Volume 272 — Illinois Reports

<p>Appeal from the Circuit Court of Henderson county; the Hon. Harry M. Waggoner, Judge, presiding.</p>

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

<p>Writ or Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

<p>1. Sanitary districts—function of Sanitary District of Chicago. The function of the Sanitary District of Chicago is to provide a channel into which sewage can be emptied and in which a flowage can be maintained sufficient to carry such sewage away from Lake Michigan, and the object of its creation is accomplished by providing and maintaining a channel sufficient to carry through it the drainage emptied into it by the municipalities in the district</p> <p>2. Same—Sanitary District of Chicago does not have control over the drainage of cities in the district. The Sanitary District of Chicago does, not have control over the drainage and sewer systems of the municipalities of the district, but its function is to provide a common outlet for such drainage and sewer systems.</p> <p>3. Eminent domain—the city of Chicago may condemn right of way for sewer outlet through land of sanitary district. The city of Chicago has power to condemn a right of way for a sewer outlet through a narrow strip of land owned by the Sanitary District of Chicago on the bank of the Chicago river, and its right to condemn is not restricted by the fact that the condemnation money is to be furnished by a private corporation under an ordinance obligating it to bear the expense of re-arrangement of a portion of the sewer system of the city, made necessary by the construction of a union railroad station by such corporation.</p>

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

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

<p>1. Costs—no liability for costs exists unless created by statute. There is no liability for costs unless it is created by statute, and statutes authorizing the allowance and recovery of costs are penal in their nature and are strictly construed.</p> <p>2. Drainage—zvhat condition as to costs is not contemplated by Levee act. The Levee act does not contemplate that the original petitioners shall be charged with all costs of the proceeding until it is finally determined whether, the district has been legally organized,' as the provisions for costs contained in sections 5, 10 and 44 of said act apply only to specified conditions and indicate that the legislature did not intend the petitioners to be liable for costs in other .cases.</p> <p>3. Same—petitioners are not liable for costs and expenses incurred after void order of organization. It was not intended by the Levee act to charge the original petitioners with costs and expenses incurred by the commissioners after the entry by the county court of a void order organizing the district, but they are liable for the costs and expenses incurred up to the time such void order was entered.</p> <p>4. Same—void order organizing drainage district is a nullity. If the petition for organizing a levee drainage district is not sufficient the county court is without jurisdiction to enter an order organizing the district, and such order being void is a nullity, and may be ignored or disregarded by any person not estopped in some way or precluded by his own act from disregarding it.</p>

<p>1. Taxes—certifying rate is not certifying amount required for road and bridge purposes. The requirement of section 56 of the Roads and Bridges act of 1913 that the highway commissioners shall certify the amount required for road and bridge purposes at their meeting on the first Tuesday in September is not satisfied by a certificate of the rate per cent on each $100 valuation of the property of the .township.</p> <p>2. Same—amounts required by village for fuel and light should be stated separately. The amounts required by a village for fuel and light should be stated separately and not in a lump sum for the two purposes.</p>

<p>1. Judgments and decrees—when a recital that order was entered at certain term is surplusage. If it appears from the record that a judgment confirming a special assessment was entered on one of the judicial days of the April term, a recital in the order that it was entered at the January term may be treated as surplusage in a subsequent proceeding for judgment and order of sale for the delinquent special assessment.</p> <p>2. Same—finding of court that due notice has been given can not be contradicted by stipulation in a collateral proceeding. A finding by the court in a proceeding to confirm a special assessment that due notice had been given cannot be contradicted, on application for judgment and order of sale for the delinquent assessment, by a stipulation that the defective certificate of publication found in the record was the only evidence offered in the confirmation proceeding to show publication of the notice.</p> <p>3. Evidence—effect where a party offers copies of files as the record of a proceeding. On application for judgment and order of sale for a delinquent special assessment, an objector who offers in evidence as the record of the special assessment proceeding certain exhibits, consisting of copies of the files, cannot take advantage of the fact that the clerk of the court in which the assessment proceeding was had neglected to transcribe the files in the regular record book.</p>

Writ oe Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. C. A. MacDonaed, Judge, presiding.

<p>1. Res judicata—a reversed decree cannot be pleaded as res judicata. Where a decree granting the relief on a bill to establish a trust in land and dismissing for want of equity a cross-bill to establish the title of the cross-complainants is reversed by the Supreme Court with directions to dismiss the original bill, the whole decree is set aside and annulled, and it cannot thereafter be pleaded as res judicata in defense of a suit by the cross-complainants.</p> <p>2. Appeals and errors—when freehold is not involved. Where a decree granting relief on an original bill to establish title to land and dismissing the cross-bill for want of equity is reversed by the Supreme Court with directions to dismiss the original bill, a subsequent decree dismissing the original bill after denying leave to amend the cross-bill does not involve a freehold.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. Tut hill, Judge, presiding.

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

<p>Writ or Error to the Circuit Court of McDonough county; the Eton. Harry M. Waggoner, Judge, presiding.</p>

<p>1. Wills—when interest of daughters in land is a life estate pur autre vie. Where one 'clause of a will provides that at least $5000, and not to exceed $6000, shall be invested in a farm for the testator’s two daughters, naming them, “during their natural life,” and in case either shall die, her life interest “shall descend in accordance with the laws of Illinois,” and the next clause gives the residue of the testator’s property to his widow for life and after her death “all said property, real and personal, shall be divided in equal shares among my following children, [naming them,, and including the two daughters,] provided, however, that the amount so invested for my two daughters * * * shall be considered an advancement to the value of their interest in said land,” the daughters take a life estate pur autre vie in the farm so purchased and 'do not take the fee.</p> <p>2. Judgments and decrees—when finding in a decree is not a final adjudication. The mere finding of a fact in a partition decree without basing any decretal order thereon is not such a final adjudication as will be binding upon the parties when the cause is re-referred to the master in chancery to find the interests of the parties which were not determined by the decree.</p>

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

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

<p>1. Taxes—holding of meeting to certify amount of road tax is mandatory. The holding of the meeting on the first Tuesday in September for the purpose of certifying the amount of the road and bridge tax required is essential to the validity of the tax, and while the record of the commissioners may be amended, upon proof of the fact, to show that such meeting was held, yet oral proof of the holding of the meeting is of no avail unless the record be amended.</p> <p>2. Same—commissioners must ñx the rate at ñrst meeting and not the amount. Fixing the amount required for road and 'bridge purposes at the first meeting of the highway commissioners required by section 50 of the Roads and Bridges act is not a compliance with the provision of such section which requires them to fix the rate.</p> <p>3. Same-—what is not essential to validity of meeting to ñx tax rate. If the meeting of highway commissioners provided for by section 50 of the Roads and Bridges act of 1913 is held within the time required by law, it is not material that the clerk, in writing the record, designates the meeting as a special one, nor is it required that the record show that the meeting was called by the president or two of the highway commissioners.</p> <p>4. Same—what record shows a sufficient determination of the tax rate. A record stating that the commissioners of highways of a certain township “hereby certify that we require fpr road and bridge purposes and for the payment of outstanding orders drawn on the township treasury for the year A. D. 1915 the rate of sixty-one cents on each $100,” shows a sufficient determination of the tax rate.</p> <p>5. Same—when record of amount required is sufficiently certain. A record showing that the commissioners of highways “do hereby certify that we have determined that the amount necessary to be raised by taxation in said town for the ensuing year for the proper construction, maintenance and repair of roads and bridges in such town is the sum of seven thousand dollars ($7000;) motion made and duly seconded that there be and is levied for the repair of roads and bridges the sum of $7000; motion carried,” sufficiently shows that the amount determined upon for road and bridge purposes was $7000 and not $14,000.</p> <p>6. Same—a judgment for road taxes ■should be limited to the portion of the objecting railroad company’s property in the town. A judgment for road and bridge taxes should be limited to the portion of the objecting railroad company’s property in the town and not against all of the company’s prope'rty in the county.</p>

