Volume 281 — Illinois Reports

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

<p>1. Appeals and errors—Appellate Court reversing a judgment for error of fact must make a finding of fact. The Appellate Court may reverse a judgment for error of law or error of fact, and if for error of law, which may be corrected on another trial, the cause must be remanded, but if for error of fact, where no material evidence has been wrongfully excluded, its judgment may be final, but the ultimate facts upon which the.judgment rests must be found and recited in the judgment, leaving the Supreme Court to determine whether the law was properly applied to the facts as found.</p> <p>2. Same—ivhat is not finding of fact in Appellate Court’s judgment. A finding in the judgment of the Appellate Court that the plaintiff did not prove the defendant liable in manner and form as charged in her statement of claim and has failed to prove any actionable negligence against the defendant is not a statement of any ultimate fact but only a conclusion of the court as to the legal liability of the defendant under the law as the same is interpreted by the court.</p> <p>3. Same—when the Appellate Court is presumed to have found facts same as trial court. Where the Appellate Court makes no finding of fact in its judgment reversing the judgment of the lower court without remanding the cause, it is presumed to have found the facts the same as the trial court.</p> <p>4. Bailments—degree of care required of a safety deposit company. A safety deposit company is bound to use ordinary care in keeping a box which is rented by a customer although the customer has the key, as the duty of exercising' such care arises from the nature of the business which the company carries on, and the obligation to discharge the duty is implied from the relation of the parties, regardless of any stipulation.</p> <p>5. Same—what is meant by ordinary diligence. Ordinary diligence means that degree of care, attention or exertion which, under the circumstances, a man of ordinary prudence would use in reference to the particular thing were it his own property or in doing the particular thing were it his own concern.</p> <p>6. Same—what is sufficient statement of cause of action against a safety deposit company. An allegation in a statement of claim against a safety deposit company that the plaintiff leased from the company a safety deposit box, paid the rent and deposited her money in the box, which was left under the care, control and management of the company, and that when she opened the box several months afterward the money had been abstracted without her consent or knowledge, states a good cause of action against the company.</p> <p>7. Same—when presumption arises that loss was due to bailee’s negligence. Where a bailee receives property and fails to return it the presumption arises that the loss was due to his negligence, and the law imposes on him the burden of showing that he exercised the degree of care required by the nature of the bailment.'</p>

<p>1. Mandamus—demurrer to answer to petition for mandamus cannot be carried back to reach defect in affidavit. A petition for mandamus must be positively verified by affidavit, but a demurrer to the answer of the respondents cannot be carried back to the petition to reach a defect in the affidavit, as the respondents should, before pleading, have moved the court to strike the petition from the files for want of a sufficient affidavit.</p> <p>2. Same—demand and refusal not necessary before Ming petition to compel performance of public duty. The rule that before applying for mandamtis a demand should be made on the defendant to perform the act or duty required of him, and that there must be a refusal to comply therewith, does not apply where the duty is of a public nature, as where it is sought to compel a circuit judge to expunge a void order from the record and to compel the sheriff to apprehend a prisoner released by such order.</p> <p>3. Habeas corpus—a prisoner will not be discharged although sentence of imprisonment is excessive. Where the court has jurisdiction of the person and of the offense a prisoner will not be discharged on habeas corpus because the sentence of imprisonment is excessive unless the sentence which might legally have been imposed has been served; nor will he be discharged because the sentence of imprisonment is unauthorized, where a fine,- legally assessed, has not been paid and there is a commitment until the fine is paid.</p> <p>4. Same—a prisoner held under process based on judgment of court having jurisdiction should not be discharged. If, from the petition and return in a habeas corpus proceeding to obtain the discharge of a prisoner held under process based on a judgment, it appears that the court rendering the judgment had jurisdiction of the person and subject matter, the court to which the habeas corpus petition is addressed should decline to discharge the prisoner, .and an order of discharge by said court is void and should be disregarded by the officer to whom it is directed.</p> <p>5. Same—when prisoner will not be discharged because sheriff had no mittimus. Where a judgment of conviction and sentence to jail have been entered, and the court has directed the sheriff, who is personally present, to commit the offender, the prisoner, who is safely in the proper custody, will not be discharged in a habeas corpus proceeding because the sheriff had no mittimus.</p> <p>6. Sams—mandamus is proper remedy to compel expunging of void order of release entered in habeas corpus proceeding. Where the circuit court has entered a void order setting aside a judgment, or has declared a judgment void that is legal and released the petitioner from custody in a habeas corpus proceeding, a petition for mandamus to compel the court to expunge the void order is the proper remedy.</p> <p>y. Criminal law—separate judgments should be entered where several indictments are consolidated for one trial. Where a defendant is charged in separate indictments with having committed the offense of selling liquor in anti-saloon territory at different times, and an agreement is entered into between the defendant’s counsel and the State’s attorney to try all the cases together by one jury, there should be a separate verdict and judgment on each indictment.</p>

<p>Deeds—deed will be reformed only zvhen evidence of mutual mistake is certain. To justify the reformation of a deed in equity the evidence must be strong and convincing that there was a mutual mistake by the parties in the respect alleged, and such remedy will not be granted upon a probability or mere preponderance of the evidence.</p>

<p>Appeal from the Circuit Court of Sangamon county; ' the Hon. Frank W. Burton, Judge, presiding.</p>

<p>1. Mechanics’ liens—when contractor has his remedy under. Mechanic’s Lien law as an original contractor. Where a railroad company and a construction company organized to construct the railroad have the same officers, and are, in effect, one and the same, one who contracts with the construction company to build the railroad may pursue his remedy under the Mechanic’s Lien law as an original contractor with the railroad company.</p> <p>2. Equity—when demurrer for zvant of equity cannot be sustained. A demurrer to a bill for want of equity cannot be sustained unless the court is satisfied that no discovery or proof warranted by'the allegations in the bill can make the subject matter of the suit a proper case in equity,</p>

<p>1. Workmen’s compensation—making or maintaining an ordinary dirt road is not an extra-hazardous occupation. A common dirt road is not a “structure” within the meaning of that term as used in paragraph (6) of section 3 of the Workmen’s Compensation act, and the making or maintaining of an ordinary dirt road in the ordinary way cannot be reasonably said to be a dangerous or extra7hazardous occupation.</p> <p>2. Same—provision of the Workmen’s Compensation act making townships liable as employers is not invalid. The provision of the Workmen’s Compensation act making townships liable as'other employers who are under the act is not, invalid, as the legislature has the power to make townships liable for damages to employees employed by their officers, whether caused by the torts of the officers or incidental to the employment.</p> <p>3. Same—election not to come imdér Compensation act may be made by commissioners of highways. The Workmen’s Compensation act contemplates that township officers who employ the workmen and direct the work being done may make the election provided for in the act, and the commissioners of highways may, on behalf of the township, elect not to pay compensation under the act to employees working on the public highways, but if they fail to make the election the township is presumed to be under the act.</p> <p>4. Same—damages for which township is liable as employer is part of the cost of the work. The damages for which, under the Workmen’s Compensation act, a township is liable as employer constitute a part of the cost of the work in which the township is engaged, and it is not necessary that the act provide means by which the money may be raised to pay the award.</p> <p>5. Same—when dynamiting stumps in repairing road is a casual employment. Where it becomes necessary, in making a dirt road, to dynamite some stumps, which can be done in a few hours’ time and which is seldom necessary in the road work of the district, the work of dynamiting is a casual employment, and a teamster employed by the highway commissioners to plow and grade the road, and who is injured while assisting in the dynamiting, cannot recover under- the Workmen’s Compensation act.</p>

