Volume 293 — Illinois Reports

<p>1. Wills—whether disease affected the testator’s mind must be determined by its effect in particular case. Whether the testator’s mind was affected by the disease known as senile dementia must be determined not alone by the general nature and tendency of the disease but by its effect in the particular case.</p> <p>2. Same—failure to recall acquaintance does not necessarily indicate failure of mental power. The failure of the memory of an old man to recall persons whom he has known does not necessarily indicate a failure of mental power, where the circumstances are such as might readily explain the failure to recall the person at the time.</p> <p>3. Same—when statement of testator that he owned land which he had previously conveyed is not evidence of mental weakness. The statement of a testator that he still owned all his land, when, in fact, he had conveyed three-fourths of it to his daughters, is not evidence of mental weakness or even lack of memory, where the conveyances were of the remainders after the reservation of a life estate in the testator, who still had the control and use of the land and received the income from it.</p> <p>4. Same—extreme age and feeble health do not constitute mental incapacity to make will. Extreme age and feeble health, though combined with a defective memory and mental sluggishness, do not render a testator incapable of making a will unless his mind has become so impaired that he is incapable of understanding the business of making his will while engaged in that act.</p> <p>5. Same—unequal distribution of property does not justify conclusion of mental incapacity. An unequal distribution of his property among his heirs or an unreasonable prejudice against some of them, unless it amounts to an insane delusion, will not justify the conclusion that the testator lacks mental capacity.</p> <p>6. Same—mere persuasion is not Undue influence. Persuasion which leaves the testator free to adopt his own course is not undue influence, as the undue influence which will avoid a will must go to the extent of depriving the testator of his free agency and must operate at the time of the execution of the will.</p> <p>7. Same—proof of undue influence must be clear. Undue influence which will avoid a will may be established by circumstantial evidence, but the proof of undue influence must not only be consistent with the exercise of the influence but inconsistent with its absence.</p> <p>8. Same—fact that will was executed in beneficiary’s home does not prove undue influence. The fact that the testator was living at the home of one of the principal beneficiaries under his will at the time it was executed does not prove undue influence, nor does the fact that the beneficiaries were present.</p> <p>9. Same—when presumption of undue infltience arising from a fiduciary relation does not apply. The rule that the active participation by one sustaining a fiduciary relation in preparing a.will by which he profits substantially tends to show the exercise of undue influence does not apply where there is no evidence as to where, when, by whom or under what circumstances the will was prepared or that such beneficiary had anything to do''with its execution.</p> <p>10. Same—beneficiary who occupies a fiduciary relation is not bound to prove how the will was prepared. To place the burden of proving the absence of undue influence in the making of a will upon a beneficiary sustaining a fiduciary relation to the testator he must be shown to have been directly connected with the making of the will, and until such proof is introduced by the contestants the beneficiary is under no obligation to introduce any evidence to show who prepared the will.</p> <p>11. Same—when transcript of proceedings for appointment of conservator for testator is admissible in will contest. In a will contest case, where the contestants charge undue influence and mental incapacity of the testator, a transcript of proceedings for the appointment of a conservator for the testator is admissible on the issue of undue influence, where the testator in one clause of his will gives as his reason for excluding the contestants from sharing in his estate that they instituted the proceedings for a conservator.</p> <p>12. Same—zahén deeds executed by testator are admissible in a zvill contest. Deeds executed by a testator to his children as a part of the transaction when his will was made are admissible, over the proponents’ objection, on contest of the will, where they have a tendency to show the inequality of the whole distribution .of the testator’s property and for the purpose of qualifying the testator’s subsequent statement to witnesses that he still owned all his land.</p>

<p>' Writ oe Error to the Criminal Court of Cook county; the Hon. George E. Barrett, Judge, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding.</p>

<p>1. Elections—general rule as to whether name of candidate must be correctly spelled by voter. While it is not essential that the voter correctly spell the name of the candidate he may write on the ballot, yet in order that it be counted there must be such relation between the appearance or sound of the name written and that of a candidate as to at once suggest that the name written was actually intended for that candidate, and that suggestion must come from an inspection of the ballot.</p> <p>2. Same—perfect ballot for one eligible to office is conclusive of voter’s intent—initials. Although a middle initial of a candidate’s name is not written correctly the ballot will ordinarily be counted for the candidate if there is no other person in the district having the same name and initial used by the voter, but where a ballot is actually and definitely marked for some person eligible to the office, who, although not a candidate, lives in the same district in which the candidates are to be elected, the intention of the voter must be determined by the ballot as cast and not by extraneous evidence as to what his intentions were when he cast his ballot.</p> <p>3. Same—a voter must make affidavit before being assisted to vote. The statutory requirement that a voter must make affidavit that he is unable to prepare his ballot before he can be assisted in voting is mandatory.</p> <p>4. Same—circumstantial evidence may prove how a voter voted. How a voter voted may be proved by circumstantial evidence.</p> <p>5. Same—when numbers on ballots are not distinguishing marks. . While election judges should refrain from making any marks on the ballots, their action in writing numbers on the ballots when counting them after they have been voted, to denote the number of straight ballots cast in the ward, does not render the ballots illegal.</p> <p>6. Same-—initials of fudge repeated on a ballot are not distinguishing marks. The fact that an election judge, by reason of nervousness, writes the first two initials of his name on the back of a ballot and then writes above them all three of his initials correctly, should not be regarded as distinguishing the ballot nor as otherwise invalidating it.</p> <p>7. Same—when ballot with name of a candidate written upside down is not correctly voted. Where a voter votes for a candidate by writing the name in the proper place on .the ballot but writes it upside down, so that the cross in the printed square is at the right of the name of the candidate as written, the ballot cannot be counted for the candidate, as the rule, is peremptory that the cross should be to the left of the name and not to the right.</p> <p>8. Same—witnesses cannot give conclusions as to whether it was generally knozvn who were candidates. In an election contest, witnesses should not be permitted to give their conclusions as to what was the general understanding of the people in the election district as to who were the candidates for the office contested.</p> <p>9. Same—ballots must bear initials of the election fudge. Under the Election law no ballots can be counted that do not bear the initials of the election judge.</p> <p>10. Same—zvhen candidate does not run on two tickets. Where a candidate’s name is not printed on the ballots but is written in by the voters, some in the proper blank under one ticket and some under another, where the names of candidates nominated were not printed because withdrawn, the ballots are properly voted, as the fact that the candidate is voted for on two tickets is the result of the voters’ choice and not of the candidate running on two party tickets.</p> <p>11. Practice—an appellee may assign cross-errors. Under section 107 of the Practice act an appellee may assign cross-errors without excepting to or appealing from, the judgment or decree or any part thereof, where' the decree or judgment appealed from is not severable.</p>

