Volume 273 — Illinois Reports

<p>1. Wiles—what does not overcome prima facie case in favor of probate. On appeal to the circuit court from an order admitting to probate a will having the genuine signature of the testator and an attestation clause reciting all the essential particulars of due execution of the will and bearing the genuine signatures of the subscribing witnesses, the prima facie case made by the will, attestation clause and certificate of the oath of the subscribing witnesses on the probate is not overcome by the fact that the subscribing witnesses, when testifying in the circuit court, fail to remember some essential facts as to the execution of the will.</p> <p>2. Practice—propositions of law are not proper in a probate proceeding. On appeal to the circuit court from an order of the county court admitting a will to probate, propositions of law are not proper, and it is therefore not material,' in a court of review, whether the court ruled correctly on propositions of law submitted.</p> <p>3. Same—bill of exceptions need not show exception to judgment of court. On appeal' to the Supreme Court from a judgment of the circuit court admitting a will to probate on appeal from an order of the county court, it is not necessary that the bill of exceptions show an exception to the judgment of the court in order to enable the appellant to present the question whether the evidence was sufficient to support the judgment.</p>

<p>Original information to disbar.</p>

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

<p>Appeal from the Circuit Court of Rock Island county; the Hon. P. D. Ramsay, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of McHenry county; the Hon. C. H. Donnelly, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding.</p>

<p>Criminal law—when a motion to strike testimony is properly overruled. A motion to strike out all of the testimony of certain witnesses, without pointing out the parts claimed to be incompetent, is properly overruled, where most of the testimony of such witnesses was unobjectionable.</p>

<p>1. Ejectment—when judgment for defendant cannot be sustained. A judgment for the defendant in an action of ejectment, in which the only question is the location of the true boundary line between two lots, cannot be upheld, where the preponderance of the evidence shows that the defendant is in possession of some portion of plaintiff’s lot, though it does not clearly show how much.</p> <p>2. Same—what testimony of private surveyor is admissible in dispute as to location of lot line. In an ejectment suit over the location of a lot line, 'a private surveyor who made a survey for the defendant should be allowed to answer the questions whether he attempted to run the old survey or any part thereof, whether he measured any other lines in the block in which the two lots in dispute were located, and how far he measured on the line he did measure.</p>

<p>Trusts—when a life estate will not be impressed with a trust for support of husband. Where a husband conveys a life estate in a farm to. his wife in settlement of a divorce proceeding, the wife agreeing to live with him on condition that he will abandon the drinking of intoxicating liquor, the estate will not be impressed with a trust for the support of the husband, where the deed, given for natural love and affection, the settlement of the divorce suit and one dollar, contained no reservation of any right or interest in the grantor or any stipulation for his support and where the husband resumed his drinking habit.</p>

<p>1. Wills—jurisdiction of superior court to set aside order of county court denying probate of will. The superior court has no jurisdiction, upon a bill filed to set aside or vacate an order and judgment of the county court denying probate of a will, to make an order or decree that the cause be tried de novo in the superior court, even if it should have jurisdiction to vacate the order of the probate court. .</p> <p>2. Same—when bill in chancery to contest a will can be maintained. A bill in chancery to contest a will can only be maintained by virtue of section 7 of the Statute of Wills, and no such contest can be maintained where probate of the will is denied.</p> <p>3. Same—duty of probate court to appoint a guardian ad litem for infant defendants. The proceeding to probate a will in the probate court is a trial or action at law, and it is the duty of the probate court, under section 17 of the Statute of Frauds, to appoint a guardian ad 'litem for all infant defendants made parties to such proceeding.</p> <p>4. Same—judgment denying probate may be set aside for failure to appoint guardian ad litem. A judgment denying probate of • a will without the appointment of a guardian ad litem to represent minor devisees is voidable, and may be set aside by a proper motion made in the court where the judgment was rendered and at a subsequent term.</p> <p>5. Equity—power of equity courts to vacate the judgments of courts of law. A court of equity has the power to vacate judgments of courts of law and to grant new trials therein in cases wherein such judgments have resulted by mistake, fraud or accident, unmixed with negligence or fault on the part of the party against whom the judgments are rendered.</p> <p>6. Same—when a bill to set aside judgment and for new trial cannot be maintained. A bill in equity to vacate a judgment at law and allow a new trial cannot be maintained where there exists an adequate remedy at law for the matters set forth in the bill, or where the party has ample remedy to correct the error in the law court by appeal therefrom, or where he may have an ample remedy in the law court to set aside the judgment of which complaint is made.</p> <p>7. Fraud—the facts must be stated in alleging fraud. In alleging fraud and deceit the facts which are the basis of the allegation must be stated, and the statement of legal conclusions is not sufficient.</p>

<p>1. Disbarment—exception to legal conclusion of the commissioner is unnecessary. If the commissioner appointed to take the testimony in a disbarment proceeding states all the facts correctly but is mistaken as to the legal consequences of those. facts it is not necessary to except to his legal conclusions.</p> <p>2. Same—what does not excuse conduct of an attorney. ■ An attorney who accepts a fee to bring a suit and who deceives his client by representing that the suit has been brought is not justified in refusing to return the fee on demand because of any reason he may have had for not bringing the suit.</p> <p>3. Same—what conduct by attorney is ground for disbarment. An attorney who represents to his co-surety on a forfeited bail bond that he has gathered together the greater part of the money to pay the judgment and who induces his co-surety to advance the remainder as a loan in order to pay off the judgment but who appropriates the money so obtained to his own use and never pays the judgment or any part thereof, is guilty of such unprofessional conduct as warrants his disbarment.</p>

<p>1. Forest preserves—when name proposed in second petition may be adopted. The provision of the Forest Preserve act that the name of the district shall be the one proposed in the first petition filed, means the first petition which complies with the law and is sufficient to give the court jurisdiction to act upon it and proceed with the organization of a forest preserve district, and if the second petition filed-is the first one which complies with the law, it is proper to adopt the name for the district proposed therein.</p> <p>2. The other questions involved are controlled by the decision in Perkins v. Board of Commissioners, 271 111. 449.</p>

<p>1. Res judicata—what necessary to render a former adjudication an absolute bar—estoppel by verdict. Where a former adjudication is relied upon as an absolute bar, there must be, as between the two actions, identity of parties, of subject matter and cause of action; but an estoppel by verdict may arise even though the cause of action is not the same in the two suits.</p> <p>2. Special assessments—when judgment as to one installment is res judicata as to other installments. A judgment of the county court sustaining an objection to the second installment of a special assessment bn the ground that the confirmation proceedings were void is binding while it remains unreversed and is res judicata when the same question is raised by the same objector as to the third installment.</p> <p>■ 3. Same—when a record cannot be contradicted by oral testimony. A record stating in specific terms that a judgment for the second installment of a special,assessment was refused because the original proceedings were void cannot be contradicted by oral testimony in a subsequent proceeding.</p>

<p>1. Taxes—rulings may be reviewed although no exception to judgment is preserved. The rulings of the court in a proceeding for judgment and order of sale for taxes may be reviewed on appeal though no exception to the judgment of the county court is preserved by a bill of exceptions, as section 81 of the Practice act, as amended in 1911, obviates the necessity for preserving exceptions to adverse rulings of the court by a bill of exceptions.</p> <p>2. Same—probation officers are not county officers. The probation officers whose appointment is authorized by section 14 of the Mothers’ Pension act, by section 9 of the act providing a system of probation and by section 6 of the act concerning the establishment of juvenile courts are not county officers, and the amount of their salaries cannot be included in an item of a tax levy for “salaries of county officers.”</p> <p>3. Same—what does not overcome presumption that the meeting was held as required by law. The mere fact that the pages of the record of the highway commissioners introduced in evidence fail to show that the August meeting to fix the road tax rate was held is not sufficient to overcome the legal presumption that the meeting was held, where there is no proof that the meeting was not held or that there was no record of such meeting.</p> <p>4. Same—when the road and bridge tax must be held invalid. Where the town clerk testifies that there is no record of the two meetings of the highway commissioners to fix the tax rate and to determine the amount required for roads and- bridges, it is incumbent upon the People to prove that the meetings were held and to amend the record to show that fact, and if no such proof is made the tax must be held invalid.</p> <p>5. Same—objection which might have been obviated cannot be first raised on appeal. An objection that the certificates of levy in certain townships recite that the levy was made for the year 1914 instead of 1915 is one which might have been obviated had-it been urged in the trial court, and it cannot be urged for the first time on appeal.</p>