<p>1. Appeals and errors—when Supreme Court has no jurisdiction to determine validity of an ordinance. Where a bill in equity confers no jurisdiction on the trial court to determine the validity or constitutionality of an ordinance the Supreme Court has no jurisdiction to consider that question on appeal.</p> <p>2. Injunction—when question of validity of ordinance is not cognisable in a court of equity. A court of equity cannot entertain a bill to enjoin the prosecution of a suit at law for the violation of an ordinance upon the sole ground that the ordinance is invalid. (Condon v. Village of Forest Park, 278 111. 218, distinguished.)</p> <p>3. Same—when court of equity may interfere with a prosecution for the violation of an invalid ordinance. If it clearly appears in a bill for an injunction that a prosecution for the violation of an invalid ordinance has been commenced in a court of law and that that court cannot adequately protect the rights of the defendant because the controversy properly includes some equitable feature which can be determined only by a court of equity, such court may, and should, interfere and decide the controversy.</p> <p>4. Same—when an injury is irreparable. An injury may be said to be irreparable when it is of such a nature that the injured party cannot be adequately compensated therefor in damages or when the damages which result therefrom cannot be measured by any certain pecuniary standard.</p> <p>5. Same—bill must allege facts showing an irreparable injury. Where the ground of equitable relief in an injunction suit is irreparable injury, it is not sufficient to charge in the bill, in general terms, that the complainant will sustain such injury, but facts and circumstances must be alleged from which it may be seen that irreparable injury will be the result of the acts complained of and that the law can afford no adequate remedy.</p>

<p>1. Divorce—marriage between cousins of the first degree is void and not merely voidable. Under the amended act of 1887 a marriage between cousins of the first degree is void and not merely voidable, and such a marriage, being prohibited by law and made a criminal offense, cannot become valid by ratification or estoppel.</p> <p>2. Same—party to marriage with cousin of first degree is not estopped to allege illegality. A party to a marriage with a cousin of the first degree is not equitably estopped to allege the illegality of the marriage as a defense to a suit for divorce and alimony, as in such case the public interest prevents the application of the rule that equity will not entertain the complaint of one who comes into court with unclean hands.</p> <p>3. Same—temporary alimony and solicitor’s fees rest in discretion of court. Temporary alimony and solicitor’s fees are not allowed as a matter of right but rest in the sound discretion of the court under the circumstances of the case, and are dependent on the inability of the complainant to provide for herself and pay the expenses of the suit and upon the ability of defendant to do so.</p>

<p>1. Highways—location of property and its surroundings must be considered in determining intention to dedicate it to public use. In determining whether property has been dedicated to public use for a street the location of the property and its surroundings must be considered together with the acts and declarations of the owner, the intention to dedicate being more readily presumed in regard to urban than to country property and in regard to well settled country than in regard to wild'or sparsely settled land.</p> <p>2. Same—building fences on street lines extended is evidence of a dedication. Fencing out of strips of land by the owner and leaving them in the direct lines of other streets or roads affords strong evidence of their being left for street purposes and in the absence of countervailing evidence might be accepted as satisfactory proof of their dedication.</p> <p>3. Same—owner cannot repudiate a dedication once accepted. Where the proper authorities have accepted a dedication of land for a street, neither the owner nor subsequent owners claiming under him can by subsequent acts repudiate the dedication and regain possession of the strip of land.</p> <p>4. Same—when evidence that strips of land claimed as a street were taxed may be conclusive against dedication. In a close case, where an easement over strips of land is claimed by a village by dedication, the taxing of the strips or the levying of special assessments thereon by the village might be persuasive, and even conclusive, that there was no accepted dedication, but it is of no consequence, in such case, that the township, county or State officers included said strips in their assessments and collected taxes on them, as the village could not be bound by their acts.</p> <p>5. Same—burden is on owner of land claimed as street to show uninterrupted use by public was tender license. Where the proof shows uninterrupted use by the public of an alleged street or alley for the period necessary to establish a street or alley by prescription, the burden is on the owner of the land to show that such use was under some license inconsistent with the claim of right by the public.</p> <p>6. Same—a village cannot sell its streets for a money consideration. As a village and its officers hold the title to its streets in trust for the use of the public, they cannot barter or sell them for a money consideration and can only vacate them for some cause recognized by law.</p>

<p>Appeal from the Circuit Court of Carroll county; the Hon. R. S. Farrand, Judge, presiding.</p>

<p>Appeal from the County Court of White county; the Hon. James M. Endicott, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>1. Constitutional law—the legislature has broad discretion in making classifications for police regulation. The legislature has a broad discretion in making classifications for police regulation, and the requirement of the constitution that laws shall be general does not mean that every statute shall have effect upon every individual and in every locality.</p> <p>2. Same-—-presumption is in favor of validity of doubtful police regulation passed to meet existing evils. It is for the legislature to determine when the conditions exist calling for the exercise of police power to meet existing evils, and when the legislature has acted the presumption is that the act is a valid exercise of such power.</p> <p>3. Same—Doan Shark act of ipip is not unconstitutional. The Loan Shark act of 1917, (Laws of 1917, p. 553,) permitting a higher rate of interest than seven per cent per annum for the loan of sums of $300 or less in case the lender shall comply with the provisions of the act and secure a license for such business, is not invalid as making an unlawful classification or as improperly abridging the right to contract, but is a valid exercise of the police power of the State to regulate the business of making small loans and remedy the existing evils connected therewith. (Massie v. Cessna, 239 111. 352, distinguished.)</p> <p>4. Same—purpose of constitutional provision against including subjects not expressed in title of act. The purpose of the constitutional provision that an act shall not include subjects not expressed in its title is not to require the title to be an index of the subject matter but merely to indicate the general subject matter so as to prevent fraud upon the public by the insertion of provisions not so indicated; and this purpose may be served by a title expressing either a brief, general statement of the objects of the act or the principal features of the act more in detail.</p> <p>5. Same—the title of the Doan Shark act sufficiently indicates subject matter. The subject matter of the Loan Shark act of 1917 is sufficiently indicated by its title, even though it does not refer to the exceptions mentioned in section 5a nor to the repealing clause of the act, and though the act itself, while purporting to regulate the “business of making loans,” is so drawn as to include a single transaction.</p> <p>6. Same—Loan Shark act is not an amendment of the Interest law. The Loan Shark act is complete in itself and is intended to regulate the business of making loans of small sums of money, and the fact that it incidentally contains a provision as to rates of interest does not render the act an amendment to the Interest law.</p> <p>y. Same—Loan Shark act does not confer judicial powers upon the department of trade and commerce. The provision of the Loan Shark act of 1917 giving to the department of trade and commerce the power to license and regulate the business of making small loans, as provided in the act, and incidentally giving the right to determine whether or not an applicant for such license possesses the qualifications required by law, is not a grant of judicial powers within the meaning of the constitution.</p>

