Volume 276 — Illinois Reports

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

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

<p>Appeal from the County Court of McLean county; the Hon. James C. Riley, Judge, presiding.</p>

<p>1. Drainage—assessment roll filed by the commissioners under the Levee act is not binding on the jury. The assessment roll authorized to be made by the commissioners under sections 17 and 170 of the present Levee act is not an assessment but is filed as the commissioners’ claim against the several land owners and tracts of land involved, is subject to dispute by any land owner, is not binding upon the jury which makes the assessment if its correctness is disputed by testimony, and never becomes the assessment unless made so by the verdict of the jury.</p> <p>2. Same—present Levee act does not require commissioners to take special oath to make the assessment. Under the Levee act in its present form the authority to make an assessment in all cases is conferred upon a jury and not upon the commissioners, and the necessity for the special oath of the commissioners which was required by section 63 of the Levee act no longer exists.</p>

<p>1. Practice-—day of presenting bill of exceptions should be regarded as the date on which it is signed, sealed and filed. A bill of exceptions purports to be signed at the time the exception is taken in the course of the trial, whether it is presented then or after-wards, but if it is presented within the time allowed by the court for filing the same and that fact is shown on the face of the bill it may be filed as of that date after it is actually signed by the judge; and it is the duty of the judge to regard the day the bill is presented to him as the date on which it should be signed, sealed and filed.</p> <p>2. Same—what does not show the bill of exceptions was filed before signing. Where a bill of exceptions bears the indorsement, signed by the judge, “Presented this 20th day of May, A. D. 1916, and time for settlement fixed at June 5, 1916, at 11 A. M.,” and the signing of the bill appears to have been on June 5, the fact that the bill shows that it was filed May 20 does not show the bill was filed before' it was signed but it will be presumed the clerk filed the bill as of May 20 after it had been signed.</p> <p>3. Special assessments—zvitness must show himself qualified to express an opinion as to benefits. In special assessment proceedings opinion evidence must be relied upon wholly to determine the amount of benefits, if any, to property by reason of an improvement, and before any witness is entitled to express such an opinion as to benefit^ he must show himself qualified by knowledge of the lots in question or of other real estate in the vicinity.</p> <p>4. Same—it is immaterial, as to benefits, whether one portion of old roadway is in better condition than another. Where the whole of a street is in such condition as to render a new pavement necessary, no property owner has the right to have credited against the benefits his property receives from the whole improvement any sum by reason of the fact that the old roadway immediately along his property is in better condition than elsewhere.</p>

<p>Appeal from the County Court' of Cook county; the Hon. John H.- Williams, Judge, presiding.</p>

<p>Appear from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.</p>

<p>1. Local option—purpose of requiring signers of local option petition to state residence. The purpose of the Local Option law in requiring the signers of a petition for an election to state their residence by street and number is to enable any person interested to ascertain whether the signers actually live at the address given and by that means to prevent fraud.</p> <p>2. Same—courts have no authority to require more definite address of petitioners than required by statute. Where the signers of a local option petition are unable to give their addresses by street and number because there are no streets or house numbers, the courts have no authority to require the signers to give some other minute description of their residences and the location thereof.</p> <p>3. Same—when stating place of residence as in the town is sufficient. In territory outside of cities, towns and villages, in which there are neither streets recognized by name nor house numbers, the residence address in the political subdivision is all that is required to be stated by the signers of a petition for an election under the Local Option law.</p> <p>4. Mandamus—when judgment zvill not be reversed although it is too late to enforce it as entered. A judgment awarding a writ of mandamus to compel a town clerk to submit at the next election a proposition under a local option petition will not be reversed merely because the town clerk, by taking an appeal, prevented the enforcement of the judgment at the time the election was held.</p>

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

<p>1. Wills—when remainders to grandchildren after successive life estates are contingent. Where a testator devises all of his property to his wife for life and portions of the land at her death to each of his children for life, with remainders to their children surviving them, the remainders after the successive life estates are contingent, since it cannot be known until the death of the life tenants in whom the remainders will vest.</p> <p>2. Same—when the reversion in fee descends to the testator’s heirs. Where remainders are devised to the surviving children of certain life tenants but there is no devise of the fee in the event any of such life tenants shall die leaving no surviving children, the reversion in fee descends to the testator’s heirs.</p> <p>3. Administration—existence of other interests does not prevent sale of interest in reversion in fee to pay debts of estate. The existence of life estates, dower or other interests in a tract of land does not prevent a sale of an interest in the reversion in fee which has descended to an heir subject to the vesting of contingent remainders to the children of the life tenants surviving them, and such interest may be inventoried and sold by his administratrix to pay the debts of the estate.</p> <p>4. Same—who need not be made parties to petition for order on administratrix to inventory interest in land. Upon filing a petition for an order on an administratrix to inventory an interest of the deceased in a reversion in fee in order that it may be subjected to sale to pay the debts of his estate, contingent remainder-men who will take the fee if they survive the life tenants need not be made parties, although they would be necessary parties to the petition of the administratrix to sell such interest.</p> <p>5. Same—lack of means is not a sufficient answer to a petition against administratrix for order to inventory interest of deceased in land. That the administratrix has no means to commence proceedings is not a sufficient answer to a petition against her for an order upon her to inventory an interest of the deceased in land in order that it may be sold to pay debts of the estate, but where the interest sought to be inventoried is so small that a sale may not ' bring enough to pay costs, the administratrix ought not to be compelled to institute proceedings without indemnity against the expenses of the proceeding and sale.</p>

<p>Inheritance tax—when stocks of foreign corporations are not taxable. Stocks of foreign corporations owned by non-residents are not taxable under the Inheritance Tax law of 1909. (People v. Dennett, ante, p. 43, followed.)</p>

<p>Writ or Error to the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding.</p>

Appear from the Second Branch Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. John K. PrindivirrE, Judge, presiding.

<p>1. Trusts—joint trust results where consideration is contributed by two or more persons in aliquot parts. Where the consideration for the purchase of property is contributed by two or more persons in aliquot parts, as one-quarter or one-half, and the title is taken in another for their benefit, a trust will result to them jointly, by operation of law, to the extent of the funds respectively contributed in the joint purchase or exchange of properties.</p> <p>2. Same—interest of one joint tenant in property for which the joint property is exchanged. Where husband and wife, joint tenants and not tenants in common, exchange their joint property for other lands, the title being taken, by fraud of the husband, in the name of his mother, the mother loaning her son a sum with which to pay off incumbrances and clear the title to the joint property, the wife is the equitable owner of an undivided one-half of the property acquired in exchange and of an inchoate right of dower in the other half, subject to a lien in favor of her mother-in-law for one-half the sum loaned to pay off the incumbrances.</p>

<p>Criminal uw—involuntary confession cannot be admitted as a part of the People’s case in chief. The admission in evidence, over the defendant’s objection, of an involuntary confession of the crime charged is ground for reversal, where it is apparent from the record that the court admitted the confession as a part of the People’s case in chief and not by way of rebuttal of anything testified to by the defendant.</p>

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

<p>1. Taxes—emergency amendment of June 29,1915, of Park Tax law, applies to all cities of the designated population. The amendment of June 29, 1915, of the Park Tax law, passed as an emergency measure, which requires a vote of the people to authorize a park tax in excess of the regular annual taxes levied as limited by section 1 of article 8 of the act for the incorporation of cities and villages, applies to all cities of between 1500 and 50,000 population and not only to those where an emergency exists.</p> <p>2. Same—act of June 29, 1915, concerning park taxes, is not in conflict with act of June 10, 1915. The act of June 29, 1915, concerning park taxes, is not in conflict with the act of June 10, 1915, limiting the reduction of the tax rate for city purposes, exclusive of park taxes, and under the former act there must be a vote of the people to authorize a tax for park purposes in excess of other city taxes in all cities over 1500 and less than 50,000 population, while the latter act alone governs as to the limitation of park taxes in excess of city taxes in cities of over 50,000 and less than 150,000 population.</p> <p>3. Statutes—statutes will be so construed as to stand together, if possible. Where two statutes are seemingly repugnant, they should be so construed, if possible, that the later one may not operate as a repeal of the former by implication, and in all such cases if a construction can reasonably be given by which both acts will stand it will be adopted.</p> <p>4. Same—when the latest statute in point of time will prevail. Where it is impossible to give effect to both acts of the legislature the latest in point of time will, prevail, and, as between two conflicting acts, one passed later but going into effect earlier will prevail over one passed earlier but going into effect later.</p>