<p>1. Homestead—the question of abandonment of a homestead is largely one of intention. The question of abandonment of homestead is very largely one of intention, to be determined from the particular facts in each case.</p> <p>2. Same—re-marriage of widow and removal from homestead raise presumption of abandonment. The re-marriage of a widow and removal from the homestead premises to the home of her second husband raise a presumption of abandonment of the homestead, but such presumption will yield to explanatory proof showing that the removal was intended to be temporary.</p> <p>3. Same—homestead interest is an estate in land. Under the present statute the homestead interest is an estate in land vested in the person designated by law, and upon the death of the householder in whom the homestead is vested the estate passes to the surviving husband or wife.</p> <p>4. Same—when proceedings to set off homestead are unnecessary. Where the whole premises do not exceed the value of the homestead estate the limits of such estate are already fixed, and the widow may avail herself of her rights without any proceeding for • setting off the homestead estate.</p> <p>5. Same—person having homestead estate need not occupy the premises personally. The person in whom an estate of homestead is vested is not required to occupy the premises personally, but may rent the same or put them in the possession of one to whom she has given a deed to her interest.</p> <p>6. Same—positive testimony by widow that she intended to return to homestead cannot be disregarded. Positive testimony of the widow that her removal from the homestead premises was not intended to be permanent cannot be disregarded, where it is not contradicted or impeached by positive or circumstantial evidence.</p> <p>7. Same—what does not necessarily show an abandonment of a homestead estate. The facts that the widow, having a homestead estate in a house and several lots worth less than $1000, rents the homestead premises and goes to visit a son in a distant place, where she meets a man whom she marries and lives with in a rented house for some three years before returning to the homestead premises, do not necessarily show an abandonment of the homestead estate, where she testifies that she did not intend to remove permanently from the homestead premises, and where, during her absence,'she received the rents therefrom.</p> <p>8. Same—effect of increase in the value of homestead premises after estate has vested. Where the homestead premises at the time the homestead estate vests in the widow are not worth $iooo the boundaries of the homestead estate are fixed and determined by law at that time, and she cannot be deprived of any part of it by any increase in value before beginning of a partition proceeding.</p> <p>g. Witnesses—when widow may testify in a partition suit. In a suit by heirs for partition and an accounting from the widow for the rents from the premises claimed by the widow as a homestead, the widow is not precluded, by section 2 of the Evidence act, from testifying to facts occurring after the death of her husband.</p> <p>io. Same—when widow’s second husband is not incompetent. In a proceeding by heirs for partition and accounting against the widow, the man whom the widow has married- since she acquired her homestead estate is not incompetent under section 5 of the Evidence act and may testify he has never owned any real estate.</p>

<p>1. Fees and salaries—in what sense county treasurer is bailee of public funds and in what sense a debtor. The county treasurer is a bailee only in the sense that he is a custodian of public funds for the safety of which he gives his official bond creating a contract liability inconsistent with any idea of ownership of the fund, and he is a debtor only in the sense that he owes an obligation to pay over the money received by him.</p> <p>2. Same—county treasurer is not entitled to interest on public funds. While the county treasurer is absolutely liable, under the statute, for all funds received by him, this absolute liability does not entitle him to the interest which such funds may make, and he must be satisfied with the compensation provided by law.</p> <p>3. Same—county treasurer not required to make funds earn interest. There is no law requiring a county treasurer to make the funds in his hands earn interest, and if they do not earn interest the treasurer satisfies his obligation by paying over the principal.</p> <p>4. Construction—to what extent previous construction of statute by officials will be considered. Where there is doubt concerning the meaning of a statute, a long continued practical construction by officials will have much force in determining the proper construction to be given it by the courts, but if the language of the statute is plain, a contrary construction will have no weight.</p> <p>5. Actions and defenses—county may maintain suit to recover interest received by county treasurer on public funds. A county may maintain a suit against the county treasurer to recover interest received by him on public funds in his hands. (Jones v. O’Connell, 266 111. 443, and County of Lake v. Westerfield, 268 id. 537, distinguished.)</p>

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

<p>1. Special assessments—the power of the city council to pass improvement ordinances. The power of the city council to pass improvement ordinances must be reasonably exercised, and the reasonableness of such ordinances is a question to be decided by the court in view of all the circumstances and conditions.</p> <p>2. Same—burden of proving that an ordinance is unreasonable rests upon objectors. Where an improvement ordinance does not indicate, on its face, that it is arbitrarily unjust and oppressive, the -burden of proving its unreasonableness, under existing conditions, rests upon the objectors.</p> <p>3. Same—when amendment of verdict as to one property owner does not affect its validity as to other parties. Where the verdict of the jury reducing the assessments of several objectors is several as to each of them, the fact that after the jury is discharged the court amends the verdict in order to make a similar reduction in the assessments of four objectors who had been omitted does not affect its validity as to the others, even though this action of the court is erroneous.</p> <p>4. Same—change of venue does not vacate any of the proceedings had in the cause previous to the change. A change of venue does not vacate any of the proceedings had in a cause before the change was granted, though the judge may use his discretion as to setting aside previous orders if good reason is shown for doing so.</p> <p>5. Same—commissioner who made assessment cannot be called upon to impeach it. The commissioner who made the assessment cannot be called upon by the objectors to impeach his official act by answering questions designed to show that he did not investigate, deliberate and decide in the manner required by law.</p>

<p>Inheritance tax—widow’s award is subject to inheritance tax. The inheritance tax is imposed by law upon all transfers of property by will or by the intestate laws of this State, and there is no distinction, so far as the inheritance tax is concerned, between the widow’s dower and her award, and either is subject to the inheritance tax. (Billings v. People, 189 111. 472, adhered to.)</p>

Writ oe Error to the Appellate Court for the Second District;—heard in that court on writ of error to the County Court of DeKalb county; the Hon. David T. Smiley, Judge, presiding.

<p>1. Injunction—when a court of equity will enjoin interference with possession. Where a father agrees that a son shall have a particular tract of land if he will do certain things, and the evidence clearly shows that the son has entered into possession of the land and has performed his part of the agreement for many years, a court of equity will enjoin the father from interfering with the son’s possession so long as he performs in good faith, or is ready and willing to perform, the obligations assumed under the contract.</p> <p>2. Specific performance—an oral promise to convey land may be enforced in equity. An oral promise to convey land will be enforced in equity, notwithstanding the Statute of Frauds, where the evidence shows clearly the existence and terms of the agreement and that the promisee has taken possession of the land, made lasting and valuable improvements thereon, paid the taxes and made other expenditures and has performed his agreement in all particulars.</p>

<p>1. Names—when names must be presumed to refer to one person. In the absence of any evidence upon the subject, it must be conclusively presumed, on appeal, that the “John H. Ullrich” who signed the petition for the organization of a drainage district was the same person whose lands were described in the petition as belonging to “John Ullrich,” there being no other person by the name of Ullrich referred to in the petition. ></p> <p>2. Drainage—signer of a petition cannot appeal from an order organising a district as prayed. One who signs a petition for the organization of a drainage district cannot appeal from an order organizing the district as prayed in the petition and urge as ground for reversal that the petition did not sufficiently set out the character of the proposed work or that lands were included which were in other legally organized districts.</p> <p>3. Same—what objection will not be entertained on appeal. The signer of a petition to organize a levee drainage district will not be permitted to object, on appeal, that commissioners did not report in favor of open ditches on all the land, as prayed in the petition, but recommended tile drains on part of the land, particularly where no objection on that ground was made to the confirmation of the commissioner’s report.</p> <p>4. Same—the commissioners need not describe lands embraced in other districts. Section 9 of the Levee act, requiring the commissioners to report what additional lands will be affected by the proposed district and to describe the same and give the names of the owners, refers to lands not included in the petition but which may be brought into the district if benefited, and does not refer to lands already in other legally organized districts.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of DeKalb county; the Hon. Mazzini Slusser, Judge, presiding.

<p>1. Banks—statute does not authorize organization of bank in an unincorporated village.' Section n of the State Banking act, which provides for the organization of banks in cities, towns and villages and fixes the minimum of capital stock required, according to population, refers to incorporated cities, towns and villages and does not-authorize the organization of a bank in an unincorporated village.</p> <p>2. Same—Auditor has no discretion to refuse permit to organize a bank if the law authorizes such organization. The statute has fixed the conditions upon which persons desiring to organize a bank may obtain a permit, and if the law is complied with, the Auditor has no discretion to refuse to issue the permit upon the ground that it will not be for the public good to organize a bank at the particular place referred to in the permit.</p> <p>Farmer, C. J., and Dunn, J., dissenting.</p>

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

<p>1. Gaming—prior to 1913 section 132 of the Criminal Code applied to all brokers negotiating illegal trades. Prior to its amendment in 1913, section 132 of the Criminal Code, which provides, generally, that losses incurred by gaming may be recovered by the loser from the winner, applied to all brokers or commission men negotiating transactions which under section 130 of the Criminal Code were gambling contracts.</p> <p>2. Sams—amendment of 1913 to section 132 of Criminal Code is unconstitutional. The amendment of 1913 to section 132 of the Criminal Code, which provides that “no person who accepts from another person for transmission, and transmits, either in his own name, or in the name of such other person, any order for any transaction to be made upon, or who executes any order given to him by another person on, any regular board of trade or commercial or stock exchange, shall, under any circumstances, be deemed a ‘winner’ of any moneys lost by such other person in or through any such transactions,” is unconstitutional, as discriminating in favor of brokers or agents executing orders on a board of trade or commercial or stock exchange.</p> <p>3. Constitutional law—when a party may raise question of constitutionality of statute. Where a statute is set up as a defense to an action at law the plaintiff has a right to raise the question that the statute is unconstitutional as discriminating against a certain class, even though he is not a member of the class discriminated against.</p> <p>4. Same—extent of legislative discretion in enacting criminal statutes. While the legislature, in the enactment of criminal statutes, has a wide discretion in determining what shall be considered a crime and in classifying crimes, yet there must be some reasonable ground for making a distinction between individuals or different classes of persons.</p> <p>5. Same—invalidity of amendment of 1913 to section 132 of Criminal Code does not affect remainder of section. The invalidity of the amendment of 1913 to section 132 of the Criminal Code, which attempts to exempt from liability, as a “winner,” any broker executing orders on a regular board of trade or stock exchange, does not affect the remainder of such section.</p>

<p>Appeal from the County Court of DuPage county; the Hon. S. L. Rathje, Judge, presiding.</p>