<p>1. Wills—devise to a child who is dead is not void. Under section- 11 of the Statute of .Descent a devise to a deceased child goes to the heirs of such child, and a clause of a will giving a share to a deceased daughter, among' other children named, “or to their children or legal heirs in case of the death of either,” is not void because the daughter was dead at the time of making the will.</p> <p>2. Same—devise must be construed by courts of State in which land is situated. The validity and construction of wills affecting title to'land depend upon the law of the State where the land'is situated, and where a testator by a single will devises lands lying in two or more States, the courts of each State will, respectively, construe the will, as to the lands situated therein, in the same manner as if they had been devised by separate wills.</p> <p>3. Same—restraint upon power of alienation after devise of fee is void. A general restraint on the* power of alienation, when iri-corporated.in a' will otherwise 'conveying a fee simple, is void as against public policy.</p> <p>• 4. Same—holding restraint upon alienation void does not invalidate whole will. -Where a testator has devised his property in fee, followed by a general restraint upon alienation, holding the provision against alienation void does not invalidate the whole will, as thereby destroying the intention of the testator to have his estate remain in the family for a number of years.</p> <p>5. Same—zvhen bequest to trustees of cemetery is void. A bequest of a sum of money to the trustees of a certain cemetery for the care of the testator’s lots is void where the cemetery association is not incorporated; but' holding the bequest void does not' affect other provisions of the will, and the sum so bequeathed will be added to a bequest of all personal property to the testator’s wife.</p>

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

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

<p>1. Drainage—record of commissioners is prima facie proof that meeting for adopting classification was held within district. The record of the drainage commissioners showing that the meeting for the adoption of the classification of lands was held within the boundaries of the district is prima facie proof of that fact but is subject to rebuttal by oral proof.</p> <p>2. Same—when place of meeting for adopting classification is definitely fixed. The provision of the Farm Drainage act requiring the meeting to hear objections to the classification of lands to be held within the district and that due notice of the time and place be given thé land owners, does not mean that the place of meeting be described as completely as is required in a description of land, but only that the place be so definitely fixed that the parties in interest may know where to go to attend such meeting.</p> <p>3. Same—what is a substantial compliance with statute requiring meeting to be held within boundaries of district. The statute requiring the meeting to hear objections to the classification to be held within the district is substantially complied with where the notice fixes the place “at the Maple Grove school house, within the boundaries of said drainage district,” although said school house is just across the line and outside the district, and where the meeting is first opened outside the building and within the district, after which the discussions are carried o'n by unanimous consent within the school'house and.the final adoption of the classification takes place outside of the building and within the district.</p> <p>4. Same—what is not repairing ditches under section 41 of the Farm Drainage act. Where the original ditches in a farm drainage district serve their purpose for a number of years and become filled up, the commissioners are authorized, under section 41 of the Farm Drainage act, to clean out and restore the ditches to their original condition; but an additional assessment without a new classification and without notice is not justified under said section, where the report of the commissioners shows that the extra expenditure is to widen the ditches and to acquire a new right of way.</p>

<p>1. Criminal law—defendant must be sentenced under act in force at time of offense. One committing a crime must be tried and sentenced under the law as it existed at the time of the commission of the offense, except where the punishment is mitigated by the subsequent statute.</p> <p>2. Same—when a verdict is sufficient to justify sentence to reformatory. Under the law as it existed in 1918 a verdict finding the defendant guilty of robbery and finding his age to be “about twenty-one years,” is sufficient to authorize the court to sentence the defendant to the reformatory.</p>

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

<p>I. Wills—construction giving effect to provisions of will should be adopted, if possible. No words of a will are to be deemed used without a purpose, and where one construction renders a portion of the will meaningless and another gives effect to all the provisions the latter construction should be adopted.</p> <p>2. Same—meaning of the word "descendants.” “Descendants” is a broader term than “children,” and includes all lineal heirs in the direct descending line from the person or all who proceed from his body.</p> <p>3. Same—when "descendants” take by executory devise and not by way of substitution. Where a testator provides that his real estate shall go to his wife as long as she remains his widow and until his child or children become of age, when the property shall be divided into two parts,—one-half to his widow for life and the other half to his child or children,—and that at the death of his wife the whole of the property shall go to his child or children and their “descendants,” the only child of the testator, on becoming of age during the lifetime of the widow, takes an indefeasible title in one-half the property and a determinable fee in the other half, subject to an executory devise over to his descendants if he dies before the widow.</p> <p>4. Same-—zvhen estate in fee simple becomes a base or determinable fee. An estate in fee simple which is limited by a subsequent valid provision to go over to others on the happening of a certain contingency is a base or determinable fee until the contingency happens.</p> <p>5. Same—the expressed intention of the testator must govern. The rule that a will is to be construed, if possible, so as to prevent the possibility of intestacy must yield to the expressed intention of the testator.</p>

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

<p>Appeal from the Circuit Court of Rock Island county; the Hon. William T. Church, Judge, presiding.</p>

<p>x. Easements—alley existing by virtue of reservations in deeds to appurtenant owners is a private alley. An alley which exists by virtue of reservations in deeds to the owners of land to which it is appurtenant is a private alley, to be kept open and unobstructed for the use and enjoyment of the occupants of said land.</p> <p>2. Same—private alley does not give right to light and air as a matter of law. Where an alley is public the abutting owners have a right to light, air and. ventilation, but where the alley is private the character and uses of the alley are fixed and regulated by the parties interested and the right to light and air does not follow as ■a matter of law.</p> <p>3. Contempt—when defendant should not be punished for contempt. Where the Supreme Court, on appeal in a proceeding to compel the defendant to remove an obstruction in an alley, finds that the alley is private and should be restored to its prior status as a private alley, but, without observing that the prayer of the bill is for restoration as a public alley, remands the cause with directions to grant the relief prayed in the bill, the defendant should not be punished for contempt in not restoring the alley as a public alley, even though the decree requiring him to do so is in accordance with the remanding order, which is broader than the decision upon which such order is based.</p>

