Volume 251 — Illinois Reports

Writ oE Error to the Appellate Court for the Fourth District ;■ — heard in that court on appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.

<p>1. Constitutional law — section 6 of the Medical Practice act is not void for uncertainty. .Section 6 of the Medical Practice act of 1899, (Laws of 1899, p. 275,) authorizing the State Board of Health to refuse or to revoke licenses for certain causes therein specified, and, generally, for unprofessional or dishonorable conduct, is not void for uncertainty, particularly as to causes specified.</p> <p>2. Same — neither the granting nor revocation of a license to practice medicine is an exercise of judicial power. Neither the granting of a license by the State Board of Health to practice medicine nor the revocation of such license is an exercise of judicial power by the board, as the legislature has prescribed the qualifications for a license and the causes for its revocation, and the board acts merely as the body designated by the legislature to ascertain whether the qualifications are possessed or the causes-for revocation exist.</p> <p>3. Same — the State Board of Health is lawfully authorized to revoke its licenses. The power of the State Board of Health to revoke its licenses for causes specified in section 6 of the Medical Practice act of 1899 was lawfully given, as it is no objection that the body which is empowered to grant or refuse a license be authorized to revoke it.</p> <p>4. Same — due process of law does not necessarily imply judicial proceedings. There is no vested right in any particular remedy or form of proceeding, and while orderly proceedings according to established rules which do not violate fundamental rights must be observed, a general law, administered in its regular course according to the form of procedure suitable to the nature of the case, which conforms to the rules of right and affects all persons alike, is due process of law.</p> <p>5. Same — provision of section 6 of Medical Practice act, concerning false advertising, is valid. That part of section 6 of the Medical Practice act of 1899 which makes advertising under a false name ground for revoking a license is not unconstitutional, as it is a legitimate exercise of the police power in protecting the public against deception and fraud to require every physician to have a license granted by the State Board of Health in his own name and to practice or advertise under no other.</p> <p>6. Medicine and surgery — power of State board to revoke license is not arbitrary. The power given by the statute to the State Board of Health to revoke a license to practice medicine is not arbitrary or beyond the investigation of the courts, as the board cannot act without cause and the statute itself provides for notice and a hearing before a license can be refused or revoked.</p> <p>7. Same — section 6 of act of i8pp was not repealed by the act of ipoi. Section 6 of the Medical Practice act of 1899 was not repealed by the act of May 11, 1901, which declares that certain acts by physicians shall be criminal offenses, as there is no such inconsistency between the two acts that both cannot stand.</p> <p>8. Same — section p of Medical Practice act applies where license has been revoked. Section 9 of the Medical Practice act, which makes it a penal offense to practice medicine without a license granted by State Board of Health, applies where a physician continues to practice after a license so granted has been revoked.</p>

Writ or Error to the 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.

Writ oe Error to the Branch Appellate Court for the First District; — heard in that court on appeal from the Superior Court “of Cook county; the Hon. Willard'M. Mc-EwEn, Judge, presiding.

<p>1. Wills — proponents in will contest must make a prima facie case that testatrix was mentally competent. In a will contest case under the statute it is incumbent upon the proponents to make a prima facie case, in the first instance, by proper proof of the execution of the will and of the mental capacity of the testator or testatrix.</p> <p>2. Same — proponents not limited to any particular method of proof. While the proponents in a will contest case may make a prima facie case by the testimony of the subscribing witnesses or the certificate of the oath of the- attesting witnesses at the time of the probate, yet they are not limited to either of such methods, but may prove the mental capacity of the testatrix and execution of the will by any legitimate evidence.</p> <p>3. Same — what is not a failure to make a prima facie case in favor of will. The facts that only one subscribing witness'to the will testifies in favor of the sanity of the testatrix whereas the other testifies, at the instance of the contestant, against such sanity, and that no certificate of the oath of the subscribing witnesses at the probate was introduced, do not amount to a failure to make a prima facie case in favor of the will, where both subscribing witnesses testified to the execution of the will and a ^number of other witnesses testified for the proponents to the soundness of mind of the testatrix.</p> <p>4. Same — when proof of mental condition of testatrix before making will is not improper. In a will contest case, where want of testamentary capacity is charged, it is not improper, within reasonable limits, to prove the mental condition of the testatrix both before and after the time the will was executed.</p> <p>5. Same — verdict in contested will case has the .force of a verdict at law. In a contested will case under the statute the verdict of the jury has the same force and effect as is given to a verdict in a suit at law, and if the verdict is not manifestly against the weight of the evidence the court is bound by it in the same manner and to the same extent as though it were a case at law.</p> <p>6. Same — what is not an improper question to ask.sanity witnesses. It is not improper to ask witnesses who knew the testatrix whether or not she had mind enough to know what property she had or who her relatives were during the time the witnesses knew her, as such questions do not call for an opinion on the issue to be determined by the jury. (Baker v. Baker, 202 Ill. 595, distinguished.)</p> <p>7. Same — when an instruction stating that certain defendant is not a beneficiary is not harmful. An instruction in a will contest case stating that the will provides for free scholarships for the benefit of deserving young men who are unable to pay their tuition at a certain university and that such university is not a beneficiary is not harmful, where the instruction correctly interprets the provision of the will, and the will itself is in evidence and is taken by the jury, with other exhibits, upon retirement.</p>

<p>Writ op Error to the Appellate Court for the Fourth District — heard in that court on writ of error to the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>1. Eminent domain — petitioner should bring into court all parties interested. Where the petitioner is not seeking to condemn some particular interest in a lot but the lot itself and all interests therein, it is the duty of the petitioner to bring into court as defendants all persons having any right, title or interest in the property, but it is not bound to decide upon the validity of the titles of contending claimants.</p> <p>2. Same — a defendant cannot, by disputing title, eliminate another defendant from case. If one having an interest in property is not made a defendant the petitioner will not acquire such interest, but if all persons having interests are made defendants, one defendant cannot, by disputing the title of another or. raising a controversy as to their respective interests, eliminate another defendant from the proceeding to the prejudice of the petitioner’s right to have all interests in the land condemned.</p> <p>3. Same — petitioner not required to delay proceeding to await settlement of disputes among defendants. The question of title is preliminary to the award of damages in a condemnation proceeding, and on a proper issue the court may determine disputes between the defendants; but it may be impossible to have a final adjudication of such disputes before the jury trial is had, and in such case the petitioner is not required to delay the proceeding but may have the entire damages assessed and pay the money to the county treasurer, subject to determination of defendants’ interests.</p> <p>4. Same — rule as to separate awards. The Eminent Domain act contemplates assessments of damages for separate interests when that can be done, and where the awards are to be so made it is the duty of the jury to first fix the value of the entire property and then to divide the same according to the respective interests of the defendants; but if there are unsettled controversies among the defendants as to their interests the statute does not contemplate separate awards, but provision is made for payment of the entire compensation to the county treasurer.</p> <p>5. Same — •defendant who has appealed from decision of court as to his interest is not out of the case. A defendant who appeals from a decision of the court of a controversy between him and another defendant as to their respective interests is not out of the case but may appear at the trial and offer testimony as to the value of the property, including his interest or the extent and value of his interest as a part of the whole, and if he fails to do so it is not the fault of the petitioner, and the award will be held to be for the total value of the property, including his interest.</p> <p>6. Same — it is proper for the court to submit the question of damage to leasehold interests to the jury. Owners of leasehold interests have a right to a jury trial upon the question of the damages to which they are entitled as the result of the taking of the property by condemnation.</p> <p>7. Same — when trial court, on remandment, cannot permit new issues to be made. Where the trial court, on cross-petition by the owner of property sought to be condemned, holds that the leases of certain defendants were void, and the Supreme Court, on appeal, holds that such leases were valid in equity and that the lessees were entitled to prove damages and remands the issue on the cross-petition and answers, the trial court has power merely to ascertain the compensation and damages, if any, to which the lessees are entitled.</p> <p>8. Same — defendant cannot get rid of lessees’ claims by dismissing a cross-petition after remandment. Where the owner of property condemned files a cross-petition, claiming that the leases held by certain defendants were void, and the decision of the trial court in her favor is reversed by the Supreme Court, which holds the leases were valid, the owner may, on remandment, dismiss her cross-petition and not contest the lessees’ claims, but she cannot get rid of the claims by such dismissal.</p> <p>9. Same — when defendants need not file new petitions against fund. Where the defendants to a condemnation proceeding, who claim as lessees, appeal from an order, entered on the owner’s cross-petition, holding the leases void, and such order is reversed on appeal and the cause remanded as to the issue on the cross-petition and answers, they cannot be required to file new petitions showing their interest in the fund, which has been ascertained and the money paid to the county treasurer for all interests in the property, but may preserve their rights by objecting to the payment of the fund to the cross-petitioner and prove their damages.</p>