<p>1. Appeals and errors—probability of testimony is not a question for the Supreme Court. In a suit at law coming through the Appellate Court the question of the probability or improbability of testimony is not one for the Supreme Court to consider unless the testimony is in violation of some natural law.</p> <p>2. Negligence—when evidence that the party injured had accident insurance is admissible. In a personal injury case against a street railway company, evidence that the plaintiff carried a large amount of accident insurance so written that a much larger amount was to be paid in case of an injury causing amputation above the ankle than below it is admissible, where the amputation above the ankle was a second operation, the surgeons who performed the first operation refusing to amputate above the ankle because they considered it unnecessary, although offered $iooo by the plaintiff if they would amputate above the ankle, and where the defendant claims plaintiff’s injury was intentional on his part.</p> <p>Farmer, C. J., dissenting.</p>

<p>1. Public utilities—right of one public utility to assign cross-error on appeal by another. Where an order of the Public Utilities Commission directing a separation of grades at the. crossing of a railroad company with a public street and requiring the railroad company to pay 65 per cent of the cost, the city to pay 15 per cent and a street railway company to pay 20 per cent is reversed by the circuit court as unreasonable in not requiring any contribution by an interurban company using the street railway company’s tracks, the railroad company may assign cross-error, on appeal by the interurban company, and urge that the order for separation of grades is unreasonable, and also that the interurban company should have been required to pay two-thirds of the cost of such separation.</p> <p>2. Same—whether it is reasonable to require a separation of grades is a question of fact. Whether it is reasonable to require a separation of grades at the crossing of a railroad with a public street is a question of fact- depending upon the particular circumstances, including the amount of travel on the street, the present elevation of the tracks above the street grade, the financial condition of the railroad company, the cost of the work required, and other matters, and no general rule can be laid down which will govern all cases.</p> <p>3. Same—what does not render unreasonable an order for separation of grades. An order of the Public Utilities Commission, entered on the petition of a city, requiring a railroad company to elevate its tracks and construct a bridge across a street is not rendered unreasonable because the elevation of the tracks will require raising the grade of the tracks at another street for which no provision has been made by the city, as the Public Utilities Commission has power to adjust any controversy that may arise between the railroad company and the city in regard to such matter and to order the raising of the grade at such street.</p> <p>4. Same—when no portion of cost of grade separation can be assessed against an interurban company. Where the State Public Utilities Commission orders a separation of grades at the crossing of a railroad company with a public street on which there is a street railway, it is proper, in apportioning the cost of such separation, to make no assessment against an interurban company which is using the tracks of the street railway company as a mere licensee, although the commission may take the fact of such permissive use into consideration in fixing the street railway company’s proportion of the cost and make such proportion larger than it otherwise would.</p>

<p>1. Illinois Central Railroad—purpose of charter provision for payment of five per cent of gross income. The provision of the charter of the Illinois Central Railroad Company for the payment to the State of five per cent of the gross income of the company was intended not only as compensation to the State for the “grants, privileges and franchises” of the company, but also, in part, as commutation for all taxes on its charter lines other than State taxes.</p> <p>2. Same—extent of exemption of the Illinois Central Railroad Company from payment of taxes. Under the charter contract between the State of Illinois and the Illinois Central Railroad Company the company has been relieved from the payment on its charter lines of all other than State taxes, and these are to be assessed as provided in the charter.</p> <p>3. Same—in assessing State tax the Auditor must follow rules used by other officials. - Subject to the special provisions of the charter of the Illinois Central Railroad Company, the Auditor of Public Accounts, in assessing and levying the -State tax against the property of the company, must follow the same method and be governed by the same rules as used by other public officials in listing, assessing and levying State taxes, and the State taxes to be levied against the property of the company, under section 22 of its charter, are the regular State taxes levied on other property.</p> <p>4. Same—the State tax must be assessed on the same proportion of full cash value as other owners are assessed. The State tax against the property of the Illinois Central Railroad Company must be assessed on the same proportion of the fair cash value of such property as is used throughout the State in assessing the property of other owners, which at the present time is on the basis of one-third of the equalized value and not the full cash value of the property.</p> <p>5. ' Same—company is entitled to deduction of bona fide debts from credits. In conformity with the rule of equality and uniformity required by the constitution in assessing and levying taxes, the Illinois Central Railroad Company is entitled, in listing its property for the purpose of the State tax, to the same deductions of bona fide debts from credits listed by it as are authorized by the general Revenue law in case of the property of other persons or corporations.</p> <p>6. Same—what accounts are not required to be kept by company. It is .the duty of the Illinois Central Railroad Company to make a return, in its schedule, of all of its charter line property at its fair cash value, and, if the Auditor of Public Accounts is not satisfied with the schedule, to furnish him every reasonable facility for ascertaining the charter line property and its value, but it is not required to keep separate accounts of its charter line and non-charter line property merely to enable the Auditor to more conveniently assess the charter line property.</p> <p>7. Same—the Auditor cannot arbitrarily assess non-charter line property as charter line property. The fact that the Auditor is not satisfied with the schedule of its charter line property made out by the Illinois Central Railroad Company does not justify that official in arbitrarily assessing, for the State tax, property belonging to the non-charter lines of the company.</p> <p>8. Same—company is bound by its schedule as to value of its property. The Illinois Central Railroad Company is bound by the statements in its schedule as to the value of its property in the absence of fraud, accident or mistake, even though the Auditor refuses to accept the schedule and is not misled thereby, as the rule which precludes a tax-payer in this State from questioning the accuracy of his own return is based upon public policy and not upon the doctrine of estoppel.</p> <p>9. Same—company must give valuation of its property in its schedule. Under section 22 of the charter of the Illinois Central Railroad Company and section 3 of the act of 1859, it is the duty of the company not only to return to the Auditor a list of the stock, property and assets of the charter lines, but also to give the valuation of such stock, property and assets.</p> <p>10. Same—Auditor cannot assess all rolling stock. In assessing the rolling stock of the Illinois Central Railroad Company for the State tax provided for in its.charter, the Auditor is not entitled to assess the entire rolling stock of such company but only such portion thereof as is fairly assessable to the charter lines.</p> <p>11. Same—tangible property having a permanent situs in other States cannot be assessed. Tangible property, other than rolling stock, having a permanent situs in other States cannot be assessed by the Auditor in making an assessment of the property of the Illinois Central Railroad Company for the State tax provided for in its charter.</p>

<p>■ i. Specific performance—court cannot require a party to do more than he has agreed to do. In decreeing specific performance of a contract the court has no power to order the defendant to do more than he has agreed to do.</p> <p>2. Same—complainant must show readiness, ability and willingness to perform. Before the complainant is entitled to a decree for specific performance of a contract he must show that he is ready, able and willing to perform the contract on his. part.</p> <p>3. Same—when a defendant should not be required to pay purchase money to a trust company. If the complainant in a bill for specific performance has agreed to furnish a title guaranty policy but the trust company which is to furnish the policy refuses to issue-one-before the consideration for the conveyance has been deposited with it, the defendant cannot be required to pay the money to the trust company, where the contract does not so require, the trust company is not a party to the suit and there is no assurance that the defendant will receive the policy if he pays the money.</p>

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

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Moultrie county; the Hon. Franklin H. Boggs, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>1. Redemption—rights of the holder of certificate of purchase pending redemption proceedings by a judgment creditor. Pending redemption proceedings by a judgment creditor the holder of the certificate of purchase is not stripped of his rights and his interest in the premises, and his certificate of purchase is not extinguished until he actually accepts the redemption money or until valid redemption proceedings have finally culminated in a deed.</p> <p>2. Same—what right is acquired by purchaser at a foreclosure sale. The purchaser at a foreclosure sale acquires no interest in the title to the land, which during the entire redemption period remains in the mortgagor, but he acquires the right to receive the redemption money paid by the mortgagor if he redeems within twelve months, or by a judgment creditor if redemption is made after the twelve months and before fifteen months, or, in case no redemption is made within fifteen months, to receive a sheriff’s deed.</p> <p>3. Same—mortgagor’s right to redeem terminates after twelve months. The right of the mortgagor to redeem terminates with the expiration of twelve months from the date of the sale, and he no longer has any rights which he can exercise to prevent the purchaser at the sale from obtaining a deed, nor can he be heard to complain of subsequent transactions which do not affect him.</p> <p>4. Same—rule where purchaser accepts money from one not entitled to redeem. If, after the expiration of twelve months, the premises are redeemed by one who is not a judgment creditor, the acceptance of the redemption money by tlie holder of the certificate of purchase relieves the legal title of the mortgagor from the lien of the certificate of purchase, even though the person redeeming cannot enforce his claim by a re-sale of the land.</p> <p>5. Same—effect of redemption by person entitled to redeem. If, after twelve months, redemption is made by a judgment creditor who is entitled, under the statute, to redeem, the effect of the redemption is not to relieve the legal title from the burden created by the sale, but the effect is to transfer to the redeeming creditor all rights belonging to the original purchaser at the time the redemption is made.</p> <p>6. Same—effect where certificate of purchase becomes void. If there is no redemption from a foreclosure sale and the certificate of purchase becomes void by virtue of the Statute of Limitations or otherwise, the mortgagor is then the absolute owner of the premises, not by any new title, but by the one he has always had.</p> <p>7. Same—when the holder of certificate of purchase does not lose his rights. Where the mortgagor makes no redemption within twelve months, and a judgment creditor, having a right to redeem, begins proceedings for redemption but -the holder of the certificate of purchase offers to pay the judgment and allow'the judgment creditor to withdraw his redemption money, which offer is accepted and the transaction carried out, the holder of the certificate of purchase does not lose his right to a sheriff’s deed.</p> <p>8. Same—what does not amount to an acceptance of redemption money. The fact that the purchaser at a foreclosure sale, in carrying out his offer to pay the judgment of a creditor who has started redemption proceedings and deposited the redemption money with the sheriff, indorses a check for the amount of the redemption money drawn in his favor by the sheriff, which check is then returned to the sheriff and delivered by him to the judgment creditor together with the purchaser’s check for the amount of the judgment, does not amount to an acceptance of the redemption money by the purchaser. (Smith v. Jackson, 153 111. 399, applied.)</p> <p>Dunn, J., dissenting.</p>

Writ of Error to the Branch “B” Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. JESSE A. Baldwin, Judge, presiding.