<p>1. Taxes—the county board cannot levy for full amount of the State’s attorney’s salary without deduction of amount to be received in fines, fees and forfeitures. While the county board may exercise a reasonable discretion in the matter, it has no authority to levy the full amount of the salary of the State’s attorney or his assistants without deduction of the amount of fines, fees, forfeitures and penalties that will .probably be collected by him and turned into the county treasury for the year for which the levy is made.</p> <p>2. Same—court cannot take judicial notice whether there are subordinate officers in a county. There are a number of subordinate county officers whose salaries may be rightfully included in an item of the county tax levy for “salaries of county officers,” and the Supreme Court cannot, in order to determine whether such item is excessive, take judicial notice whether or not a particular county has such officers, and if.so, the number thereof and their salaries.</p> <p>3. Same-—the party objecting to tax must prove its invalidity. Parties objecting to a tax have the burden of proving its invalidity, as the presumption is that all officers having any connection with a tax have properly discharged their duties as to the levying of the same, and this presumption can be overcome only by clear testimony.</p> <p>4. Same—no levy can be made for damages for laying out or altering road unless damages have been agreed upon and allowed. No additional tax levy to pay damages for laying out or altering a road "can be made unless the damages have been agreed upon, allowed or awarded to property owners, and the record of the highway commissioners must show that damages have been allowed for such purpose.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding.</p>

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

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

<p>1. Workmen’s compensation—violation of ordinance is not a bar to claim for -compensation. The fact that at the time an employee of a private contractor was killed he was, by invitation of an employee of a railroad company, violating an ordinance forbidding persons from crossing the tracks of a railroad which had been elevated pursuant to ordinances of the city, is not a bar to a claim for compensation.</p> <p>2. Same—when an injury arises out of the employment. Where a workmen employed by a private contractor to unload stone from cars on a team track near elevated railroad tracks is invited by the yardmaster of the railroad company to enter upon the tracks and board a slowly moving cut of cars in order to get tools and work clothing out of a car where the workman had left them the night before on leaving the car partially unloaded and is killed by an express train as he entered upon the tracks, the injury must be held to arise out of the employment, where it was customary to leave the tools in partially unloaded cars and to recover them in case the cars were moved during the night, and where it was necessary to make use of the tools in unloading stone from other cars.</p> <p>3. Same—contributory negligence no defense under Workmen’s Compensation act. Contributory negligence, under the Workmen’s Compensation act, is not a defense and does not affect the question whether the act of the employee was within his employment.</p>

<p>1. Offices—who is a de facto officer. A de facto officer is one who actually performs the duties of an office with apparent right, under claim of color of appointment or election.</p> <p>2. Same—salary paid to de facto officer while in office cannot be recovered by de jure officer. A salary or compensation which has been paid in good faith to a de facto employee during the time the position was in his possession capnot be recovered again from the city, county, State or other governmental subdivision by the de jure officer; and this rule applies with the same force to payments made tc a de facto occupant of a position of public employment although not an officer. (People v. Coffin, 279 111. 401, distinguished.)</p>

<p>1. Appeals and errors—Supreme Court will interfere where the trial court’s discretion in denying motion to set aside default is abused. A motion to set aside a default and for leave to plead to the merits is addressed to the sound legal discretion of the trial court, but the Supreme Court will interfere where it is made to appear that there has been an abuse of the trial court’s discretion in denying such motion and that the party filing the motion has a meritorious defense to the entering of the judgment.</p> <p>2. Workmen’s compensation—when circuit court cannot review decision of Industrial Board. Upon the filing in the circuit court of a certified copy of the decision of the Industrial Board under section 19 of the Workmen’s Compensation act of 1913, the circuit court is not authorized to review the decision of the Industrial Board but will enter judgment on the award upon a showing being made that the requirements of the statute have been complied with.</p> <p>3. Same—when circuit court should allow motion to set aside judgment by default. Where the circuit court, under section 19 of the Workmen’s Compensation act of 1913, has entered a judgment on the decision of the Industrial Board while the attorneys for the defendant, for a proper reason, were absent from court, a motion to set aside the default and for leave to plead to the merits should be allowed upon a showing by affidavits that the defendant has a meritorious defense to the application.</p> <p>4. Same—purpose of section 19 of act of 1913 authorising attorney’s fees for entering judgment in circuit court. The purpose of the provision of section 19 of the Workmen’s Compensation act of 1913 authorizing attorney’s fees for entering judgment in the circuit court on an award of the Industrial Board is to allow such fees only in cases where the defendant has refused to pay the compensation and the claimant must incur further expense and delay by being forced to reduce the award to judgment to compel payment.</p> <p>5. Same—award draws interest at ñve per cent ^^p to entry of judgment. Where judgment is entered on an award made under the Workmen’s Compensation act, the court, under section 3 of the Interest act, should allow interest at the rate of five per cent from the time the award is made and make the same a part of the judgment.</p> <p>6. Practice—counsel may rely upon announcements of court. Counsel have a right to rely upon the announcements of the court as to the time when orders will be entered, to the same extent that they may rely upon the rules of court.</p> <p>7. Same—courts should be liberal in setting aside defaults at the term entered. The courts should be liberal in setting aside defaults at the term at which they are entered, where it appears that justice will be promoted thereby.</p>

<p>1. Taxes—when jurat to commissioner’s affidavit in confirmation proceeding may be signed by notary on application by collector for judgment. Where the notary forgot to sign the jurat to' the commissioner’s affidavit in the proceeding for the confirmation of a special assessment, the notary may testify, on application by the county collector for judgment for the delinquent assessment, that the commissioner swore to the affidavit, and the court may then permit the notary to sign the jurat.</p> <p>2. Same—clerical errors in recital of judgment of confirmation may be corrected on application by county collector for judgment. Mere clerical errors in the recitals of the judgment of confirmation of a special assessment may, upon proper showing, be corrected on application by the county collector for judgment and order of sale, where it is clear that the court had jurisdiction to render the judgment of confirmation and did render such judgment.</p>

<p>Schools—when district must be regarded as validated by the curative act of ipif- A high school district which comes within the terms of the curative act of 1917 must be regarded as validated even though the judgment of ouster was entered before the act took effect and the appeal from such judgment was not perfected until after the act took effect.</p>

<p>Appeal from the County Court of Pike county; the Hon. Paul P. Grope, Judge, presiding.</p>

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

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

<p>Res judicata—when a former decision is conclusive on second appeal. A decision of the Supreme Court is conclusive on a second appeal in the same case where the lower court has correctly carried out the mandate of the Supreme Court and every question presented by the record and assignments of error on the second appeal was considered and decided on the first one.</p>

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

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.