<p>1. Municipai, corporations—council may amend, the record of passage of ordinance in accordance with the facts. The city council has the right to amend its journal at any time so as to make the record show the facts in regard to the action of the council in passing an ordinance, and in an action to enjoin the enforcement of the ordinance it is not error for the court to permit the amendment of the journal to be received in evidence.</p> <p>2. Same—when stipulation by city does not prevent amendment of record of passage of ordinance. In an action to enjoin the enforcement of an ordinance a stipulation by the city to refrain from prosecuting any cases under the ordinance and that the matters involved remain in statu quo until final hearing on the bill cannot be regarded as an agreement not to amend a defective record of the passage of the ordinance.</p> <p>3. Same—when ordinance for licensing horse-drawn vehicles is not invalid as being discriminatory. An ordinance making it unlawful for any resident of a city to use horse-drawn vehicles for hire upon the streets or alleys without a license is not invalid as discriminating between the residents and non-residents of the city. (Heartt v. Village of Downers Grove, 278 Ill. 92, followed.)</p> <p>4. Same—when an ordinance does not violate statute requiring license fees to be paid into treasury. The provision of an ordinance for the licensing of horse-drawn vehicles requiring that the city clerk shall receive the license fee before a license is issued does not violate the requirement of section 6 of article 5 of the Cities and Villages act that all license fees shall be paid into the city treasury, where the fee, when collected, is paid into the treasury.</p> <p>5. Same—when ordinance for licensing horse-drawn vehicles is not objectionable in requiring information of owners. The requirement of an ordinance for the licensing of horse-drawn vehicles that the applicant for a license shall give his name and address and the number and description of horse-drawn vehicles kept by him, and “such other information as may be prescribed,” is not subject to the objection that it leaves to the discretion of an unnamed person what other information may be required, as the city council is the only authority having power to prescribe what information shall be required, and' the character of such information must be prescribed by ordinance.</p>

<p>1. Negligence—-whether declaration states cause of action must be determined from language of declaration. Neither the evidence introduced nor the arguments made on the trial or on appeal can be considered to determine whether the declaration states a cause of action but, that question is to be determined from the language of the declaration itself.</p> <p>2. Same—sufficiency of declaration is raised by motion in arrest. The sufficiency of the declaration may be reached on motion in arrest of judgment.</p> <p>3. Same—when allegation that defendant had elected not to be bound by Compensation act is surplusage. Where a common law declaration for negligence, filed by an employee of a city against a third party, contains no averment that the plaintiff or his employer is under the Compensation act nor any allegations of fact showing-such condition, the mere averment that the defendant elected not to be bound by said act may be rejected as surplusage and the declaration treated as one having no relation to the Compensation act.</p> <p>4. Same—when court will not presume that plaintiff and his employer are bound by Compensation act. In the absence of averments in a declaration against a third party by an injured employee from which it may be concluded that the plaintiff and his employer are under the Compensation act the court will not presume that those -parties are so bound; and the mere fact that the employer is engaged in a hazardous occupation is not conclusive that the employee is engaged in hazardous work.</p> <p>5. Same—when declaration does not show that action is brought under section 29 of Compensation act. Where a common law declaration against a third party for an injury to an employee contains no averment which will bring the plaintiff under the Compensation act that act has nothing to do with the case, and the mere averments that the plaintiff was an employee of a city and that the defendant had elected not to be bound by the Compensation act do not show that the action is brought under section 29 of said act.</p> <p>6. Same—contract of employer assigning his rights to injured employee is not admissible in action against third party. In a common law action against a third party by an injured employee, a contract by which the employer purports to sanction the action and to assign to the plaintiff any claim against the defendant which the employer may have is not admissible in evidence.</p> <p>7. Same—instruction which precludes consideration of a proper defense is erroneous. In a common law action for damages by an injured employee against a third party, an instruction that it is no defense that the plaintiff’s foreman was guilty of negligence if the plaintiff did not contribute to the negligence of the foreman, precludes consideration of the defense that the negligence of others and not of the defendant was the proximate cause of the injury and is erroneous.</p>

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

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

<p>1. Special assessments—separate pieces of unimproved property should not be assessed a lump sum—waiver. An assessment of a single sum against separate lots or parts of lots of unimproved property is not authorized under section 41 of the Local Improvement act, and the objection to a lump sum is not waived by an agreement at a hearing as to the equitable distribution of the assessment that for the purpose of comparison the single sum shall be regarded as a certain amount against part of one lot and the remainder against the other.</p> <p>2. Same—effect where parts of separate lots are described as one tract. The fact that parts of separate, unimproved lots are described in the assessment roll by metes and bounds does not confer any right to assess the property as one tract.'</p> <p>3. Same—section 94 of Local Improvement act is not unconstitutional. Section 94 of the Local Improvement act is not unconstitutional upon the alleged ground that it authorizes the city to include in a special assessment the cost of maintaining a board of local improvements, as the additional five per cent allowed thereby for the expense of levying and collecting an assessment only authorizes the reimbursement of the corporate fund of the city for advances made to pay the cost of the particular improvement, and then only after the payment of deficiencies out of the five per cent.</p> <p>4. Same—what is not a proper basis for opinion as to benefit. On the hearing as to whether property is assessed more than it is benefited by a local improvement, an opinion of a witness that the property would be greatly benefited if it were combined with other property that was not owned by the objector is founded upon an improper basis.</p>

<p>1. Pleading—the allegations of a bill, the proof and the decree must correspond. The allegations of a bill, the' proof and the decree must correspond, and the decree cannot give relief which the facts disclosed by the evidence would warrant where there áre no averments in the bill to which the evidence can apply.</p> <p>2. Same—when relief different from that specifically prayed for may be granted under general prayer. Under the prayer for general relief a court of equity may give every relief consistent with the case made by the bill and may give a relief different from that specifically prayed for, where it is consistent with the facts alleged and proved and does not take the defendant by surprise.</p> <p>3. Same—when decree pro confesso should be set aside. A decree pro confesso should be set aside on motion and leave be given to answer where the bill shows on its face that the defendants have a substantial beneficial interest in the property, which the decree, in disregard of the allegations of the bill, requires them to give up.</p>

<p>Appeal from the Circuit Court of Fulton county; the Hon. G. W. Thompson, Judge, presiding.</p>

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

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

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

<p>Motor vehicles—when an ordinance for licensing of 'motor vehicles is not void. An ordinance for the licensing of motor .vehicles owned by the inhabitants of a municipality is not void because it does not apply also to parties living outside the city, nor because it requires the license fee to be paid in the first instance to the city clerk,-nor because it requires applicants for a license to furnish such information as may be required. (Robbins v. City of Herrin, ante, p. 133, followed.)</p>