<p>1. Special assessments—-as a rule a railroad right of way can not be benefited by local improvement. There may be unusual conditions under which a railroad right of way can be said to be benefited by a local improvement, but as a general rule it cannot be.</p> <p>2. Same—paving a street parallel to right of way of a railroad cannot benefit the right of way. The paving of an avenue running parallel to the right of way of a railroad and leading to the railway station cannot benefit that part of the right of way not a part of the station grounds and to which there is no access by the public and which is used only for the running of trains.</p> <p>3. Same—where property use is restricted to running of trains there can be no assessment unless value is increased for that use. The limit of an assessment for benefits resulting from paving a street is the enhanced value of the property, and where its use is restricted to the running of trains there can be no assessment unless its value is increased for that use.</p> <p>4. Same—whether station grounds of railroad are benefited by paving street leading thereto should be submitted to jtiry. Where a street parallel to the right of way of a railroad is to be paved up to the station grounds but-not including them, thus improving the means of access to the station grounds generally, it is proper to submit to the jury whether that part of the property is benefited and the extent of such benefit, if any.</p> <p>5. Same—opinion as to benefits based solely on increased btisiness is improper. Where an avenue leading to a railway station is to be paved up to the station grounds, the extent and character of the means of access are important in determining the value of such property; but an opinion as to benefits must finally rest upon increased value, which is the only basis for an assessment, and an opinion based merely on supposed increased freight and passenger traffic is improper.</p>

<p>Appeal from the Second Branch Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.</p>

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

<p>1. Taxes—tax-payer must be informed of the amount required for edticational and building purposes. Under section 190 of the School law the certificate of the board of directors to the township treasurer must inform the tax-payer of the amount to be raised for educational and building purposes.</p> <p>2. Same—a rate per cent gives no information of amount to be raised. A rate per cent in a certificate of school directors for school taxes means nothing definite as to amounts, either to the tax-payer or the school directors, and a certificate giving a percentage, only, is not a compliance with section 190 of the School law.</p>

<p>1. - Workmen’s compensation-—ñling a stenographic report of evidence is not necessary to give the Industrial Board jurisdiction to review award on ground that injury has recurred. Under paragraph (h) of section 19 of the Workmen’s Compensation act it is not necessary that the agreed statement of facts or authenticated stenographic report of the evidence be filed in order to give the Industrial Board jurisdiction to review the award of the committee of arbitration on the ground that the disability has recurred or increased, and where the petition is filed in apt time the board is sufficiently vested with jurisdiction.</p> <p>2. Same—a review of award on ground that disability has recurred or increased requires consideration of the facts shown on original hearing. A review of the award of the committee of arbitration, based on the ground that the disability has recurred or increased, cannot properly be had unless the Industrial Board has before it ah agreed statement of the facts proved on the original hearing or an authenticated report of the evidence, and it devolves on the petitioner to introduce such statement or report in evidence.</p> <p>3. Same—what additional evidence may be introduced on review of award on ground that disability has recurred or increased. Where no petition for review is filed within the fifteen-day period provided by law the award of the committee of arbitration is a final adjudication upon all matters in dispute up to the time of the hearing at which that award is made, and upon petition to review the award, based on the ground that the disability has recurred or increased, the additional evidence offered must be limited to the question whether the disability has recurred or increased.</p> <p>4. Same—when petition to review award on ground that disability has recurred or increased should be dismissed. A petition to review an award on the ground that the disability has recurred or increased should be dismissed by the Industrial Board, on motion of the employer, where it appears from the testimony of the injured party himself that he is in the same condition at the time of the hearing on review as he was at the time of the hearing before the committee of arbitration and has grown no worse since.</p>

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

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

<p>1. Criminal law—proof of misconduct not connected ivith the crime charged is not admissible. Proof of misconduct on the part of the accused not in any way connected with the offense charged is not admissible, as such evidence tends to divert the minds of the jurors from the point in issue and arouse their prejudice.</p> <p>2. Same—evidence admissible on general grounds is not objectionable because it discloses other offenses. If evidence is admissible on general grounds it is not .objectionable because it discloses other offenses, the test of admissibility being the connection of the fact proved with the offense charged, and evidence which has a natural tendency to establish the fact at issue should be admitted.</p> <p>3. Same—proof of collateral offense may be admitted to show accused was in vicinity when crime charged was committed. Evidence of an extraneous crime may be admitted where it tends to identify the accused as the perpetrator of the crime charged, and when an alibi is relied on it is proper to prove a collateral offense in order to show that at the time the crime charged was' committed the accused was in the vicinity.</p> <p>4. Same—zvhen qtiestion of error in admitting proof of independent crimes is properly raised. The question of error in the admission of proof of independent substantive crimes is properly raised in the Supreme Court under the general assignment of error that improper evidence was admitted on behalf of the People.</p> <p>5. Same-—what evidence of motive is admissible in homicide. In cases of homicide, motive is a question of fact to be determined by the jury, and every material fact or circumstance that will throw light on the killing and every motive that might have influenced the mind of the accused may be admitted in evidence if relevant, and where the concealment of prior crimes is the motive in committing a homicide, evidence may be admitted which tends to prove that the accused was guilty of the prior crimes and knew that he was suspected by the deceased to be guilty.</p> <p>6. Same—proof of another offense as evidence of motive should not include details. In admitting evidence of other crimes committed by the accused in order to establish concealment thereof as the motive for committing the crime charged the details of the other crimes should not be admitted.</p> <p>7. Same—when the evidence of other crimes cannot be brought out on cross-examination. Cross-examination should be confined to matters brought out on direct examination, and if on direct examination the accused does not testify with reference to 'other crimes committed by him and is asked no question with reference thereto, it is error to permit evidence of other crimes to be drawn out on cross-examination.</p> <p>8. Same—what is improper argument in brief before Supreme Court. Argument of the State’s attorney in his brief before the Supreme Court in a homicide case calling attention to other offenses committed by the accused and asserting that he is a bad man generally and very dangerous to society is not proper.</p> <p>9. Same—when error in admitting evidence cannot be said to be harmless. In a murder trial, error in admitting evidence of other crimes committed by the accused which has a tendency to predispose the minds of the jurors to believe him guilty of the crime charged cannot be said to be harmless because the competent evidence justified the verdict and the defense was weak.</p> <p>10. Same—when testimony as to threats of third person against the deceased is inadmissible. Testimony by the accused, in a murder trial, that he had heard a third person make threats against the deceased some time before the shooting is mere hearsay and is not admissible.</p> <p>11. Same—judge must use care in commenting on evidence in presence of the jury. In a criminal case, if the judge comments on the nature of the evidence in the presence of the jury at the time it is admitted it should be in such a manner as to cause the jury to clearly understand that it is admitted for what it is worth and that the jury are the sole judges of its weight and bearing on the issues before them.</p> <p>12. Same—State’s attorney’s argument need not be taken down in shorthand to entitle the defendant to object to it in the Supreme Court. It is not necessary for the defendant to have the closing argument of the State’s attorney taken down in shorthand in order to entitle him to object in the Supreme Court to anything that was said therein.</p> <p>13. Same—when affidavit as to what zvas said in State’s attorney’s closing argument must be accepted by Supreme Court. The rule that it is not ethical for counsel to testify in a.case he is.trying goes only to the weight of his testimony and not to its admissibility, and if the affidavit of the counsel for the defendant as to what was said in the State’s attorney’s closing argument is not impeached or contradicted on the record it must be accepted by the Supreme Court.</p> <p>14. Same—argument of State’s attorney asserting his belief in the guilt of the accused is improper. An attorney is rarely justified in stating his personal belief that the cause he is representing is just, for by so doing he makes himself a witness without the opportunity of being cross-examined, and while a remark by the State’s attorney in his closing argument that he believes the accused is guilty is not necessarily ground for reversal, it is apt to inflame the minds of the jury to the prejudice of the defendant and is improper.</p> <p>15. Same—when an affidavit as to the use of intoxicating liquor by the jurors does not shove ground for new trial. An affidavit showing that intoxicating liquors were drunk by the jurors during their consideration of the case does not show ground for new trial, where it does not state that such liquors were drunk to excess or that their use influenced the verdict, and where counter-affidavits are filed stating that only a small quantity of liquor was drunk, that no juror was intoxicated and that their verdict was not affected by their use of the liquor.</p> <p>16. Court reporters—rule as to taking doven arguments of counsel The statute empowering circuit judges in counties outside of Cook county to appoint court reporters authorizes the reporter to take down arguments of counsel as well as the evidence, and the court, on request of counsel, should direct the reporter to take down an argument to the jury.</p> <p>Farmer, J., and Craig, C. J., dissenting.</p>