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

<p>1. Churches—special acts of 1857 and 18Ó5 vest fee simple title in trustees of First Methodist Episcopal Church of Chicago. The special acts of 1857 and 1865 vest in the trustees of the First Methodist Episcopal Church of Chicago a fee simple title to the property o'f said church society, with power to convey the same for the purposes specified in the acts, and the restrictions as to alienation and provisions for forfeiture contained in the acts of 1839 and 1840, under which the property was donated by the canal commissioners, are waived and released by said special acts.</p> <p>2. Same—what conveyance of church property is not in violation of the act of 1903. A conveyance by the trustees of the First Methodist Episcopal Church of Chicago to the Chicago Methodist Episcopal Church Aid Society, by the terms of which the aid society is to construct a large building on the property, the second and third floors to be used for church purposes and the remainder for business purposes, from which part of the income is to be paid to the church and part to the aid society for church purposes, does not violate the act of 1903, regarding the conveyance of church property devoted to business purposes, and is not ultra vires the aid society.</p> <p>■ 3. Constitutional law—act of 19037 relating to churches, is not invalid as special legislation. A law, to be general, is not required to operate equally upon all persons or objects, but if it operates equally upon all who are similarly situated it is a general law, and tested by such rule the act of 1903, relating to church corporations, (Daws of 1903, p. 132,) is not invalid as special legislation.</p>

<p>Writ of Error to the County Court of Winnebago county; the Hon. Louis M. Recichow, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.</p>

<p>Appeal from, the County Court of Scott county; the Hon. Franklin C. Funk, Judge, presiding.</p>

<p>Criminal law—ownership of property must be proved as alleged in indictment for receiving stolen goods. An indictment for receiving stolen property must allege the ownership of the property as an essential element of the crime, and such ownership must be proved as alleged and cannot rest upon conjecture.</p>

<p>This case is controlled by the decision in People v. Schmidt, (ante, p. 211.)</p>

<p>1. Trusts—test to determine whether the Statute of Uses has intervened. In case of an express trust, the true test for determining whether the Statute of Uses has intervened is to ascertain, by a proper construction of the terms of the instrument creating the trust, what the duties of the trustee are and then to determine whether they have been performed, and if they have not been performed the trust still exists and the statute has not intervened.</p> <p>2. Same—when trust created is a spendthrift trust. Where the object of a trust is to furnish the beneficiary with an income for life or to furnish him a place where he can earn a living if in the discretion of the trustee it is thought best to allow the beneficiary to occupy and manage the land himself, the premises at his death being devised to his “heirs-at-law,” the trust is a spendthrift trust.</p> <p>3. Same—when trustee is not authorised to terminate trust. A will devising certain land to a trustee for the benefit of the testator’s son during the life of the beneficiary, with power to the trustee to collect the income and pay it to the beneficiary or for his support or benefit, or, in his discretion, to allow the beneficiary to live upon and farm the land, and devising the premises, after the death of the beneficiary, to his heirs-at-law, creates an active trust for the life of the beneficiary and does not authorize the trustee to terminate the trust by conveying the premises to the beneficiary.</p>

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

<p>1. Pleading—when rule that plea is overruled by Ming general anszver does not apply. The rule in equity that the filing of a general answer denying every allegation of the bill overrules a plea, also filed by the defendant, going to the whole bill, does not apply where the complainant did not test the sufficiency of the plea in the trial court but treated both the answer and the plea as compatible defenses and took issue upon both.</p> <p>2. Same—when complainant is not relieved from proving her bill. Where the defendant, after filing an answer denying every allegation of the bill, files a plea to the whole bill, if the complainant takes issue upon both the answer and the plea she will not be relieved from proving the material allegations of the bill.</p>

<p>Appeal from the First Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas G. WindES, Judge, presiding.</p>

<p>1. Criminal law—an indictment may be quashed, where record fails to show the grand fury was sworn. An indictment may be quashed, on motion, where the record fails to show the grand jury was duly summoned, empaneled and sworn.</p> <p>2. Same—a statute of limitations in criminal prosecutions is an act of grace. A statute limiting the tipie in which a criminal prose-, ciition may be brought is an act of grace and not a contract with the criminal, and it may be changed or repealed by the legislature as to anyone whose right to immunity has not become absolute by the completion of the period of limitation.</p> <p>3. Same—purpose of Statute of Limitations for the bringing of criminal prosectitions. The Statute of Limitations applicable to criminal cases is enacted for the purpose of allowing the accused to defend himself while the charge is new and the evidence can be more readily obtained, and is not grounded upon mere delay in the prosecution but rather upon delay in commencing the same.</p> <p>4. Same—indictment need not be valid to toll operation of statute under section 6 of division 4 of Criminal Code. To toll the operation of the Statute of Limitations under section 6 of division 4 of the Criminal Code during the pendency of an indictment which has been quashed, the indictment quashed need not necessarily have been a valid one.</p> <p>5. Same—any testimony directly showing guilt of defendant is competent. Whatever testimony tends directly to show defendant guilty of the crime charged is competent, the test of admissibility being the connection of the facts proved with the offense charged.</p>

<p>This case is controlled by the decision in Dunn v. Chicago Industrial School for Girls, 280 111. 613.</p>

<p>1. Quo warranto—curative act of 1917, regarding high■ school districts, need not be specially pleaded. In a proceeding by quo warranto to test the organization of a high school district the curative act of 1917 need not be specially pleaded if the facts stated bring the case within the statute, as the act is a public one, of which the courts are bound to take judicial notice.</p> <p>2. Samé—legality of acts of board of education cannot be tested in quo warranto proceeding. A quo warranto proceeding attacking the organization of a high school district and the right of members of the board of education to hold office is not a proper proceeding to test the legality of the official acts of the board, and the statement in a plea in said proceeding that the members of the. board employed teachers on a certain date, which was before said members were elected to office, will be treated as surplusage.</p> <p>3. Other questions in this case are controlled by the decisions in People v. Madison, 280 111. 96, and People v. Dix, id. 158.</p>

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

<p>Appeal from the County Court of Ford county; the H011. Malcolm L. McOuiston, Judge, presiding.</p>

<p>'Appeal from the County Court of Madison county; the Hon. Henry B. Eaton, Judge, presiding.</p>

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

<p>1. Infants—legally qualified guardian is only person entitled to receive payment for infant. The only person authorized to receive and take charge of the property or estate of a minor is the legally qualified guardian, and no one but such guardian has authority to receive payment and enter satisfaction of a judgment recovered in favor of the infant.</p> <p>2. Same—next friend bringing suit for a minor cannot receive payment of or satisfy judgment recovered. The duty of the next friend bringing a suit for a minor begins and ends with the prosecution of the suit unless he is authorized by statute to take further action, and in the absence of any statutory provision he is not required to give a bond to the minor and is not authorized to receive payment of and to satisfy the judgment recovered.</p> <p>3. Same—attorney bringing suit for minor derives his authority from the next friend. The attorney for a minor who sues by his next friend derives his authority solely from the next friend and is not authorized to receive payment and enter satisfaction of the judgment recovered.</p> <p>4. Same—the father of an infant has no right to custody of estate of the child. The father of an infant has no right, by reason of the parental relation, alone, to the custody of the estate of his minor child or to receive payment of a judgment recovered in favor of the minor.</p> <p>5. Same—a plea of payment to "plaintiff” is not subject to demurrer in an action of debt on judgment for infant by his guardian. In an action of debt by a guardian on a judgment in favor of his ward, a plea alleging, in general terms, payment of the judgment to the “plaintiff” is not subject to demurrer whether the guardian or the minor is regarded as plaintiff, as the guardian is the proper plaintiff under the statute and is alone authorized to receive such payment, and if the minor were treated as plaintiff the defendants would still have the right to prove, under such plea, that the payment was made to the guardian.</p> <p>6. Same—what necessary to avoid paying interest on judgment in favor of minor. A judgment bears interest from the date it is rendered, and where a party against whom a minor, by his next friend, has recovered a judgment desires to pay the judgment and prevent the accruing of interest, he should apply to the probate court for the appointment of a guardian to receive payment, if there is no legally qualified guardian.</p>