<p>1. Specific performance—a bid at a certain price per acre requires party' to pay 'for actual acreage. Where the bid of a party at a public sale of land is a certain price per acre he is bound to pay for the actual acreage in the absence of any subsequent modification of the contract.</p> <p>2. Same—when memorandum of a contract is without effect. Delivery of a written memorandum of a contract of sale to the purchaser is not essential to the validity of the memorandum as a contract if the parties intend that it shall take effect at once, but if the vendor retains possession of the memorandum, so that it will not show he has sold the land until he finds whether the check for the advance on the purchase price is good, the memorandum does not take effect as a contract binding upon him.</p> <p>3- Same—an agreement for a survey of land sold at public sale need not be in writing. Where a tract of land assumed to contain one hundred and sixty acres is sold at public sale at a bid of $150 per acre, a subsequent agreement for a survey of the land to ascertain the number of acres need not be in writing.</p> <p>4. Same—existence of public highways over land does not constitute an incumbrance. The fact that several acres of a tract of land bought at public sale at a bid of a certain price per acre are embraced in public highways does not afford a defense to a bill for specific performance, as the existence of the highways does not constitute an incumbrance, and the purchaser will acquire title to the land embraced by the highways as well as to that not so embraced.</p> <p>5. Same—government survey fixes the corners but is not conclusive as to acreage. Where land is purchased at a public sale at a certain price per acre and it is agreed the tract shall be surveyed, the corners fixed by the government survey establish the location of the tract to be surveyed; but if the survey made shows that the tract contains more or less than the quantity indicated by the field notes of the government survey, the rights of the parties are governed by the actual quantity of the land.</p>

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

<p>Constitutional law—Workmen’s Compensation act of ipn was passed in constitutional manner. The .Workmen’s Compensation act of 1911 was passed by the General Assembly in the manner required by the constitution. (Dragovich v. Iroquois Iron Co. 269 Ill. 478, followed.)</p>

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

<p>Appeals and Errors—what is not a Anal judgment. A judgment by the Appellate Court reversing a judgment of the circuit court and remanding the cause to that court, with directions to overrule the demurrer which the trial court had sustained and for such further proceedings as to law and justice shall appertain, is not a final judgment and is not appealable.</p>

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

<p>Appeal from the County Court of DeWitt county; the Hon. Frederick C. Hill, Judge, presiding.</p>

<p>Appeal from the Branch “D” Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Edmund K. Ja-RECKi, Judge, presiding.</p>

<p>1. Pleading—when proof of one of two charges of negligence in one count is sufficient. Proof of either one of two charges of negligence, though joined or coupled together in one count, will be sufficient to warrant a recovery, provided the negligence is shown to be the proximate cause of the injury.</p> <p>2. Trial—when verdict should not be directed. If there is in the record any evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that the material averments of the declaration have been proved, a verdict should not be directed.</p> <p>3. Railroads—zvhen a railroad company is negligent in operating a train past an obstruction too near the track. A railroad company is guilty of actionable negligence to its employees in operating a train, either upon its track or upon a track of another company, past an obstruction located dangerously near the track, provided the operating company knew, or by the exercise of ordinary care could have known, of such dangerous obstruction.</p> <p>4. Same—zvhat is not necessary to render a railroad company liable though an obstruction near track is on private property. A railroad company may be negligent in operating a train past an obstruction too near the track although the obstruction is not the property of the company and is not located on its right of way, and no warning, by the owner, of the existence of the obstruction is necessary if the company, by the exercise of reasonable care, could have known of its existence.</p> <p>5. Same—duty of railroad company to see to removal of unnecessary dangers. If the operation of switching cars to and from the grounds of a manufacturing company is rendered unnecessarily dangerous by reason of conditions existing on such grounds, it is the duty of the company 'to require the removal of such "dangerous conditions or refuse to operate its trains until" such conditions are removed.</p> <p>6. Same—what is sufficient to show knowledge of dangerous proximity of post to the track. A railroad company is charged with knowledge of the dangerous proximity of a post to the track on the premises of a manufacturing company where the evidence shows that the post and the track had been in the same relative positions for at least a year and a half prior to the accident, that the company was accustomed daily to operate its trains along the track and past the post, and that it was the only railroad operating its trains upon such track.</p> <p>7. Same—whether deceased was warned of dangerous obstruction is a question for the fury. Whether the deceased employee was warned of the dangerous proximity of a post to the track by his receipt of a non-clearance list or by the conductor of the train is a question for the jury under the evidence on such matters.</p> <p>8. Same—whether company’s negligence was proximate cause of injury is question for the jury. Whether a railroad company’s negligence in operating a train past an obstruction too near the track was the proximate-cause of the deceased’s injury and death is a question of fact to be determined by the jury if there is any evidence fairly tending to establish that fact.</p> <p>9. Same—when a verdict may be based on circumstantial evidence. If there were no eye-witnesses to the accident resulting in the death of the plaintiff’s intestate, a verdict for the plaintiff may be based upon proof of such facts and circumstances as will, according to usual and common experience, raise an inference of other facts and circumstances sufficient to warrant the jury in returning such verdict.'</p> <p>10. Same—railroad receivers may reject the. Workmen’s Compensation act without special order of court. Receivers of a railroad acting under a general order of a Federal court authorizing them to manage, maintain and operate the road have authority to reject the Illinois Workmen’s Compensation act without first obtaining a special order of court for that purpose.</p> <p>11. Same—extent of authority of a United States district court in railroad receivership action. The court in the principal railroad receivership action has general power and authority over the entire railroad system, even though parts of it are not situated within the district in which the court sits, and this authority will be recognized in other jurisdictions on the principles of comity and public policy.</p> <p>12. Master and servant—effect where master rejects Workmen’s Compensation act of ipn. Under the Workmen’s Compensation act of 1911 an employer who elects not to come under the provisions of such act cannot escape liability for injuries sustained by an employee on the ground of assumption of the risk or contributory negligence of the employee.</p> <p>13. Same—extent to which agreement by employee to assume risk is void. A clause in an application for employment by which the employee assumes the risk of the dangers of the business is void and contrary to public policy in so far as it may purport to bind the employee to assume the risk of dangers occasioned by the negligence of the employer of which the employee has no notice.</p> <p>14. Evidence—circumstantial evidence defined. Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind.</p> <p>15. Same—when testimony as to average earnings of switch-men is not prejudicial. Permitting a fireman to testify as to the average earnings of switchmen is not prejudicial where such testimony corresponds with competent evidence as to the exact earnings of the deceased switchman.</p>