<p>1. Criminal law—assaulted party may testify he heard the accused zvas going to kill him. In a prosecution lor an assault with intent to commit murder, during which assault both parties fought and used revolvers, the assaulted party may testify that he had heard the defendant was going to kill him.</p> <p>2. Same—zvhat evidence of threats cannot be admitted on trial for assault zvith intent to commit murder. On a trial for assault with intent to commit murder, evidence that the assaulted party, not long before the fight, said that someone was calling him a “snitch” and that he was going to blow his head off, without mentioning any name or giving any indication that he was threatening the accused, is not admissible.</p>

<p>Appeal from the Circuit Court of Williamson county; the Hon. D. T. Hartwell, Judge, presiding.</p>

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

<p>1. Ordinances—ordinance setting apart a certain fund out of general resources for particular purpose is an appropriation ordinance. Where a city receives a sum of money in consideration for damages to its streets, which sum is paid into the general resources, an ordinance setting a portion of this sum apart for a particular purpose is an appropriation ordinance and must be passed at the time required by statute.</p> <p>2. Same—city cannot advance money for construction of sidewalks when cost is to be paid by special taxation or assessment. It is'not a corporate purpose for a city to advance money on contracts for the construction of sidewalks where the cost of constructing the same has been provided for by special taxation or special assessment either under the Sidewalk act of 1875 or the Local Improvement act, and an ordinance setting apart a fund for this purpose, to be reimbursed when the special tax or asesssment is collected, is invalid. (City of Chicago v. Brede, 218 Ill. 528, followed.)</p>

<p>1. Practice—zvhen alleged invalidity of statute is not ground for direct appeal. A case cannot be brought by appeal or writ of error directly to the Supreme Court as involving the validity of a statute unless the record shows that the question was in some way presented to the trial court for its decision.</p> <p>2. Bonds—parties signing stay-bond are estopped from asserting invalidity of statute under which it is given. Parties who voluntarily sign a bond for a stay of execution under the provisions of section 23 of the Municipal Court act, and thereby obtain the stay of execution until the judgment has been reviewed on appeal, are estopped to assert that said section 23, under which the bond was given, is invalid or to deny the binding obligation of the bond itself.</p> <p>3. Same—when section 23 of the Municipal Court act, providing manner of delivering stay-bonds, must govern. Section 23 of the Municipal Court act, which provides that a bond given on a stay of execution shall be delivered to the clerk of the municipal court and be by him filed, must govern as to the delivery, where the obligors, by their voluntary execution of the bond, are estopped from questioning the constitutionality of such statute.</p> <p>4. Same—stay-bond need not be personally delivered by obligor to obligee. A stay-bond need not be personally delivered by the obligor to the obligee in order to give it legal existence, provided there is an intent of the obligor, coupled with acts and words evincing the same, to perfect the instrument and make it at once the absolute property of the obligee.</p>

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

<p>Habeas corpus—coroner cannot require ivitncss at inquest to recognise with sureties. Sections 16 and 17 of the Coroners act, requiring the coroner to recognize a witness to appear at the next term of the circuit court if his testimony at the inquest implicates any person as the unlawful slayer of the deceased and to commit the witness to jail if he does not enter into the recognizance, do not give the coroner authority to order the witness to recognize with sureties, and a warrant of commitment based on a failure to comply with such unauthorized order is void.</p>

<p>Writ of Error to the Circuit Court of Tazewell county; the Hon. J. M. Niehaus, Judge, presiding.</p>

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

<p>1. Wills—when zvife may take as devisee notwithstanding her marriage was invalid. The rights of a devisee are to be determined by the intention of the testator, and the fact that a marriage is invalid will not prevent the ostensible wife of the testator from taking as devisee where the testator gives the property to her as his wife, naming her, even though the record is sufficient to raise the presumption that he knew the marriage was invalid.</p> <p>2. Same—the court must place itself in the situation of the testator. While the intention of the testator as expressed in the will must prevail, yet the court is not bound to disregard the circumstances under which the will was made but should endeavor to place itself in the situation of the testator in order to understand the language in the sense in which it was used.</p> <p>3. Same—when the words "husband” and "wife” will not be taken strictly in primary sense. The words “husband” and “wife” primarily mean only those persons who are actually and lawfully living together as husband and wife, but the surrounding circumstances may extend the meaning of the words to those who are in the ostensible relation of husband and wife although not legally married, especially if it appears such was the testator’s intention-</p>

<p>Appeal from the County Court of Lee county; the Hon. John B. Crabtree, Judge, presiding.</p>

<p>Appeal from the County Court of Knox county; the Hon. R. C. Rice, Judge, presiding.</p>

<p>1. Deeds—whether control of deed deposited with third person under parol contract is lost depends on the validity of the contract. Where a deed an.d a note for part of the purchase price are deposited with a third person in pursuance of a parol contract of sale, the question whether or not the parties to the contract lost control over the respective instruments deposited depends upon the validity or enforceability of the contract as well as upon the intention of the parties.</p> <p>2. Same—when parol contract of sale may be revoked by heir of vendor and the deposited deed be recalled. Where a deed and a note for the first payment on the purchase price are deposited with a third person in pursuance of a parol contract of sale whereby the purchaser is to be delivered the deed when he pays the note deposited and gives another, with interest, for the balance, the contract is unenforceable under the Statute of Frauds, and if the vendor dies before performance by the purchaser her heir may revoke the contract and recall the deed.</p> <p>3. Same—definition of an escrow. An escrow is any written instrument which by its terms imports a legal obligation, and which is deposited by the grantor, promisor or obligor, or his agent, with a stranger or third party, to be kept by the depositary until the performance of a condition or the happening of a certain event and then to be delivered over to the grantee, promisee or obligee.</p> <p>4. Same—what necessary in order that an instrument may operate as an escrow. In order that an instrument may operate as an escrow when delivered to one not a party to the instrument, to be delivered over, in turn, to a party to the instrument upon the performance of certain conditions, there must be a valid contract between the parties as to the subject matter of the instrument and the delivery, otherwise the party making the delivery may recall the instrument.</p> <p>5. Same—undelivered deed is not a sufficient memorandum of contract of sale to satisfy the Statute of Frauds. An undelivered deed is not, standing alone, a sufficient memorandum in writing of a parol contract for the sale of land to answer the requirements of the Statute of Frauds.</p> <p>6. Same—what is sufficient to revoke authority of depositary to deliver a deed to purchaser. Where a deed is delivered to a third party in pursuance of an unenforceable parol contract and the grantor dies before performance by the purchaser of his part of the contract, notice by the heir of the grantor to the depositary not to deliver the deed but to return it to her is a sufficient election not to perform the contract, revokes the authority of the depositary to deliver the deed and renders the deed ineffective to convey title if delivered in violation of the notice.</p> <p>7. Same—rule as to when title vests in grantee upon delivery in escrow. Where a deed is delivered to a third person with instructions to deliver it to the grantee named therein upon the happening of an event which is certain to occur, such as the death of the grantor, the title vests in the grantee upon the delivery in escrow and is not derived through any contract other than the deed itself.</p>