<p>1. Evidence—courts take judicial notice of legislative appropriations. Appropriation acts are public laws, of which the courts ' will take judicial notice the same as of constitutional provisions, and it is not necessary to offer them in evidence.</p> <p>2. Mandamus—want of funds is a sufficient answer to petition to approve a pay-roll or to draw a warrant for payment of salary. If there is no fund in the control of the officer or body out of which the payment sought to be compelled can be legally made the writ of mandamus will be denied, as want of funds is a complete answer to a petition to compel an officer to make or approve a pay-roll or to draw a warrant for the payment of a salary.</p> <p>3. Same—payment of salary cannot be compelled after appropriation therefor has lapsed. Where an employee under the classified civil service has been discharged but subsequently obtains a favorable finding of the Civil Service .Commission ordering his name placed on the re-instatement list, his petition for mandamus to compel the payment of salary of his former employment for the months between his discharge and his re-employment in another capacity will be denied where it is brought after the appropriation from which the salary is to be paid has lapsed. (People v. Secretary of State, 58 111. 90, and People v. Pippincott, 72 id. 578, distinguished.)</p> <p>4. Same—when appropriation to pay salary lapses. An appropriation of a certain sum per year for the payment of the salary of an employee until the expiration of the first fiscal quarter after the adjournment of the regular session of the next General Assembly, lapses or ends at the expiration of such fiscal quarter.</p>

<p>1. Wills—it is presumed the testator intended to dispose of all his property. In seeking the intention of a testator it is always presumed that he intended by his will to dispose of all his property and leave no part as intestate estate, and this presumption is so strong that the court will adopt any reasonable construction of the will rather than hold that the testator intended to die intestate as to any of his property.</p> <p>2. Same—when change in will by codicil does not leave portion of bequests intestate. Where a testator by his will gives all of his estate to his wife for life and at her death to his eight children “in equal shares,” a codicil revoking the bequest to one of the sons who had died and giving in lieu thereof the sum of $1000 to his children and heirs, and reducing the bequest to another son to $500 less than an equal share with the other children, will not be regarded as leaving the $500 and the amount of the deceased son’s share in excess of $1000 as intestate property, but the same will go to the other children of the testator under the devise of equal shares. (Minkler v. Simons, 172 111. 323, distinguished.)</p>

<p>1. Municipal corporations—the Supreme Court will not take judicial notice of ordinances passed in exercise of charter powers.. The Supreme Court will take judicial notice of the charter of a village but will not take judicial notice of the ordinances passed by any municipality in the exercise of its charter powers.</p> <p>2. Taxes—when objector must prove there is no ordinance appointing village attorney. One who objects to an application by the collector for judgment for a delinquent assessment upon the ground that the petition for levying the assessment was not filed by an officer of the village because the attorney filing the petition as village attorney was not such officer must prove that there is no ordinance appointing such attorney, as it must be presumed, in such proceeding, that the court, in confirming the assessment, found that there was such an officer.</p> <p>3. Same—want of jurisdiction to enter judgment of confirmation must appear on face of record in collateral proceeding. In a collateral proceeding every presumption is in favor of the validity of the judgment attacked, and want of jurisdiction of the county court to enter the judgment of confirmation of a special assessment must appear upon the face of the record in order to be relied on as a defense to a proceeding by the county collector for judgment and order of sale for the delinquent assessment.</p>

<p>1. Carriers-—State may regulate intra-State commerce of interState carrier. Congress has paramount authority over inter-State commerce, but the State may regulate that portion of the commerce of an inter-State carrier which is purely intra-State, subject only to such regulation by Federal authority as is necessary to protect and regulate inter-State commerce.</p> <p>2. Same—extent of the State’s power where commerce is both intra-State and inter-State. As to commerce which is both interState and intra-State, the State may regulate that which is within the State and even indirectly affect the inter-State portion, in the absence of action by Congress or its delegated agency on the subject, provided the requirements of the State do not amount to a burden upon inter-State commerce. (Mulberry Hill Coal Co. v. Illinois Central Railroad Co. 257 111. 80, and Chicago, Milwaukee and St. Paul Railway Co. v. State Public Utilities Com. 268 id. 49, followed.)</p> <p>3. Same—when power to act rests with Congress and not the ■ State. Where commerce is solely inter-State, or where the interState and intra-State transactions of carriers are so related that the government of one involves the control of the other, it is Congress, and not the State, which is entitled to prescribe the final, and dominant rules therefor.</p> <p>4. Same—authority to determine whether inter-State earner’s rule for car distribution is reasonable rests with Inter-State Commerce Commission. A State may require an inter-State carrier to furnish cars at points within the State within a reasonable time, considering all the circumstances, including the demands of interState commerce, and the State and Federal courts have concurrent jurisdiction of actions for damages for failure to perform the duty; but if an inter-State carrier has established a rule for the distribution of cars in times of car shortage and administers it fairly, the authority to determine whether the rule is reasonable rests solely with the Inter-State Commerce Commission.</p>

<p>1. Eminent domain—when judgment awarding compensation for property taken is not an adjudication as to ownership of award. Where compensation is awarded in a special assessment proceeding for damages for property taken for a public improvement, in which proceeding both the occupant and the owner of the property are made parties, the judgment for compensation to the owner and to the parties interested is not an adjudication as to the ownership of the award nor as to its division among said parties.</p> <p>2. Same—when motion to vacate order dismissing petition for division of compensation should be allowed. Where an appeal from a judgment awarding compensation for property taken has not been disposed of by the filing of the final order with the clerk of the lower court that court is. without any jurisdiction to make any order, and a motion to vacate said court’s order dismissing an inter-, vening petition for a division of the compensation should be allowed notwithstanding the petition was filed by the party who appealed from the judgment awarding compensation.</p> <p>3. Same—when perfecting of an appeal will not waive a motion to vacate order dismissing a petition for division of compensation. The perfecting of an appeal from an order dismissing a petition for division of compensation for the taking of property by eminent domain will not waive a motion to vacate said order where the appeal is not perfected until after the motion is made and denied.</p> <p>4. Same—when a division of compensation awarded for taking property cannot be made on appeal. On an appeal from an order denying a motion to vacate an order dismissing appellant’s petition for a division of compensation awarded for taking property by eminent domain the appellant’s interest in the compensation cannot be determined, where the appeal is taken on the valid ground that the motion to vacate should have been allowed because the lower court had no jurisdiction to entertain the petition.</p> <p>5. Appeals and errors—jurisdiction of lower court ceases when appeal is perfected. Where an appeal is perfected the jurisdiction and control of the court below cease and the appeal becomes a stay of all proceedings to enforce execution of the judgment or decree.</p>