<p>1. Constitutional law—section 14 of Factory act is constitutional. Section 14 of the act to provide for the health, safety and comfort of employees in factories, mercantile establishments, mills and workshops in this State and to provide for the enforcement thereof, (Laws of 1909, p. 202,) is constitutional. {Greene v. Fish Furniture Co. ante, p. 148, followed.)</p> <p>2. Practice—what is equivalent. to ruling on demurrer to plea of Statute of Limitations. Where additional counts in a personal injury case are filed some four years after the injury and a plea of the Statute of Limitations is filed, to which a demurrer is interposed, the action of the court in proceeding with the trial to a conclusion after all the original counts were eliminated is equivalent to sustaining the detnurrer to the plea of the Statute of Limitations, as the additional counts must have been held by the court not to state a new cause of action.</p> <p>3. Same—what does not affect the question whether additional counts state new cause of action. If one of the original counts in the declaration contains a defective statement of a cause of action under section 14 of the Factory act, the fact that the allegations referring to such cause of action are made in combination with other averments showing negligence of the defendant does not affeet the question whether additional counts based upon said section 14 state a new cause of action.</p> <p>4. Same—what is a gross abuse of privilege of presenting instructions. Presenting 107 instructions to the court in an action for damages for the death of plaintiff’s intestate in a fire in the defendant’s factory is a gross abuse of the privilege of tendering instructions to enlighten the jury as to the law and the right of recovery under it.</p> <p>5. Factories—mere construction of ñre escape does not relieve owner from responsibility. The mere construction of a fire escape “pursuant to the statute” does not relieve the owner of the building from further responsibility to his employees nor establish the fact that the fire escape is a reasonable and sufficient means of escape, as the statute does not prescribe any method of construction.</p> <p>6. Same—owner of factory must keep means of escape in condition for use. Under the act for the protection of employees in factories, mercantile establishments, mills and workshops it is the duty of the owner of the building not only to provide a sufficient and reasonable means of escape for employees in case of fire, but to avoid so obstructing the means of escape that it cannot be used when a fire occurs.</p> <p>7. Same—owner must comply with Factory act without waiting for inspector's order. The owner of a factory, mercantile establishment, mill or workshop is not entitled to delay compliance with the Factory act until he has been ordered by some factory inspector to comply with the act.</p> <p>8. Same—elevator and stairway are not means of escape contemplated by the statute. Neither a freight elevator nor a stairway in a factory, mercantile establishment, mill or workshop can be regarded as a means of escape in case of fire within the contemplation of the Factory act, as both are means of spreading fire.</p> <p>9. Instructions—what is not an approval of instruction by the Supreme Court. The mere fact that the Supreme Court decides that an instruction in a certain case is not subject to the particular objection or objections made against it does' not necessarily amount to a general approval of the instruction, as the Supreme Court does not seek for objections which are.not both presented and argued.</p> <p>10. Damages—recovery by next of kin of a young girl is not limited to the time she would be eighteen years old. The right of the next of kin to recover damages resulting from the death of a young girl employed in a factory is not limited to the value of the services of the girl up to the time she would have been eighteen years old but the jury may consider the continuance of her life and the benefit to be derived therefrom; but in fixing the amount of damages the jury must determine, from the evidence, what the next of kin might reasonably have expected, in a pecuniary way, from the continuance of the life of the deceased.</p>

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

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

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

<p>1. Deeds—whether deed was delivered is a mixed question of lazo and fact. What amounts to delivery of a deed depends upon the facts and circumstances of each particular case and is a mixed question of law and fact.</p> <p>2. Same—question of delivery of deed is largely one of intention. The question of delivery of a deed is largely one of intention as evidenced by the surrounding circumstances and is not conclusively determined by the manual possession of the instrument.</p> <p>3. Same—when delivery to third party will pass title at grant- or’s death. The delivery by the grantor to a third party of a warranty deed with directions to send it to the grantee at his death, which directions are carried out, is sufficient to pass title to the grantee, even though the grantor, during his lifetime, continued in occupation of the premises with the grantee, paid the taxes, renewed a mortgage, insured the premises and collected the insurance on a barn on the premises, where the evidence clearly shows his intention to give the property to the grantee.</p>

<p>1. Street railways—section 2171 of Chicago code, concerning transfers, is not referable to police power. Section 2171 of the Chicago code of 1911, providing that a street railway passenger who has paid his fare shall be entitled to a transfer ticket entitling him, without further charge, to be carried on any other adjoining, connecting or intersecting line of street railway, if used within one hour after the same is issued, at the point or place for which the transfer ticket is issued, is not referable to the police power of the city.</p> <p>2. Same—when street railway may designate point at which a transfer is to be used. Under the contract ordinance of 1907, concerning the giving of transfers by the Chicago City Railway Company, that company has the right to designate on the transfer the point or place of transfer and to refuse to honor a transfer presented at another place, even though the car on which the transfer is presented follows the same route, as far as the transfer point, as the car on which the transfer was given.</p> <p>3. Same—provision of section 2171 of the Chicago code, allowing stop-over of one hour, violates contract ordinance of IP07. The provision of section 2171 of the Chicago code of 1911 that a transfer may be used within one hour after it is issued, at the point of transfer, is inconsistent with the theory of a continuous trip for a single fare and is in violation of the contract ordinance of 1907, whereby transfers are required to be used at the point of transfer designated thereon within fifteen minutes after the point of transfer is reached, provided a car shall pass within that time going in the direction and over the route designated, otherwise the transfer to be good on the first available car.</p>

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

<p>1. Special assessments—payment for work done before first installment of assessment is collected should be by voucher. Under section 88 of the Local Improvement act no authority is given the city to issue warrants for the payment of work done on the contract before the first installment of the assessment is collected, but in such cases payment is required to be made by vouchers, payable out of the first installment when collected.</p> <p>2. Same—distinction between a voucher and a warrant under the Local Improvement act. Under the Local Improvement act a voucher is issued against the first installment of an assessment before it [s collected, to show what services have been rendered or expenses incurred, the amount due therefor and that the .party to whom it is issued is entitled to payment out of the first installr ment when it is collected, and it is issued upon the certification of the board of local improvements or of some officer designated by the board for that purpose, whereas a warrant is drawn against a fund in the treasury.</p> <p>3. Same—when bonds must become due under the Local Improvement act. Under section 86 of the Local Improvement act a bond must become due some time in the year in which the installment out of which it is payable matures, not later than the 31st day of December next succeeding the January in which the installment is due, and any bond issued to become due later is illegal.</p> <p>4. Same—contract for completion of zoork abandoned must be let in same manner as contract for original work. The contract for the completion of work to be paid for by special assessment which has been abandoned by a public contractor must be, let to • the lowest responsible bidder, in the same manner as the contract for the original work, where the cost thereof exceeds $500.</p> <p>5. Mechanics' liens—city cannot, as against rights of lienors, claim benefit from payment contrary to statute. Where warrants are issued or bonds delivered to a public contractor contrary to the provisions of a statute, the city cannot, as against the rights of lienors,, claim any benefit from its illegal action as a payment out of the special assessment fund.</p> <p>6. Same—when a city cannot be credited, against lienors, for money spent in completing zoork abandoned. A city cannot be given credit, against the claims of lienors, for the payment of any sum out of the special assessment fund for the completion of a work abandoned by the contractor, where the cost of such completion exceeded $500 and the city did not let the contract therefor as required by law.</p> <p>7. Sams—construction of section 23 of the Mechanic’s Lien law. Section 23 of the Mechanic’s Lien law, in favor of persons furnishing materials, etc., to a public contractor, does not provide for a lien against the improvement or the property improved, but gives the claimant a lien upon the money, bonds or warrants due and to become due the contractor for material or labor furnished the contractor by the claimant; and it is- not necessary to prove that the materials or appliances furnished the contractor entered into the construction of the improvement.</p> <p>8. Contracts—what is not sub-letting a contract. A contract for the construction of a sewer, which provides that no part of the work shall be sub-contracted without written consent of the board of local improvements and that the contractor shall furnish all tools, labor and materials, does not preclude the contractor from hiring labor and purchasing materials or machinery without the consent of such board.</p>