<p>1. Contracts—test in determining whether transaction was a sale or a loan. The test in determining whether the real transaction between the parties to a contract was a sale or a loan is the intention of the parties, and that intention is to be ascertained from the whole transaction, including the conduct of the parties as well as their written agreement.</p> <p>2. Same—statute against usury is not defeated by mere form of transaction. If it appears from the entire contract between a mercantile company and another corporation that the real purpose is to pledge the open accounts of the mercantile company as security for a loan from the other corporation at usurious interest, the fact that the transaction was called a sale of the accounts will not avail to defeat the statute against usury.</p> <p>3. Corporations—corporation cannot be organized under the general Corporations act to loan money. No corporation can- be* formed in Illinois, under the general Corporations act, for the business of loaning money, and if any power of'a corporation so formed to loan money can be implied, it can only be where the loan is incidental to the exercise by the corporation of some express power conferred by its charter.</p> <p>4. Same—if contract is wholly beyond the power of a corporation it is void. If a contract by a corporation is wholly beyond its power it is ultra vires in the proper sense and is void and no action can be maintained upon it by either party, nor can the other party be estopped to deny the validity of the contract by having received its benefits.</p> <p>.5. Same—remedy of a corporation which has loaned money on an ultra vires contract. If a corporation has loaned money on a contract which is ultra vires and void as beyond its power,, it can not recover on the contract or against a guarantor of the contract, but its remedy, if any, is on the implied contract of the borrower to return the money received.</p> <p>Parmer, C. J., and Duncan, J., dissenting.</p>

Appear from the Branch “D” Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding.

<p>1. Statute of Frauds—when an oral contract will be enforced notwithstanding Statute of Frauds. If an oral contract to convey land has been made and there has been such performance, in reliance on the contract, as will take it out of the Statute of Frauds, it will be enforced by a court of equity.</p> <p>2. Same—proof of oral contract to convey must, be clear and definite. An oral contract to convey land must be clear and definite and must be clearly and satisfactorily proved, and it is indispensable that the acts done in performance of the contract shall be referable to the contract, alone, and have been done in performance of it.</p> <p>3. Same—oral contract cannot be proved by declarations of one party not binding on the other. It is not necessary that an oral contract to convey land shall be proved by the testimony of any witness who heard it made, and it may be proved by declarations of the parties not in the presence of each other, but it cannot be proved by declarations or acts of one party, only, not binding upon the other.</p> <p>4. Wiles—will is revoked by marriage of testator. Under section 10 of the Statute of Descent the marriage of the testator revokes his former will, and if it is not re-published it has no force.</p>

<p>1. Appeals and errors—presumption where there is no certificate of evidence. On writ of error to review a decree based upon the report and recommendations of the master in chancery and upon testimony taken in open court, it will be presumed, in the absence of a certificate of evidence, that there was evidence to sustain the findings of fact contained in the decree.</p> <p>2. Partition—object of partition suit. The object of a partition suit, under the statute, is to divide and partition the land of a deceased person among the heirs or owners thereof according to their respective interests, and as the court must ascertain and decree the interests of the parties, all persons having or claiming any possible interest in the land should be made parties, if it is desired to obtain complete relief.</p> <p>3. Same—what may be included in a partition proceeding. In a proceeding to partition property consisting of various city lots, some improved and rented and others unimproved, when the parties in interest are so numerous and their interests are so varied that there can be no practical division of the property, it is proper, in order to clear the title and enable the property to be sold at a price near its value, to bring in for determination the rights of an heir who has obtained a master’s deed to one of the lots, based on a decree in a suit begun by her after the partition suit was commenced and a receiver appointed, and the rights of another heir who has succeeded in obtaining the allowance of a claim against the estate for alleged breach of a contract by the ancestor to make her a specific bequest of money for services rendered.</p> <p>4. .Same—-real estate is subject to claim for alleged breach of contract to make a specific bequest. The real estate of a deceased person is’subject, in a proper proceeding, to the payment of a claim allowed against the estate as a seventh-class claim, even though the claim is based upon an alleged breach of a contract by the deceased to make a specific bequest for care and services rendered by the claimant, and hence it is proper to have the rights of such claimant, under her judgment, determined in a partition proceeding by the heirs of the deceased person.</p>

<p>Writ of Error to the Appellate Court for the Firsf District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. James C. Martin^ Judge, presiding.</p>

<p>1. Appeals and Errors-—when constitutional question will.not he considered. A constitutional question will not be considered in a case in which the decision can have no effect upon the judgment or decree which is the subject of review.</p> <p>2. Injunction-—when validity of an ordinance does not affect right to relief prayed. A publishing company has no right to have its publication sold from news-stands erected in the public streets of a city nor to maintain a bill to enjoin the city from enforcing against it an ordinance permitting the maintenance of news-stands in the streets for the sale, solely, of daily newspapers published in the city; and the question whether the city had the power to pass the ordinance does not affect the right of the complainant to the relief prayed.</p> <p>Cartwright, J., dissenting.</p>

Writ of 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. Charles M. Eoell, Judge, presiding.

<p>1. Pleading—allowance of amendments in chancery is largely within the discretion of the trial court. The allowance of amendments in a chancery suit is largely within the discretion of the trial court, and a court of review will not reverse for refusal to allow an amendment unless there is shown a manifest abuse of such discretion.</p> <p>2. Same—what not an abuse of discretion in denying leave to Me amended bill. Denying leave to file an amended bill is not an abuse of discretion where the cause has been pending more than a year and the application is made only one court day before the cause is set for trial and where no reason is presented why the application for leave was not presented earlier.</p> <p>3. Equity—either party has right to insist that litigation shall not be unduly prolonged. Either party to a chancery suit has a right to insist that the litigation be not unnecessarily prolonged.</p> <p>4. Same—complainants cannot make one case by their bill and another by their proof. Complainants in a proceeding in chancery to contest a will are confined to the allegations of their bill and cannot rely upon grounds other than those stated therein for im-peaching the validity of the will.</p> <p>5. Wills—certificate of oath of subscribing witnesses makes a prima facie case for proponents of a will. Under the statute the certificate of the oath of the subscribing witnesses to a will at the time of the first probate of the will, covering the points in section 2 of the Statute of Wills, may be admitted as evidence in a proceeding to contest the will and when admitted makes a prima facie case for the proponents, and the burden is then upon the contestants to impeach the validity of the will, but they can do so only on the particular grounds alleged in the bill.</p> <p>6. Same—when contestants cannot raise the question of competency of a subscribing witness. Where the oath of a subscribing witness at the time of the probate is given in evidence in a proceeding to contest a will but the subscribing witness does not testify personally, the contestants cannot, in the absence of any allegation in their bill to such effect, raise the question of the incompetency of the subscribing witness by reason of his deriving an interest under the provisions of the will.</p> <p>7. Same—non-expert witnesses must state the facts upon which they base opinions as to mental capacity of testator. Before non-expert witnesses may give their opinions as to the soundness or unsoundness of the mind and memory of the testator they must state sufficient facts upon which to base their opinions, and the trial court must determine whether the witnesses state sufficient facts upon which to predicate their opinions.</p> <p>8. Same—when a person is mentally competent to make a will. One who is able to transact in person all of his business deals in buying and selling stock, to bank his money and check out the same, to give to the assessor, from memory, correct lists of his property and its valuation, and to manage his business generally, has sufficient mental capacity to make a will, in the absence of any question of insane delusions.</p> <p>9. Same—what testimony is competent on the question of mental capacity. Persons who have known the testator and transacted business with him may testify that they noticed no difference in his mental ability from the time they first knew him to the time they last saw him, and that he knew the market prices of stock, read the newspapers and was posted on current events of the times.</p> <p>10. Same—what does not disqualify witnesses for proponents. The fact that witnesses testifying to the soundness of mind of the testator live in the township whose indigent inhabitants are entitled, under the will, if deemed worthy by the trustee, to receive free medical attention and nursing in the hospital which is the principal beneficiary, does not disqualify them as witnesses.</p> <p>11. Same—witnesses cannot be cross-examined as to making written statements to counsel. Written statements of witnesses to attorneys in preparation for trial, and all notes and briefs made by the attorneys for that purpose, are the property of the attorneys, and they cannot be required to produce them for the benefit of opposite counsel, nor can opposite counsel cross-examine the witnesses to ascertain if written statements have been made by them.</p> <p>12. Same—burden of proof is on the contestants. Where the proponents in a proceeding to contest a will make a prima facie case in favor of the validity of the will, the burden is upon the contestants to overcome not merely the prima facie case but also the' added legal presumption in favor of sanity, by a preponderance of the evidence on the whole case.</p> <p>13. Same—an insane delusion defined. An insane delusion is a false belief for which there is no reasonable foundation, and which would be incredible, under the given circumstances, to the same person if of sound mind, and concerning which the mind of the person so believing was not open to permanent correction through evidence or argument.</p> <p>14. Same—what does not tend to show insane delusion. Proof that the testator, some four days after receiving a very severe injury and some eleven years before making his will, thought his relatives had influenced a certain physician to poison him does not tend to show an insane delusion, where the evidence does not show that he persisted in his delusion, but, on the contrary, that he subsequently visited his relatives and ate meals with them.</p> <p>15. Instructions—when rule as to the time for presenting instructions does not justify refusing one. A rule of court requiring instructions to be passed up for consideration before the argument to the jury is begun, does not justify refusing one offered thereafter to correct an erroneous impression which the jury may have received from a statement made by counsel in the argument; but the refusal of such instruction will not necessarily constitute reversible error.</p> <p>Cooke, J., dissenting.</p>