<p>Writ oe Error to the County Court of Pike county; the Hon. Paul E. Grote, Judge, presiding.</p>

<p>1. Criminal law—when record sufficiently shows that effect of pleading guilty was fully explained by court. A record showing a plea of guilty, and that the defendant, “being fully advised by the court of the effects in rendering said plea, he still persisting therein, the court ordered said plea to be accepted and entered of record against the said defendant,” sufficiently shows a compliance with paragraph 424 of the Criminal Code, requiring that the effect of pleading guilty be fully explained by the court.</p> <p>2. Same—language of the court explaining effect of pleading guilty need not be set out in the record. The record must show, as the statute requires, that the effect or consequence of entering a plea of guilty was fully explained by the court to the defendant, but it is not required that the language of the court in making the explanation shall be set out in the record. (People v. Siracusa, 275 111. 457, followed.)</p>

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

<p>1. Wills—verdict of a jury as to heirship in a will contest is merely advisory. The question ’ of heirship is not one upon which the parties are entitled to a jury trial in a proceeding to contest a will, and while it is proper for the chancellor to submit that question to the jury, the verdict, in that respect, is merely advisory, and it is the chancellor’s duty to render such a decree as the law requires under the evidence.</p> <p>2. Same—when child born in slavery is legitimate. Under the act of 1891 (Hurd’s Stat. 1916, p. 1695,) a child born in slavery-must be regarded as a legitimate child, and therefore entitled to inherit and transmit by inheritance, where the slave marriage was never disaffirmed, but, on the contrary, was affirmed by cohabitation until the death of the wife.</p> <p>3. Same—finding of the probate court as to heirship is merely prima facie evidence. A finding of heirship in the order of the probate court admitting a will to probate is merely prima facie evidence as to such heirship, and in a proceeding to contest the will the parties may introduce any other legal evidence on that subject.</p> <p>4. Constitutional law—act of 1891, making children horn in slavery legitimate, is not invalid. The act of 1891, (Hurd’s Stat. 1916, p. 1695,) making children born in slavery legitimate to the same extent as children of a lawful marriage, is not invalid upon the ground that the provision therein regarding the right to inherit is not within the subject of the act, as the making of such children legitimate renders the objectionable provision unnecessary.</p> <p>5. The court reviews the evidence in this case, and holds it insufficient to sustain the verdict finding against the validity of the will on the issues of mental incapacity, fraud and undue influence.</p>

<p>Writ or Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>x. Appeals and errors—zvhen a franchise is involved. An appeal from an order denying leave to file an information in the nature of quo zvarranto to test the legality of the organization of a high school district is properly taken to the Supreme Court on the ground that a franchise is involved, where the assignments of error question the legality of the organization of the district.</p> <p>2. Quo warranto—when leave to Me an information to test legality of organisation of a high school district should be granted. Where an information in the nature of quo warranto to test the legality of the organization of a high school district alleges that the district was organized under the High School act of 1911, which was held invalid in the case of People v. Weis, 275 111. 581, leave should be granted to file the information, but the question whether judgment of ouster shall be entered depends upon the evidence presented at the hearing.</p>

<p>1. Workmen’s compensation—what notice of accident must be given the employer. The Workmen’s Compensation act of 1913 contemplates that the employer shall have notice of the accident, either by formal notice or by knowledge of such facts as will apprise him that his employee has sustained injuries of such a character as to entitle him to compensation and that he may reasonably expect that such claim will be made.</p> <p>2. Same—what is not sufficient notice of the circumstances of the accident. The mere fact that an injured employee of a carpenter told the foreman, in response to a question as to what caused him to limp, that he had wrenched his leg in attempting' to tear up a floor he was working on, without making at that time any claim for compensation or suffering any interruption of his work, is 'not, alone, sufficient notice of the circumstances of the accident to entitle the injured man to compensation under the provisions of section 24 of the Workmen’s Compensation act of 1913. (Parker-Washington Co. v. Industrial Board, 274 Ill. 498, distinguished.)</p> <p>3. Same—section 24 of Workmen’s Compensation act, requiring claim for compensation within six months, is mandatory. The provision of section 24 of the Workmen’s Compensation act requiring a claim or demand for compensation to be made within six months from the date of the accident is mandatory, and unless the claim is made within the requirecbtime recovery will be barred.</p> <p>4. Sams—burden is on claimant to prove a demand within the required time, and such proof is jurisdictional. The making of a claim for compensation, as provided by section 24 of the Workmen’s Compensation act of 1913, is jurisdictional and a condition precedent to the right to maintain the action, and the burden is on the claimant to prove, as a part of his case in chief, that such claim was made, and in absence of such proof the committee of arbitration and the Industrial Board are without jurisdiction to proceed in the matter.</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 Peoria county; the Hon. J. M. Niehaus, Judge, presiding.

<p>1. Deeds—intention of parties to deed is to be gathered from consideration of all its parts. Deeds, as well as other written instruments, are to be considered and construed as a whole, and the intention of the parties must be gathered from a consideration of the entire instrument and all its parts.</p> <p>2. Building restrictions—interior arrangement of a building may be considered to determine which way building fronts. The interior arrangement of a building may be taken into consideration, as well as its external appearance, for the purpose of determining the question as to which way the building fronts.</p> <p>3. Same—doubtful restrictions should be resolved in favor of the reasonable use of the property. Covenants in a deed which hamper the free use of property are to be strictly construed and all doubts should be resolved in favor of the reasonable use of the property,- and where there is a conflict of evidence and doubt among those skilled in the designing and constructing of buildings as to which street a corner building fronts upon and as to whether or not it violates a restriction against facing on the side street, the doubt should be resolved against the restriction.</p>

<p>1. Constitutional law—effect of sections p and 10 of article p of the constitution. Sections 9 and 10 of article 9 of the constitution prohibit the legislature from compelling a town to incur a debt without its consent and from granting the right of corporate taxation to any other than the corporate authorities, who are the municipal officers directly elected by the people to be taxed or appointed in some mode to which such people gave their assent.</p> <p>2. Same—provision of section 55 of Levee act as to restoring bridges in highways is invalid. The third proviso to section 55 of the Levee act, requiring the town to replace or re-construct at its own expense a bridge removed by commissioners of a drainage district when digging a ditch across a public road, is unconstitutional, and it is not material whether the ditch is along a natural water-course or is purely artificial. (Heffner v. Cass and Morgan Counties, 193 Ill. 439, overruled.)</p> <p>3. Highways—•highway commissioners possess sole authority to levy tax or incur debt for roads and bridges. The legislature has imposed the duties of the care of roads and of the construction, maintenance and repair of bridges upon the various towns of the State acting through the highway commissioners, who are the corporate authorities of the town for such purpose and possess the only authority conferred by law to levy a tax or incur a liability for roads and bridges.</p> <p>4. Drainage—when drainage commissioners are in no sense corporate authorities of town. Drainage commissioners of a district composed of parts of two towns and not conterminous with either, who are elected not only in different territory than the highway commissioners but for a different purpose and by a different body of electors, are in no sense corporate authorities of either town and have no power to impose a debt on either town.</p> <p>5. Same—the restoration of a road by drainage commissioners does not require statutory authority. Where drainage commissioners have removed a bridge from a public road when constructing a ditch, they may be required, without the authority of any statute, to restore the road to a condition fit for public travel, and the cost of such restoration may be included in the total estimated cost of the drainage improvement.</p>

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

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. Mazzini SlussER, Judge, presiding.