<p>Writ or Error to the Circuit Court of LaSalle county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>1. Default — amending bill after entry of a pro confesso order vacates the order. Amending the bill or filing an amended bill after the entry of a pro confesso order vacates such order, and the defendant is entitled to answer the bill as amended.</p> <p>2. Same — a party in court■ by service of summons is bound to take notice of steps in the case. A party in court by service of summons is bound to take notice of all steps taken in the case, and he is entitled to no further notice or service under the practice in this State.</p> <p>3. Same — defendant is botmd to know that bill ,may be amended by leave after default. A defendant against whom a pro confesso order is entered is bound to know that the bill may be thereafter amended upon leave granted and that he may be ruled to answer the amended bill without special notice to him, and if the amendment is made and the rule is entered he may be defaulted a second time upon failure to answer.</p> <p>4. Judgments and decrees — -svhat ñndings as to title are not inconsistent. Findings of a decree that from the proof presented the complainant derived his title from the government and that all conveyances in the chain of his title from the government are duly recorded in the county are not inconsistent with nor vitiated by further findings that he acquired his title by deed from a certain person and that at the date of the deed the premises were vacant and unimproved, and that he thereafter, for more than nine successive years, paid all taxes and assessments under claim and color of title acquired in good faith, as aforesaid.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>1. Dedication — effect of vacation of a street existing by common law dedication. Upon the vacation of a street existing by virtue of a common law dedication the title to the land to the center of the street reverts to the owners of adjacent lots, freed from the -encumbrance of the easement.</p> <p>2. Same — title of adjacent lot owner to center of common law street is a vested interest. The title of an adjacent lot owner to the center of a street existing by virtue of a common law dedication is a vested interest, of which he cannot be deprived without due process of law, and any ordinance or statute which would so deprive him of such interest would be unconstitutional.</p> <p>3. Railroads — when adjacent owner may enjoin erection of a structure in vacated street. Where a track elevation ordinance vacates the portion of a street across which- the elevated tracks are to be laid, so that there is a total abandonment and not merely a change of use, the owner of an adjacent lot, if the street exists under a common law dedication, becomes entitled to possession of the land in front of his lot to the center of the street, and he may enjoin the railway company from erecting a structure thereon without his consent. (Summerfield v. Chicago, 197 Ill. 270, People v. P., Ft. W. & C. Ry. Co. 244 id. 166, and Weage v. C. & W. I. R. R. Co. 227 id. 421, distinguished.)</p>

Appear from the Appellate Court for the Third District ; — heard in that court on appeal from the Circuit Court of McLean county; the Hon. Corostin D. Myers, Judge, presiding.

<p>1. Trial — when alleged propositions of law are properly refused. Alleged propositions of law are properly refused which are mere findings of fact which the court is requested to make, or which either assume as true facts which are in controversy, or certain matters extraneous to the issues in the case.</p> <p>2. Evidence — what is essential to render testimony of deceased zvitness admissible in subsequent suit. In order to render the testimony of a witness in a former suit admissible in a subsequent suit upon the ground that the witness has died since the giving of his testimony, it must appear that both suits involved the same issue between the same parties or persons in privity with them, and the fact that the party against whom the testimony is offered in the subsequent suit was a party to the former suit and had full opportunity to cross-examine the witness does not necessarily render the testimony admissible.</p> <p>3. Same — effect of including persons in privity with parties in the rule concerning testimony of deceased witness. The inclusion of persons in privity with the parties in the rule concerning the admissibility in a subsequent suit of the testimony of a witness who has died since giving his testimony in the former suit does not extend the rule to a subsequent suit between a party and a person who was in privity with such party in the former suit, as it cannot be said there was any issue between them in that suit.</p> <p>4. Same — when testimony of deceased witnesses is not admissible. Where a guaranty insurance company which, under its contract, has insisted upon conducting the defense in a damage suit against the assured withdraws from the case when witnesses testify to facts which, if true, take the case out of the contract with the assured and relieve the company from liability, such testimony is not admissible to prove those facts in a subsequent suit brought by the guaranty company after the death of the witnesses, to recover from the assured the expense of defending the former suit.</p>

<p>1. Mechanics’ liens — a sub-contractor’s lien can exist only by virtue of original contract. The lien of a sub-contractor can exist only by virtue of the original contract, and if the original contract provides that there shall be no liens upon the improved property for labor or materials the sub-contractor is not entitled to any lien.</p> <p>2. Same — a sub-contractor’s lien not divested by a subsequent waiver by original contractor. Where rights of third, parties have not intervened the parties to a contract have the same right to modify it as to make it, and if the original contractor executes, for valuable consideration, a waiver of all liens after the original contract is made, sub-contractors making their contracts subsequent to the waiver are not entitled to liens; but those whose contracts were made before the waiver cannot thereby be deprived of any right to a lien theretofore acquired.</p> <p>3. Constitutional law — right to contract is property right— how far subject to regulation. The right to contract is a property right, and while such right may be regulated by the exercise of the police power where the public health, safety, morals or welfare is involved, it cannot be otherwise restrained or abridged.</p> <p>4. Same — section 21 of Mechanic’s Lien act, concerning subcontractors, is invalid. Section 21 of the Mechanic’s Lien act of 1903, in so far as it attempts to give a sub-contractor a lien when the original contract waives all liens or all liens have been thereafter released by the original contractor, is unconstitutional, as depriving the owner of property without due process of law.</p>

<p>1. Limitations — there must be an ouster before one co-tenant can claim adversely to the other. Before one tenant in common can acquire the other’s interest under the limitation laws of Illinois, although he is in possession of the premises, he must show an ouster of the other co-tenant.</p> <p>2. Same — what is necessary to constitute ouster of co-tenant. To constitute a disseizin or ouster of one co-tenant by another there must be such an open, hostile and adverse possession of the premises by the occupying co-tenant against the other as shows an intention to hold possession to the exclusion of such other.</p> <p>3. Same — the mere possession and payment of taxes by one co-tenant does not show ouster of others. The possession of one co-tenant and payment of taxes by him are, in contemplation of law, possession and payment for the benefit of all, and do not show an ouster or disseizin of the others in the absence of outward, visible acts of exclusive ownership of such a nature as to apprise them that an adverse possession and disseizin are intended to be asserted against them by the occupying co-tenant.</p>