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

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

<p>Taxes—when a public park is not subject to taxation because used by private persons for profit. The occasional unauthorized use of a public park by private persons to conduct automobile races, at which they charged an admission fee to persons willing to pay but without excluding other persons from the park, does not change the character of the park as a public park nor deprive the public of its right to have the park exempted from taxation.</p>

<p>1. Benefit societies—an accident policy construed as insuring against sunstroke. Where an accident policy insuring “against bodily injury * * * sustained solely through accidental means” contains a clause providing that blood poisoning, sunstroke, freezing, hydrophobia, etc., “as the result of such injury, shall be deemed to be included in said term ‘such inj ury,’ ” the insured, who as a policeman suffers a sunstroke while regulating street traffic in the performance of his duties, is within the protection of the policy, as the sunstroke must be considered accidental and not the natural and probable consequence of his course of action.</p> <p>2. Same—policy of insurance should be liberally construed in favor of the insured. Where there is any ambiguity in a policy of insurance, all provisions, conditions ,or exceptions which in any way tend to limit or defeat liability thereunder should be construed most favorably to the insured.</p> <p>3. Same—whether notice of accident is given within a reasonable time is a question for the jury. Whether notice of the accident is given within a reasonable time, in accordance with the terms of an accident insurance policy, is a question for the jury to determine by taking into consideration all the facts and circumstances shown by the evidence.</p>

<p>■ Appeal from the County Court of Kankakee county; the Hon. Jay H. Merrill, Judge, presiding.</p>

<p>1. Deeds—the word "heirs" will not be construed to mean "children" unless deed indicates such intention. Where there is nothing . in a deed to indicate that the word “heirs” is intended to have any other than its technical legal meaning the word cannot be construed to mean “children.”</p> <p>2. Same—a deed to the "heirs" of a living person is void. A living person has no heirs, and therefore a deed to the “heirs” of a living person, without specifying the names of the “heirs,” describes no one as grantee and is void.</p> <p>3. Trusts—when resulting trust arises. Where one person purchases land with money belonging to another and takes the title in his own name without the other’s consent a resulting trust arises in favor of the party furnishing the money.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.</p>

<p>1. Carriers—w/te?» provision for exemption from liability does not render lease of railroad property void as against public policy. Common carriers cannot exempt themselves from all responsibility for loss arising from the negligence of themselves or their servants, but a provision in a lease of railroad property for the purpose of storing ties thereon that the railroad company shall not be liable for any loss by fire on the leased property caused by the operation of the adjacent railroad is not void as against public policy, as such use of the property is not a public use.</p> <p>2. Public utilities—public use requires that all persons have an equal right to the use. Public use requires that all persons must have an equal right to the use upon the same terms, however few the number who avail themselves of it, and that it shall be open to all people to the extent that its capacity for such use may admit.</p> <p>3. Same—what use of land by railroad company does not make it a public utility. The fact that a railroad company owning a large tract of land near the terminus of one of its branches leases small parcels to persons who may desire to store railroad ties thereon does not make such land a freight yard depot nor the company a public utility as respects such use. (Oheckley v. Illinois Central Railroad Co. 257 111. 491, followed.) •</p> <p>4. Corporations—question whether a corporation holding real property has acquired it for authorised use must be raised by the State. Where a corporation may for some purposes acquire and hold title to real estate, the question whether or not the real estate has been acquired for the authorized use cannot be raised by any party except the State.</p>

<p>1. Taxes—the board of review may in any year change the assessment of real property. Under amended section 35 of the act of 1898, for the assessment of property for taxation, the board of review has power in any year, whether it is the year of the quadrennial assessment or not, to change the assessment of real property as made in the quadrennial year when it does not represent a •fair valuation of the property assessed, although there has been no improvement or other change in the physical condition of the property. ( Crozer v. People, 206 111. 464, explained; People v. St. Louis, Alton and Terre Haute Railroad Co. 230 id. 61, overruled.)</p> <p>2. Same—amended section 35 of act of 1898, for assessment of property, applies to all counties. Except where some restriction appears in the act itself, amended section 35 of the act of 1898, for the assessment of property for taxation, applies to all counties in the State.</p> <p>3. Same—notice to owner is essential to change in assessment of property. Notice to the owner is necessary before any change can be made in an assessment of property once made.</p> <p>4. Same—the board of review is not required to list valuations in revising total assessment. Under amended section 35 of the act of 1898, for the assessment of property, the board of review, in revising assessments, is not required to enter the value of the lands and lots and the improvements in separate columns, as is required of the township assessor by section 14. (People v. St. Louis Bridge Co. 268 111. 477, distinguished.)</p>

<p>1. Wills—attesting witnesses need not read will nor know its contents. It is not necessary that a will be read to the attesting witnesses nor do they need to know its contents before attesting.</p> <p>2. Same—no more than two attesting witnesses need testify in circuit court. To entitle a will to probate it must be attested by two or more credible witnesses and two of the witnesses must testify on the probate of the will, and where there are three attesting witnesses it is only necessary that two of them testify on the hearing in the circuit court.</p> <p>3. Same—objection that a third attesting witness zvas not called cannot be first raised in Supreme Court. An objection that one of the three attesting witnesses was not called to testify on the probate of a will cannot be first raised in the Supreme Court, as the objection is waived if not raised in the trial court when it was possible to secure the desired witness.</p>

<p>1. Pleading—rule of pleading where there is an exception in a statute. If there be an exception in the enacting clause of a statute it must be negatived by the party relying on the statute, but if there be an exception in a subsequent clause the party claiming the case to be within the exception must show that fact to avoid the operation of the statute.</p> <p>2. Constitutional law—the high school curative act of ipi7 is valid. The curative act of 1917, to legalize the organization of certain high school districts, is valid and effective to legalize the organization of such districts. (People v. Madison, 280 111. 96, People v. Dix, id. 158, and People v. Stitt, id. 553, followed.)</p> <p>3. Quo warranto—when relators must show that high-school district is within exception to statute. Relators in an information in the nature of qtio warranto who seek to attack the validity of ’ the organization of a high school district on the ground that such district is within the exception of section 3 of the high school curative act of 1917 must show that fact, as section 1 of that act purports to legalize the organization of all high school districts in which elections have been held in accordance with the provisions of such section.</p>