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

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

<p>Writ oe Error to the Second Branch Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. John K. PrindivillE, Judge, presiding.</p>

<p>1. Practice—bill of exceptions should be taken at the term the rilling is made. A bill of exceptions must be taken at the term at which the ruling excepted to is made or within such further time as the court may at that term grant for that purpose, and a ruling denying a motion for a change of venue at one term is not saved for review by a bill of exceptions taken at a subsequent term.</p> <p>2. Same—it is never too late to question jurisdiction of the subject matter. It is never too late to question the jurisdiction of the subject matter, as such jurisdiction cannot be conferred by the consent of the parties; and the fact that a party appears and joins in error in a case in the Supreme Court does not preclude his right to move to dismiss the suit, after the cause has been remanded, upon the ground that the Supreme Court had no jurisdiction of the subject matter.</p> <p>3. Jurisdiction—judgment of the Supreme Court is not void though case is before it by certiorari instead of appeal. The Supreme Court has jurisdiction of the subject matter of reviewing judgments of the Appellate Court, and its judgment reversing that of the Appellate Court is not void, even though, because of the amount involved, the case should have been brought to the Supreme Court by a certificate of importance and an appeal instead of by a petition for certiorari, where the defendant appeared and joined in error, thus giving the court jurisdiction of his person.</p> <p>4. Bonds—when plaintiff in suit on official bond need not produce the original bond. In a suit on an official bond, where the defendants crave oyer and file an unverified plea of non est factum, it is not essential for the plaintiff to produce the original bond if a certified copy of the bond filed in the office of the Secretary of State is produced, as the plaintiff, in such case, is not required to prove the execution of the instrument.</p> <p>5. Same—when a cause of action for breach of official bond in taking an insufficient appeal bond arises. Where an appeal bond is conditioned that the defendant shall prosecute its appeal and shall pay the judgment, costs, interest and damages in case the judgment shall be affirmed by the Appellate Court, the cause of action for breach of the official bond of the clerk of the court for taking an insufficient appeal bond arises at the time judgment is affirmed.</p> <p>6. Pleading—matters of fact taking case out of operation of the Statute of Limitations should be set up by replication. Where the Statute of Limitations is pleaded, if there are matters of fact which take the cáse out of the operation of such statute they should be set up by replication to the plea and cannot be availed of on demurrer.</p> <p>7. Trial—purpose of opening statement. The purpose of an opening statement is to advise the jury concerning the questions of fact involved, to prepare their minds for the evidence to be heard and give them an idea of the nature of the action -and defense, and it is not error for the court to restrain counsel who is exceeding the proper limits of such statement.</p> <p>8. Same—when permitting lost Mes to be restored without notice is not error. Where the. plaintiff makes a motion to restore lost files at the same time the defendant moves for a new trial, it is not error for the court subsequently to act on the motion without notice and permit the files to be restored, where there is no question as to the correctness of the restored files nor any rule of court requiring notice before acting on the motion.</p> <p>9. Appeals and Errors—ivhen fact that judgment exceeds the amount of damages stated in the summons cannot be availed of. Where the summons in an action for breach of an official bond states- the debt as $10,000 and the damages as $5000, and the ad damnum of an amended declaration filed ten years later is $10,000, the fact that the amount of the judgment, which includes interest during the long pendency of the suit, exceeds the amount of damages stated in the summons cannot be availed of as error on appeal if no attempt to correct the irregularity was made on the trial.</p>

<p>Appeal from the County Court of Jackson county; the Hon. Willard F. Ellis, Judge, presiding. .</p>

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

<p>1. Criminal law—when an information charging adultery will not be quashed although facts stated are inconsistent. Although the facts stated in an information charging adultery and fornication are inconsistent with each other, and the recital of the officer administering the oath, both in body and jurat, is also inconsistent, yet the information will not be quashed if it is sufficient to inform the defendant that he is charged with living in an open state of adultery and fornication with a single woman.</p> <p>2. Same—wife of accused is not a competent witness to prove marriage on charge of adultery. Where a married man is charged with living in an open state of adultery and fornication with a single woman it is necessary that the man’s marriage be proved; but his wife is not a competent witness to prove such fact.</p> <p>3. Same—when it is not necessary to prove whether woman is married or single. Where a married man is charged with living in an open state of adultery and fornication with a single woman, the offense, although joint in one sense, is adultery as to the man, and he may be convicted without proving whether the woman was married or single.</p> <p>4. Same—when judgment will not be reversed notwithstanding errors in admission of evidence. Where the guilt of a married man charged with living in an open state of adultery and fornication with a single woman is so clearly established by competent evidence that no different result could be expected on another trial, the Supreme Court will not reverse the judgment of conviction because of errors in the admission of evidence.</p>

<p>Original petition for habeas corpus.</p>

<p>1. Freehold—no freehold is involved in bill to remove a judgment lien. Where the sole object of a bill to remove a cloud on title is to procure the removal of a judgment as a lien on the land, the loss of the freehold can be avoided by the payment of the judgment if it is held to be a valid lien, and a freehold is not involved in such a controversy.</p> <p>2. Same—freehold not involved in pleadings where defendants admit complainant has title. In cases where the complainant alleges that he holds the title in fee and the defendant denies such allegation, and this question is contested on the trial, the title is put directly in issue in the pleadings and a freehold is involved; but no such issue is involved where the complainant alleges that he took the title in fee and the defendants admit that he did so but claim that he was to hold the title in trust to secure his own and their fees for services as solicitors in the grantor’s divorce suit.</p>

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

<p>Writ of Error to the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding.</p>

<p>1. Deeds—inadequacy of consideration, alone, is not ground for setting aside a deed. Inadequacy of consideration, alone, is not a ground for setting aside transfers of property between persons capable of contracting unless it is so gross as to shock the conscience and furnish evidence of fraud.</p> <p>2. Same—grantee not required to inform grantor of the value of her interest. Where there is no fiduciary relation between the parties nor any circumstance requiring the grantee to inform the grantor of the valué of her interest in an estate which she assigns to him he is not required to do so, and if the transaction is entirely free from fraud or wrongdoing upon the part of the purchaser he may obtain the property as cheaply as he can and the owner has a right to sell for any consideration, however small, and the courts cannot interfere although it appears to have been an unwise transaction on the part of the seller.</p>

<p>1. Criminal law—when evidence of complaint is not admissible in prosecution for rape. In a prosecution for rape, evidence of a complaint made by the prosecuting witness to a third person is admissible in corroboration of her testimony as to the commission of the crime on the ground that it is the natural and spontaneous expression of outraged feeling; but if the complaint is made in response to questions it is not admissible.</p> <p>2. Same—when error in admitting evidence of complaint is not prejudicial. Error in admitting in evidence in a prosecution for rape a complaint elicited by questions is not prejudicial, where the jury did not find the accused guilty of rape but of the lesser offense of an assault with intent to commit rape.</p> <p>3. Same—when it is not error to give instruction authorising conviction for lesser offense. If the evidence in a criminal case admits of but one conclusion, which is that the accused, if guilty at all, is guilty of the crime charged, it is error to give an instruction authorizing his conviction for a lesser offense, such as an attempt to commit the crime charged; but such an instruction may properly be given if there is evidence on which to base it, even though there was also evidence that the crime charged was committed.</p>

<p>1. Registration oe title—degree of proof required to defeat application to register title on ground deed absolute on its face is a mortgage. To defeat an application to register title on the ground that a deed absolute on its face is a mortgage, the degree of proof required is the same as is required in a suit in equity to have a deed absolute in form, purporting to convey the fee and containing no defeasance clause, declared to be a mortgage, and to warrant the court in so finding the evidence must be clear, definite, urn equivocal and convincing.</p> <p>2. Equity—what must be nattire of debt due grantee in order to have deed declared-a mortgage. Before a deed absolute in form can be held to be in the nature of a mortgage there must be an existing debt or obligation which the grantee in the conveyance can enforce by foreclosure proceedings.</p> <p>3. Contracts—what contract by purchaser of land with reference to re-sale is not invalid. Where parties who have made a partial payment on land arrange to have a third party pay the balance due and certain redemption money and take a deed from the owner of the legal title, an agreement by the purchaser giving such parties a definite time in which to sell the land at an enhanced price and keep whatever there may be received over and above a certain price will be sustained when made in good faith and not tainted with usury.</p>