<p>1. Evidence — when alleged declarations are incompetent, as hearsay. Alleged declarations of deceased grantors, out of the presence of the grantee and against his interest, are mere hearsay, and are not admissible against the grantee in a suit by the heirs and legatees of the grantors to establish that the deed, which was an absolute warranty deed, was merely a part of a mortgage transaction.</p> <p>2. Same — chancellor is presumed to have considered competent evidence, only. Upon appeal in a chancery case, where incompetent evidence has been admitted over objection, it is presumed the chancellor disregarded such evidence and considered only the competent evidence in determining the issues presented for decision.</p> <p>3. Same — alleged rebuttal evidence not tending to rebut anything should be disregarded. Alleged rebuttal evidence introduced by the complainants in a chancery case which does not tend to rebut anything adduced by the defendant, should be, and on appeal will be presumed to have been, disregarded by the chancellor.</p> <p>4. Same — what does not show who zvas in possession of land. Evidence tending to show that the grantee in a warranty deed from his father and mother permitted the mother to enjoy the rents and profits of the land for the time she survived the father does not show who was in the actual possession of the land during that time.</p> <p>5. Same — what docs not overcome the force and effect of deed. The facts that the grantor in a warranty deed to his son had on several previous occasions made deeds to his various sons in order to obtain loans on the land without mortgaging it himself, and that the sons re-conveyed the property when the loans were paid; that he had on one occasion forgotten to record a deed making a re-conveyance; that the grantor and his wife, in their lifetime, were permitted by the grantee to receive the rents and profits, and that the grantee was not heard to make any claim of ownership under the deed while the grantor and his wife lived, do not overcome the force and effect of the deed.</p> <p>6. Judgments and decrees — zvhen decree dismissing bill may make finding as to ownership. Where one of the issues under a bill for injunction and other relief is whether a warranty deed is an absolute deed or part of a mortgage transaction, it is not improper, upon dismissing the bill because the complainants have an adequate remedy at law, for the decree to find that the deed is what it purports to be and that the grantee is the owner of the land conveyed.</p> <p>7. Same — when the decree should make no finding concerning claims. Where a bill seeks an injunction against the prosecution of certain claims against an estate which have, by agreement, been transferred from the county court to the law side of the circuit court but not consolidated with the chancery suit, the chancellor has no power either to enter judgment or deny judgment on the claims but only to grant or deny the injunction, and if that relief is denied by dismissing the bill because the remedy at law is adequate, the decree should make no finding as to such claims.</p> <p>8. Injunction — what must be shown to sustain bill to enjoin prosecution of claims at law. In order to sustain a bill seeking to enjoin the prosecution in a court of law of certain claims against an estate, it is incumbent upon the complainants to show that they have a defense to such claims which is cognizable only in a court of equity, otherwise they will be remitted to their remedy at law.</p> <p>9. Contracts — when lease and agreement will not be presumed to have been obtained by undue infittence. A lease and agreement for care, nursing and support, obtained from an- aged woman by her son, who was also her confidential adviser, cannot be presumed to have been obtained by undue influence, where the evidence shows that the arrangement was fair and equitable to both parties, and that the lessor, before the confidential relation existed, insisted upon renting the land to the son at practically the same rent, which the evidence shows was not inadequate.</p> <p>10. Equity — courts of equity will not take over administration of estates except under extraordinary circumstances. A court of equity will not take over the administration of an estate from the county court except in extraordinary cases, in which some special reasons are shown to exist for exercising such jurisdiction.</p> <p>11. Samé — rule as to retaining jurisdiction to grant legal remedies. Where the evidence establishes the right to the equitable relief sought by the bill the court will retain jurisdiction for all purposes connected with the subject matter of the suit, and may, if necessary, establish purely legal rights and grant legal remedies; but if the bill is dismissed as to the portion founded on the right to equitable relief and only legal rights remain to be ascertained and passed upon, the jurisdiction of the court fails.</p>

Writ or Error to the Criminal Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. S. E. Eoos, for plaintiff in error. W. H. Stead, Attorney General, John E. W. Way-man, State’s Attorney, and W. Edgar Sampson, (Robert E. CrowE, of counsel,) for the People.

<p>1. Wills — it is not necessary that sanity witnesses shall have talked with testatrix about her property or relatives. The fact that witnesses testifying to the mental capacity of the testatrix conversed with her only upon common subjects of conversation and did not talk with her about her property or relatives does not disqualify them from giving their opinions as tq her sanity and mental capacity.</p> <p>2. Same — question for jury is whefher testatrix was competent to make the particular will. The question to be decided by the jury in a will contest case, when lack of mental capacity is charged, is whether the testatrix was mentally competent to make the particular will, and it is proper for the jury to consider the nature of the will, the extent of the estate and whether .there are many or few details in its disposition; but this is a question for the jury and not for the witnesses.</p> <p>3. Same — sanity witnesses need not know the contents of the will. The law fixes the degree of capacity required to make a valid will, and it is the proper function of the court to advise the jury as to the rules of law, but it is not proper 'for witnesses, whether experts or not, to give opinions as to whether the testatrix was capable of understanding the business she was engaged in when she executed the will; but whfere both parties interrogate their witnesses on that point, neither can complain.</p> <p>• 4. Same — interest which will disqualify witness must be certain and direct. The test of interest which determines the competency of a witness in a will contest case is whether he will gain or lose as the direct result of the suit; and the interest must be certain, direct and immediate, as otherwise it goes merely to the credibility of the witness and not to his competency.</p> <p>. 5. Same — when a legatee is not disqualified to testify for contestants. The fact that a legatee under the will has been promised by the contestants the amount of his legacy, or more, if they are successful, does not disqualify him as a witness for the contestants ; but the court’s action in refusing to allow him to testify is not ground- for reversal, where there is nothing in the record to indicate that he could have testified to any fact of importance.</p> <p>- 6. Same — when husband of testatrix is not competent to testify. The husband of the testatrix is not, competent, in a suit to contest the will, to testify to any fact or transaction the knowledge of which was obtained by means of the marriage relation, including conversations with the testatrix in his presence, during the mar-, riage, testified to by other witnesses.</p> <p>f. Same — wife of legatee is not a competent witness. The wife of a legatee is not a competent witness in a suit to contest the will, as she is not competent to testify either for or against her husband.</p> <p>8. Same — it is not proper for attorney in a case to testify, although he may do so. An attorney who, in fact, takes an active part in the case -though his name is not entered of record as an attorney in the case, should not testify as a witness; but he is not for that reason incompetent, and if he chooses to testify he may do so, but his testimony should be given but little weight.</p> <p>9. Same — contestants cannot prove appointment, of conservator some years after execution of will. In a suit to contest a will on the ground of want of mental capacity the contestants are not entitled to prove that a conservator was appointed for the testatrix two years after the execution of the will.</p> <p>10. Same — when admitting contract in evidence is not ground for reversal. A contract between the testatrix and the chief devisee, whereby the former was to live with the latter, who was to care for her, bury her at her death, pay all bills and have all the property, is competent only on the question of undue influence and not on the question of mental capacity; but its admission in evidence is not reversible error, where the bill charged undue influence by the chief devisee, even though there wa's nothing in the evidence to sustain the charge.</p> <p>11. Instructions — when instructions as to right to dispose of property are not misleading. Instructions stating that if the testatrix possessed testamentary capacity and was free from undue influence she could dispose of her property as she saw fit, and that the jury should not be .influenced by any belief that the will was not such as they thought she ought to have made, are not misleading, even though the jury are entitled to consider any intrinsic evidence afforded by the will of want of mental capacity to make it, where the jury were also advised that they should con-' sider the amount and nature of the property, the various relatives and friends of the testatrix, and all the facts.</p>