<p>1. Constitutional law—section n of the State Banks act is valid. The classification made by section n of the State Banks act, which fixes the minimum of capital stock required on the basis of population of the city, town or village where the bank is proposed to be organized, is a reasonable classification for securing the protection of depositors and enabling the stockholders to obtain a fair return on their investment; and such section is not invalid as in violation of the provisions of section 22 of article 4 of the constitution against special legislation. (Dupee v. Swigert, 127 Ill. 494, distinguished.)</p> <p>2. Banks—word "towns,” as used in section 11 of the State Banks'act, means incorporated towns. The word “towns,” as used in section n of the State Banks act, referring to the minimum of capital required for organizing banks in cities, towns and villages of certain size, means incorporated towns.</p> <p>3. Same—effect upon State bank when village is annexed to a city. Where a village in which a State bank is organized with a capital stock of $25,000 is subsequently annexed to a city of a size requiring, under section n of the State Banks act, a greater capital, the bank cannot move its location to any point it may desire within the city without increasing its capital stock but is limited to a location within the territory which comprised the village before the annexation took place; and this restriction does not amount to an unconstitutional impairment of contract nor a deprivation of property rights without due process of law.</p>

<p>1. Taxes'—records of county board may be amended although there is a new clerk. The county board may amend its records at any time according to the fact or direct the clerk to amend them, even though they have once been approved and though there is a new clerk; and this right to amend is not dependent upon section 191 of the Revenue act but is common to legislative and collective bodies generally.</p> <p>2. Same—when memorandum is sufficient to show that county board approved the road and bridge levies. A memorandum by the county clerk showing a motion and vote of the county board “to accept the road and bridge levies” is a sufficient basis for an amendment of the record sh.owing the approval of the levies by the county board, the use of the word “accept” being evidently the mistake of the clerk.</p> <p>3. Same—Roads and Bridges act of ipi3 requires a hard road tax levy to be certified directly to county clerk. The Roads and Bridges act of 1913 requires the commissioners of highways to levy an annual hard road tax in accordance with the vote at the election and to certify the same directly to the county clerk, and the filing, of the original certificate with the town clerk and a certified copy with the county clerk, in accordance with the old law, does not authorize the county clerk to extend the tax after the act of 1913 went into effect.</p> <p>4. Same—court will not assume that tax to pay bonds is illegal. One objecting to a tax to pay bonds issued for a certain described improvement in a city must prove that the city was without authority to issue the bonds, and if there is nothing in the record to show that fact the,court will not assume that the tax was illegal.</p>

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

<p>1. Appeals and errors—Supreme Court cannot review questions not decided by Appellate Court. Upon writ of error to the Appellate Court the question is whether the Appellate Court committed any error in its judgment, and the Supreme Court cannot review any question which the Appellate Court did not decide or could not have decided.</p> <p>2. Contempt—party not entitled to jury trial in proceeding for contempt. Where leave is given to file an information charging the defendant with contempt for acts committed out of the presence of the court in disregarding the process of the court, the defendant determines, by his own answer under oath, whether he is guilty of that which is charged against him as a contempt of court, and if he fails to thereby purge himself of the contempt the court may at once impose punishment, and the defendant is not entitled to a trial by jury.</p> <p>3. Same—the right to refuse to answer is a personal privilege which is waived if not claimed. The right of a person to refuse to answer on the ground that his answer may tend to incriminate him is a personal privilege, which, if not claimed, is waived and cannot be thereafter made the basis of a claim of deprivation of a constitutional right.</p> <p>4. Same—court has inherent power to punish contempt against its dignity and authority. No statute is necessary to give authority to a court to punish any interference with its orders in the administration of justice, and on appeal from a judgment imposing a fine for contempt the question whether the statute authorizing the court to act in the matter is unconstitutional is not important.</p> <p>5. Same—when fact that there was due process of lavo is not debatable. Where an information fully informs the defendant of the acts charged against him as a contempt of court and by his answer to the information and to the interrogatories he admits the facts and is found guilty upon his own answer, there can be no debatable question but that there was due process of law.</p> <p>6. Same—direct appeal to Supreme Court cannot be based on claim that a fine of $50 is cruel and unusual punishment. The imposition of a fine of $50 for a contempt of court of which the defendant is admittedly guilty is so clearly not a cruel and unusual punishment that a direct appeal to the Supreme Court cannot be predicated upon such a claim.</p> <p>7. Same—•what fact does not excuse a contempt of court. The fact that the sympathies of an attorney for his client are greatly aroused by the manner in which he was informed and believed she had been treated in an action of forcible entry and detainer and in the execution of the writ of restitution does not justify him in advising her to disregard the process of the court and forcibly re-take and hold possession of the premises.</p>

<p>1. Parties—in equity every person claiming an interest must be made a party. In suits in equity every person having or claiming equitable or legal rights in the subject matter must be made a party, except where the persons are very numerous and so scattered that they cannot be served without great difficulty.</p> <p>2. Same—when court should not entertain a bill to quiet title. If it appears that one of the joint grantors in a deed conveying particular property of each grantor in trust for a common purpose has not been made a party to a bill by one of the grantors seeking to withdraw certain land from the trust and to quiet title thereto in him, the court should not entertain the bill and enter a decree until she has been made a party, as she. has an interest in sustaining the trust as to all of the property covered by the deed.</p> <p>3. Trusts—presumption where several parties convey land for common purpose. Where several join in conveying their separate lands in trust for a common purpose it is a fair presumption that each grantor joined in the deed in consideration of the execution of the deed by the others.</p>

<p>Appeal from the Circuit Court of Fulton county; the Hon. H. M. Waggoner, Judge, presiding.</p>

<p>1. Banks—when bank cannot move out of former village limits after annexation. If the capital stock of a bank organized and doing business in a village is merely the amount required by statute for village banks, it cannot, after annexation of the village to a city, exercise its banking functions in any place outside of the territorial limits of the former village. (People v. Adams State Bank, ante, p. 277, followed.)</p> <p>2. Same—injunction is a proper remedy to prevent bank from moving location. Where a bank organized in a village is threatening, after annexation of the village to a city, to move its place of business to a place in the city outside of the former limits of the village without having the capital stock required by law to do business in the city, injunction is a proper remedy.</p>