<p>1. Registration’of title—effect of section p4 of act for registering land titles. Section 94 of the act for the registration of titles, providing that any person aggrieved by the action of the registrar may petition the circuit court in the proceeding in which the land was registered, continues the jurisdiction of the court to control the action of the registrar, not only as to any matter pertaining to the first registration but also as to any estate or interest therein after the first registration.</p> <p>2. Same—appeal may be taken from decree dismissing petition under section p4 of act concerning land titles. A decree dismissing a petition, under section 94 of the áct concerning land titles, to compel the registrar to receive and file a tax deed and enter a memorial of the same upon the certificate of title is a final order within the purview of sections 25 and 26 of the act, from which an appeal is allowed under section 26, as the appeal provided therein is not intended to be limited to the original proceeding for registration.</p> <p>3. Same—holder of tax deed may have same filed without surrender of outstanding certificate of title. The provisions of section 83 of the act concerning land titles that no certificate of title shall be issued on a tax deed except upon the surrender and cancellation of the outstanding certificate of title or upon order of court, as provided in section 88 of the act, do not apply where the holder of a tax deed merely seeks to have the same filed by the registrar and a memorial thereof entered on the certificate of title, and under section 94 the registrar may be compelled to file the tax deed.</p> <p>4. Same—owner of certificate of title is not a necessary party to petition to 'compel registrar to file tax deed. A petition, under section 94 of the act concerning land titles, to compel the registrar to file a tax deed and enter a memorial thereof on the certificate of title in his office is to compel the performance of a purely ministerial duty and not to adjudicate anything concerning the title, and the owner of the duplicate certificate is not a necessary party.</p>

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

<p>1. Wills—a will and its codicils should he construed together. The several clauses of a will and its codicils should be construed so as to give effect to every provision according to the general intent and purpose of the testator as gathered from the entire instrument, considering the will and the codicils as one document.</p> <p>2. Same—plain provisions of will cannot he changed hy doubtful expressions of codicil. The plain provisions of a will cannot be taken away or.modified, by doubtful expressions .contained in a codicil.</p> <p>3. Same—punctuation will not be permitted to control meaning of will. The punctuation .or capitalization in a will will not be permitted to control its meaning as ascertained from a consideration of the whole will.</p> <p>4. Same—when word "also" means "in like manner." Where a provision in a will giving to the testator’s wife certain real and personal property is followed by the words, “also thirty acres off the north side of the NE % of Sec. 21, * * * to have and to hold during her widowhood," the word “also” will be construed to mean “in like manner,” and the limitation during widowhood will be construed to apply to the preceding devise, although it is impossible to tell from the original will whether the word “also” begins a new sentence.</p> <p>5. Same—a devise to a wife during her widowhood is a devise of a life estate. Where a will gives an estate to the testator’s wife while she remains his widow the estate to her is for life, only, and will terminate either by marriage or the death of the widow.</p> <p>6. Same—a devise over after gift to testator’s wife during her widowhood is a vested remainder. A devise to the testator’s wife, “to have and to hold during her widowhood and in case of her re-marriage”; to be divided equally among the testator’s children, (naming them,) is a devise of a life estate to the wife with a vested remainder in the children. (Thompson v. Adams, 205 Ill. 552, distinguished.)</p> <p>7. Same—renunciation of life estate by widow accelerates rights of remainder-men. Where a widow who has been given a life estate renounces the will and elects to take her dower and the statutory allowance instead, such renunciation works an extinguishment of the life estate and accelerates the rights of the remainder-men.</p>

<p>Writ oe Error to the Circuit Court of Hardin county; the Hon. Charles H. Miller, Judge, presiding.</p>

<p>Admission to the bar—discretion of committee on character and fitness will not ordinarily be reviewed. The granting by the committee on character and fitness of the certificate required by rule 39 of the Supreme Court to be obtained by an applicant for admission to the bar is committed to the discretion of the committee after an examination of the applicant and an investigation of his previous history, and unless a manifest abuse of such discretion-is shown the Supreme Court will accept the decision of the committee as final. °</p>

<p>x. Partition—partition by a co-tenant is a matter of right■—estoppel. Partition by a co-tenant, when properly brought, is a matter of right, and will be granted unless the party asking for partition is estopped by his own agreement or unless it is in violation of a condition or restriction imposed upon the estate by one through whom he claims.</p> <p>2. Wills—the direction to convert must be positive and explicit. To establish a conversion the direction to convert must be positive and explicit and the will must decisively fix on the land or the monejr the character intended to be given it.</p> <p>3. Same—when giving a power of sale does not effect a conversion—partition. Where a general power of sale is given to the executor «.without explicit and imperative direction for its exercise and the intention of the testator in the disposition of his estate can be carried out although no conversion is adjudged, the land will pass as such and will be subject to partition where there has been no actual sale, although the executor has attempted to carry out the power given him.</p> <p>4. Same—whether will effects a conversion depends upon intention of testator. Whether a conversion is effected by a provision of a will giving a power of sale depends largely on the intention of the testator, and that intention must be determined from a consideration of the-whole instrument rather than from the terms of a particular clause.</p> <p>5. Powers—general power of sale must be exercised within reasonable time. Where a will gives the executor a general power of sale without giving imperative directions to sell or fixing a time for exercising the power, the power must be exercised within a reasonable time, and if not so exercised the heirs may proceed to partition the estate.</p>

<p>Workmen’s compensation—when award cannot be made for partial incapacity and for permanent partial loss of use of member. There may be an award for partial incapacity and also for permanent partial loss of use of a member where there are different injuries, but both awards are not authorized where there is no evidence to show that the partial incapacity is due to any other injury than the one for which the award is made for permanent partial loss of use of the member.</p>

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

<p>Writ of Error to the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding.</p>

<p>1. Workmen’s compensation-—when an accident occurs in the course of employment. An accident happens in the course of the employment if it occurs while -the employee is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time to do that thing.</p> <p>2. Same—zvhen an accident arises out of employment. An accident arises out of the employment when it is something the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it.</p> <p>3. Same—when a risk is incidental to the employment. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service, and it may be incidental to the employment when it is either an ordinary risk directly connected with the employment or an extraordinary risk which is only indirectly connected therewith.</p> <p>4. Same—employer under Compensation act is not an insurer of his employee’s safety. The Compensation act does not intend that the employer who comes within its provisions shall be an insurer of the safety of his employees.</p> <p>5. Same—zvhat acts of refreshment are incidental to employment. Acts of an employee for the purpose of refreshing himself, such as quenching his thirst, relieving his hunger or protecting himself from excessive cold, the performance of which white at work are reasonably necessary to his health and comfort, are incidental to the employment.</p> <p>6. Same—employee cannot voluntarily increase the risk of his employment. For an accident to arise out of the employment the act of the employee must be reasonably incidental to his employment, and he must not unnecessarily increase the risk of injury to himself beyond that contemplated in his contract of service or choose an unnecessarily dangerous place for the doing of the act which is claimed to be incidental to the employment.</p> <p>7. Same—when accident while the employee is resting does not arise out of employment. Where employees are permitted to rest at intervals between the loading of wagons, an injury to an employee who was run over while resting on a switch track in the shade of a box-car on the premises of the employer does not arise out of the employment, where the track was known to be used by switch engines during the day and where the employee could have availed himself of other shade in which to rest.</p>