<p>1. Marriage — where celebration is shown, everything essential to validity of marriage is presumed. Where the celebration of a marriage is shown, everything essential to the validity of the marriage, including the capacity of the parties, will be presumed; and if a prior marriage is shown, the death or divorce of the former spouse will be presumed, unless the contrary is proved by the party asserting the invalidity of the marriage.</p> <p>2. Same — what does not tend to show that the wife was not divorced from her former husbands. Mere proof that the wife had filed bills for divorce against each of her former husbands in a foreign State has no tendency to show she was not divorced from them; nor is any such inference to be drawn from the fact that upon a cross-bill seeking a discovery of the facts concerning the divorces the court sustained her demurrer, which was based upon the grounds that the allegations of the cross-bill were not sufficiently definite and that its object was to obtain evidence that her marriage was bigamous, which fact, if established, might lead to her indictment and punishment.</p> <p>3. Evidence-- — 'what is not sufficient oral proof that document is a copy of an instrument. The testimony of a witness, twenty-nine years after the casual reading of an instrument containing over a thousand words, who cannot remember the substance of the instrument but only the meaning of part of it, that he believes a document read to him is a copy of the original instrument, is not of that certain and satisfactory character of proof required to divest title to real estate.</p> <p>4. Same — record of unacknowledged instrument proves nothing but notice. The object of the recording laws in permitting unacknowledged instruments to be recorded is not to preserve evidence of title but to give notice of claim, which persons dealing with the. land must heed; but the record proves nothing but notice.</p> <p>5. Same — a certiffed copy of record of unacknowledged instrument does not prove contents. A certified copy of the record of an unacknowledged instrument does not prove the contents of the instrument, where there is no proof of the execution of such an instrument and connecting the instrument executed with the one recorded.</p> <p>6. Same — sections 35 and 36 of the Conveyances act relate only to acknowledged instruments. Sections 35 and 36 of the Conveyanees act relate to the same subject, and the object of both is to obviate the difficulties attending the introduction of secondary evidence of instruments which have been acknowledged or proved and certified in such a way that the originals would be admissible without any preliminary proof; but neither section_includes unacknowledged or unproved instruments which might be recorded under section 31 of such act.</p> <p>7. Same — what does not estop widow from denying instrument. The widow is not estopped to deny the validity of an instrument purporting to be a lease to her husband by reason of the fact that the husband went into possession of the land and received the income, where the evidence does not show that the instrument in question was the one under which he went into possession and claimed an interest in the property.</p> <p>8. Same- — defendant incompetent to testify where complainant sues as devisee of deceased person. Where the complainant in a partition proceeding sues as devisee of a deceased person the defendant is incompetent to testify against her, and testimony of such defendant, admitted over an objection based upon her incompetence, cannot be considered. ,</p> <p>9. Wiees — entire clause cannot be rejected except from absolute necessity. Every word in a written instrument is presumed to have been placed there for some purpose and should be given effect in arriving at the testator’s intention, and a construction which requires the rejection of an entire clause in the instrument will not be adopted except from absolute necessity.</p> <p>10. Same — sole object in construing a will is to ascertain the testator's intention. The sole object in construing a will is to ascertain the testator’s intention, and to that end every word will be given force if possible and the language interpreted in view of the circumstances attending each case.</p> <p>11. Same — rule that testator’s intention must control is the supreme rule of construction. Rules for the interpretation of wills have been announced by the courts and are observed, but all of them yield to the prime rule that the testator’s intention must control unless contrary to some rule of law.</p> <p>12. Same — when word “heirs" means children or heirs of the body. In a clause following a devise for life to the testator’s children subject to the prior estate of the widow, which reads, “but in case of the death of any one leaving heirs then the share of such deceased child, in equal portions, shall descend to his or her heirs,” the word “heirs” is shown by the context to mean children or heirs of the body.</p> <p>13. Same — when the word “heirs” means heirs generally. In a clause reading, “and upon the death of my said children, or any of them, the property shall descend to their respective heirs in fee simple absolute,” the word “heirs” must be presumed to have been used in its technical sense and as denoting heirs generally, and not children or heirs of the body.</p> <p>14. Same — word used more than once does not necessarily have the same meaning. While it is ordinarily presumed that a word used more than once in an instrument has the same meaning each time, yet this is only a presumption, and a technical word may be given its technical meaning in one place and in another a nontechnical meaning clearly indicated by the context.</p> <p>15. Same — when clauses refer to two distinct contingencies. Where land is devised, subject to the widow’s life estate, to the testator’s children for life, only, “but in case of the death of any one leaving heirs, then the share of such deceased child, in equal portions, shall descend to his or her heirs, and upon the death of my said children, or any of them, the property shall descend to their respective heirs in fee simple absolute,” the two clauses quoted refer to two distinct contingencies, the former to the death of a child during the widow’s lifetime leaving children, and the latter to the death of a child after the death of the widow.</p> <p>16. Same — presumption where death of first taker is coupled with an uncertain condition. Where the death of the first talter is coupled with a condition which may or may not happen, the devise over will be presumed to refer to the death of the first taker at any time; but this presumption yields to a contrary intention shown by the will. (Fifer v. Allen, 228 111. 507, explained.)</p> <p>17. Same — the word "but” indicates an exception to what has gone before. The word “but,” whether used as a conjunction or a preposition, indicates exception, and as a conjunction it is used as a connective of sentences more or less exceptive or adversative, marking opposition in passing from one thought to another.</p> <p>18. Same — will construed as not creating a contingent remainder. A devise of the testator’s property to his widow fqr life and “at her decease” to the testator’s children, as' co-owners, for life, only, “but in case of the death of any one leaving heirs, then the share of such deceased child, in equal portions, shall descend to his or her heirs,” does not create a contingent remainder in the testator’s grandchildren,- but means that at the widow’s death each child is to have a life estate, except in case of the death of one leaving children, in which case such children will take in fee, as alternative beneficiaries, the share which the parent would have taken for life had he survived the widow.</p> <p>19. Same — operation of rule in Shelley’s case. Under the operation of the rule in Shelley’s case, if a life estate is granted and by the same instrument the remainder is limited to the heirs of the life tenant, the law declares the remainder to be to the life tenant and both estates vest in him.</p> <p>20. Same — nature of estate to be given the heirs determines the application of the rule in Shelley’s case. It is the nature of the estate intended to be given to the heirs, whether by inheritance or otherwise, which determines the application of the rule in Shelley’s case.</p> <p>21. Same- — heirs taking as heirs must take by descent and must take the ancestor’s estate. All heirs taking as heirs must take by descent and must take the estate of the ancestor, and hence a limitation to heirs by that name as a class, to take from generation to generation, requires the estate of inheritance imported by that limitation to vest in the ancestor.</p> <p>22. Same — rule in Shelley’s case is a rule of law, which overrides declarations to the contrary. If a testator has used technical language which brings the devise within the rule in Shelley’s case, no declaration, however positive, that the rule shall not apply, or that the estate of the ancestor shall not extend beyond the primary express limitation, or that the heirs shall take by purchase and not by descent, will exclude the operation of the rule or affect the result.</p> <p>23. Same — when rule in Shelley’s case applies. Where land is devised to the widow for life and at her decease to the children of the testator, as co-owners, for life only, “and upon the death of my children, or any of them, the property shall descend to their respective heirs in fee simple absolute,” the word “heirs” is used as a word of limitation and not of purchase, notwithstanding the words in “fee simple absolute,” and under the rule in Shelley’s case the children take the fee. (Butler v. Huestis, 68 111. 594, explained.)</p> <p>24. Same — rule in Shelley’s case does not apply if the word “heirs’’ is not used in its technical sense. The rule in Shelley’s case does not apply where it is clear that the word “heirs” is not used to describe the estate but is used in the sense of “children,” or in a restrictive and non-technical sense to designate individuals to whom a distinct estate is given, and from whom, as its origin, the descent is thereafter to be derived, and not to include the whole line of inheritable blood of the ancestor and make him the stock of descent.</p> <p>25. EstoppEE — when parties are estopped to say that the decree should have been withheld. Where, up to the time a draft of the decree is presented for approval, both parties have been calling upon the court to exercise its jurisdiction by granting the relief respectively prayed by the parties in the bill and cross-bill for partition, neither party can complain that the court at that time overruled a motion to withhold the decree until the determination of a pending suit to set aside the will under which the parties derive title.</p> <p>26. Practice; — when party is not entitled to reversal because of want of proper parties. Parties who deliberately and intentionally procure an adjudication to be made in the absence of persons who ought to have been made parties to a complete adjudication but who are not necessary parties to the immediate controversy and whose rights will not be affected by the decree are not entitled to have the decree reversed for want of proper parties.</p> <p>27. Same — when an order of reference as to solicitor’s fees is merely interlocutory. An order referring a cause to the master for an accounting and to ascertain and report what is a reasonable sum for the necessary services of the complainant’s solicitor in the «cause is merely interlocutory and does not amount to an allowance of a solicitor’s fee nor an adjudication that the complainant is entitled to one, and until the court allows or refuses to allow such fee its order is not subject to an appeal.</p>

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

<p>1. Appeals and Errors — when admission of incompetent evidence in chancery case will not reverse. The admission of incompetent evidence in a chancery case is not ground for a reversal if there is sufficient competent evidence to sustain the decree, as it is presumed by the court of review that the chancellor considered only the competent evidence.</p> <p>2. Deeds — when a decree reforming a mistake in a deed is ■authorised. A decree reforming a deed from one of the heirs to the widow so as to make it convey a fee simple title instead of a life estate is authorized, where the proof is clear that the heirs and the widow intended by their agreement to make a fair division of the property between them and that the mistake in the deed was mutual and common to both parties to the deed.</p> <p>3. Equity — when a court of equity may establish legal rights. Where a controversy contains equitable features which authorize a court of equity to take jurisdiction of the case, that court should retain jurisdiction for all purposes, and may establish purely legal rights and grant legal remedies growing out of the contract in suit which might otherwise be cognizable only in a court of law.</p> <p>4. Same- — when a decree ordering payment of money is proper. Where the assignment to the widow of all claims for money due the intestate, including a claim for a certain amount of rent due him from an heir, is a part of the transaction whereby the widow and heirs made a division of the property without administration, it is not improper, on granting the prayer of a bill to correct a mistake in the deed made to the widow as a part of that transaction, to decree payment, by the heir, of the claim for rent, as further prayed in the bill under appropriate allegations as to facts.</p> <p>5. Same — when it is error to decree the payment of interest. Where a court of equity, as an incident to the equitable relief granted, decrees the payment of a sum of money which the defendant had agreed to pay to complainant, it is error to decree payment of interest on such amount where there is no evidence of facts which would justify the allowance of interest had a suit been brought in a court of law to recover the money.</p>

Appear from the Branch Appellate Court for the First District; — heard in that court on appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.