<p>Appeal from the County Court of Kane county; the Hon. S. N. • Hoover, Judge, presiding.</p>

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

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

<p>1. Practice—evidence need not be preserved to sustain decree dismissing bill. The rule requiring the evidence to be preserved by a certificate of the evidence or recitals in the decree in order that a decree granting affirmative relief may be sustained, does not apply to a decree which grants no affirmative relief but merely, in effect, dismisses the bill for want of equity.</p> <p>2. Same—what, in effect, is a dismissal of a bill for want of equity. A decree in a divorce* proceeding which finds that the defendant has not been guilty of the acts' and conduct charged in the bill, denies the relief prayed and adjudges the costs to both parties, is, in effect, a dismissal of the bill for want of equity.</p> <p>3. Divorce—what does not overcome finding as to jurisdiction. A finding in a decree denying a divorce that the court has jurisdiction is not overcome by the .fact that the decree contains no finding that the complainant has resided in the State for more than one year before filing the bill, where the bill alleges that the complainant was at the time of filing the bill, and had been “for many years last past,” a resident of the State and the answer expressly admits such allegation. (Becklenberg v. Becklenberg, 232 Ill. 120, distinguished.)</p>

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

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from and on writ of error to the Circuit Court of Cook county; the Hon. Adeeor J. Petit, Judge, presiding.

<p>Writ of Error to the Appellate Court for the Third District;—heard'in that coúrt on appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.</p>

<p>Appeal from the Branch “D” Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Hosea W. WELLS, Judge, presiding.</p>

Writ of Error to the Appelláte Court for the Third District;—heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholeield, Judge, presiding.

<p>1. Registration or title—what sufficient to show that premises were unoccupied. Testimony of a witness that he was familiar with the premises at the time the application to register title was filed, that they were • in the same condition at that time as when he gave his testimony, that they were vacant and without improvements or buildings, and that he went to the premises with a plat and a surveyor and located the boundaries, is sufficient to show that the premises were unoccupied.</p> <p>2. Same—applicant may elect to disi'egard a tax deed to onevigintillionth of a lot. If the applicant for initial registration of title seeks to set aside a tax deed to one-vigintillionth of a lot he must reimburse the holder of the tax deed, but as such tax deed constitutes no cloud on the title, in a legal sense, he may elect to disregard the tax deed and not include it in his application.</p> <p>3. Same—right of applicant to dismiss petition as to a portion of premises. If an application to register title covers several lots and seeks to set aside several tax deeds, one "of which covers the “east one-vigintillionth part” of one of the lots, the applicant may, when the defendants answer denying the invalidity of the tax deeds, dismiss the application as to the east one-vigintillionth of the lot and proceed to a decree leaving such portion out.</p>

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

<p>Writ oe Error to the County Court of Champaign county; the Hon. Roy C. Freeman, Judge, presiding.</p>

<p>1. Assumpsit—when action of assumpsit will lie. An action of assumpsit will lie for money had and received for the use of the plaintiff, wherever, by means of the contract relation, the defendant has obtained money which in justice he ought to return.</p> <p>2. Same—when a party may waive the tort and sue in assumpsit. If there is privity existing between the parties in relation to money sought to be recovered and the money has been received by the defendant by means of fraud or fraudulent practices, the defrauded person may rescind the contract, return the consideration, waive the tort and sue in assumpsit.</p> <p>3. Same—money paid defendant for worthless stock upon his fraudulent representations may be recovered in assumpsit. Money obtained by the defendant from the plaintiff for worthless shares of stock which the defendant falsely represented were of value may be recovered in an action of assumpsit.</p> <p>4. Same—in assumpsit it is not necessary to allege, in terms, a waiver of the tort. Where the action is assumpsit it is proper to allege the facts which constitute a tort, and it is not necessary to allege, in terms, a waiver of the tort.</p> <p>5. Same—when- claim for damages is in assumpsit and not in tort. Where one is induced by the false representations of another to make a loan to a certain corporation, any claim against such person for resulting damages would be in tort and not in assumpsit if the corporation, and not such person, received the money; but if such person thereafter represents that the corporation has paid the loan to him and induces the other party to buy from him some worthless stock in another corporation to the extent of the amount of the original loan, the claim against him for the latter tort may be waived and a recovery be had in assumpsit.</p> <p>6. Biels oe exceptions—recital in the record by the clerk can not overcome what appears in dill of exceptions. A recital by the clerk of the trial court that the instructions in the case were given orally cannot be received to overcome the recitals of the bill of exceptions showing that the attorneys handed the instructions to the judge, that the judge stated he would mark them given or refused, that the instructions so handed to him were read to the jury, and that they were separate and distinct statements of the law and were separately numbered.</p> <p>7. Pleading—statement in municipal court need not allege implied promise to pay. In the municipal court of Chicago one who elects to waive a tort and sue in assumpsit need only state the facts which will sustain the cause of action and need not allege the fiction of a promise implied by law.</p>

<p>Writ or Error to the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.</p>

<p>1. Registration op title—proof must show condition of the premises, as to occupancy, when application zvas filed. In a proceeding for the initial registration of title the proof must show whether the premises were occupied or unoccupied at the time the application was filed, and it is not sufficient to show that several months after the application was filed the witness found the premises entirely vacant, no house or fence or anything in the way of improvements being on the premises.</p> <p>2. Same—when proper foundation is not laid for admitting a continuation of abstract of title. No proper foundation is laid for the admission in evidence in a land title registration proceeding of a continuation of an abstract of title signed by “Joseph F. Connery, recorder,” where there is no evidence that the recorder had been authorized to make abstracts of title or that he was in the business of making abstracts of title for the general public for hire.</p> <p>3. Same—what need not be paid by way of reimbursement. In a proceeding to register title to a certain lot which by subdivision is part of another lot the east 1/76 of which has been sold for taxes, if the lot described in the application for registration does not include any part of the strip sold for taxes it is not necessary to reimburse the holder of the tax deed for his expenditures in reference thereto.</p> <p>4. Same—assignee of the holder of a tax deed is entitled to reimbursement. If any of the tax deeds referred to. in a quit-claim deed of an undivided one-third interest in certain lots cover any part of the lot described in an application to register title, the grantee in the quit-claim deed is entitled to reimbursement for the taxes which she has paid thereon; but the amounts claimed, and for what taxes, must be specifically shown.</p>

<p>1. Criminal law—an indictment for confidence game need not describe the property obtained. Under section 98 of the Criminal Code, defining the confidence game, and section 99 thereof, declaring that an indictment for that offense shall be sufficient which charges the offense in the language of the statute creating it, it is not necessary that an indictment which charges the obtaining of “property” by means and by use of the confidence game shall describe the kind or character of the property obtained’.</p> <p>2. Same-—section pp of Criminal ■Code, referring to sufficiency of indictment for confidence game, is not invalid. Section 99 of the Criminal Code, which provides that an indictment for the confidence game shall be sufficient which describes the offense in the language of the statute creating it, is not unconstitutional, as depriving the accused of his right to know the nature and cause of the accusation. (Morton v. People, 47 Ill. 468, followed.)</p> <p>3. Same—defense of former acquittal or conviction is not settled by comparison of indictments. The defense of a former acquittal or conviction may be made under a plea of not guilty, and on the trial parol evidence is admissible to show the party accused and the particular offense, and the question of the identity of the offense is not determined merely by comparison of the indictments.</p> <p>4. Same—conviction will not be set aside merely because the evidence is conflicting. In a criminal case the questions of the weight of the evidence and the credibility of witnesses are for the jury, and their verdict will not be set aside by a court of review merely because the evidence is conflicting, provided it is not so insufficient as to indicate the verdict was the result of passion or prejudice on the part of the jury.</p>

