tax against real estate it is essential that the collector note, in writing, opposite the name of the person charged with the tax, the cause of his failure to collect it, and he must make oath that the cause of the delinquency is true and correct and that he has used due diligence to collect the. tax.</p>

<p>1. Words and phrases- — words “share and share alike” construed. The words “share and share alike” are not used to indicate the amount that is intended to be given, but only to denote an equal division among members of a class or a number of beneficiaries, legatees or devisees.</p> <p>2. Wiles- — provision construed as giving each of the testator's sisters $¡ooo. In the absence of anything in the will or surrounding circumstances showing the contrary, a provision in a will that the executors “shall pay in good and lawful money of the United States three thousand dollars ($3000,) share and share alike, to each of my three (3) half sisters, * * * within one year after my death. If in the event of the death of one or all of said half sisters, the above amount shall be evenly divided among their legal heirs as the laws of their country may direct,” will be construed as giving the sum of $3000 to each half sister.</p> <p>3. Same — when the bequest does not lapse because the legatee is dead. Where the testator, after directing his executors to pay $3000 to each of his half sisters, provides that in the event of the death of one or all of them the amount shall be evenly divided among their legal heirs, the bequests do not lapse by reason of the death of the specific legatee either before or after the will was made, but in such case the amount she would have taken passes, as directed, to her legal heirs.</p> <p>4. Same — when specific bequests are not a charge upon real estate. Where the testator by one clause of the will devises specific parcels of real estate to certain devisees; by the next clause provides that the “balance of my real estate which I now own or may at any time hereafter own shall be equally divided between” certain persons; by the next clause makes specific money bequests to his half sisters, and by a later clause disposes of the residue of his personal estate “after deducting all gifts, donations, legacies, bequests and other expenses heretofore or hereafter named,” the specific bequests are not a charge upon the real estate, and if the personal estate is not sufficient to pay the legacies and bequests in full they must be abated proportionately. (Williams v. Williams, 189 Ill. 500, and Simonsen v. Hutchinson, 231 id. 508, distinguished.)</p> <p>5. Same — the testator, after making an absolute gift, cannot restrict its free use. Where the testator has made absolute gifts of his property, both real and personal, to various devisees and legatees, he cannot-by a later provision in the will forbid any devisee or legatee from giving any portion of the shares they have received under the will to a certain person, with the penalty that if such event shall occur then his entire estate shall go to the legal heirs of his half sisters, and such provision is void as a restriction on the free use of the absolute gifts.</p>

Appear from the Branch “D” Appellate Court for the First District; — heard in that court on appeal from the Municipal Court of Chicago; the Hon. Wirriam N. Gemmirr, Judge, presiding.

<p>1. Workmen's compensation — legislature had power to abolish defense of assumed risk. The rules of law relating to the defenses of contributory negligence, assumption of risk and the effect of the negligence of a fellow-servant were established by the courts and not by the constitution, and it was within the power of the legislature, in enacting the Workmen’s Compensation act, to modify or abolish such rules.</p> <p>2. Appears and errors — what does not justify direct appeal to the Supreme Court. A claim that a certain statute is unconstitutional will not justify a direct appeal’to the Supreme Court where the same claim has been repeatedly decided by the Supreme Court contrary to the appellant’s contention.</p>

<p>1. 'PrEading — what averment in answer is admitted by demurrer. An averment in an answer to a bill to enjoin a city from paying a certain claim presented by the mayor, that the claim was presented only for the mayor's actual, reasonable, necessary and suitable expenses proper to be incurred by him in the accomplishment of the work in which he was engaged, is an averment of'a fact which is admitted by demurrer, and the defendants are not required to prove that such expenses were legitimate and-proper.</p> <p>2. Municipal corporations — city may pay legitimate expenses of its mayor in securing legislation for benefit of city. It is not against public policy for a city, which must expend a large sum of money in building and re-building levees' to protect it against inundation, to authorize its mayor to endeavor to secure Federal aid by obtaining an appropriation by Congress and to pay his legitimate, reasonable and proper expenses in interviewing members of Congress, appearing before committees and performing other like services in securing the appropriation.</p> <p>'3. Same — what may be paid from the fund for contingent expenses. If the necessity for securing Federal aid for a city in the matter of building and repairing levees arises after the passage of the annual appropriation ordinance, the city has power to pay the legitimate, necessary and proper expenses of its agent in securing an' appropriation by Congress, from the unexpended amount of the fund for contingent expenses provided for in the appropriation ordinance.</p> <p>4. Same — city need not formally authorize mayor to incur expenses. The fact that a city may not formally authorize its mayor to incur expenses in securing legislation for the benefit of the city does not prevent the mayor from being reimbursed for his legitimate, reasonable and proper expenses incurred in the matter, provided the city ratifies his action in representing it by approving the bill presented by him.</p>