<p>1. Benefit societies — a society cannot collect funds to pay to ineligible beneficiary. A benefit society has no authority to collect a fund from its members for the benefit of persons other than the classes enumerated by the statute, and any direction of a member to pay the benefit to an ineligible person is void.</p> <p>2. Same — parties entitled to fund under the law are not affected by member’s void direction. The act of a member of a benefit society in naming an ineligible beneficiary, or the act of the society in issuing a certificate payable to such beneficiary, cannot defeat the right of the beneficiaries designated by law, to claim the fund, as courts can control the payment of such fund in accordance with the rules of law.</p> <p>3. Same — whether named beneficiary is a “dependent is question of fact. A “dependent” is defined as “one who is sustained by another or relies on another for support or favor;” but the question whether a particular person is or is not a dependent, within the meaning of th,e statute and the by-laws of a benefit society, is one of fact, to be determined from the particular circumstances.</p> <p>4. Same — first certificate stands if beneficiaries in second certificate are ineligible. A second benefit certificate is binding only in case it is effectually substituted for the first, and the first stands unless the persons named in the second are competent to take.</p> <p>5. Same — dependence for favor or affection is excluded. A liberal construction should be given to the contract between a benefit society and a member, and dependence founded upon a moral duty to provide for another should be recognized as well as that arising from a legal duty to furnish support, but dependence for mere favor or affection is excluded.</p> <p>6. Same — when beneficiary cannot be said to be a “dependent.” A girl not the daughter, by nature or adoption, of a member of a benefit society and neither related to him nor ever a member of his household, is not his “dependent” within the meaning of the law concerning ■ benefit societies, even though he persuaded her to give up her work and remain at "home to care for her mother and for nearly ten years contributed regularly, as he had promised to do, the money for their support, his action being purely voluntary.</p>

<p>Taxes — local assessor is the authority to assess the capital stock of mercantile corporations. The Revenue law, as changed since the amendment of 1905, requires the local assessors to assess the capital stock and franchises of companies organized for mercantile or manufacturing purposes or for certain other purposes enumerated therein, while the capital stock and franchises of other companies and associations must be assessed by the State Board of Equalization. (People v. National Box Co. 248 Ill. 141, and People v. Lewy Bros. Co. 250 id. 613, followed.)</p>

<p>Motion to quash fee bills.</p>

<p>1. Eminent domain — power of eminent domain is inherent in the State. The power of eminent domain is the power of the State to appropriate private property to the public use, and it extends to every kind of property and to every public use; but the power is inherent in the State, and can be exercised by a municipal corporation only by virtue of a grant from the State.</p> <p>2. Same — city’s power to condemn for street is limited to private property. The power of a city to condemn property for street purposes is limited to private property, and does not extend to property of the State or property held by a subordinate agency of the State for the State.</p> <p>3. Same — a city cannot condemn property of county for street purposes. A city has no power to condemn a strip of land through a county poor farm for street purposes, as the property of a county is not private property but is property already devoted to a public use and held by the county merely as a State agency.</p> <p>4. Counties — property of a county is subject to control of the State. Property the title to which is vested in a county is public property held by the county as a State agency, and in the absence of positive constitutional restriction is subject to the disposition of the legislature without the consent of the county authorities.</p>

<p>Appear from the Superior Court of Cook county; the Hon. Arthur H. Chetrain, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District; — heard in that court on appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding.

<p>1. Special assessments — filing objections to merits waives objections to faulty notice. Objections to a faulty publication notice can only be raised under a special appearance and are waived by filing objections to the merits.</p> <p>2. Same — section 23 of Costs act, concerning appeals for delay, does not apply to special assessment proceedings. Section 23 of the Costs act, authorizing damages not exceeding ten per cent of the judgment where an appeal is prosecuted solely for delay, does not apply to a special assessment proceeding, as the additional assessment of ten per cent against the property, without regard to benefits, would be void.</p> <p>3. Same — assessment cannot be made a personal liability of the property owner. A special assessment is against the property and cannot be made a personal liability of the owner, and the continuing test throughout the proceeding is that the assessment must not exceed the special benefit to the property.</p>

Writ or Error to the Circuit Court of Hamilton county; the Hon. J. R. Creighton, Judge, presiding. This was a bill in equity filed by Arthur P. Forcum, plaintiff in error, in the circuit court of Hamilton county, at the February term, 1910, to cancel and set aside certain deeds purporting to convey 140 acres of land situated in said Hamilton county, Illinois, of which the complainant claimed to be the owner.

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

<p>1. Appeals and errors — the legislature may authorize appeals regardless of finality of order. The right to appeal is purely statutory, and the legislature may authorize appeals upon any condition and regardless of the finality of the order, judgment or decree.</p> <p>2. Same — an appeal must be prayed within twenty days from entry of judgment. The Practice act requires that an appeal be prayed and allowed at the term at which the judgment or decree is entered and not more than twenty days from its entry, and a party is not required, nor can he be permitted, to wait until the adjournment of the term before praying an appeal.</p> <p>3. Same — an order is appealable regardless of adjournment to a future day. An order setting aside a judicial sale is final, and the right to appeal therefrom is not affected by any power the court may have to set aside the order at some future time to which the term is adjourned.</p> <p>4. Same — freehold is involved^ where judicial sale is set aside. An order disapproving and setting aside a trustee’s sale of land prevents the purchaser from obtaining title, and a freehold is therefore involved.</p> <p>5. Judgments and decrees — when order of court is subject to review. Where the parties to a suit enter into a compromise agreement and a trustee is appointed to sell land subject to the approval of the court, the act of the court in approving or disapproving the sale is a judicial act and the order is subject to review on appeal.</p> <p>6. Judicial sales — policy of the law requires stability of judicial sales. It is the policy of the law that there should be stability of judicial sales in order that property may bring its full value, and mere inadequacy of price, unless so gross as to amount to evidence of fraud, will not justify the court in disapproving the sale.</p> <p>7. Same — a party asking for re-sale should ordinarily make a binding advance bid. A party objecting to the approval of a judicial sale upon the ground that the sale price was inadequate must ordinarily make a binding advance bid and bring the money into court or guarantee against a loss on re-sale. .</p> <p>8. Same — irregularities, coupled with inadequacy of price, will justify disapproval of sale. If there is illegality or irregularity sufficient to avoid a judicial sale the court will refuse its approval, and if there are irregularities, although slight, coupled with an insufficient price, the sale will be set aside.</p> <p>9. Same — rule concerning execution sales should apply to judicial sales in general. The provision of the statute prohibiting the sale of real estate on execution except between the hours of nine in the morning and the setting of the sun of the same day nor unless the hour for the sale shall have been previously advertised, applies to judicial sales in general.</p> <p>10. Same — failure to advertise hour of sale is a serious irregularity. Failure to advertise the hour at which a trustee’s sale of land shall begin is a serious irregularity, and if the price bid is inadequate the court may disapprove the sale.</p> <p>11. Same — when parties objecting to confirmation of sale need not bind themselves to make an advance bid. Where a trustee’s sale is held in violation of an agreement by the trustee that he would not advertise the sale without notifying the person who was most interested in having the land bring its full value and who was able to buy if given time for the purpose, and the price bid at the sale is inadequate, it is not necessary that the parties objecting to the confirmation of the sale shall bring the money into court or bind themselves personally to make an advance bid.</p>