<p>1. Wills—classes of contingent remainders. Contingent remainders are generally divided into two classes, according as the contingency relates to the uncertainty of the person who is to take or the uncertainty of the event on yrhich the right to take depends.</p> <p>2. Same—general rule as to when the remainder is contingent. Where a devise by its terms is to a person for life with remainder to such of ,the children of that person as survive at his death the remainder is contingent, for the reason that it cannot be ascertained until the life tenant’s death who will take the remainder.</p> <p>3. Same—general rule where remainder is to life tenant’s children with a provision in case of their death without issue'. Where a devise is by its terms to a person for life with remainder to his children, and with the provision that should any of the children die without issue the children surviving at the death of the testator shall take the share of such deceased children, the remainder is vested.</p> <p>4. Same—what uncertainty distinguishes a contingent remainder. The uncertainty which distinguishes a contingent remainder is not whether the remainder-men will ever enjoy the estate, but whether there will ever be a right to such enjoyment.</p> <p>5. Same—when a remainder is contingent. A devise to the nephew of the testatrix, Frank B. Chester, for the term of his natural life, “remainder in fee to the children' of said Frank B. Chester or the survivor or survivors of them,” creates a contingent remainder to a class consisting of the children of the life tenant who survive him, a's the words “survivor or survivors of them” modify the preceding word “children” and are incorporated into the description of the remainder-men.</p> <p>6. Same—when remainder is a contingent one with a double aspect. Where there is a devise to one for life with remainder to his children or the survivor or survivors of them, but in case of his death without issue surviving him, then to named persons, share and share alike, and in case of the death of either of such persons without issue the share of the one so dying to go to the survivor or survivors of them, but in case the one so dying shall leave children then such child or children to receive the parent’s share, the remainder is a contingent one with a double aspect.</p> <p>7. Real property—when purchaser of life estate and the reversion obtains fee simple title. Where the members of the class who aTe to take the remainder at the life tenant’s death cannot be ascertained until that event takes place, so that the remainder is contingent, and the life tenant and the owners of the reversion convey their interests to the same person, the life estate and the reversion merge in the purchaser, the contingent remainder is defeated, and the purchaser becomes the owner of the fee simple title.</p>

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

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

<p>Elections—when school propositions must receive majority of all votes cast at election. Where the propositions to acquire a new site, build a school house and issue bonds are submitted to a vote of the people at a regular election at which county, State, city or township officers are voted for, and the different ballots are all placed in one ballot-box and only oné set of poll-books kept and returns made, the propositions, in order to carry, must receive a maj ority of all votes cast at the election and not merely a maj ority of the votes cast on the propositions. (People v. Brown, 189 Ill. 619, distinguished.)</p>

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

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

<p>1. Criminal law—when bank draft is property. A bank draft is property within the meaning of the statute, concerning embezzlement, even though it was made payable to a named person as executrix and was indorsed by her agent in her name as executrix, where the agent was authorized to transact all business of the estate for the executrix, and where she had previously, by accepting the proceeds of another draft indorsed by the agent in the same way, recognized his authority to make the indorsement.</p> <p>2. Same—what admissible for the purpose of showing criminal intent. On the trial of an "agent charged with embezzlement of a draft made payable to his principal as executrix of an estate, proof that the defendant also received another draft payable to his principal, which he indorsed in the same way and appropriated to his own use, is admissible for the purpose of showing criminal intent.</p> <p>3. Same—jury may be instructed that they are not required to believe defendant’s testimony. It is proper, in a criminal case, to instruct the jury that they, are not required to believe the testimony of the defendant, and that under proper circumstances, explained in the instruction, they may disregard his testimony if they see fit.</p> <p>4. Same—jury may be instructed to ignore attorney’s appeal for sympathy. It is not error, in a criminal case, to instruct the jury that they must ignore any appeal made by the attorney of the defendant to the sympathies of the jury in view of the consequences of a verdict against him, and that it is the duty of the jury to consider the case regardless of such appeal.</p> <p>5. Same—when affidavits of juror cannot be received in support of verdict. Where it is alleged as error, on motion for new trial, that a certain instruction, which was a correct instruction and read to the jury, was marked “refused” and handed to the jury in that condition with other given instructions, affidavits of the jurors can not be received to show that they did not notice that any of the instructions were marked “refused” or hear any other juror say anything to that effect. (Smith v. Eames, 3 Scam. 76, Peck v. Brewer, 48 Ill. 54, and Hughes v. People, 116 id. 330, distinguished.)</p> <p>6. Same—when error in marking correct instruction “refused” will not work reversal. Error in marking a correct instruction “refused” when it was, in fact, read to the jury and handed to them with other given instructions will not work reversal, even though the instruction was one to which the defendant was entitled and was not covered by any other instruction, where the guilt of the defendant is so conclusively shown by the evidence that the jury could not have done otherwise than find him guilty notwithstanding his previous good reputation, which was the subject of the instruction in question.</p> <p>7. Sam®—failing to put any mark on one of defendant’s instructions is not prejudicial error. Failure of the court to put any mark on one of the instructions read to the jury and given at the request of the defendant cannot be said to be prejudicial error.</p>

<p>1. Taxes—when item of county tax is sufficiently specific. An item of a county tax for “Public buildings, light, heat and repairs, $12,000,” is valid, as being for the general purpose of maintenance, care and repair of public buildings, and it is not necessary that the" amounts required for each part of such general purpose be stated .separately.</p> <p>2. Same—county board cannot levy full amount for salaries of State’s attorney and his assistant. The power of the county board to make a levy to pay the salaries of the State’s attorney and his assistant extends only to such sum as in the reasonable discretion of the board will equal the deficiency in the collections of the State’s attorney’s office out of which such salaries are paid, and it is without power to levy an amount equal to the full salaries of such officers.</p> <p>3. Same—the county board may authorise the employment of a stenographer for State’s attorney and levy a tax for compensation. If the employment of a stenographer is necessary to the performance of the duties of the State’s attorney the county board may authorize such employment and levy a tax for the necessary salary, as the act of 1913 in regard to State’s attorneys contemplates the employment of other employees besides the assistant State’s attorney and the incurring of other legal expenses of the State’s attorney’s office.</p> <p>4. Same—item for State aid roads and bridges should be separated. An item of $61,000 for State aid roads and bridges should be separated so as to show the amount required for roads and the amount required for bridges. (People v. Illinois Central Railroad Co. 266 Ill. 183, followed.)</p> <p>5- Same—section 22 of the Roads and Bridges law presupposes a levy antecedent to the appropriation. Section 22 of the Roads and Bridges law of 1913, which provides that the county board may appropriate the necessary funds for the construction of State aid roads if there be sufficient in the treasury applicable to the purpose, presupposes a levy antecedent to the appropriation, and as it cannot be known, when the levy is made, what the county’s allotment from the State will be, the county board may exercise a reasonable discretion in making the levy, and the fact that the amount levied exceeds the amount which may be allotted to the county in any one year does not render the excess void for want of power to make the appropriation.</p> <p>6. Same—requirement of statute for separate statement of items of tax does not apply to town tax. The requirement of section 121 of the Revenue act that the county board shall state separately the amount required for each purpose does not apply to town taxes, which are governed by section 122, and it is.not necessary that the tax for town purposes shall be itemized, so as to show the amount levied for each purpose.</p> <p>7. Same—judgment for town tax should not be against all of railroad company’s property in the county. A judgment for a town tax should not be against all of the objecting railroad company’s property in the county but only against the portion in the town.</p> <p>8. Same—determination of the rate at the meeting on the first Tuesday in September is not sufficient. At the meeting of the highway commissioners on the first Tuesday in September the commissioners are required to determine and certify the amount, in dollars and cents, required for road and bridge purposes, and it is not sufficient to merely determine and certify the rate per cent.</p>