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

<p>1. Deeds—in construing a deed the court is limited to the language employed by the grantor. The same license permitted in the construction of wills is not permitted in construing a deed, and in arriving at the grantor’s intention the language used by the grantor will be construed according to its legal effect, even though his in-,, tention may be thereby frustrated.</p> <p>2. Same—when words "heirs of his body” do not define estate granted. A deed from a father to a named son “and the heirs of his body, grantee,” but which does not contain the words “and the heirs of his body” in either the granting clause or habendum clause, conveys the whole title to the named son as being the only grantee in existence, as the words “heirs of his body” in such deed are descriptive of the parties, only, and do not define the estate granted. (.Duffield v. Duffield, 268 Ill. 29, and Doney v. Clipson, 285 id. 75, followed.)</p>

<p>1. Criminal law—to be guilty of confidence game the defendant must have obtained property by means of confidence reposed in him. The essence of the crime of obtaining money by means of the confidence game is a trust reposed in the swindler and betrayed by him as a means of obtaining the money, and the moving cause for the victim’s parting with his money must be the confidence reposed in the accused.</p> <p>2. Same—zvhen the defendant is not guilty of confidence game. Evidence that a woman had sufficient confidence in the defendant to leave her husband and go away with 'the defendant but would not trust him with her money, and that he took her money from her after frightening her with a revolver, does not prove the defendant guilty of obtaining the money by means of confidence game.</p>

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

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

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

<p>Appeal from the Circuit Court of Jasper county; the Hon. William B. Wright, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Ogle county; the Hon. Ralph E. Eaton, Judge, presiding.</p>

<p>1. Workmen’s compensation—when death is presumed to have been accidental. Where there is no direct evidence as to what caused the death of an employee and the circumstances are such that the death must have been by suicide, murder or by accident," in the absence of any evidence of suicide or murder it must be presumed that the death was accidental.</p> <p>2. Same—zvhen an injury arises out of employment. An injury arises out of the employment, within the meaning of the Compensation act, when the accident results from a risk reasonably incidental to the employment.</p> <p>3. SXme—burden is on claimant to show injury arose out of employment—circumstantial evidence. The burden is upon an executrix who claims compensation for the death of an employee to show that the death was caused by an accidental injury arising out of the employment; but this proof may be by circumstantial as well as by direct evidence.</p> <p>4. Same—when conclusion that death resulted from injury arising out of employment is justified. Where an employee whose work was to sweep and clean a mill was last seen alive while he was sweeping near the windows on the fourth floor of the building, the weather being warm, and was shortly afterwards found in a dying condition on the pavement below the windows, the conclusion that the death resulted from an injury arising out of the employment is justified, where there is no evidence tending to show suicide but sufficient evidence to warrant finding that the windows were open and that the employee was either knocked from one of the windows by a swinging sifter, or fell from another, window while, according to a proved custom, he was getting fresh air.</p>

<p>1. Specific performance—equity will not decree performance of a contract which complainant has secured by material misrepresentations. A contract will not be specifically enforced unless it is fair and reasonable and free from fraud and unless it has been entered into understandingly and without material misrepresentations.</p> <p>2. Same—on what ground equity enforces contracts. It is only on the principle that it is unjust and inequitable to permit a contract to remain unexecuted that a court of chancery assumes jurisdiction to enforce it.</p> <p>3. Same—if material misrepresentations are relied on to injury of defendant equity zuill not enforce contract. Where representations are false and material and are relied upon by the defendant to his injury a court of equity is justified in refusing specific performance of a contract for the exchange of lands, and it is immaterial whether the representations were made without knowledge of the truth or with actual intent to deceive.</p> <p>4. Fraud—intentional fraud must be established by clear proof. Intentional fraud must be established by clear and convincing evidence, but such fraud is proved where a complainant seeking specific performance of an inequitable contract for the exchange of lands is shown to have repeatedly made misrepresentations of material facts.</p>

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

<p>" Writ or Error to the Appellate Court for the First District to review the judgment of that court on petition for mandamus.</p>

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

<p>1. Criminal law—general rule as to electing on which count State will prosecute. Where an indictment charges two or more offenses, parts of one transaction, which are in their nature such that defendant may be guilty of both, the State cannot be put to its election under which count it will prosecute, but where the offenses charged in the several counts are distinct and not parts of one transaction the State should be required to elect.</p> <p>2. Same—confidence game—when State should be required to elect. An indictment for the confidence game which charges the defendant in four separate counts'with obtaining different sums of money at different times charges four separate and distinct offenses, and the State should be required to elect on which count it will ask for a conviction where it cannot be determined from the indictment that 'the different offenses charged have any connection with each other.</p> <p>3. Same—alibi need not be proved beyond a reasonable doubt. The burden is not on the defendant to prove the defense of. alibi beyond a reasonable doubt, but he is only required to prove facts which, considered in connection with all the other evidence, create in the minds of the jury a reasonable doubt of his guilt.</p>

<p>1. Corporations—when whole of capital stock of foreign corporation is represented by property located and business transacted in Illinois. Where a foreign corporation has all of its tangible property in Illinois, manufactures its products, accepts orders and completes all of its contracts of sale in this State, the whole of the capital stock is represented by the property located and the business transacted in Illinois, although a large per cent of its commodities is shipped to wholesalers and jobbers in other States.</p> <p>2. Same—when license fee based on entire capital stock of foreign corporation is not a ta.v on interstate commerce. Where the entire capital stock of a foreign corporation is represented by business transacted and property located in Illinois, a license fee under section 5b of the Foreign Corporation act, based on the entire capital stock of the corporation, is not a tax on interstate commerce, where the corporation is not doing business in any other State in such a way as to make it amenable to a corporation act of such foreign State. (American Can Co. v. Emmerson, 288 Ill. 289, followed.)</p>