<p>1. Specific performance — when specific performance of an alleged oral contract to convey is properly denied. Specific performance of an alleged contract to give eighty acres of land to the complainant at the promisor’s death is properly denied in a suit brought after the promisor’s death, where the evidence leaves it in doubt whether the promisor intended that the land should belong to complainant or that he should merely occupy it as a tenant, the agreement being that he should pay the taxes, keep up the improvements and pay $328 annually to the promisor.</p> <p>2. Appeals and Errors — when assignment of cross-errors will be treated as waived. An assignment of cross-errors on the allowance of a certain sum to the complainant for improvements placed upon the premises in the belief that the land would by some means be his, will be treated as waived on appeal from a decree denying specific performance of an alleged oral contract to give the land to complainant at the promisor’s death, where no attempt is made in the brief to show wherein the decree is wrong in that respect.</p>

<p>Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding. •</p>

<p>1. Appeals and errors — appeal in a condemnation case lies to the Supreme Court. Under section 12 of the Eminent Domain act appeals- from judgments in all cases brought under said act lie to the Supreme Court.</p> <p>2. Same — effect of appeal by a land owner from condemnation judgment. The effect of an appeal by a land owner from a condemnation judgment is to stay the execution of the judgment and the running of the time limited for the payment of compensation during the pendency of the appeal.</p> <p>3. Eminent domain — giving bond under section 13 has no effect upon the appeal. Where a land owner appeals from a condemnation judgment it is optional with the petitioner whether or not it will enter upon the premises by giving the bond required by section 13 of the Eminent Domain act; but the giving of the bond has no effect upon the appeal or the execution of the judgment, and its entry under the authority given upon the filing of the bond is not in execution of the judgment but under the statutory provision which gives to it only the temporary use of the premises pending the litigation.</p> <p>4. Same — petitioner may enter upon land under section 13 without paying or depositing compensation. By giving the bond required by section 13 of the Eminent Domain act the petitioner may, without paying or depositing the compensation awarded, enter upon the land if an appeal is taken by either party.</p> <p>5. Constitutional law — section 13 of the Eminent Domain act is constitutional. The constitutionality of section 13 of the Eminent Domain act, providing for the entry by the petitioner under a bond if an appeal is taken by either party, is too well established'to be now open to question.</p>

<p>1. Jurisdiction — erroneous judgment is not void if court had jurisdiction of the subject matter. Jurisdiction of the subject matter is the power to adjudge concerning the general question which is involved,. and if a bill in chancery states a case belonging to a general class over which the authority of.the court extends, jurisdiction attaches, and the judgment, however erroneous, is not void, but is binding upon the parties until reversed or annulled in a direct proceeding and is not open to collateral attack.</p> <p>2. Same — distinction between want of jurisdiction and erroneous exercise of jurisdiction. Want of jurisdiction of the subject matter is to be distinguished from an erroneous exercise of jurisdiction, as in the former case the want of jurisdiction renders the judgment void and open to collateral attack, whereas an erroneous exercise of jurisdiction merely renders the judgment open to reversal on appeal or writ of error.</p> <p>3. Same — courts of equity have.power to construe will and declare titles of litigants. Courts of equity have power to construe wills and declare the titles of litigants, but such power ought not to be exercised where nothing but legal titles are involved, as in such case there is an adequate remedy at law; but the mere fact the court takes jurisdiction where legal titles, only, are involved, does not render its judgment void and open to collateral attack.</p> <p>4. Same — the objection that there is an adequate remedy at law may be waived by complainant as well as defendant. The rule that a failure by the defendant to raise the objection that the remedy sought by the bill belongs properly to the domain of the law courts is a waiver of the objection is applicable to a complainant in the suit as well as to a defendant.</p> <p>5. Same — objection that court had no jurisdiction to construe will may be waived. An objection that a court of equity had no jurisdiction to entertain a bill to construe a will because no trust was involved is waived in the Supreme Court where it was not made below.</p> <p>6. Same — equity having jurisdiction to grant equitable relief may declare legal titles. A court of equity having acquired jurisdiction to grant equitable relief will retain the case to do complete justice between the parties although it becomes necessary to declare legal titles and enforce purely legal remedies.</p> <p>7. Res judicata — when decree construing will is res judicata. A decree expunging certain false words of description from a will and declaring what titles the devisees take under the will is binding upon the parties until reversed in a direct proceeding, and is res judicata as between the parties in a subsequent suit to partition the land.</p>

<p>Appeal from the Appellate Court for the Second District ; — heard in that court on appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.</p>

<p>1. Appeals and errors — what necessary to justify a direct appeal on the ground of freehold. To justify the taking of a direct appeal to the Supreme Court on the ground that a freehold is involved the necessary result of the judgment or decree must be that one party gains and another loses a freehold estate, or the title to a freehold estate must be so put in issue by the pleadings that a decision of the case necessarily involves a decision of the freehold question.</p> <p>2. Same — it is not enough that freehold is incidentally involved. To bring a case directly to the Supreme Court on the ground that a freehold is involved it is not enough that the freehold be incidentally or collaterally involved, but the judgment or decree appealed from must be conclusive of the freehold right until reversed.</p> <p>3. Same — when freehold is not involved. A freehold is not involved in a decree dismissing for want of equity a bill to require a municipal corporation to maintain and care for a pleasure driveway deeded to it upon condition that it would perform certain duties with respect thereto, where there is no issue presented the decision of which would conclude any party on any question affecting the freehold.</p>

<p>1. Cloud on title — prima facie title in a complainant is sufficient unless overcome by proof. In a proceeding to cancel a tax deed as a cloud on complainant’s title, proof that the complainant, at the time of filing the bill, was in possession of the property claiming in good faith to be the owner thereof under a deed purporting to convey the same to him, is sufficient proof of title unless overcome by other evidence.</p> <p>2. Same — complainant not required to show title in his grantor. Where the defendant to a bill to cancel a tax deed as a cloud offers no evidence the complainant is not required to prove that his grantor had title, and hence the fact that the trust deed to his grantor, offered in evidence by complainant, did not include the premises which the grantor afterward conveyed to complainant is not sufficient to show that the grantor did not have any title to the land he conveyed. (Glos v. Greiner, 226 111. 546, distinguished.)</p> <p>3. Same — to charge the defendant with costs the complainant must make lender before Ming bill. In order to charge the holder of a tax deed with the costs of a proceeding to cancel such deed as a cloud on title the complainant must make a tender before filing the bill and keep the tender good.</p>