<p>1. Elections-—judge of a city court is a city officer. A judge of a city court is an officer of the city as distinguished from a State or county officer, as only the qualified electors- of the city may vote at an election for that office.</p> <p>2. Same—women are not entitled to vote for judge of a city court. In view of the fact that article 6 of the constitution indicates that the office of a judge of a city court must, when such court is created, be filled by an election, women cannot be authorized by the legislature to vote for a city judge. (People v. Olson, 245 111. 288, distinguished.)</p> <p>3. Same—question of eligibility to.hold office must be tested by quo warranto. The question of eligibility to hold office should be raised by an information in the nature of quo warranto and can not properly be raised in a proceeding to contest an election.</p> <p>4. Constitutional law—power of legislature to provide for Mling office. The general rule that where an officer is not provided for by the constitution the legislature may provide for filling the .office either by appointment or election, is qualified by the further provision that the constitution does not specifically indicate the manner in which the office is to be filled.</p> <p>5- Jurisdiction—the circuit court has jurisdiction to hear a proceeding to contest election of a city judge. The circuit court has jurisdiction to hear and determine a proceeding to contest the election of a judge of a city court.'</p> <p>Cartwright, Carter and Dunn, JJ., dissenting.</p>

<p>1. Attorneys at eaw—what is not criminal offense. An attorney who continues to take acknowledgments and administer oaths as a notary public for two periods of more than a year each after the expiration of his commission, and before its renewal is guilty of great negligence, but in the absence of proof of willfulness on his part he cannot be said to be guilty of the criminal offense of falsely "assuming or pretending to be an officer.</p> <p>2. Same—zvhat conduct is highly unprofessional. An attorney who collects money on claims sent to him for collection, uses the proceeds and falsely represents to his clients that the claims have not been paid, and who fails to pay over the money until after his clients have ascertained the facts and made demand upon him, is guilty of unprofessional conduct and is subject to discipline by the Supreme Court; but the fact that he has paid over the money to his clients may be considered and the respondent disciplined by suspension instead of disbarment.</p> <p>3. Same—unfriendliness of relators is not material if facts are proved. The unfriendliness of the relators to the respondent in a disbarment proceeding cannot affect the decision of the case if the facts alleged in the information are proved.</p> <p>4. Same—power of Supreme Court to disbar an attorney is inherent. The power of the Supreme Court to disbar an attorney is an inherent one, which' exists independently of the statute, and the mere fact that an attorney has settled with his clients upon demand does not preclude the Supreme Court from disbarring or suspending him, where the proof shows concealment, misrepresentation and long delay before the settlements with clients were made.</p> <p>Dunn and Cooke, JJ., dissenting.</p>

<p>1. Criminal law—distinction betzveen larceny and embezzlement. The distinguishing element of the crime of larceny is the taking and carrying away or asportation of the property the subject of the larceny, while in the crime of embezzlement the property is lawfully in the possession of the accused by reason of some fiduciary relation between the accused and the owner.</p> <p>2. Same—when the crime of larceny is complete. The crime of larceny is complete if there is a taking and carrying away from the owner, of his money or property with a felonious intent, although the money or property taken is afterwards restored or recovered or the owner recompensed.</p> <p>3. Same—when crime of embezzlement by agent is complete■—• conversion. Strictly speaking, the crime of embezzlement by an agent, under section 75 of the Criminal Code, is complete when there is a fraudulent conversion by the accused of money or property of his employer; but, as a general rule, there is a conversion only when there has been a refusal, or at least a failure, to pay, or there are circumstances from which such failure can be implied.</p> <p>4. Same—when attorney is not guilty of embezzlement under section 75 of the Criminal Code. An attorney is not guilty of embezzlement, under section 75 of the Criminal Code, if he has an interest or part ownership in the funds or until there has been an accounting and a demand and refusal to pay over the amount due from him to his client.</p> <p>5. Same—when a conviction for larceny cannot be sustained. A conviction for larceny cannot be sustained where the evidence shows that the defendant was an attorney at law employed on a-salary by a law firm; that a case for the recovery of money was turned over to him; that he prosecuted the suit and finally settled the case and received a check payable to himself and the client; that' he indorsed the check with both names and deposited the money in his own account and subsequently checked it out; that he informed the law firm of the collection, and that a member of the firm subsequently paid the whole amount to the client and charged the attorney’s account therewith, and that the client had made no complaint nor any demand for the money.</p>

<p>1. Wires—a devise of a fee may be subsequently restricted to a life estate. A devise of a fee may be restricted by subsequent words in a will and changed to an estate for life. '</p> <p>2. Same-—when devise to grandson does not give a fee simple. A devise to the testator’s grandson, “and at his death the title to said land shall vest in his sister,” (naming her,) does not give the grandson a fee simple, notwithstanding a subsequent clause provides that the title to said land shall not vest in the grandson absolutely until he arrives at the age of twenty-one years but in the meantime shall vest in the executors and trustees, who shall lease the land and pay the income equally to the grandson and his sister 'until they are twenty-one years of age, and that when the grandson reaches that age he shall pay his sister $1000, which payment shall be a charge upon the land.</p> <p>3. Same—when devise of remainder gives base fee. A devise of land to the testator’s grandson, “and at his death the title to said land shall vest in his sister,” (naming her,) if "she shall then be living, and if the said grandson and his sister “shall both die leaving no children, then and in that case the title to said land shall vest in” qnother named grandson, gives to the sister a base' or determinable fee, and at the death of her brother she will take the title to the land, subject to the executory devise over to the other named grandson if she dies leaving no children.</p> <p>Farmer and Cooke, JJ., dissenting.</p>

<p>1. Public utilities—the commission cannot adjudicate controverted contract rights. The State Public Utilities Commission is not a court but an administrative commission, and it has no jurisdiction to adjudicate controverted rights of parties growing out of their contracts.</p> <p>2. Same—commission cannot ignore decrees of courts. A decree of the circuit court in a cause in which, having jurisdiction of the subject matter and of the parties, it enjoins a railroad company from transporting coal over a switch track in violation of a private contract is binding upon the State Public Utilities Commission until reversed by a proper appellate tribunal, and the commission has no jurisdiction to enter an order in disregard of the injunction.</p> <p>3. Same—hearing before commission is not a judicial proceeding. The hearing before the State Public Utilities Commission is not a judicial proceeding, and when a question of which a court has jurisdiction has been adjudicated by that court the adjudication is final, so far as the commission is concerned.</p>

<p>1. Attachment—one who interpleads is not required to have the entire title. Under the Attachment act, which permits any person claiming title or interest in the attached property to interplead, it is not essential that the interpleader have the entire title, as the plaintiff in attachment cannot subject property to payment of a debt unless it belongs to the debtor.</p> <p>2. Same—when real estate is not subject to attachment. Where a daughter is given her mother’s real estate by will upon consideration that she execute notes to each of her three sisters payable within ten years after the death of the testatrix and also that she pay them each a certain sum of money, a conveyance of the real estate by the devisee, made in good faith to secure the performance of her agreement with the testatrix, will be upheld as against a creditor of the grantor who attaches the real estate before obtaining a judgment against her.</p> <p>3. Debtor and creditor—debtor may in good faith prefer one creditor over others. A debtor in failing circumstances may prefer one or more bona fide creditors over others, provided the preferment is made in good faith for the purpose of discharging or securing the preferred indebtedness.</p>

<p>1. Taxes—when it is proper to levy a gross sum for several purposes. It is proper for a county to levy a gross sum for several purposes where the several purposes are embraced within the same general designation, such as a levy of a gross sum “for the payment of fees and salaries and clerk hire of the various county officers.”</p> <p>2. Same—parol testimony is admissible to show what portion of gross levy is authorized. The fact that a county has levied a greater gross sum for salaries, fees and clerk hire of the various county officers than it is entitled to does not render the whole levy illegal, and parol testimony is admissible to show what portion of the gross sum levied is authorized by law.</p> <p>3. Same—what record is sufficient to show meeting of highway commissioners. A record made by the town clerk showing a meeting of the board of town auditors on the first Tuesday in September, and showing, on the same day, the action of the highway commissioners in making a levy of a certain amount for roads and bridges, is sufficient to show a meeting of the commissioners on that day.</p> <p>4. Same-—the fact that meeting was not held cannot be shown solely by testimony of witness. As the action of highway commissioners can only be shown by the record, the fact that they did not hold a meeting required by law cannot be shown solely by the testimony of the town clerk that no such meeting was held.</p> <p>5. Same—what does not sustain levy of road and bridge taxes. If the record of the highway commissioners shows that at the meeting on the first Tuesday in September they determined the rate of the road and bridge tax but not the amount, testimony by the county clerk that the commissioners certified to him the levy of a certain amount for road and bridge taxes does not, in the absence of amendment of the record, authorize sustaining the tax.</p>