<p>1. Charities—a Masonic lodge is a charitable institution. The primary objects of a Masonic lodge being benevolence and charity, such a lodge is a charitable institution, and the Masonic Home of the grand lodge of Masons of Illinois, together with the land used for its maintenance, is exempt from taxation as the property of a public charity.</p> <p>2. Same—what constitutes public charity. To constitute a public charity the benefit must not be conferred upon certain and defined individuals but must be. conferred on indefinite persons composing the public or some part of the public, but the indefinite class may be of one sex or the inhabitants of a particular city, town or county, or members of a particular religious or secular organization.</p> <p>3. Same—what determines whether property is exempted from taxation as a public charity. The primary use to which property is put is to be considered in determining whether it is exempt from taxation as a public charity under the seventh clause of section 2 of the act for the assessment of property, as amended in 1915, and the fact that there is a charge on the property in the nature of an incumbrance is not material where the total net income is devoted to a charitable use.</p>

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

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

<p>Appeal from the County Court of Hancock county; the Hon. Eli W. Dunham, Judge, presiding.</p>

<p>Schools—whether high school district is contiguous and compact is for the court to determine from petition. Whether, under the validating act of 1917, the territory comprising a high school district is contiguous and compact is a fact to be determined by the court from an inspection of the organization petition, in which the territory is described; and on an appeal from an order dismissing a petition for leave to file an information in the nature of quo warranto attacking the organization of the district, it will be presumed, where the abstract of record does not contain the description, that the trial court correctly found the territory was contiguous and compact.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Union county; the Hon. A. W. Lewis, Judge, presiding.</p>

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

<p>1. Injunction—when equity will not entertain a bill to enjoin prosecution of suit. A court of chancery cannot be resorted to to oust a court of law of previously acquired jurisdiction unless some equitable defenses are shown which cannot be availed of in the suit at law or there is other equitable ground for intervention.</p> <p>2. Taxes—what defenses available on application for judgment for tax. On application for judgment and order of sale for a delinquent tax it may be shown in defense that the tax is unauthorized by law or that it is assessed upon property not subject to taxation, which includes the defense that the tax, which is a capital stock tax, was unauthorized because the State Board of Equalization failed to deduct the value of the corporation’s tangible property.</p>

<p>Writ op Error to the Circuit Court of Winnebago county; the Hon. James S. Baume, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kankakee county the Hon. Arthur W. Deselm, Judge, presiding.</p>

<p>Appeal from the County Court of Edwards county; the Hon. P. C. Walters, Judge, presiding.</p>

<p>■ Appeal from the Circuit Court of Sangamon "county; the Hon. E. S. Smith, Judge, presiding.</p>

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

<p>Writ oe Error to the Circuit Court of Edgar county; the Hon. John H. Marshall, Judge, presiding.</p>

<p>1. Speciae assessments—•ordinance for sidewalk should fix the grade of 'the improvement. The ordinance is the basis for all improvements under the Local Improvement act, and an ordinance for a sidewalk should, either directly or by reference to specifications, fix the grade for the sidewalk.</p> <p>2. Same—grade of improvement is sufficiently fixed by reference to established datum. The grade is sufficiently fixed for a local improvement where the ordinance refers to an established datum, to locate which a fixed monument, such as a building, sidewalk or the physical situation of the public grounds or streets, may be taken into consideration.</p> <p>3. Same—when plats are a part of an ordinance without express words to that effect. Plats referred to in an improvement ordinance for the purpose of fixing the grade of a sidewalk and attached to the ordinance are as much a part thereof as if the ordinance had used the express words “and are made a part hereof.”</p> <p>4. Same—when appellant need not present bill of exceptions. Where the appellant questions only the court’s ruling that an improvement ordinance is invalid because it does not sufficiently fix the grade of a sidewalk, the question so presented arises on the record without a bill of exceptions showing the entire proceedings in the court below.</p> <p>5. Same—when cross-errors cannot be considered ivithout a bill of exceptions. Cross-errors based upon matters that are not preserved in the common law record cannot be considered by the Supreme Court where no bill of exceptions containing such matters has been preserved by either the appellant or the appellees.</p> <p>6. Same—when sidewalk ordinance does not provide for double improvement. A local improvement ordinance may providé for sidewalks on more than one street in the same city (if such streets are adjacent) without being subject to the objection that it provides for a double improvement; nor is such ordinance double because it provides for a sewer solely for the drainage of sidewalks.</p> <p>7. Same—front-foot plan is not fatal if property is not assessed more than benefited. Assessing on the front-foot plan is not necessarily fatal in a special assessment proceeding if the property is not assessed more than it is specially benefited.</p> <p>8. Same—decision of commissioner as to public benefits cannot be reviewed by Supreme Court. In a- special assessment proceeding the commissioner determines the proper proportionate shares to be paid by the public and by the property owners, and while this decision can be reviewed by the trial court it is not open to review by the Supreme Court upon appeal or writ of error.</p>

<p>1. Birrs or review—what questions are open for examination on a bill of review. A bill of review affords a means for the correction of errors of law apparent on the face of the decree, and the questions open for examination are such questions of law as arise on the pléadings, proceedings and the decree.</p> <p>2. Wirrs—statutory provision for renouncing will relates only to dower. The provision in the Dower act that a provision in a will for a surviving husband or wife, unless otherwise expressed in the will, is a bar to dower unless a written renunciation is filed, has reference only to dower, and a failure to file such renunciation bars dower and nothing else.</p> <p>3. Same—the doctrine of election does not rest upon any statute. The doctrine of election does not rest upon any statute but upon the ground that one who elects to take under a will and asserts a claim to property given by the will must recognize the equitable rights of all parties under the same will and thereby ratifies all its terms and provisions, as a will must be accepted as a whole or not at all.</p> <p>4. Same—doctrine of election applies to widow. The doctrine of election applies to the widow the same as to any other claimant, and in the absence of anything to excuse her she must elect whether she will take under or against the will.</p> <p>5. Same—what amounts to election by widow. Where a testator gives all of his property, real and personal, to his wife for her natural life, to be managed by a trustee, and bequeaths to her absolutely $1000 out of a sum of $4000 in securities, which he states really belong to his wife’s estate, giving the remaining $3000, after the wife’s death, to his sons, if the widow, by her answer and cross-bill in a proceeding to construe the will, claims a life estate in all of the testator’s property, which is decreed to her, she must be regarded as electing to ratify the will and is not entitled to assert her ownership of the $4000 as her separate property. (Carper v. Crowl, 149 111. 465, distinguished.)</p>

<p>Writ oe Error to the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding.</p>

<p>Partition—when intervening petitioners are barred by Statute of Limitations. In a suit for partition among devisees under a will, intervening petitioners who claim one-half of the devise as descendants of an alleged joint heir with the testator are barred by the Statute of Limitations, where the evidence shows that for longer than the statutory period the testator was in open, notorious and adverse possession of the real estate in question, claiming title as sole heir with the knowledge of the alleged joint heir, who recognized such claim by an instrument under seal, duly acknowledged by him arid his wife.</p>