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

<p>1. Parties—who are proper parties to proceeding to probate a second will. Where a will leaving all of the testator’s property to his widow in fee is probated, the widow dies testate and her will is probated, the executors of her will are proper parties to a proceeding to probate an instrument which appears to be a later will of the testator leaving his property to his wife for life, only.</p> <p>2. Wiles—when heirs are estopped to seek probate of later will. If the heirs of the testator, with knowledge of the existence of the testator’s last will, consent to the probate of an earlier will leaving all of the testator’s property to his widow in fee, and the latter dies leaving a will that is also probated, such heirs are estopped subsequently to seek to probate the later will.</p> <p>3. Same—practice where consent to probate of an earlier will is obtained by fraud or mistake. Where the consent of the heirs to the probate of a will leaving all of the testator’s property to his widow is obtained by fraud or mistake and without their knowledge of the existence of a later will leaving the property to the widow for life with remainder to the testator’s heirs, the heirs are entitled, upon proof of the facts, to have the later will admitted to probate, even though the statutory time for contesting the earlier will and setting aside its probate has expired; but they must do so in one proceeding setting up the facts and seeking to set aside the earlier probate for the fraud or mistake, and not merely by petition seeking only to probate the later will.</p> <p>4- Practice—record of court may be called to its attention without filing a plea. In a proceeding to probate an alleged will in the same court in which another will of the same testator has been probated the record of the probate of the earlier will may be called to the court’s attention without filing a plea.</p>

<p>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the county court of Brown county; the Hon. W. Y. Baker, Judge, presiding.</p>

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

<p>1. Wills—express- devise of land to trustee with power to sell vests trustee with the fee. An express devise of land to a trustee, coupled with the power, in his discretion, to sell the land and convey a perfect title, vests the trustee with the fee, even though the will provides the trustee shall not sell without the consent of the cestui que trust.</p> <p>2. Same—when the rule in Shelley’s case applies. Where a will devises the legal title to land to a trustee to hold for the benefit of the testator’s son for life and at his death the trust to cease and the land to go to the lawful heirs of such son according to the law% of Illinois, the life estate of the son and the remainder to his heirs are both equitable estates, and being of the same quality the rule in Shelley’s case applies and the son takes an equitable fee simple estate under the will.</p> <p>3. Release oe errors—what does not bar party from prosecuting writ of error. Where land is devised in trust for two brothers in equal undivided shares and one brother dies intestate, the facts that the survivor sells to a stranger the interest which he has inherited from his brother, and that the purchaser acquiesces in the construction thereafter placed upon the will by the decree in a proceeding by the heirs of the deceased brother to set off and partition his share of the land, do not preclude the surviving brother from seeking a reversal of the decree in so far as it affects his own interest under the will.</p>

<p>1. Parties—in equity all persons having a substantial interest must be made parties. In equity all persons who have any substantial legal or beneficial interest in the subject matter in litigation and who will be materially affected by the decree must be made parties, and the court is not authorized to proceed to a decree if the bill shows that a person having a substantial interest has not been brought into court.</p> <p>2. Same—an heir-at-law is a necessary ,party to bill to contest a will. An heir-at-law of the testator is a necessary party to a bill to contest the will, and error in proceeding to a decree without bringing him into court cannot be excused on the ground that his interest was with the contestants, and that at the time the decree was entered the time within which he might file a bill to contest the will had expired.</p>

<p>1. Practice—rule as to setting aside order of dismissal after a voluntary non-suit. Where there is a voluntary non-suit upon motion of the plaintiff, the trial court has no power to set aside the order of dismissal and re-instate the case, unless at the time the non-suit is taken leave is given the plaintiff to move to set it aside.</p> <p>2. Same—when defendant waives error in setting aside order of dismissal. Error in setting aside an order of dismissal, after a voluntary non-suit on motion of the plaintiff, is waived, where the defendant, after the cause is re-instated, appears and contests the case on its merits in two trials.</p> <p>3. Insurance—statements not held to he warranties unless the contract admits of no other construction. Statements in answer to questions in an application for a benefit certificate will not be held to be warranties unless the contract of insurance admits of no other construction.</p> <p>4. Same—when statements as to condition of health and medical attendance are not warranties. Where the application for a benefit certificate states that the applicant warrants the statements and answers to be full, complete and true and that any untrue or fraudulent answers made shall vitiate the certificate and forfeit all payments thereon, answers by the applicant as to her past ailments and medical attendance will-be held to be representations and not warranties. (Cont. Life Ins. Co. v. Rogers, 119 Ill. 474, followed.)</p> <p>5. Same—knowledge of society’s examiner is the knowledge of society. If the applicant for a benefit certificate truthfully answers all questions put to her by the physician, who is the society’s medical examiner, and the examiner has knowledge of the condition of health, past ailments and medical treatments of the applicant, then the knowledge of the examiner is the knowledge of the society, and the right to recover on the certificate is not defeated because the examiner did not put down correct answers to the questions in the application. (Provident Life Assurance Society v. Cannon, 201 Ill. 260, approved.)</p>

<p>1. Drainage—commissioners must prove charge that defendants have connected lands with ditches of district. Drainage commissioners have the burden of proving their charge that the defendants have, by means of tile drains and artificial ditches, connected their lands with the ditches of the district.</p> <p>2. Same—what does not justify finding that owners have connected lands with ditches of the district. The fact that the owners of lands lying outside a levee district have constructed tile ditches, which, with natural water-courses, carry off the surface waters from their lands so that they ultimately reach the ditches of the district through a ditch constructed long before the drainage district was organized, does not justify a finding that the owners have connected their lands with the ditches of the district within the meaning of the statute.</p> <p>3. Same—when one owner cannot subject lands of others to inclusion in drainage district. The fact that the owner of land deems it necessary to construct a ditch connecting’with the ditches of a drainage district in order to carry .off water which has rightfully been discharged upon his land by the owners of other lands according to natural drainage, does not subject the lands of the other owners to inclusion in the district as having been connected with the ditches of the district by the voluntary act of such owners.</p>