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

<p>Civil service—power of head of city department to lay off subordinates. Under section 12 of the City Civil Service act a head of a department in a city has power, acting in good faith; to lay off his subordinates for a period of not exceeding thirty days because of lack of work, lack of funds or other good cause; and this power is not restricted to the seniority method prescribed by section 7 of rule 8 of the Chicago civil service commission. (Fitzsimmons v. O’Neill, 214 111. 494, applied.)</p>

<p>1. Constitutional law—amendment of 1915, concerning prostitutes, does not violate section 13, article 4, of constitution. The amendment of the Criminal Code in 1915 by adding section 57a-!, which provides a penalty for being an inmate of a house of ill-fame or for soliciting to prostitution, is not in violation of section 13 of article 4 of the constitution, relating to the titles of acts.</p> <p>2. Same—provision of amendment of 1915 is valid as respects inmates of houses of ill-fame. The amendment of 1915, (Laws of 1915, p. 374,) relating to prostitutes, is valid as respects inmates of houses of ill-fame without regard to the validity of the provision against soliciting on the streets, and one convicted for being an inmate cannot raise the question of validity of the other provision.</p>

<p>1. Wills—zvhen opinion of a non-expert zvitness is entitled to no weight. The opinion of a non-expert witness that the testatrix was not of sound mind and memory is entitled to no weight, where the witness does not state any facts or circumstances which could induce a reasonable belief of unsoundness of mind; and it is not sufficient that the witness testifies that the testatrix was sick and suffering severely at the time concerning which he testified.</p> <p>2. Same—when beneficiaries cannot be charged with undue influence. Beneficiaries in a will cannot be successfully charged with undue influence where it does not appear that either of them knew the testatrix was contemplating the execution of the will, or had made one,' until they were called in by one of the attesting witnesses, at the request of the testatrix, when the will was signed.</p> <p>3. Same—when fact'of fiduciary relation does not affect question of burden of proof. The mere fact that beneficiaries in a will may stand in a fiduciary relation to the testatrix does not put upon them the burden of showing an absence of fraud and undue influence, where there- is no evidence tending to show they were in any way instrumental in procuring the execution of the will.</p> <p>4. Same—effect of motion to direct verdict in will contest case. A motion to direct a verdict upon the issue of undue influence or testamentary capacity in a will contest case presents the question whether there is any evidence, considered in its most favorable aspect and aided by all reasonable presumptions which may be drawn therefrom, fairly tending to prove such issues, and if there is no evidence fairly tending to prove them it is proper to direct a verdict in favor of the proponents.</p>

<p>Res judicata—when tax-payer is bound by decree of Federal court against a city. A decree by a Federal court, in a suit by a water company against a city, enjoining the city from repealing a certain ordinance granting the water company its rights or doing anything in violation thereof and holding void a certain ordinance purporting to repeal the water ordinance, is binding upon a taxpayer of the city who is not affected any differently from other tax-payers, and he is not entitled to maintain a bill against the city to enjoin it from carrying out the provisions of the ordinance upon the ground that it was not properly passed.</p>

<p>1. Ordinances—courts of law have jurisdiction to determine validity of ordinance. Whether a city has exceeded its power in adopting an ordinance upon a subject which it is authorized to legislate about is a legal question which courts of law have jurisdiction to determine in a suit brought to enforce the provisions of the ordinance; and a court of equity will not enjoin the enforcement of the ordinance on the ground it is invalid, except when necessary to prevent irreparable injury or a multiplicity of suits.</p> <p>2. Same—what not ground for enjoining enforcement of ordinance. In order to give a court of equity jurisdiction to enjoin the enforcement of an ordinance for the purpose of preventing a multiplicity of suits it should appear that the complainants and others are affected alike by the ordinance; and the mere fact that some may be affected by one section of the ordinance and others by various other sections is not sufficient, where it is not alleged in the bill that the ordinance has been violated by any of the complainants or that any suits have been begun against them.</p> <p>3. Same—mere fact that ordinance is void is not, alone, ground for enjoining its enforcement. Under no circumstances will a court of equity entertain a bill to enjoin the enforcement of an ordinance on the ground, alone, that it is void, but those seeking to enjoin its enforcement must allege facts showing that their interests are affected by it.</p> <p>4. Same—when equity will not take jurisdiction on ground of avoiding a multiplicity of suits. Courts of equity are reluctant to take jurisdiction of a suit to enjoin the enforcement of an ordinance upon a subject which the municipality has the power to legislate about, and will not do so on the ground of preventing a multiplicity of suits unless the ordinance affects a right or interest common to all the complainants. (Chicago v. Collins, 175 111. 445, and Wilkie v. Chicago, 188 id. 444, distinguished.)</p>

<p>1. Bills or review—who may file a bill of revievo. No person except the parties to the suit and their privies in representation, such as heirs, executors and administrators, can maintain a bill of review, strictly so called, and all other persons in interest and in privity of title or estate who are aggrieved by the decree may maintain an original bill in the nature of a bill of review so far as their own interests are concerned, although they cannot do so if they are not aggrieved by the particular error assigned on the decree.</p> <p>2. Same—party who has had case reviewed on writ of error not entitled to maintain bill of review. One who has had a decree reviewed on writ of error and the record has been found to be free from error cannot thereafter maintain a bill in equity to review the same decree whether the decree was affirmed or the writ of error dismissed, and particularly where the bill is founded on an error apparent on the face of the record.</p>

<p>Contracts—when contract is not one for personal services. A contract between a corporation and an employee who had been permanently crippled 'by an explosion in the employer’s building, by which the corporation agrees, in consideration of a general release, to pay the employee $3000 in equal monthly installments of $50 each, will not be held to be a contract for personal services, even though the employee agrees to perform such clerical duties as she judges herself physically able to perform without injury to her health or strength; and in case of her death before the full $3000 is paid, her administratrix may recover on the contract.</p>

<p>- 1. Workmen’s compensation—act does not apply if the injury was received in act of inter-State commerce. If the injury to a railroad employee occurs while engaged in inter-State commerce the Federal Employer’s Liability act applies and there is no liability under the Illinois Workmen’s Compensation act.</p> <p>2. Same—when railroad employee is not engaged in inter-State commerce. A railroad detective, employed to watch railroad yards, who is injured by being struck by an incoming freight train as he jumped from a cut of cars which were being switched on another track, cannot be said to have been engaged in inter-State commerce at the time of his injury, even though there were one or more cars in the yards containing inter-State freight, where the evidence does not show at what point in the yards the cars were, or that either the cut of cars on which he was riding or the incoming freight train carried inter-State freight.</p>

<p>1. Drainage—lands embraced in one levee district cannot be included in another. Lands embraced in a legally organized levee district which have paid the regular assessment and never been judicially disconnected from the district cannot be included in a subsequently organized district so as to deprive the commissioners of the original district of jurisdiction over them, even though .the commissioners made no objection to the inclusion of such lands in the new district and permitted work to be done therein for more minute drainage of the lands.</p> <p>2. Same—when drainage district is not estopped to assert authority over land. Before a drainage district can be said to be estopped to assert its authority over lands embraced within its boundaries there must be some act by the district itself, and not merely an unauthorized act of its attorney or one of its commissioners, on which to base the claim of estoppel.</p> <p>3. Same—organisation of sub-district is not the exercise of a new jurisdiction. In organizing a sub-district under section 59 of the Levee act the commissioners are only exercising the jurisdiction conferred at the time of the organization of the original district, and the sub-district is not an independent body politic or corporation but is merely a part of the original district and is under the control of the corporate authorities of such district.</p>

<p>1. Taxes—when levy of a gross sum for several purposes i's valid. A levy of a gross sum for “payment of fees and salaries and clerk hire of the various county officers” is not invalid because it does not specify each purpose separately, as.the several purposes mentioned are properly embraced in the general designation; but it is proper to sustain an objection to the excess oyer the amount the county is bound to pay.</p> <p>2. Same—1when parol evidence is admissible. A levy for “payment of fees and salaries and clerk hire of the various county officers” is not for an illegal purpose in whole or in part, even though it may be in excess of the amount the county is authorized to pay, and extrinsic evidence is admissible to show the amount the county is bound to pay for the purposes specified, and the levy, to that extent, is valid, even though it is void as to the excess.</p> <p>3. Same—meeting fixing rate does not authorise highway commissioners to certify the amount. The action of highway commissioners at a meeting at which the rate of road and bridge taxes is fixed does not authorize the commissioners to certify the amount of the tax.</p> <p>4. Same—town clerk’s record may show meeting of highway commissioners. As the town clerk is the clerk of the board of highway commissioners, the meeting of the commissioners to fix the amount of road and bridge taxes may be shown by the town clerk's record showing the action of the commissioners in making a levy in a certain amount for road and bridge purposes on the same page of the record which records the meeting of the board of town auditors on the first Tuesday in September.</p> <p>5. Same—fact that no meeting of commissioners was held can not be shown by parol testimony. The fact that no meeting of the highway commissioners was held as required by law cannot be shown solely by the testimony of a witness that no meeting was held, as the action of the highway commissioners must be shown by the record.</p>