<p>1. Res judicata—when decision construing will is not res judicata as to devisees and heirs. Devisees and heirs who were not parties to a proceeding by creditors to require an administratrix to sell an interest of the deceased in land are not bound by the decision of the Supreme Court construing the will and finding that a reversion in fee was vested in the deceased, and they are entitled to a full hearing on such question on appeal from the order of sale.</p> <p>2. Wills—when a reversion in fee descends to the heirs-at-law. Where a testator, after giving his wife a life estate in all of his land, devises a separate tract to each of his six children for life with remainder to their several children if they leave any surviving, and if any of the children shall die without leaving surviving children then the particular tract devised shall go to the testator’s heirs-at-law then living, the concurrent remainders are contingent during the existence of the life estates and the reversion in fee descends to the heirs-at-law subject to the contingent remainders.</p> <p>3. Executors and administrators—any interest in land may be sold for the payment of debts of an estate. Any estate or interest in land, of whatever kind or whether worth much or little, may be subjected to sale for the payment of debts of an estate.</p>

<p>1. Taxes—proposition for special tax for hard roads may be included with other propositions on same ballot. The proposition for a special tax for hard roads, when voted for at a general election, may be included with other propositions of public interest on the same ballot.</p> <p>2. Elections—meaning of Ballot law as to printing of propositions on "separate” ballot. The provisions of the Ballot law for separate ballots when public measures are voted on means that all such propositions shall be printed upon a ballot separate from the ballot upon which the names of candidates are printed, and not that each proposition to be voted on shall be on a separate ballot.</p>

<p>1. Freehold—freehold is involved where complainant claims a homestead. A freehold is involved where the complainant seeks to have a deed set aside as to her and claims an estate of homestead and the right to occupy the premises until another homestead is provided by her husband, as an estate which is measured by the life of a tenant is a freehold.</p> <p>2. Homestead—husband cannot compel wife to leave homestead until he provides another. Under section 16 of chapter 68 of the Revised Statutes a husband cannot compel the wife to leave the homestead until he has provided her with another, and it is not a compliance with the statute to provide a room at a hotel.</p> <p>3. Same—wife is entitled to rents during time she is wrongfully kept out of homestead. A wife who is wrongfully dispossessed of her homestead by her husband’s grantee is entitled to recover the rents and profits of such premises from the time she is dispossessed until the time her husband provides another homestead for her.</p> <p>4. Same—what amounts to desertion of wife within meaning of section 2 of Homestead act. Where a husband who conveyed the homestead premises on the eve of his marriage, without the knowledge of his intended wife, continues to occupy the premises with her after the marriage, but subsequently, upon her refusal to leave the homestead, goes to a hotel to stay, he must be regarded as deserting the wife within the meaning of section 2 of the Homestead act.</p> <p>5. Same—what is not abandonment of homestead by wife. The fact that the wife, who has remained in possession of the homestea'd premises after her husband has conveyed the same without providing another homestead, leaves the premises "after the grantee in the conveyance has recovered a judgment against her in a forcible detainer proceeding does not amount to an abandonment of the homestead, and she is entitled, in equity, to have her homestead rights declared in the property to the extent of the husband’s interest.</p> <p>6. Husband and wife—when conveyance is in fraud of marital rights. A deed made on the eve of marriage without the knowledge of the intended wife is prima facie in fraud of her marital rights, and she is entitled, in equity, to have the deed declared subject to her inchoate right of dower to the extent of her husband’s interest at the time of the conveyance.</p> <p>7. Trusts—what oral agreement as to land may be carried out notwithstanding Statute of Frauds. Where a daughter contributes two-sevenths of the purchase price of land bought by her parents upon an oral agreement that she is to have a one-fourth interest in the land, the agreement may be carried out by a conveyance from the father after the wife’s death notwithstanding the Statute of Frauds, and her one-fourth interest is not subject to the claims of the grantor’s second wife for an inchoate right of dower and for homestead, even though the deed, which purported to convey the entire interest in the premises, is subject to such claims to the extent of the grantor’s interest.</p>

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

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

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

Writ oE Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.

Writ op Error to the Appellate Court for the Second District;—heard in that court on writ of error to the County Court of Boone county; the Hon. William C. DpWolf, Judge, presiding.

<p>1. Pensions—test of right to a pension under the Park Police Pension act. Under section 3 of the act providing for a park police pension fund the only conditions upon which the right to such pension depends are twenty years’ service as policeman for the park board and ceasing to be in active service, and it is not material whether the applicant’s service terminated voluntarily or by a discharge under civil service regulations.</p> <p>2. Same—filing mandamus petition for re-instatement does not waive petitioner’s right to pension. The fact that a policeman who is seeking by mandamus to obtain a pension under the act relating to the park police pension fund has also filed a mandamus petition to compel his re-instatement as a policeman and the payment of his back salary does not waive his right to a pension unless the latter petition is allowed and he is restored to active service.</p>

<p>1. Cloud on title—what necessary in order that possession be sufficient to give notice. Possession of land to be sufficient to give notice must be of that open and visible character which from its nature is calculated to apprise the world that the land is occupied and who the occupant is, and the fencing in, with smooth wire, of a tract 50 by 100 feet in one corner of a quarter section is not sufficient to constitute possession of the whole quarter.</p> <p>2. Same—conveyance of easement for drainage ditch is not a lease under which grantor can claim possession by tenant. A defendant to a suit to quiet title who has conveyed an easement in a portion of the disputed land,to a drainage district for a ditch can not claim possession of the land through the possession of the drainage district on the theory that the district is his tenant. .</p> <p>3. Same—adverse possession of portion of disputed land will not prevent color-of-title claimant redttcing remainder to possession. Where a party has a deed for a tract of land, actual possession of a part will, in law, constitute possession of all of the tract not in the adverse possession of another, and the fact that a drainage district is in adverse possession of a strip of the disputed land used for a drainage ditch will not prevent the color-of-title claimant from reducing the remainder of the tract to possession.</p> <p>4. Same—fencing of land by lessee is sufficient act of possession to give notice. The fact that, the color-of-title claimant, before filing his bill to quiet title and as soon as he had purchased the land, leased the same and that his lessee went immediately upon the land and fenced it constitutes notice of possession sufficient to entitle the claimant to maintain his bill.</p> <p>5. Same—claimant need not fence strip, occupied by drainage ditch to make his possession sufficient. In reducing the disputed land to possession by fencing, the color-of-title claimant is not required to exclude, by fencing, a strip occupied by a drainage ditch which runs through the land, as the law does not require a drainage district to fence its right of way, and it is sufficient if the fence around the entire tract includes the strip so occupied.</p> <p>6. Same—zvhen right of claimant is not affected by sale for delinquent assessment. The right of a color-of-title claimant is not affected by a sale of the land for a delinquent drainage- assessment 'which took place before he acquired his title and after the parties under whom he claims had completed the seven years’ payment of taxes under a tax- deed, where the claimant, as soon as he acquired his title, redeemed the land, thereby destroying the possibility of the sale ever culminating in a deed.</p> <p>7. Evidence—zvitness as to pedigree cannot testify as to mere statement of fact by person still living. The facts involved in a question of pedigree may be established by proof of general reputation in the family or by proof of what deceased members of the family.may have said, but they cannot be established by the testimony of a witness to a statement of fact by a person still living.</p> <p>8. Pleading—when failure to file a replication cannot be taken advantage of. The failure to file a replication cannot be'taken advantage of after the taking of proof and a determination of the issues raised on the bill and answer, but under such circumstances the issues will be treated as having been regularly joined.</p>