<p>1. Criminal law—party not objecting to admission of alleged dying declaration cannot complain. Defendants in a murder trial are not entitled to complain, on appeal, of the admission in evidence of an alleged dying declaration where no objection was made to its admission.</p> <p>2. Same—when alleged dying declaration is properly admitted. The alleged dying declaration of the victim of an affray is properly admitted in evidence where it was taken down and transcribed by a stenographer, who testifies that the statement was correctly transcribed as given by the declarant, who was in great pain, and who said, at the time, that he knew he was going to die.</p> <p>3. Same—when conviction for murder cannot be sustained. A conviction for murder will not be sustained where the preponderance of the evidence shows that the defendants were the president of the village, police officers and persons regularly called upon to assist the police officers, who were attempting in a lawful manner to serve a warrant upon and arrest a violator of the law, and that the decedent was killed while he was aiding the offender in resisting arrest.</p> <p>4. Same—when it is the duty of the court to reverse the judgment of conviction. While, generally, the verdict of the jury in a criminal case, on conflicting evidence, will not be disturbed by a court of review on the facts, yet if it appears the evidence was insufficient to warrant the belief of the defendant’s guilt beyond a reasonable doubt and that the jury must have been under a misapprehension or misconceived the evidence, it is the duty of such court to reverse the judgment of conviction.</p> <p>5. Same—jury should he fully instructed as to rights of defendant as an officer of the law. On the trial of the president of a village board for murder in causing the death of a person who was assisting a violator of the law to resist a lawful arrest attempted to be made by the president of the board and police officers appointed by him, it is important that the jury be fully instructed as to the right and duty of the defendant to keep the peace and enforce the law, and if it is claimed his election was invalid the instructions should cover his rights and duties both as a de jure and a de facto officer.</p>

<p>1. Criminal law—when element of accidental shooting is not involved. In a manslaughter trial, where the accused claims he believed his companion was about to inflict serious injury upon him and that in self-defense he drew a revolver and struck him, whereupon the revolver was accidentally discharged and his companion killed by the bullet, the element of accidental shooting is not involved, since if the circumstances warranted his belief he would be justified in discharging the revolver intentionally, whereas if the circumstances did not justify his belief he would be responsible for the accidental discharge of the revolver resulting from his unlawful act in striking his companion.</p> <p>2. Same—manslaughter does not include offense of assault with deadly weapon with intent to inflict injury. The offense of manslaughter, wherein intent is not necessary to the crime, does not include the-offense of assault with a deadly weapon with intent to inflict bodily injury, wherein the intent is essential, but the giving of an instruction stating the contrary is not harmful error, where the accused was found guilty of manslaughter and not of the lesser offense.</p>

<p>1. Practice—affidavit for continuance because of amendment of the declaration should state the facts. An affidavit by the defendant for a continuance after the court has permitted additional counts to be filed on the trial should set out the facts from which the court can see that by reason of the amendment the defendant is unprepared for trial.</p> <p>2. Same—allowance of amendments and granting of time to opposite party are within sound discretion of court. The allowance of amendments of the pleadings during the trial and the granting or refusal of time to prepare an affidavit for a continuance on account of such amendments are matters within the sound discretion of the trial court, and a court of review will not interfere unless there has been an abuse of such discretion.</p> <p>3. Same—when party cannot complain of the admission of irrelevant evidence. Evidence which is relevant when admitted but which becomes irrelevant by reason of the dismissal of the counts of the declaration under which it was admitted may be stricken out on motion of the defendant or the defendant may have an instruc-. tion given directing the jury to disregard it, but in, the absence of any motion or request for the instruction the defendant will not be heard to complain that the evidence is not properly in the record.</p> <p>- 4. Evidence—when expert opinion as to whether condition was safe or unsafe cannot be received. Where all the facts showing the conditions at the place where an injury occurred in a mine are testified to by a witness and made intelligible to the jury, it is proper to refuse to allow him to testify that he found no condition which, as mine examiner, he deemed it advisable to report as unsafe, as it is for the jury to say, from the facts testified to, whether such conditions were safe or unsafe.</p> <p>5. Master and servant-—effect where employer elects not to come under the Workmen’s 'Compensation act. An employer who elects not to come under the Workmen’s Compensation act cannot escape liability for injuries sustained by an employee on the ground that the employee assumed the risk or that his injury or death was proximately caused by his own negligence.</p> <p>'6. Instructions—when instructions are properly refused. Instructions which have no basis in the allegations or evidence or which are substantially covered by other instructions which are given are properly refused.</p>

<p>. Appeal from the County Court of Saline county; the Hon. Charles D. Stillwell, Judge, presiding.</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 Macon county; the Hon. W. K. WhitpiELD, Judge, presiding .

<p>Appeal from the County Court of Vermilion county; the Hon. Lawrence T. Allen, Judge, presiding.</p>

<p>1. Appeals and errors—what determines right of appeal in a proceeding under the Workmen’s Compensation act of ipn. Since the Workmen’s Compensation act of 1911 makes no provision for an appeal to the Appellate Court or Supreme Court, the question whether an appeal will lie from the judgment of a court of record awarding compensation under such act depends upon whether the proceeding is a “suit or proceeding at law or in chancery.”</p> <p>2. Same—when proceeding for compensation is appealable under the general law. ■ A proceeding for compensation under the Workmen’s Compensation act of 1911 becomes a proceeding at law when an appeal is taken from the determination of the arbitrators and a trial de novo is had in a court of record, and the final judgment in such case, being of the same kind as in any other claim for money in a court of law, may be appealed from under the general provisions of the Appellate Court act and the Practice act.</p> <p>3. Same-—what is included in the expression "suit or proceeding at law or in chancery.” The term “suit or proceeding at law or in chancery,” as used in the Appellate Court act and the Practice act, includes every claim or demand known at the time of the adoption of the constitution as an action at law or suit in chancery and all actions since provided for in which personal or property rights are involved of the same nature as those previously enforced in law or chancery, but does not include special statutory proceedings involving rights and providing remedies which are not of the kind previously enforced in law or chancery.</p> <p>4. Workmen's compensation—liability under the Workmen’s Compensation act is a contract liability. The liability of one who accepts the provisions of the Workmen’s Compensation act of 1911 is a contract liability not differing in its nature from any other liability arising out of contract, even though the right to compensation is a fixed, statutory right.</p>

<p>Writ or Error to the Circuit Court of Champaign county; the Hon. John McNutt, Judge, presiding.</p>

<p>1. Building lines—reasonable restrictions will be enforced in equity. Reasonable building line restrictions which are not contrary to public policy or some positive rule of law will be enforced ,in equity, even though the enforcement of the restriction may not be absolutely necessary to the complainant’s enjoyment of the easement claimed.</p> <p>2. Same—common understanding of the word "porch.” The word “porch,” as commonly understood, means a veranda, portico or open passageway or appendage attached to the enclosed part of a building, and does not include a projection which is part of the main mass of the building.</p> <p>3- Same—what cannot be called a porch. A projection of heavy masonry, the walls of which are ten feet high, continuous with the outer walls of the building and solid, except for several windows ■and a door, which door is to be the only front entrance to the building, the space enclosed being intended for a vestibule and reception hall and for a room which will be part of the so-called basement of the building, cannot be regarded as a porch, within the meaning of a deed excepting “bay windows, porches and steps” from the operation of a building line restriction.</p>

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