<p>1. Courts—reason zvhy court vacated judgment has no bearing upon question of jurisdiction. The reason why the court vacated a judgment and sentence has no bearing upon the question of its jurisdiction to enter the order.</p> <p>2. Mandamus—when awarding of writ of mandamus does not amount to granting writ of error. Awarding a writ of mandamus at the suit of the People to compel a judge to expunge from the record an order vacating a judgment and sentence, which order is alleged to be void for want of jurisdiction, does not amount to the granting of a writ of error to review the propriety and justice of the order.</p> <p>3. Same—when a petition for mandamus shows that public interest is involved. A petition for mandamus to compel a judge to expunge an alleged void order vacating a judgment and sentence shows that public interest is involved, where it is alleged that the course followed is in accordance with an illegal practice which has grown up of entering such orders and with the aid of a writ of habeas corpus ad testificandum discharging prisoners or releasing them on probation after their commitment to the penitentiary or State reformatory, in disregard of the pardoning power of the executive department of the .State.</p> <p>4. Same—when petition for mandamus does not seek for double relief. A petition for mandamus to compel a judge to expunge an alleged void order vacating a judgment and sentence and to return the prisoner to the custody of the superintendent of the State reformatory is not demurrable on the ground it seeks double relief.</p> <p>5. Criminal law—limit of rule that court may vacate judgment during term. In criminal cases the general rule that a court may vacate its judgments during the term applies only while the judgment remains unexecuted, but it has no power to do so after the defendant has been sentenced and committed to the custody of the proper officer of the penitentiary or reformatory, as the defendant has then entered upon the execution of his sentence and the court has lost jurisdiction of his person.</p> <p>6. Same—when writ of habeas corpus 'ad testificandum should be quashed. A writ of habeas corpus ad testificandum, the only purpose of which is to procure the attendance of a prisoner at the hearing of a motion to vacate his judgment of conviction and sentence, which motion is pending before the judge who presided at the trial, should be quashed on motion of the Attorney General, as the trial judge is bound to know there was nothing to which the prisoner need testify on such hearing. '</p> <p>7. Same—court cannot take prisoner from custody of officer on a writ of habeas corpus ad testificandum. Even where a writ of habeas corpus ad testificandum is properly issued to procure the attendance of a prisoner as a material witness in some pending cause, the appearance of the prisoner does not give the court jurisdiction over him as a defendant in the case in which he was convicted, and the court has no power to take him from the custody of the proper officer of the penitentiary or reformatory and deliver him to the custody of the sheriff.</p>

<p>1. Freehold—what is necessary in order that a freehold be involved. A freehold is involved, within the meaning of the constitution and the statutes, only in cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold, or where the title is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue.</p> <p>2. Same—a freehold not involved if defendant may defeat the suit by making payment. No freehold is involved in a proceeding to enforce liens on real estate if the defendant may arrest the proceeding, defeat the object" of the suit and prevent a disturbance of his title by making payment or doing some act to arrest the sale.</p> <p>3. Same—when a freehold is not involved though decree practically sets aside masters deed. A freehold is not involved in a proceeding to foreclose a mortgage even though the decree practically sets aside a master’s deed issued to a purchaser at a sale to enforce a mechanic’s lien, by finding that the mortgage is a first lien and ordering the premises to be advertised and sold according to law.</p>

<p>1. Criminal law—when page of a loose-leaf ledger is not admissible. In a prosecution for receiving stolen silk, which the defendant claims he purchased at reasonable prices and in the usual course of business from the thief, who conducted a silk-jobbing office, a page of a loose-leaf ledger from such office purporting to contain a statement of purchases made by the defendant at very low prices is not admissible, where the employee who made up the statement testifies that she made it entirely at the dictation of the thief and that the defendant was not present, and there is no evidence as to the truth or correctness of the entries or that the defendant knew of their existence.</p> <p>.2. Same—when statements by third party against accused are not admissible. Declarations or statements of any kind made out of court against a person accused of crime and in his absence and without his knowledge are not admissible in evidence, as the accused has a constitutional right to meet his accusing witnesses face to face.</p> <p>3. Same—People are not entitled to show that accused has been formerly convicted of a misdemeanor. In Illinois it is not permissible, in a criminal case, to put in evidence against the accused his conviction of any offense other than those offenses declared by the statute to be infamous, and it is therefore error to permit the State to get before the jury the fact that the accused had once been convicted of a misdemeanor in another State.</p> <p>4. Same—incriminating accusations which are denied by the accused when made are not admissible. Testimony by dectectives detailing incriminating accusations which they claim were made by the thief against the accused and which they repeated to the accused before his arrest are not admissible, where the accused denied the accusations in Joto when they were repeated to him; and this is true whether or not the accusations were, in fact, made as claimed.</p> <p>5. Same—what not a proper exhibit. A piece of silk cut from a bolt found on the person of the thief but which was never in the possession of the defendant should not be admitted as an exhibit in a prosecution for receiving stolen property, to enable witnesses to testify to its value and that the silk Which was found in the possession of the defendant was the same quality or about the same.</p> <p>6. Same—when exhibit need not be certified as part of the bill of exceptions. Where the record, by verbal descriptions or otherwise, gives all the facts connected with an exhibit necessary to a full understanding of it and to enable a court of review to pass upon the correctness of the trial court’s ruling with reference thereto, it is not necessary that the exhibit be certified as a part of the bill of exceptions.</p> <p>7. Same—knowledge that the goods were stolen is essential to crime of receiving stolen property. In a prosecution for receiving stolen property, actual knowledge by the accused that the goods were stolen, or the existence of such facts as will authorize the jury to presume knowledge, must be proved beyond a reasonable doubt; and it is not correct to instruct the jury, as an abstract rule of law, that one who willfully disregards suspicious circumstances is chargeable with guilty knowledge, notwithstanding he did not have actual knowledge of the theft.</p>

<p>1. Judicial notice—court takes judicial notice of provisions of general statute. The courts of Illinois will take judicial notice of the provisions of .a general statute, such as the general law for the incorporation of cities and villages and of the powers of municipal corporations organized thereunder.</p> <p>2. Eminent domain—when petition shows authority by village to condemn land. A petition which alleges that the petitioner is a village organized under the general Incorporation act and that it has adopted an ordinance for the creation of a public park on certain lands shows sufficient authority to maintain the petition to condemn the lands for park purposes.</p> <p>3. Same—extent to which courts will inquire into necessity for condemnation. If the petitioner in a condemnation proceeding has statutory power to condemn land for the purposes stated in the petition, courts will not inquire into the propriety or necessity of the exercise of the power, although they may inquire into the propriety of taking the particular property and whether the amount proposed to be taken is excessive.</p> <p>4. Same—incorporated village may establish park before question of raising funds has been voted on. A village incorporated under the Cities and Villages act has power to establish a public park without a previous vote of the people on the question of raising funds, as the-act of 1899, containing such requirement, applies to cities and not to villages.</p> <p>. 5. Same—when defendant cannot urge as error the striking of objections from files. Striking from the files certain objections raised on the defendant’s motion to dismiss a condemnation petition cannot be urged as error on appeal, where the petitioner, as a part of its case, introduced evidence opening up the questions covered by the objections, thereby affording the defendant an opportunity to .support the objections by proof, which he made no effort to take advantage of.</p> <p>6. Same—defendant cannot object that village has not raised funds at time his land is condemned. The fact that the petitioner' in a proceeding to condemn land for a park has not levied a tax or otherwise provided the funds to pay for the land is not a valid objection to the proceeding, as the only concern of the defendant, in that respect, is that the funds be provided by the time the petitioner is allowed, by the judgment, to take the land.</p> <p>7. Same—village authorities have a broad discretion in determining how much land is needed for a park. Village authorities have a broad discretion in determining how much land shall be taken for a public park and may anticipate the future needs of the municipality, and their action in that matter will not be interfered with by the courts except where there is a clear abuse of discretion.</p> <p>8. Municipal corporations—when an ordinance need not contain a provision for publication. Under the laws in force in 1869 an ordinance fixing the boundaries of a town was not required to contain a provision as to the time when it should take effect or for its publication, as the statute fixed that period at ten days after due publication.</p> <p>9. Same-—what will not invalidate ordinance. If an ordinance fixing the boundaries of a town was actually published, the fact that after the passage of the ordinance an unnecessary provision was added by resolution, thereby being invalid, would not invalidate the other provisions of the ordinance.</p> <p>10. Same—the presumption is that municipal officers have performed the duties required by law. The presumption is in favor of the regularity of municipal action and that the municipal officers have performed the public duties enjoined upon them by law.</p> <p>11. Same—when it will be presumed that ordinance was published. Where nearly half a century has passed since the passage of an ordinance fixing the boundaries of a town, and the evidence shows that the municipal authorities knew the ordinance must be published, and the authorities of the town, and of the village into which the town was subsequently incorporated, as well as the inhabitants, have always regarded the boundaries as being fixed by the ordinance, it will be presumed that the ordinance was published though no record of that fact can be found.</p> <p>12. Judgments and decrees—written order signed by judge not necessary to give validity to judgment. In a condemnation proceeding, which is a proceeding at law, the judgment becomes effective as soon as it is pronounced by the court, and no written order signed by the judge is necessary to give validity to the judgment.</p> <p>13. Same—when the proceedings after judgment may be disregarded. If the record shows that judgment in a condemnation proceeding was pronounced on a certain date, subsequent. proceedings with reference to the form of the judgment to be entered by the clerk, had after the cause had been removed to the Supreme Court by appeal, may be disregarded and will not affect the validity of the judgment.</p> <p>14. Same—draft of judgment signed by judge does not prevail over the record. A draft of a condemnation judgment signed by the judge will not prevail over the minutes of the judge or clerk and the files of the cause with respect to the date the judgment was rendered, and if it does not correctly set forth the proceedings and judgment the clerk may write them up from the minutes of the judge or his own minutes.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.</p>