<p>1. Criminal i,aw — when it will be presumed that the jury were sworn. The return of the indictment and the presence of the accused at the trial and when judgment was pronounced upon the verdict against him must affirmatively appear from the record, but where the court has jurisdiction, the defendant is present and announces himself ready for trial and a jury is empaneled and the cause tried without objection, it will be presumed, unless the contrary is shown, that the jury were sworn.</p> <p>2. Same — fact that record is silent affords no presumption that jury were not sworn. The fact that the record is silent on the subject affords no presumption, in the absence of any other showing, that the jury were not sworn.</p> <p>3. Same — duty of court in appointing counsel for a defendant. In appointing counsel for a defendant who is unable to employ counsel, it is the duty of the court to appoint counsel having sufficient ability and experience to fairly represent the defendant, present his defense and protect him from oppression.</p> <p>4. Same — court must exercise discretion in permitting counsel paid by private persons to assist prosecution. The court may, in a proper case, permit counsel paid by private persons to assist the State’s attorney in the prosecution of a criminal case, but the court, particularly where counsel appointed by the court are defending the accused, should not permit counsel for the accused to be overwhelmed, on account of their inexperience, by the ability and numbers of the counsel assisting the prosecution.</p> <p>5. Same — parol proof that the defendant has been convicted of other crimes is incompetent. It is not competent to prove by the accused, on cross-examination, that he had been convicted of crime and been in the penitentiary of another State, nor to show by the clerk of a circuit court, by parol, that the accused had pleaded guilty to a crime in the court of which the witness was clerk.</p> <p>6. Same — when rule that testimony admitted without objection need not be excluded does not apply. The rule that a party who permits evidence to be introduced without objection cannot thereafter move to exclude it because it is unfavorable does not apply against the defendant in a criminal case, where it appears that the counsel appointed ,by the court to defend him were inexperienced, and did not realize, at the time the evidence was admitted, that it was incompetent, though they discovered that fact before the trial was ended and moved to exclude the evidence.</p> <p>7. Same — when court should, of its own motion, refuse to admit evidence. Where the court, in spite of the protest of counsel appointed by the court to defend one accused of murder that they were inexperienced and overmatched by the array of counsel for the prosecution, refuses to limit the number of counsel assisting the State’s attorney or to assign additional experienced counsel for the defense, it is its duty, of its own motion, when incompetent evidence of a highly prejudicial character is not objected to by defendant’s counsel, to refuse to admit such evidence.</p> <p>8. Same — when the judgment will be reversed though guilt is clear. Where the jury in a murder trial fix the death penalty by their verdict, error in admitting incompetent evidence of a highly prejudicial character, and in permitting the trial to be conducted by an array of counsel for the prosecution which overwhelmed the inexperienced counsel appointed for the accused by the court, will require a reversal of the judgment although the evidence of guilt may be clear. (People v. Cleminson, 250 111. 135, distinguished.)</p> <p>9. Same — instruction should not assume fact which jury are to determine. In a murder trial, where the defense denies the sufficiency of the evidence to identify the body found as that of the person alleged to have been murdered and does not copcede that such person is dead or that he was killed, those questions are to be determined by the jury, and it is error to assume in the instructions that such person is dead and that he was killed.</p> <p>10. Same — an instruction should explain the term “successfully impeached." An instruction informing the jury of their right to disregard the uncorroborated testimony of witnesses who have been “successfully impeached” is improper, where no explanation of the meaning of that term is given.</p>

<p>1. Judgments and decrees — consent decree cannot be reviewed. A decree which merely records an agreement of the parties and by their consent directs that they shall perform it is not a judicial determination of the rights of the parties by the consideration of the court, and such a decree cannot be reviewed by appeal, writ of error or bill of review.</p> <p>2. Contracts- — mistake of law by one party to a contract is not ground for setting it aside. A mistake of law by one of the parties to a contract deliberately reduced to writing and executed is not, of itself, a sufficient reason for setting it aside, where such mistake is not induced by the other party.</p> <p>3. Same — when contract cannot be set aside as being of fraudulent character. A written contract cannot be set aside upon the ground that it is fraudulent where the alleged fraudulent provisions appear upon the face of the contract so that they were equally open to the knowledge of both parties, and there is nothing in the complainant’s bill to show, by whom the writing was prepared, or that either party urged its acceptance upon the other or was misled or induced to .accept and execute it by any statement of the other as to its meaning or legal effect.</p> <p>4. Jurisdiction- — •equity will not assume jurisdiction merely to declare legal title. Where purely legal titles are involved and no other relief is asked, equity will not assume jurisdiction to declare such legal titles but will remit the parties to their remedies at law.</p>

Writ or Error to the Municipal Court of Chicago; the Hon. Grorgb B. Watkins, Judge, presiding.

<p>1. Wills — renunciation by widow does not render any part of the estate intestate property. Renunciation by the widow of the provision made for her in her deceased husband’s will does not render any part of the estate intestate property even though the provision made for her was a devise in fee, and in such case the land so devised will pass as residuary estate under a clause devising all the rest and residue of the estate to other persons.</p> <p>2. Same — devise to widow does not become a lapsed devise upon renunciation. A testamentary provision in favor of the widow is in legal effect no more than an offer on the part of the testator to purchase her statutory interest in the estate for the benefit of the estate, and the fact that the widow renounces the will and elects to take under the statute does not render the devise to her a lapsed devise, and if there is a residuary clause covering real estate the subject of the devise will pass thereunder.</p> <p>3. Same — entire will must be considered in determining meaning of particular part. In determining the meaning of a particular part of a will the entire will must be considered, and if words in one part of the will have been given a definite and fixed meaning by the testator the same meaning will be given to such words when used later in the will, unless a contrary intention is expressed.</p> <p>4. Same — when “surviving heirs” will be held to mean “surviving children.” If the testator, in making a specific devise to the surviving heirs of his brother, names the three surviving children of the brother as such heirs, it will be held that a subsequent residuary devise to the “surviving heirs” of the same brother was intended to mean his “surviving children,” even though they are not designated by name.</p>

<p>i. CONTRACTS-when optiou to purchase is for the term of the icase. An agreement whereby the owner of land leases the same for the term of ten years at a fixed annual rental, and which further provides that the owner agrees to sell to the lessee "at any time," if the lessee so desires, at a stated sum per acre, gives the lessee an option to purchase at any time during the ten years.</p> <p>2. SAME-wJieli a unilateral contract nsay be enforced. A unilateral contract to sell land may be specifically enforced if it is otherwise valid, fairly entered into and based upon sufficient consideration.</p> <p>3. SAME-a contract made without a full understandii~g of its terms may be ratified. The fact that the owner of land, when ~xecuting a ~ten-year lease with an option to purchase at a fixed price, understood that the agreement merely gave the lessee the first chance to purchase, does not prevent specific performance, where the owner read the contract over a few days after its execution and ratified the same.</p> <p>4. Si'iciric PERroaMANc~-dzscretion in `matter of specific performance is not arbitrary. While specific performance rests in the sound discretion of the court such discretion is not arbitrary, and if the contract is valid at law, fairly entered into and unobj ectionable in the features which address themselves to the discretion of the court it should be specifically enforced.</p> <p>5. Same — an increase in value of land does not justify refusing specific performance. The mere fact that land has largely increased in value since the making of a contract for its sale does not warrant 'the court in refusing to specifically enforce the contract, where there are no circumstances indicating over-reaching, fraud or bad faith by the purchaser.</p> <p>6. Same — fairness of contract is ordinarily determined as of its date. In considering the fairness of a contract it is usual to determine that question with reference to the time the contract was made, unless the delay in carrying it out is caused by the party seeking its performance.</p> <p>7. Same — purchaser with notice of prior contract to sell is regarded as a trustee. One who purchases land with full notice of a prior contract by the vendor to convey to another person may be regarded as a trustee for the latter and be decreed to convey the land in the same manner as his vendor.</p>

<p>1. Criminal law — a dying declaration is an exception to right of accused to face the witnesses against him. A dying declaration is from necessity admissible in a prosecution for homicide to prove the fact of the killing, who was the murderer, and such other facts and circumstances as are immediately connected with the killing; but its admissibility is an exception to the right of the accused to have the witnesses against him testify in his presence, so that they may be cross-examined.</p> <p>2. Same — dying declaration must be made under fixed belief in immediately pending death. To be admissible as a dying declaration the declaration must have been made under the fixed belief and moral conviction of the declarant that his death was impending and certain to follow almost immediately, without opportunity for repentance and without hope of avoidance.</p> <p>3. Same — a mere.belief by declarant that he may never recover is not sufficient. A mere belief by the declarant that he may never recover from his injury is not sufficient to entitle his declaration to admission as a dying declaration, unless he further believes that his death is certain to follow in a very short time and has abandoned all hope of recovery.</p> <p>4. Same — rule where death does not follow as soon as is expected. If a dying declaration is made under the fixed belief of certain and almost immediate death and after all hope of recovery is abandoned by the declarant, the admissibility of the declaration as a dying declaration is not destroyed by the mere fact that the declarant, contrary to expectation, lived for more than a month.</p> <p>5. Same — when a declaration is not admissible as a dying declaration. A declaration is not admissible as a dying declaration where it is shown that the statement that the declarant, who was a foreigner, believed he was about to die and had no hope of recovery, was dictated by the police officer and was not the language of the declarant, who said he was feeling “pretty bad” and expected to die, and where it does not appear that the declarant, who lived for thirty-five days after making the declaration, was advised by any qualified person that his injury was fatal, or that he sent for a priest, although he was a Roman Catholic.</p> <p>6. Same — fact that fatal shot was in the back is not conclusive evidence against the accused. The fact that the fatal shot was received by the deceased in the back is not conclusive evidence that the accused is guilty of manslaughter, where the evidence tends to show that the deceased was the aggressor and fired several shots at the accused before the latter began to shoot, and that at the time the fatal shot was fired the accused and the deceased were running from each other, the deceased shooting sidewise as he ran.</p> <p>7. The court reviews the evidence in this case, and holds that there is not that degree of proof which the law requires to remove all reasonable doubt of the guilt of the accused, and that the trial court erred in not granting a new trial.</p>