<p>Appeal from the County Court of Crawford county; the Hon. Duane Gaines, Judge, presiding.</p>

<p>1. Eminent domain — when statement of termini in articles of incorporation is sufficient. A statement in the articles of incorporation of a railroad company that the places from and to which the railroad is to be constructed are “from a point at or near the easterly banks of the Mississippi river in the county of St. Clair, State of Illinois, opposite the city of St. Louis, Missouri, around and through the city of East St. Louis, Illinois, to a point at or near the easterly banks of the Mississippi river in Madison county, Illinois,” is sufficient to enable the company to condemn land.</p> <p>2. Same — plans and specifications are not indispensable in condemnation proceeding. In a proceeding by one railroad company to condemn a right of way to cross the tracks of another company plans and specifications are not indispensable, where the petition contains an order of the State Public Utilities Commission specifying the details of the crossing with such particularity that no further information would be gained by requiring plans and specifications to be filed.</p> <p>3. Same — ivhen question of effort to agree on compensation is-waived. If the defendant to a condemnation proceeding files a cross-petition for damages and there is a contest on the merits of the case, the question whether there was an effort made to agree upon compensation prior to the filing of the petition is waived.</p> <p>4. Same — when denial of challenge to the array is proper. It is not error to deny the defendant’s challenge to the array in a condemnation case and in submitting the case to a jury selected from the regular panel for the term, where the case, though originally set for trial in vacation, was continued, without objection by defendant, to a regular term, and where the challenge to the array is not supported by, affidavit and there is no evidence of any irregularity in drawing the jury.</p> <p>5. Same — when it is not error to admit stipulation in evidence. In a proceeding by one railroad company to condemn a right of way for crossing another railroad,- it 'is not error to admit in evidence a stipulation -that the petitioner will install and maintain an interlocking, plant of approved design to be submitted to the State Public Utilities Commission for approval, where such stipulation is merely an agreement by the petitioner to do what said commission has ordered to be done and has power to require done.</p> <p>6. Same — when a stipulation need not be incorporated in judgment. A stipulation by the petitioner in a condemnation case to do what 'the State Public Utilities Commission has ordered it to do is binding upon the petitioner and can be enforced whether or not it is incorporated in the condemnation judgment.</p> <p>7. Same — when the rejection of evidence of an alleged expert is proper. Evidence of a witness offered as an expert upon the question of damages to a railroad company by the crossing of its railroad by another company, to the effect that there would be an added risk, and consequent depreciation in the value of the capital stock of the defendant company, in serving the public against the modern policy of throwing every safeguard around human life, is properly rejected.</p> <p>8. Same — damages resulting from stopping trains at crossing cannot be recovered. In a proceeding by one railroad company to condemn a right of way to cross the tracks of another company the defendant is not entitled to recover damages resulting from obedience to the statute requiring trains to be stopped at crossings of other railroads.</p> <p>9. Same — zvhat questions as to damages are improper. Questions asked of an expert witness in a proceeding by one railroad company to condemn a right of way across another railroad are improper which will permit the witness to include in his answer elements of damage to the defendant company which are within the realm of conjecture and speculation and also elements for which the defendant is not entitled to recover damages. (Lake Shore and Michigan Southern Railzvay Co. v. Chicago and Western Indiana Railroad Co. 100 Ill. 21, distinguished.)</p>

<p>1. Marriage — a void marriage is no obstacle to valid one. If either of the parties to a marriage has a husband or wife living and undivorced the marriage is void and is no obstacle to a subsequent marriage by the innocent party to some other person.</p> <p>2. Same — what is sufficient proof that no divorce ,was obtained. If the husband testifies that he never obtained a divorce from his wife, and his wife testifies that she applied for a divorce by her attorney in a certain county but had never testified nor seen any decree for divorce, proof by the clerk of the circuit court of such county that he has made diligent search among the records of that court and found no proceeding for divorce to which such husband and wife were parties, sufficiently shows no divorce was obtained.</p> <p>3. EstoppEE — filing claim as housekeeper does not estop party from claiming as widow. If, pending the decision of the county court on a petition by the heirs to remove an administrator appointed at the instance of the widow, (the ground of the petition being that the widow was not the lawful wife of the deceased,) the widow files a claim as housekeeper for the deceased, the filing of such claim does not estop the claimant from asserting her rights in the estate as widow, wh'ere the claim as housekeeper has not been pressed to a successful conclusion and the heirs have not changed their position to their prejudice by the filing of the claim.</p>

<p>Writ op Error to the Appellate Court for the First District; — heard in that court on writ of error to the Municipal Court of Chicago; the Hon. William N.. Gpmmill, Judge, presiding.</p>