<p>1. Wills—when record in will contest case must be free from error. Where the- evidence as to the mental capacity of the testatrix is sharply conflicting and closely balanced the record must be free from prejudicial error in the rulings of the court on the admission of evidence or the giving of instructions.</p> <p>2. Same—when witness should not express opinion that testatrix understood ivhat property she owned. A witness in a will contest case whose conversation with the testatrix was limited to ordinary topics having no reference to her property should not be permitted to express an opinion that the testatrix was able to know what property she owned.</p> <p>3. Same—what questions as to the mental capacity of a testator are for the court. What degree of mental capacity is necessary to enable a testator to make a valid will, to what extent and with what degree of perfection he must understand the will and the persons and property affected by it, or to what extent his mind must be impaired to render him incapable, are questions of law exclusively for the court.</p> <p>4. Same—when opinion of non-expert witnesses is incompetent. Non-expert witnesses should not be permitted to answer the question whether or not in their opinion the testatrix had sufficient mind and memory to recall to mind her property and to make disposition of it understandingly according to some plan she had formed in her mind, .as the determination of that question is for the jury.</p> <p>5. Same—when opinion of non-expert witness is unnecessary. Where a witness has detailed a conversation with the testatrix regarding the nature and extent of her property and the objects of her bounty, it would not be ground for reversal to allow the witness to give an opinion as to whether the testatrix understood the nature and extent of her property and the objects of her bounty, but such an opinion is unnecessary.</p> <p>6. Same—when rule against permitting witness to say whether testator could make a will is violated. The rule against permitting a non-expert witness to express an "opinion as to whether a testator or testatrix was mentally capable of making a will is violated by allowing such witness to give an opinion on the separate propositions as to whether the testatrix was able to understand what property she owned, who were the natural objects of her bounty, and whether she' was able to make disposition of her property understandingly according to some plan formed in her mind.</p> <p>7. Same—when non-expert witness cannot express opinion on mental condition• of testatrix when will was signed. A non-expert witness cannot give her opinion as to the mental condition of the testatrix on the day of the execution of the will, where she has seen the testatrix only once, and that on a day some three months after the will was executed.</p> <p>8. Same—when non-experts Should not he allowed to express opinion as to mental condition. Non-expert witnesses should not be permitted to express an opinion as to the mental condition of a testator or testatrix until it is shown by the preliminary examination that they have had an acquaintance long enough and association frequent enough to enable them to observe such mental condition.</p> <p>9. Same—when it is proper to limit jury’s consideration of former will. Where a former will, which is variant from the will in contest, is admitted in evidence on the question whether the testatrix was of sound mind when she afterwards made statements as to the contents of such former will, it is proper, by an instruction, to limit the jury’s consideration of the former will to such question, as it is not admissible generally.</p>

<p>Appeal from the County Court of' Tazewell county; ‘ the Hon. Charles Schaefer, Judge, presiding.</p>

<p>1. Taxes—tax for tuberculosis sanitarium may be levied by percentage. Under the Tuberculosis Sanitarium act the tax for a sanitarium fund is excepted from the statutory requirement that the amount of taxes for separate purposes must be separately stated, and said tax may be levied by percentage and not by amount. (People v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. 270 Ill. 633, followed.)</p> <p>2. Same—when levy for park taxes may be in excess of limit provided in section 1 of article 8 of Cities and Villages act. Under the act of 1893, as amended in 1895, a levy for park taxes may be in excess of the limit provided for in section 1 of article 8 of the Cities and Village act, where an election as provided in the amendment of 1895 has been held to authorize the levy in excess of the limit.</p> <p>3. Same—levy for bonded indebtedness may exceed limit provided in section 1 of article 8 of Cities and Villages act. A city tax levy in excess of the limit provided for in section 1 of article 8 of the Cities and Villages act is proper, where the tax ordinance levies various sums for the payment of special assessment bonds and interest and the excess is for such bonded indebtedness.</p> <p>4. Same—objector to a tax must prove its invalidity. Those objecting to a tax have the burden of proving its invalidity, as the presumption is that public authorities have properly discharged their respective duties as to levying the tax; and this presumption can be overcome only by clear testimony.</p> <p>5. Practice—question cannot be raised for first time in reply brief. Under the rules and practice of the Supreme Court a question cannot be raised for the first time in a reply brief.</p>

<p>Writ of Error to the Circuit Court of Williamson county; the Hon. D. T. Hartwell, Judge, presiding.</p>

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

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

<p>1. Wills—whether condition is precedent or subsequent depends upon intention and not utpon technical language.' The same words may be employed to create either a condition precedent or a condition subsequent, and in every instance the condition is to be considered precedent or subsequent, according to the clear intention of the maker, to be collected from the whole instrument, and technical words, if any are used, yield to that intention.</p> <p>2. Same—when conditions are precedent. If the language of the whole will shows that the act on which the estate depends must be performed before the estate can vest, or if the grant is without other consideration than the performance of the specified conditions, the conditions are precedent.</p> <p>3. Same—when devise to city for park purposes is upon condition precedent. A devise of land to a city for park purposes is upon condition precedent, where the devise is expressly subject to the condition that the city within a reasonable time take possession of and improve the property in a manner adapted to park purposes, and where, instead of a clause providing for forfeiture or re-entry upon failure to comply with the condition, the executrix is directed in such case to sell the land and apply the proceeds.to such charitable purposes as she shall deem best.</p> <p>4. Same—estate subject to condition precedent does not vest until all conditions have been complied with. A devise or bequest upon condition precedent does not become effective until the condition is performed, and where a condition precedent embraces several requirements the estate does not vest until all of them have been complied with.</p> <p>5. Same—what is not performance of condition precedent within a reasonable time. Where property is devised to a city for park purposes upon the precedent condition that the city take possession ■ of and improve the land within a reasonable time, the city will be deemed to have neglected to perform the condition where its first appropriation for that purpose is approximately seven years after the probate of the will and no possession is ever taken by the city of the devised premises, although it is authorized to do so under the statute;</p> <p>6. Sa.me—an executor will be held to be a trustee where he is charged with a trust. Where an executor is charged with duties which do not properly belong to him as such but to a trustee he will be held to be a trustee, and where a testator creates a trust for charitable purposes and charges his wife by name, as executrix, with duties properly belonging to a trustee, the wife is a trustee in fact, and an order of the county court discharging her as executrix is void as to the unsettled portion of the estate.</p> <p>7. Same—trustee is devised a fee when empowered to convey a fee. Where a trustee is required by will to convey a fee a fee is conferred upon the trustee by the will, as the estate of a trustee in real estate is commensurate with the powers conferred by the trust and the purposes to be effected by it.</p> <p>8. Words and phrases—meaning of term “within a reasonable time.” A requirement that certain acts shall be performed within a reasonable time means that such reasonable diligence shall be exercised as under all of the existing and subsequent circumstances may fairly be expected, and what is a reasonable time is a question of law and fact, to be determined from a consideration of all the facts of each particular case.</p> <p>9. Trusts—discretion vested in a trustee is subject to control of court of chancery. Where great discretion is vested in a trustee the exercise of such discretion is subject to the control of a court of chancery, and the court, having obtained jurisdiction by reason of the trust, is empowered to determine all questions that may arise in the progress of the case and to do complete justice.</p> <p>10. Cloud on title—ivhat is a cloud on the title. A semblance of title, either legal or equitable, which, if valid, would affect or impair the title but which .can be shown by extrinsic evidence to be invalid, is a cloud on the title.</p>