<p>Appear from the Circuit Court of Macoupin county; the Hon. E. W. Burton, Judge, presiding.</p>

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

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

<p>Appeals and errors—right to raise constitutional objection to judgment is waived by suing out writ of error from the Appellate Court. By suing out of the Appellate Court a writ of error to review a judgment the right to raise any then existing constitutional objections to the validity of the judgment is waived, and on a subsequent appeal to the Supreme Court from a decree dismissing a bill brought to enjoin the collection of the judgment such constitutional objections cannot be urged.</p>

<p>1. Wills—intention of the testator must be found by construing words of will in light of surrounding circumstances. In construing a will the intention of the testator as expressed therein must prevail provided it is consistent with the settled rules of law, and this intention must be found by construing the words employed in the will itself in the light of surrounding circumstances.</p> <p>2. Same—will may create life estate in personalty with power of sale and a limited remainder. A will may create a life estate with power to sell and convey the fee before the determination of the life estate, and may also create a life estate in personal property of a durable nature with power of sale of the same, and with a limited remainder, after the termination of the life estate, in whatever is undisposed of.</p> <p>3. Same—language of decisions construing wills must be read in connection with the facts. The language of a decision of the Supreme Court construing a will must always be considered in connection with the facts of the particular case and the points of law raised on the record and necessary to the determination of the case, and since wills are rarely, if ever, identical in wording and often not even similar, decisions construing them are frequently of little value as precedents.</p> <p>4. Same—court should not construe will if the bill is to be dismissed. If a bill to construe a will is to be dismissed for want of equity the court should not construe the will.</p> <p>5. Same—rule as to solicitor’s fees in proceeding to construe will. Where the testator has expressed his intention in his will so ambiguously as to make it necessary to call upon a court of chancery in order to determine which of two or more adverse claims to the same fund or property is valid, the cost of the litigation should be borne by the fund or property in question.</p> <p>6. Same—court of equity may hear bill to construe will without question of trust being involved. Under the act of June 5, 1911, amending section 50 of the Chancery act, a court of equity may, in a proper case, hear and determine a bill to construe a will notwithstanding no question of a trust is involved therein.</p> <p>7. Same—when wife takes a life estate and not the fee. Where a will devises, after the payment of debts and funeral expenses, all the rest of the testator’s property, real and personal, to his wife for life after the executor has sold the tools and machines in the testator’s shop and the stock on hand, and provides that at the death of the wife “the property so devised to my wife, or so much thereof as may remain unexpended,” shall be divided equally among the three named children of the testator, the wife takes a life estate in the real estate without power.of sale and with remainder in fee to the children, but as to the personal property remaining after the payment of debts and funeral expenses, the wife may use it as she needs it, with remainder in what is unexpended to the children.</p>

<p>1. Sanitary districts—authority to sell electrical power can not be conferred on Sanitary District of Chicago except by an act of the General Assembly. Authority to develop and sell electrical power cannot be conferred upon the Sanitary District of Chicago merely because the exercise of such power will be beneficial to the city of Chicago and other municipalities in enabling them to secure electrical power at cost and will also benefit various industries, but such authority, if it exists, must be found in some act of the General Assembly.</p> <p>2. Same—the Sanitary District of Chicago may dispose of water power incidentally created by construction of its drainage canal. By section 7 of the act creating the Sanitary District of Chicago that corporation has authority to dispose of water power incidentally created by the construction of its drainage channel and may sell such power for commercial or municipal purposes.</p> <p>3. Same—when the Sanitary District of Chicago is without authority to take a lease of water power. Increased water power at dam No. 1 of the Illinois and Michigan canal, caused by turning the waters of the Sanitary District of Chicago into a basin above the dam, is not water power incidentally created by construction of the drainage canal within the meaning of section 7 of the act creating the sanitary district, and said district is without authority to take a lease of said water power from the canal commissioners for the purpose of developing and selling electrical power.</p> <p>4. Same—section 5 of act enlarging powers of Sanitary District of Chicago is limited to channel north of upper basin of the Illinois and Michigan canal. Section 5 of the act of 1903, enlarging the powers of the Sanitary District of Chicago regarding the development of water power by the construction of dams, water wheels and other works, is limited to the channel north of the upper basin of the Illinois and Michigan canal, and shows the legislative understanding that the basin is the property of the canal.</p> <p>5. Municipal corporations—what powers may be beneñcially exercised by a municipal corporation is for the legislature. The question what powers may properly be exercised by a municipal corporation and what public benefit will justify the conferring of such power is for the General Assembly and not for the courts, and the powers of such corporations are derived from legislative grants.</p> <p>6. Construction—purpose of construing a statute is to ascertain legislative intent. The purpose of construing a statute is to ascertain the legislative intent and when the intent is ascertained to give it effect if not in violation of the constitution, and when a statute is susceptible of more than one construction the court will give it such construction as will effect the legislative purpose rather than one that will defeat it.</p>

<p>1. Practice-—what must be set up in motion to set aside judgment for error of fact. A motion made under section 89 of the Practice act to set aside a judgment for an error of fact must set up and rely upon such fact or facts as do not appear upon the record and are unknown to the court, and which, if known, would have precluded the rendition of the judgment.</p> <p>2. Same—recitals of judgment cannot be contradicted on motion to correct errors of fact. It is only concerning matters of which the judgment itself is silent that the court may entertain a motion, under section 89 of the Practice act, to correct errors of fact, and affidavits in support of such motion cannot be heard to contradict the record, even though the facts stated, if true, tend to show fraud.</p> <p>3. Same—a judgment and an order of sale need not be entered against all property at same time. Where an application for judgment and order of sale is duly made and the case is argued on the objections and taken under advisement, the court is not required to enter judgment against all of the property at the same time but may enter judgment against part of the property at one term and the remainder at a later term, and no further application or notice to the parties is required.</p> <p>4. Same—case taken under advisement goes over to next term by operation of law. A case taken under advisement which is not disposed of at that term goes over until the next term by operation of law, and the court may at some subsequent term render judgment without additional service on either party.</p> <p>5. Res judicata—what is not res judicata. A finding by the county court, in sustaining a motion to quash the notice and process of sale for a delinquent special assessment, that the application for judgment is still under advisement and that no judgment has been rendered, is not res judicata of the merits of the application for judgment and is no bar to the entry of judgment.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding.</p>

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

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

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

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

<p>1.. Workmen’s compensation—what is principal consideration to distinguish employee from independent contractor. The right to control the manner of doing the work is the principal consideration which determines whether the worker is an employee or an independent contractor.</p> <p>2. Same—what does not show that injured person was an independent contractor. The fact that a day laborer employed by a street railway company and belonging to its hospital association makes an oral contract with the company’s engineer to unload coal at the plant at five cents a ton, using the company’s tools but hiring his own help, does not show that he was an independent contractor and not an employee, where his work was to be done under the direction of the head fireman and he was subject to discharge without notice, and where the company continued to retain his hospital dues from his pay, furnished free medical services and gave him a pass, which was a favor given employees, only.</p> <p>3. Same—when an employee is injured in the course of his employment. If there is evidence that an employee whose business was to unload coal at his employer’s plant was sometimes sent to the railroad yards to see about getting cars of coal switched to the plant and that on the occasion of his injury he had gone to the yards for that purpose, then his act in getting upon the rear step of a switch engine to communicate his business to the switchmen standing thereon is within the course of his employment, and if he falls or is thrown from the engine and is injured, the injury is one received in the course of his employment.</p> <p>4. Same—employer is liable for an injury to employee in the course of employment regardless of question of negligence. The liability imposed by the Workmen’s Compensation act has no connection with the negligence of either the employer or the employee, and an injury arising out of and in the course of the employment creates the liability without any question of fault of either party.</p> <p>5. Same—when amount of the award is properly determined on basis of full working year. If there is evidence that the men employed to do the work in which an injured employee was engaged worked substantially every working day in the year, the amount of the award is properly based on paragraph (d) of se.ction to of the Workmen’s Compensation act of 1913 and not on paragraph (e) of said section.</p>