<p>1. Wills—how the intention of the testator is to be determined. The intention of the testator is to be determined from the language of the entire will, considered in the light of the facts and circumstances surrounding the testator, his family and his property at the time of making the will.</p> <p>2. Same—when devise by implication will be sustained.. A devise by implication will be sustained though not made by the will in formal language, when the probability of the intention of the testator to make the gift is so strong that a contrary intention can not be supposed.</p> <p>3. Same—when the presumption against intestacy will prevail. The presumption that a testator did not intend to die intestate as to any part of his estate but intended that it should all be disposed of in his will must prevail where there are no provisions of the will or matters of evidence to overcome such presumption.</p> <p>4. Same—when the doctrine of equitable conversion applies. Where' the testator gives .the use of certain land to his wife while she remains his widow, directs that at her death the land shall be sold, makes provision for distributing the proceeds, and provides that if the wife shall marry again her interest in the land shall cease and the same “shall be sold and divided as above directed in case of her decease,” the doctrine of equitable conversion applies and the distributees take the proceeds of the sale of the land and not the land itself.</p> <p>5. Same—will construed as disposing of remainder. A provision in a will written by a justice of the peace that at the death of the testator’s wife the land shall be sold “and that Robert A. Martin and George E. Martin shall pay to James C. Martin the sum of $1000 if he is living at the time of the death of my wife, Fannie Martin, but if James C. Martin should not be alive at the time of my said wife’s decease, then the proceeds of the sale of said farm to be equally divided between my two sons, Robert A. Martin and George E. Martin,” following which is a provision that if the wife shall re-marry the land be sold and divided “as above directed in case of her decease,” gives the proceeds of the sale to George E. Martin and Robert A. Martin, equally, subject to payment by them of $1000 to James C. Martin if he is alive, and does not leave the fee intestate property in case James C. Martin is alive.</p>

<p>1. Municipal corporations—what is not within the grant of power with reference to intoxicating liquor. The power of a town or city to “regulate, prohibit or license the selling of” intoxicating liquor does not include power to make it an offense to receive, keep or use intoxicating liquor at a club or other place for individual, personal use as a beverage, only, where there is no element of selling, giving away or otherwise disposing of the liquor as a device to evade the law; nor does it include the power to make it an offense to maintain or assist in maintaining a club where intoxicating liquor is received or kept as a beverage by the individual members for their personal use, only.</p> <p>2. Same—town or city cannot prohibit person from receiving or using intoxicating liquor. There is no law in Illinois which prohibits a person from receiving, keeping or using intoxicating liquor for private consumption, when such receiving, keeping or using is done in such a manner as not to interfere with the rights of others and there is no intoxication or disturbance; and a city, town or village has no power to enact an ordinance prohibiting such receiving, keeping or using.</p> <p>3. Same—a club cannot be used as a means of evading laws or ordinances against sale of liquor. A club, or assembly of individuals as a club or association, cannot be used as a means of evading and violating the provisions of the Dram-shop law or Local Option law or ordinances of municipal corporations prohibiting or licensing the sale of intoxicating liquor.</p> <p>4. Same—police power does not authorise ordinance prohibiting possessing and using intoxicating liquor. The police power of a city, town or village* does not authorize an ordinance prohibiting a person from receiving, keeping or using intoxicating liquor as a beverage where no question of an unlawful selling or giving away is involved, as intoxicating liquor is property, and the police power does not justify an arbitrary interference with the property and privileges of citizens.</p> <p>5. Same—a city cannot arbitrarily declare a thing a nuisance. The power delegated to municipal corporations to determine what are nuisances does not include the power to declare something a nuisance which is not a nuisance per se or recognized by the common law or the statutes as a nuisance, and does not extend to declaring every place to be a nuisance where intoxicating liquor is received, kept or used as a beverage, irrespective of the manner of such use.</p> <p>6. Same—what is not within the power of the State or a city. It is not within the power of a municipal corporation or the State to regulate the private life or conduct of a citizen in the use of his property in matters in which he, alone, is affected and others are not necessarily affected.</p>

<p>Writ or Error to the Circuit Court of Coles county; the Hon. Walter Brewer, Judge, presiding.</p>

<p>1. Partition—one joint tenant may compel partition against the other. Section 5 of the Conveyances act, relating to estates of joint tenancy, does not amount to a repeal of the provision of the Partition act authorizing partition of such estates, and it is not a valid objection to partition of such estates that the right of survivorship is destroyed.</p> <p>2. Same—mortgagees are necessary parties to hill for partition. Mortgagees and other persons holding incumbrances are necessary parties to a bill for partition, and if the bill shows on its face that they have not been made parties it is proper to take advantage of the defect by demurrer.</p> <p>3. Pleading—when a general demurrer should he overruled. Where a bill sets forth various claims for relief in a court of equity and a general demurrer is filed, the demurrer should be overruled if any of the claims set forth in the bill are proper for the jurisdiction and consideration of the court.</p> <p>4. Same—when hill should he retained for accounting. Where a bill prays for partition and an accounting of rents and profits and a general demurrer is filed the demurrer must bp overruled, even though the bill shows on its face that there is a want of necessary parties with respect to the partition- feature of the bill, where all persons necessary to the accounting feature are parties. _</p>

<p>1. Bills of exceptions'—when court is without power to extend time to file bill of exceptions. If the term at which a cause was disposed of has expired and thereafter the time allowed for filing a bill of exceptions expires without any order having been made extending the time, the court is without power to thereafter make an order extending the time for presenting and filing the bill.</p> <p>2. Same—rule where last day for filing bill of exceptions falls on holiday. The statute which provides that in counting the time within which any act provided by law is to be done the first day shall be excluded and the last day included, unless the last day is Sunday, and then it shall also be excluded, does not apply to holidays unless they fall on Sunday.</p> <p>3. Holidays—day is not a holiday except for purpose stated in statute creating it. If a day is made a holiday for purposes stated in the statute creating it, it is not a legal holiday for any purpose not named in the statute.</p> <p>4. Same—Lincoln’s birthday is not a legal holiday for performance of judicial functions. Lincoln’s birthday is made a holiday, in Illinois, for certain purposes in regard to negotiable instruments, but it is not a legal holiday for performance of judicial functions.</p> <p>5. Pleading—an objection that the declaration does not negative assumed risk is not good after verdict. An objection that the declaration in an action for personal injury fails to negative assumed risk is not good after verdict, where no demurrer was filed to the declaration.</p>

<p>1. Drainage—section 58 of the Levee act, as to annexing lands, construed. Section 58 of the Levee act only permits the annexation to an organized district of lands actually connected by artificial drains to such district or of such lands as are actually benefited by the necessary ditches and drains of the district.</p> <p>2. Same—what annexation is not authorized by section 58. It is not within the contemplation of section 58 of the Levee act that a larger main ditch or a larger ór more extensive system of drains than is necessary for the complete drainage of the original district shall be constructed with a view to annexing large bodies of land to the original district on the theory that they will be benefited by the extensive system of drainage.</p> <p>3. Same—when proceedings subsequent to the organization are void. Where a drainage district containing 3020 acres of land is organized, but before any work is done the commissioners, by annexation proceedings, add more than 25,000 acres of land against the protest of the owners and change the original plans for drainage so as to provide sufficient drainage for the enlarged district, all proceedings subsequent to the organization of the original district are void.</p> <p>4. Same—when a petition to organize a district is insufficient to confer jurisdiction. A petition to organize a levee drainage district is insufficient to confer jurisdiction upon the court where it utterly fails to describe the character of any of the proposed ditches, gives no information as to whether they shall be open ditches ■ or tile drains, and fails even to state the number or approximate size of the ditches or their location or direction, except as to the part of the main ditch which is to follow a certain creek, and even as to that the dimensions or character of the work to be done is not indicated.</p> <p>5. Same—appearance of land owners does not confer jurisdiction of subject matter. In a proceeding to organize a levee drainage district the petition is jurisdictional and must state every fact required by the statute to be stated, and if the petition is not sufficient to confer jurisdiction the appearance of the land owners does not have that effect.</p> <p>6. Same—when order of organization may be attacked though it makes a finding of jurisdiction. Where the record shows that the county court did not have jurisdiction of the subject matter in a drainage proceeding its attempted order organizing the district is a nullity and may be questioned by an information in the nature of quo warranto, notwithstanding the fact it contains a finding that the court had jurisdiction.</p> <p>7. Same—drainage district should not he a party to information in nature of quo warranto. An information in the nature of quo warranto to attack the legality of the organization of a drainage district should be.brought against the persons, as individuals, who are claimed to be unlawfully assuming to be a corporation and not against them by their assumed corporate name.</p> <p>8. Same—when defense of estoppel to information in nature of quo warranto cannot prevail. Where the defendants to an information in the nature of quo warranto do not, by their pleas, attempt to disclaim or justify but set up matters of estoppel and acquiescence on the part of certain of the relators, which, however, do not apply to other relators who are not shown to be in any way barred from asserting their rights, a demurrer to such pleas should be sustained.</p>