<p>1. Costs—specific items cannot be taxed as costs without statutory authority. The right to costs is not a common law right but rests upon and is limited by statutory provisions, and specific items cannot be taxed as costs without express statutory authority.</p> <p>2. Drainage—commissioners’ expenses cannot be taxed as costs on petition1 to abolish district. In an order abolishing a drainage district on the petition of a majority of the land owners, as provided in section 44 of the Levee act as amended in 1919, the expenses of the commissioners in employing an engineer and attorneys, and other incidental expenses and fees, cannot be taxed as costs, as the statute merely provides that the petitioner shall “pay all court costs.”</p> <p>3. Same—when constitutionality of statute is involved. Courts do not entertain objections to the constitutionality of a statute unless the objection is made by one whose rights have been in some way affected, but the objection that a statute to abolish a drainage district on petition of the land owners impairs the obligations of contracts will be entertained where the commissioners, who have entered into contracts for the district, are parties to the proceeding to abolish it and represent parties whose contract rights will bfe affected.</p> <p>4. Constitutional law—what contracts are protected by constitutional provision against impairing their obligations. The constitutional provision against laws impairing the obligations of contracts prohibits any law which impairs the obligations of contracts binding the parties to perform their agreement, whether the contract is executed or executory; and it is not only private contracts that are protected but also contracts made by the State with individuals and by municipalities or corporate agents of the State with individuals.</p> <p>5. Same—franchise to corporate agent of State is not protected by provision against impairing obligations of contracts. A legislative grant'to a municipal or quasi municipal corporation for the exercise of some share of governmental powers in a locality does not constitute a private contract between the State and the corporation, and, unlike franchises granted to engage in business which might properly be transacted by a private corporation, such a franchise is not contractual in its nature nor protected by the constitutional guaranty against laws impairing the obligations of contracts, but the legislature may amend or revoke such a franchise at its pleasure.</p> <p>6. Same—extent to which section 44 of Levee act, as 'amended, in 1919, for abolishing drainage districts, is unconstitutional. The provision of section 44 of the Levee act, as amended in 1919, for abolishing drainage districts on the petition of a majority of land owners, is unconstitutional in so far as the order of court abolishing a district impairs the obligations of lawful contracts which the drainage commissioners have already entered into and by which they have incurred expenses authorized by statute to be paid by subsequent assessments.</p>

<p>1. Evidence—common law rule as to testimony 'of husband or •wife. At common law husband and wife were incompetent to testify for or against one another, and they were also incompetent to testify, either during the marriage relation or after its termination by' death or divorce,—even in suits to which neither was a party,— as to any matter of which knowledge was obtained in consequence of the marriage relation.</p> <p>2. Same—statutory exceptions to common law rule do not apply except in suits between husband and wife. The exceptions in sections 1 and 5 of the Evidence act to the common law rule as to the testimony of a husband or wife do not apply td any admissions or conversations 'between them or by either with third persons except in suits between husband and wife, and after the husband’s death the wife is incompetent to testify to a conversation of her husband in her presence.</p> <p>3. Workmen’s compensation—when wife is incompetent to testify to conversation of her husband with representative of Ms employer. In a compensation case, where the question of notice of the accident is involved, the wife of the deceased employee is incompetent to testify on that issue to a conversation in her presence between the employee and his field boss, after the injury.</p> <p>4. Same—notice of accident and claim for compensation within statutory time are jurisdictional. Notice of the accident within thirty days and the claim for compensation within six months are jurisdictional, and an award cannot be sustained in the absence of evidence of a compliance with these requirements of the statute.</p> <p>5. Same—when making claim within six months after last payment by the employer does not satisfy statute. The making of a written claim for compensation within six months after the last of weekly payments made by the employer does not satisfy-the requirement of section 24 of the Compensation act, where said payments were made voluntarily by the employer though he denied all liability, and were not made by virtue of any contract or in accordance with provisions of the Compensation act. (Tribune Co. V. Industrial Com. 290 Ill. 402, distinguished.)</p> <p>6. Same—when statutory provision for making a claim within eighteen months after an employee returns to work does not apply. The provision of paragraph (d) of section 8 of the Compensation act that an employee who returns to work for the employer in whose service he was injured may file notice of his claim for compensation within eighteen months after returning to work does not apply where the employee’s right to compensation, at the time he returned to work, was barred by failure to make any claim for compensation within six months after the accident, as said provision is intended to extend the right of an employee to maintain an existing claim and not to grant a new right.</p>

<p>1. Bills and notes—bank taking draft as security for loan becomes holder in due course—bill of lading. Where a depositor borrows money from a bank and deposits with the bank as security a sight draft indorsed in blank, to which is attached a bill of lading for a shipment of goods for which the draft is drawn, the bank becomes the holder in .'due course of the draft and takes title to the goods described in the bill of lading.</p> <p>2. Same—bank collecting draft becomes debtor of bank from which it received draft for collection. Where a sight draft is deposited with a bank as security for a loan and the bank sends the draft on to another bank for collection, with directions to deposit the proceeds to the general credit of the former bank, the bank collecting the draft takes title to the proceeds and becomes the debtor of the bank from which it received the draft for collection.</p> <p>3. Same—pledgee taking negotiable paper as security for loan becomes holder for value in due course. Where negotiable paper is indorsed and transferred before maturity as collateral security for a loan of money then made, the pledgee, who takes the paper without any notice of defense, is a holder for value in the usual course of business.</p> <p>4. Same—money in hands of bank collecting draft cannot be attached by drawee, to satisfy debt of drawer. Where a sight draft with bill of lading attached is indorsed in blank and deposited with a bank as security for a loan and the bank forwards the draft to another bank for collection, the proceeds of the draft in the hands of the collecting bank cannot be attached by the drawee to satisfy an account which it holds against the drawer, as the money collected is not the property of the drawer but of the forwarding bank, although the drawer has a balance on deposit at the latter bank more than sufficient to meet the loan.</p> <p>g. Same—bank cannot be compelled to resort to depositor’s balance instead of proceeds of draft given to sectire loan to depositor. The right of a bank to resort to a depositor’s balance instead of to the proceeds of a sight draft drawn by the depositor and given to the bank to secure a loan to him is personal to the bank, and the drawee, after paying the draft, cannot compel the bank to resort to the depositor’s balance to satisfy the loan, so as to allow the drawee to attach the proceeds of the draft to satisfy an account which it has against the drawer.</p> <p>6. Debtor and creditor—the doctrine of marshaling of assets stated. The doctrine of marshaling assets rests upon equitable principles and requires a creditor who has a lien on two funds in the hands of the same debtor to make his debt out of that fund to which another creditor who has a lien on one of them, only, cannot resort.</p> <p>y. Appeals and errors—when propositions of law are unnecessary. In an attachment suit tried without a jury on the evidence introduced by an interpleader claiming the fund, a motion by the interpleader for a finding in its favor presents the question of law whether the evidence sustains the interplea, and no propositions of law are necessary.</p>

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

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

<p>1. Workmen’s compensation—employee who acts as volunteer is not protected by Compensation act. There is no liability for injury to a workman unless he is at the time of the injury in the performance of some duty for which he was employed, and if he voluntarily and without his employer’s direction or acquiescence undertakes work for which he was not employed and is injured while so engaged he is not within the protection of the Compensation act.</p> <p>2. Same—when employee acts as a volunteer. Where an employee who is hired to work at a particular machine finishes his assignment there and is directed to a second machine by a fellow-, workman who had no authority over him, and thereafter is again directed by such fellow-workman to go to a third machine, where •he is injured, the employee acts as a volunteer and cannot have compensation for his injury, although the foreman saw him working on the second machine but did not see him working on the third, which was more dangerous.</p>

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Ogle county; the Hon. James S. BaumE, Judge, presiding.