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

<p>1. Drainage—land owners cannot bind commissioners by contracting for particular kind of drain. Land owners of a drainage district cannot bind the commissioners by contracting for a tile drain in consideration of a release or conveyance of the right of way for the main ditch through their lands, and the commissioners have power to change the tile drain to an open ditch if they deem a tile drain inadequate, provided they secure the right of way for the open ditch by release or condemnation.</p> <p>2. Same—duty of commissioners to provide adequate outlet for waters of district is mandatory. The Farm Drainage act expressly confers authority upon the commissioners to correct errors committed in locating or constructing ditches if it is found that the system adopted is inadequate to drain or protect the lands of the district, and the duty to thus provide an adequate outlet for the waters of the district is mandatory.</p> <p>3. Same—exercise of discretion of drainage commissioners will not be interfered with unless fraudulent and oppressive. Where no facts are alleged from which it appears that the drainage commissioners are about to exercise their powers in a fraudulent and oppressive manner, a court of equity will not interfere with the exercise of the discretion of the commissioners as to the relative merits of an open ditch or tile drain.</p>

<p>1. Practice—the appellant will not be prejudiced by failure of judge to sign bill of exceptions within required time. If a bill of exceptions is presented to the trial judge in time to be filed within the time allowed by the order of the court, the appellant will not be prejudiced by the failure of the judge to sign the bill until after the time fixed for filing has expired, and if it is signed after the expiration of such time it may be filed at once without the - entry of an order nunc pro tunc.</p> <p>2. Same—signature of the judge to bill of exceptions authorizes the bill to be Med. Where the signature of the judge is attached to a bill of exceptions which has been presented in time the signature must be regarded as authenticating the bill in the manner required by law and authorizing it to be filed, and the act of the judge in signing amounts tó a direction to file the bill.</p> <p>3. Special assessments—engineer’s estimate need not contain detailed statement of amount and character of material. It is not essential that the engineer’s estimate of the cost of the proposed improvement contain a detailed statement of the amount and character of material-that will be necessary to construct the improvement.</p> <p>4. Same—engineer’s duty is merely to estimate the cost of improvement described. It is not the duty of the engineer, in making the estimate, to determine the character of the material to be used but merely to estimate the cost of the improvement described in the resolution, and he is required only to itemize the estimate to the satisfaction of the board of local improvements.</p> <p>5. Same—when the estimate is sufficiently itemized. The engineer’s estimate is sufficiently itemized, so far as the property owners are concerned, if it is specific enough to give them a general idea of the estimated cost of the substantial component elements of the improvement.</p> <p>6. Same—details of the work may be left to the board of local improvements. A substantial compliance with the Local Improvement act is all that is necessary, and the improvement ordinance need not set forth in minute detail every particular of the improve-. ment and every circumstance of the work, as some discretion as to the details must necessarily be left to the board of local improvements.</p> <p>7. Same—whether particular work is a local improvement is a question of fact. What is a local improvement is a question of law, but whether the facts in the particular case bring an improvement within the definition so that it may be regarded as a local improvement is a question of fact.</p> <p>'. 8. Same—whether particular improvement is local must be determined by a consideration of the evidence. Whether a particular improvement is a local one must be determined by a consideration of the evidence as to the nature of the work, the situation of the improvement and the surrounding conditions, and the Supreme Court cannot determine that question if the evidence is not in the bill of exceptions.</p> <p>9. Same—when city cannot introduce evidence of benefits from other previous improvements in other parts of the city. On the hearing as to benefits the city cannot introduce evidence to prove that other parts of the city not affected by the improvement in question had been improved in years past and had been benefited an amount equal to or greater than they had been assessed, where the circumstances under which such previous improvements were made and the character of the improvements are not shown.</p> <p>10. Same—when convenience of travel may be considered. While convenience for public travel cannot be the basis of an assessment for benefits for a paving improvement where the only advantage derived is such as is shared with the general public and is not of special benefit to the property assessed, yet if the additional convenience, by reason of the location of the property or otherwise, gives a- special increased value to the property which is a benefit over and above that enjoyed by the public generally, then such convenience may be taken into consideration.</p> <p>11. Same—when property additions not adjoining the improved street may be assessed. Property additions tributary to but not adjoining the street to be paved, which is the main thoroughfare by which the inhabitants of such property may reach the city, thus giving them a special interest in the street different from that of the general public, are specially benefited by the improvement and may be assessed.</p>

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

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

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

<p>Eminent domain—what should not be considered in estimating value of land taken. Where the front portion of a corner lot is to be taken for the widening of the street the owner is entitled to the actual value of the part taken without regard to the effect, if any, of the improvement upon the part not taken, and it is not proper to consider the fact that the part not taken "will be a corner lot after the improvement is made.</p>

<p>Writ op Error to the Circuit Court of Warren county; the Hon. R. J. Grier, Judge, presiding.</p>

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

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

<p>1. Practice—motion to dismiss for want of jurisdiction of subject matter may be made after trial. A motion to dismiss for want of jurisdiction of the subject matter may be made after trial or at any time, as jurisdiction of the subject matter cannot be conferred by consent of the parties.</p> <p>2. Jurisdiction—jurisdiction of the State courts must be determined from the State constitution and laws. Whether a circuit court in Illinois has jurisdiction of an action for damages under the Federal' Employers’ Liability act must be determined by the laws and constitution of Illinois, as Congress cannot confer jurisdiction upon any court which it has not created.</p> <p>3. Same—extent of Federal restriction upon power of State to determine the jurisdiction of its courts. There is no restriction in the Federal constitution upon the power of a State to determine the limits of the jurisdiction of its courts, except that the State must give to citizens of other States the same rights that it accords to its own citizens.</p> <p>4. Same—meaning of provision of Federal Fmployers’ Liability act as to jurisdiction of State courts. The provision of section 6 of the Federal Employers’ Liability act that the jurisdiction of the United States courts “shall be concurrent with that of the courts of the several States,” etc., means only that when the jurisdiction of the courts of a State as fixed by local laws empowers them to hear and determine a certain class of actions, an action of that class arising under the Federal act may be enforced as of right in the State courts.</p> <p>5. Same—there is a clear distinction between creating a cause of action and providing a remedy. There is a clear distinction between creating a cause of action and providing for its enforcement, as the legal right comes into existence by the enactment of the law, while the remedy is provided by establishing courts and bestowing jurisdiction upon them.</p> <p>6. Same—limit of remedy in State court for cause of action under Federal act. So far as the Federal constitution is concerned, a State court which has jurisdiction of the class of "causes of action created by. the Federal Employers’ Liability act can give such remedy, only, as it is authorized to give citizens of the State having similar rights.</p> <p>7. Same—when Illinois court has no jurisdiction to enforce an action under Federal Bmployers’ Liability act. The proviso to section 2 of the Injuries act of 1853, as amended in 1903, that “no action shall be brought or prosecuted in this State to recover damages for death occurring outside of this State,” precludes the circuit courts of Illinois from taking jurisdiction of an action under the Federal Employers’ Liability act where the death occurred in another State, notwithstanding the provision of section 12 of article 6 of the Illinois constitution giving circuit courts original jurisdiction of all causes in law and equity.</p> <p>Craig, C. J., and Farmer and Duncan, JJ., dissenting.</p>