<p>1. Fraud — representation must be an affirmance of a fact to constitute fraud. To constitute fraud in law a false representation must be an affirmance of a fact, and not a mere promise or expression of opinion or intention.</p> <p>2. Same — mere promise to perform does not give rise to action for fraud. A promise to perform an act, though accompanied at the time by an intention not to perform it, is not such a representation as can be made the ground of an action for deceit.</p> <p>3. Same — what representation by insurance company does not relate to a fact. A representation by an insurance company to the purchaser of a policy that the surplus of the policy plus the legal reserve would amount to a certain sum at the end of twenty years and that the company would then pay him that sum if he survived is not a representation of a fact, and will not, of itself, give rise to an action for fraud and deceit.</p> <p>4. Same — a» action for fraud and deceit must be begun within five years from time cause of action accrued. An action for fraud and deceit must be begun within five years after the cause of action accrued, unless there has been a fraudulent concealment of the cause of action within the meaning of section 22 of the Statute of Limitations.</p> <p>5. Limitations — what is meant by fraudulent concealment of cause of action. The fraudulent concealment of a cause of action, as meant by section 22 of the Statute of Limitations, must be some affirmative act or representation intended to prevent the discovery of the cause of action and, which actually does prevent it.</p> <p>6. Same — what must be averred in replication setting up fraudulent concealment. Where the Statute of Limitations is pleaded to a declaration in an action for fraud and deceit, a replication setting up fraudulent concealment of the cause of action must set out the facts constituting the concealment, and the fraudulent representations which form the basis of the action do not constitute a fraudulent concealment, in the absence of allegations of acts or representations tending fraudulently to conceal cause of action.</p> <p>7. Same — when rule of fraudulent concealment does not apply — effect of a fiduciary relation. The rule that the Statute of Limitations will not begin to run against a cause of action for fraud and deceit until the, discovery of the fraud, does not apply if the party affected by the fraud might with ordinary diligence have discovered it, but the existence of a fiduciary relation making it the duty of the person committing the fraud to disclose the true nature of the transaction to the party defrauded may excuse the latter from the use of ordinary diligence to discover the fraud.</p> <p>8. Same — anmial acceptance of premiums is not a continuance of initial fraud by insurance company. Where a cause of action for fraud and deceit is based upon alleged false representations by an insurance company as to what a policy of insurance would be worth at the end of twenty years, the annual acceptance of the premiums on the policy is not a ■ continuance of the initial fraud, such as prevents the running of the Statute of Limitations. ■</p> <p>Farmer, C. J., dissenting.</p>

<p>Erections — statute does not authorise women to vote for committeemen or for delegates to the national conventions. While the legislature, under the decision in Scown v. Csarnecki, 264 Ill. 305, has the power to authorize women to vote for delegates to the national conventions to nominate candidates for President and Vice-President of the United States and for candidates for State and precinct committeemen of the political parties, yet the Woman’s Suffrage act cannot be construed as having given such authority.</p>

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

<p>1. Taxes — •certificate of commissioners need only show amount required. The statute does not require the commissioners of highways to certify to all their actions preliminary to the ascertainment of the amount of taxes required, but only requires that they shall certify the amount necessary to be raised’ by taxation for the proper construction, maintenance and repair of roads and bridges in the town.</p> <p>2. Same — when faihire to keep a record will not vitiate a tas. Failure of the highway commissioners to keep a record of their action will not vitiate a road tax levy, provided the necessary action was taken to levy the tax and proper steps are taken, after proof made, to amend or supply the record at the hearing upon application for judgment and order of sale; and if the proof is made and leave is given to amend the record, the neglect of the commissioners to make the amendment and offer the amended record in evidence will not work a reversal of a judgment for the tax.</p> <p>3. Same — what shows sufficient approval by the county board. A sufficient approval of road and bridge taxes is shown by the record of the county board reciting that “on motion it is ordered that the county clerk extend on the collector’s books of the various towns of Lawrence county, for the year 1914, the following amounts for road and bridge purposes,” following which is a list of the amounts required by the various towns of the county.</p>

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

Writ or 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.

Writ oe Error tp the Appellate Court for the Second. District; — heard in that court on appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding.

<p>1., Corporations — when all of a corporation’s property should be assessed by the local authorities. If a corporation is organized for purely manufacturing and mercantile purposes or for either of such purposes, all of its property, including its franchise, is liable to assessment for taxation by the local authorities, but if it is not organized for such purposes then its capital stock and franchise are assessable by the State Board of Equalization.</p> <p>2. Same — when the franchise of a telephone company is not assessable by local assessor. If the main purpose for which a telephone company is organized is the construction or acquiring by lease or purchase of telephone lines and the operation and maintenance of telephone lines and exchanges, its franchise is not assessable by the local assessor, even though one of its declared objects of organization is the manufacture and sale of telephones and telephone apparatus.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.</p>