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

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Moultrie county; the Hon. George A. SENTEL, Judge, presiding.

<p>Constitutional law—amendment of ipi3 to section 12 of act of ipo3, providing for fire and police commissioners, is void. The amendment in 1913 to section 12 of the act of 1903, providing for the appointment of a board of fire and police commissioners in certain cities, (Laws of 1913, p. 145,) is unconstitutional, as the trial board which said amendment attempts to create for hearing charges is composed of members of the judicial department, who are precluded by article 3 of the constitution from exercising executive powers; but section 12 remains in force as before it was amended.</p>

<p>x. Sanitary districts—lands outside territorial limits of Sanitary District of Chicago are not exempt from taxation as public grounds. Lands outside the territorial limits of the Sanitary District of Chicago, included in the' rights of way of its channels, are not exempt from taxation as public grounds. (Sanitary District v. Martin, 173 Ill. 243, followed.)</p> <p>2. Taxes—1property of municipality is subject to taxation unless there is a law exempting it. The assessment of taxes upon public property of the State, county or municipal corporations is a mere question of policy, and the language of the constitution plainly implies that the property of municipal corporations is subject to taxation unless there is a law exempting it.</p> <p>3. Same—exemption statutes are to be strictly construed. Statutes exempting property from taxation are to be strictly construed, and courts will not hold property to be exempt unless it clearly appears to be within the terms of such a statute.</p> <p>4. Same—sanitary district desiring property to be listed separately must furnish proper description before assessment. Where a sanitary district desires to have land listed separately as belonging to the State and therefore exempt from taxation, it should furnish a proper description of the land to the proper officials before the assessment is made, with the request that the land be listed separately.</p>

<p>Writ op Error to the Circuit Court of St. Clair county; the Hon. J. F. Gillham, Judge, presiding.</p>

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

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

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

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

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

<p>1. Pleading—whether a bill is multifarious depends upon circumstances of the particular case. There is no inflexible rule by which to determine whether a bill is multifarious but the court must look to the circumstances of the particular case, and the decision in another case is not necessarily conclusive.</p> <p>2. Same—general rule.as to what matters may be joined in one bill. Matters of the same nature between the same parties although arising out of different transactions, and matters arising out of the same transaction or series of transactions forming one course of dealing and requiring relief of the same general character without imposing unreasonable hardship on the defendant or causing additional expense, may be joined in one bill, and although a bill has more than one object it will be sustained if necessary to the administration of justice.</p> <p>3. Equity—proceeding to set aside a will is a suit in equity. Although jurisdiction of a court of equity to entertain a bill to contest a will is derived from the statute, a will contest is nevertheless a proceeding in equity. (Stephens v. Collison, 249 Ill. 225, followed.)</p> <p>4. Same—a court of equity will endeavor to avoid a multiplicity of suits. A bill in equity should be so planned as to afford ground for a decision on the whole matter at one time and to prevent, if possible, further litigation, as one of the favorite objects of a court of equity is to do complete justice by avoiding a multiplicity of suits, and the court will grant all relief incidental to the main object of the bill.</p> <p>5. Wills—when bill to set aside will and to enforce trust agreement is not multifarious. A bill to set aside the will of the complainant’s step-mother on the ground that she was unduly influenced by her own children, and to enforce a trust agreement between the step-mother and the complainant’s father that no distinction should be made by the survivor in the distribution of property to the children of both of them, is not multifarious on the ground that it invokes both the statutory and the general jurisdiction of a court of equity.</p>

<p>Writ or Error to the Circuit Court of Stark county; the Hon. C. V. Miles, Judge, presiding.</p>

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

<p>1. Constitutional law—when prohibition of laws impairing obligation of contracts does not apply. The constitutional provision that no law shall be made impairing the obligation of contracts is directed against the legislative department of the government and-is not applicable to decisions of the courts in the construction of contracts or the application of general principles of law to contract relations or obligations.</p> <p>2. Same—what enactments are subject to prohibition of laws impairing obligation of contracts. To be within the constitutional prohibition of laws impairing the obligation of contracts it is not essential that the enactment shall be a statute of the legislature or a constitutional provision adopted by the people but the prohibition reaches every form in which the legislative power of the State is exerted, whether by constitution,' constitutional amendment, enactment of the legislature, ordinance of a municipal corporation or a regulation of some other instrumentality of the State exercising delegated legislative authority.</p> <p>3. Same—what enactment may be regarded as law. Any enactment of a governmental agency to which the force of law is given by the State may be regarded as a law within the territory in which it is so enforced.</p> <p>4. Brokers—Chicago Board of Trade has no political or governmental power. Although the ■ Chicago Board of Trade is incorporated under an act of the General Assembly it is merely a voluntary organization with the ordinary powers and privileges of private corporations and has no political, governmental or legislative power.</p> <p>5- Same—members of Chicago Board of Trade are subject to its by-laws. Persons who become members of the Chicago Board of Trade voluntarily submit themselves to the operation of all laws enacted for the government of the corporation and agree to be bound by them so far as within the corporate authority.</p> <p>6. Corporations—what is included in grant of power to corporation to adopt by-laws. The-grant of power to adopt by-laws, rules and regulations for the government of a private corporation and the management of its business is.no more than a recognition of the inherent and implied power which is a necessary and inseparable incident of its existence.</p> <p>7. Appeals and errors—whether resolution of Chicago Board of Trade impairs obligation of contracts is not constitutional question. Whether a resolution of the Chicago Board of Trade impairs the obligation of a contract for future delivery of grain is not a constitutional question authorizing a direct appeal to the Supreme Court, as the constitutional prohibition does not apply to such a resolution, and its validity depends merely upon the power of the board of directors, under the general principles of law in relation to contracts, to adopt it.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Henry Guerin, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Fulton county; the Hon. G. W. Thompson, Judgé, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding.</p>