<p>1. Eminent domain—owner of property taken in condemnation is entitled to its value for most profitable use in its present capacity. The owner of property appropriated for a public use is entitled to its value for the most profitable use for which it is available; but this availability does not refer to a mere future possibility, but to a present capacity for a use which may be anticipated with reasonable certainty and made the basis of an intelligent estimate of value.</p> <p>2. Same—when a railroad company is entitled to only nominal damages for taking of land already burdened with perpetual easement in public. Where a railroad owns a tract of land which is used as an approach to a public viaduct and which is burdened with a perpetual easement in the public, the company is entitled to only nominal damages for the taking of such tract in widening a street and constructing a new viaduct, and the possibility of the use of such tract by the city for subway purposes after the new viaduct is constructed is too remote to furnish ground on which to base an intelligent estimate of just compensation.</p> <p>3. Same—report of commissioners is prima facie evidence of damages but is not conclusive. The report of the commissioners in a condemnation case is prima facie evidence of the amount of compensation to be awarded, and one who claims such amount is too great or too small has the burden of introducing evidence to establish his claim.</p> <p>4. Same—what rights are acquired by city in condemning railroad property for public street without any restrictions. The condemnation of railroad property for a street across the tracks of the railroad company, unless the use is in some way restricted, authorizes the use of the street on the surface or above or below the surface by viaduct or subway, and the use for public travel on the surface is necessarily inconsistent with its use by the company.</p> <p>5. Same—party seeking condemnation may be permitted or required to exhibit evidence showing how it is proposed to use the easement. In appropriate cases the party seeking condemnation may be permitted or required to exhibit plans and introduce evidence showing the manner in which it is proposed to use the easement to be acquired, the object of the introduction of such evidence being to enable a just estimate to be made of the damages by showing the rights to be taken and acquired by the condemnation.</p> <p>6. Same—petitioner in condemnation is bound by specifications for the improvement. The petitioner in a condemnation proceeding is bound by the plans and specifications of the work to be done and cannot depart from them to the injury of the land owner without additional compensation.</p> <p>7. Same—specifications for improvement need not be stated in petition but may be fixed by stipulation made on the trial. Where the petitioner and a land owner have entered into a contract determining their rights in regard to the construction and operation of a proposed improvement it is not necessary to amend the petition in the condemnation proceeding and set out the contract but it is sufficient to produce it at the trial, and it is not necessary that either the ordinance or petition set out the particular rights to be acquired under the proceedings.</p> <p>8. Same—court has power to state in its judgment in condemnation the nature of the interest vested in the petitioner. In whatever language the judgment in a condemnation proceeding may be rendered the statute will limit its effect to the rights which the statute authorized to be condemned, but the court has the power to specifically state in the judgment the nature of the interest vested in the petitioner.</p> <p>9. Same—when judgment in condemnation should restrict the rights of petitioner in accordance with terms of contract with land owner. In a condemnation proceeding for the widening of a city street and the construction of a new viaduct over the property of a railroad company, where a contract guaranteeing the rights of the company to the use of the condemned property for its tracks and warehouses beneath the viaduct is introduced in evidence, the judgment should specifically restrict the rights of the city to the terms of the contract.</p> <p>10. Same—evidence of future use of railroad property for erection of warehouses is not admissible in a condemnation proceeding. In a condemnation proceeding for the widening of a street by the construction of a viaduct over railroad property the railroad company cannot introduce evidence of the availability of its property as a freight terminal and of the possible future erection of lofty warehouses which the viaduct will prevent, but the measure of damages is the reduced value of the property for serving the purpose for which it was previously used.</p> <p>11. Highways—what is necessary to constitute such abandonment of a public highway as will return the property to the abutting owner. To constitute an abandonment of a public highway so as to return the property to the abutting owner there must not only be a cessation by the public authorities to use or assert control over the highway but there must be an obstruction by some private person on the faith that the highway has been abandoned and acquiescence in such obstruction by the public authorities.</p>

<p>Corporations—when unpaid balance of subscription to capital stock cannot be allowed as a claim against subscriber’s estate. An unpaid balance of a subscription to the capital stock of a corporation cannot be allowed as a claim by the corporation against the subscriber’s estate, where the corporation has paid its debts, disposed of its property and ceased to do business because the enterprise was unprofitable, and where it cannot be ascertained what proportion of the unpaid subscription is required to pay said subscriber’s share of the losses sustained by the corporation.</p>

<p>Wills—when remainder after life estate is contingent and not a vested estate tail. Where a will devises certain property to a devisee for “her natural life, remainder in fee simple to the heirs of her body,” the remainder, being to the “heirs of her body,” is not in fee simple, and is not in fee tail because said heirs are directed to take in fee simple, but such remainder is contingent, and a conveyance of the life estate by the life tenant to one who holds the reversion will destroy the contingent remainder and the grantee will take in fee simple. (FEtna Life Ins. Co. v. Hoppin, 249 Ill. 406, adhered to; Butler v. Huestis, 68 id. 594, distinguished.)</p>

<p>1. Constitutional law—construction of amendment of 1908, relating to canals, not determined by extraneous matters. In construing the amendment of 1908 to section 3 of the constitution, relating to canals and waterways, neither political speeches, reports of commissions, messages of State officers nor previous resolutions of the General Assembly while the deep waterway project was being agitated can be regarded as determining the meaning of the term “deep waterway” or as indicating the depth intended by the said amendment.</p> <p>2. Same—principles governing construction of statutes apply in construction of constitutions. The general principles governing the construction of statutes apply in the construction of constitutions.</p> <p>3. Same—the intent of a constitutional provision is to be found in the instrument itself. In construing a constitutional provision, if the words used convey a meaning which leads to no absurdity and no contradictions, the meaning apparent upon the face of °the instrument is the one which, alone, the' courts are at liberty to say was intended to be conveyed.</p> <p>4. Same—presumption is always in favor of the validity of a law. The presumption is always in favor of the validity of a law, and unless it is in plain and obvious conflict with the constitution the court will not pronounce against its constitutionality, and in doubtful cases the doubt will be resolved in favor of the legislative power.</p> <p>5. Same—“deep waterway amendment" to section 3 of constitution leaves the depth of canal to be determined by legislature. The amendment of 1908 to section 3 of the constitution, relating to canals and waterways, leaves the question of the depth of the canal and other matters relating to its construction to the determination of the legislature.</p> <p>6. Same—the State constitution is not a grant of powers but a limitation. The State constitution is not a grant of powers to the legislature but a limitation upon its powers, without which the legislature would be omnipotent to act.</p> <p>7. Same—meaning of “waterway” and “canal” in deep waterway amendment to the constitution. By the terms “waterway” and “canal,” as used in the deep waterway amendment of 1908 to section 3 of the constitution, is meant a waterway for commercial purposes which will be large enough and deep enough to permit the passage of such watercraft as will ordinarily use the canal.</p> <p>8. Same—when interpretation of, the constitutional provision by the legislature is entitled to consideration. If the language of an amendment to the constitution, framed by the legislature, is ambiguous, the construction of such language by the subsequent acts of the legislature is entitled to consideration.</p> <p>Dunn, Cartwright and Carter, JJ., dissenting.</p>

<p>1. Registration oe title—application need not set out the defects of the defendant’s title. An application to register title need not state specifically wherein a tax title through which defendant claims is invalid, since that is a matter for proof.</p> <p>2. Same—when defendant to application to register title should not be awarded his appearance fee. A defendant to an application to register title who had no interest in the land but who filed a demurrer should not be awarded his appearance fee where the record does not show he paid the fee and where counsel who represent him also represented another defendant to whom an appearance fee was awarded by the decree.</p>

<p>Writ oE Error to the Circuit Court of DuPage county; the Hon. Mazzini Slusser, Judge, presiding.</p>

<p>1. Inheritance tax—stocks of foreign corporations owned by non-residents are not taxable under Inheritance Tax law. Shares of stock of foreign corporations owned by non-residents are not taxable under the Inheritance Tax law although such corporations do business and have tangible property in this State. (People v. Cuyler, ante, p. 72, and People v. Dennett, ante, p. 43, followed.)</p> <p>2. Same—a debt due the deceased is not taxable under the Inheritance Tax law. Under the Inheritance Tax law debts due the deceased are not taxable, and where a sum of money is due a testator for the payment of which certain property is held in trust by him by virtue of a trust agreement, the transfer of the amount by will, which directs a sale of the trust property, cannot be taxed.</p>

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