<p>1. Criminal law — it is proper to charge a felony in different ways in different counts. A person cannot be tried, in one trial, for two or more separate and distinct felonies, but it is proper practice to insert several counts in an indictment charging the felony in different ways, to meet the varying phases of the evidence.</p> <p>2. Same — when court will not quash indictment or put prosecutor to election. The court will not quash an indictment as charging different offenses or put the prosecutor to his election as to which count he will proceed under, where it may be doubtful if the intention be not to charge the same or cognate offenses growing out of the same transaction.'</p> <p>3. Same — the effect where counts for rape charge the offense on different dates. The fact that the several counts of an indictment for rape charge the offense on different dates does not show affirmatively that they charge as many separate felonies as there are counts, since the time of the offense may be laid at any time previous to the indictment, during the period within which the offender may be prosecuted.</p> <p>4. Same — whether more specific bill of particulars shall be furnished rests in discretion of court. Whether a more specific bill of particulars shall be furnished than is presented by the prosecution is a matter resting in the sound legal discretion of the court.</p> <p>5. Same — matter of permitting assistance to State’s attorney is largely discretionary with court. It is the duty of the court to prevent oppression of the accused and permit only such assistance to the State’s attorney as justice and fairness may require; but such matters rest largely in the discretion of the court, and if the State’s attorney is ill and unable to try the case alone, it is not improper to allow his law partner to assist him.</p> <p>6. Same — right of either side to peremptorily challenge a juror before acceptance of panel of four. Until both sides have accepted the full panel of four jurors either side has a right to peremptorily challenge a juror who has been theretofore tendered to the other side. (Mayers v. Smith, 121 111. 442, distinguished.)</p> <p>7. Same — part of special venire may be examined before all are served. It is not error to permit the examination of a part of a special venire to proceed before all of the venire are served and present in court and their names placed in the jury box, where the accused' is furnished with a list of the names of the entire venire as well as of those served and in court, and where he does not exhaust all of his peremptory challenges before the jury is accepted.</p> <p>8. Rape — evidence of more than one act of intercourse is admissible. In a prosecution for rape with the consent of a female under the age of consent more than one act of intercourse with the complaining witness may be proved, not for the purpose of proving distinct offenses, but as .showing the relation and familiarity of the parties and as corroborating the testimony of the complaining witness as to the particular act relied on for a conviction.</p> <p>9. Same — admissibility of post-cards sent by accused to prosecuting witness. In a prosecution for rape without force, unsigned postal cards testified to as being in the handwriting of the accused and sent by him to the prosecuting witness are admissible in evidence as tending to show the relation of the parties.</p> <p>10. Same — when court should compel State’s -attorney to elect upon which act he will rely. In a prosecution for rape with' the consent of a female under the age of consent, where different acts of sexual intercourse between the accused and the complaining witness have been testified to, the court, upon motion of the accused, should compel the State’s attorney to elect upon which act he will rely for a conviction, and, if requested, instruct the jury as to the purpose for which the evidence of the other acts is admissible.</p> <p>11. Same — when alleged misnomer of complaining witness is not fatal. Proof that the name of the prosecuting witness given in an indictment for rape without force was the name by which she was commonly known is sufficient to support a conviction, even though the evidence shows she is an illegitimate child and that the surname by which she was known was assumed.</p> <p>12. Same — reputation of complaining witness for chastity is not admissible if she is under age of consent. If the,-complaining witness in a prosecution for rape is under the age of consent, evidence to show that her reputation for chastity is bad is not admissible.</p> <p>13. Same — when instructions are erroneous as invading province of jury. In a prosecution for rape, where the guilt of the accused rests solely on the testimony of the complaining witness and several witnesses have testified that her reputation for truth and veracity is bad and no witness has testified to the contrary, it is reversible error to give instructions holding that if the jury believe the complaining witness has testified truthfully as to all matters, then the testimony concerning her reputation for truth and veracity becomes immaterial and need not be considered.</p> <p>14. Practice — points raised for ñrst time in reply brief cannot be considered. Points raised for the first time in the reply brief of the appellant or plaintiff in error cannot be considered by the Supreme Court.</p> <p>15. Trial — counsel should not be permitted to state, in his argument, facts outside of record. It is not allowable for counsel, in the argument to the jury, to state facts which are not in the record.</p>

<p>1. Criminal law — indictment for larceny of money should describe the money taken. An indictment for the larceny of money should describe the coins or bills taken, if such description is or may be known to the grand jury; and it is only when the grand jury is unable to obtain a description of the money that it may be described in the indictment simply by giving its value “in good and lawful money of the United States.”</p> <p>2. Same — a conviction cannot be had if allegation that the description of the money is unknown is false. A conviction for the larceny of money under an indictment alleging that the particular description of the money was unknown to the grand jurors cannot be sustained, where the person from whom the money was taken testifies positively to the number and denominations of the bills stolen and testifies that he gave such description to the grand jurors ; but the defendant may be tried under a new indictment properly describing the money stolen.</p>

<p>1. Landlord and tenant — purpose of act of 1897, concerning disposition of rent where life tenant lessor dies. The purpose of the act of 1897, (Laws of 1897, p. 247,) concerning the disposition of rent where a life tenant lessor dies before the rent is due, was to abrogate the common law rule in such cases but not to affect the rule where the life tenant was himself cultivating the land. (Hoagland v. Crum, 113 111. 365, and Keays v. Blinn, 234 id. 121, distinguished.)</p> <p>2. Same — act of 1897 applies though life tenant has leased the land for part of crops. The act of 1897, for apportioning the rent between the executor of the life tenant and the remainder-men where the life tenant dies after leasing the land but before the rent is due, applies to a case where the lease made by the life tenant is for a share of the crops and she dies after the crops are planted but before they are harvested.</p> <p>3. Constitutional law — the act of 1897, concerning recovery of rent where life tenant lessor dies, is valid. The act of 1897, (Laws of 1897, p. 247,) concerning the recovery of rent where a life tenant lessor dies after leasing the land but before the under-tenant has paid the rent, is within the title of the act, and is not prohibited special legislation nor in violation of the fourteenth amendent to the Federal constitution, but is a valid enactment.</p>

<p>1. Eminent domain — when description of land to be taken for alley is sufficiently specific. A petition to condemn certain land for an alley sufficiently describes the land to be taken where it describes it by metes and bounds and refers to fixed monuments, such as the “school house lot” and the “McGee lot,” which it is to be presumed can be identified by extrinsic evidence.</p> <p>2. Same — when a petition need not describe the tract of land from which the strip is taken. Where a petition to condemn land for an alley specifically describes the strip of the defendant’s land which is to be taken by metes and bounds, it is not necessary for the petition to describe other land of the defendant which may be damaged by the opening of the alley, as it is for the defendant to show that fact if it exists.</p> <p>3. Same — when ordinance sufficiently declares that land taken for alley shall be paid for by general taxation. An ordinance for the condemnation of land for an alley sufficiently declares that the land shall be paid for by general taxation where it authorizes the village attorney to draw from the treasury the sum required to pay the compensation, damages and costs; nor is this a wrongful authority conferred upon the village attorney nor an appropriation of money in an irregular manner.</p> <p>4. Same — proceedings must be had under Mminent Domain act if the land is to be paid for by general taxation. If the land to be condemned for an alley is to be paid for by general taxation the proceedings must be under the Eminent Domain act, as the provisions of the Local Improvement act refer only to cases where the improvement is to be paid for, wholly or in part, by special assessment or special taxation.</p> <p>5. Same — when verdict in a condemnation case is sufficient. A verdict in a condemnation case which is for the value of the land to be taken for an alley is not insufficient because it does not describe the land, where all the land described in the ordinance and petition belonged to the defendant, and it was all to be taken and no other land was to be taken.</p>

<p>1. Appeals and errors — all petitioners need not join in appeal from order dismissing petition to dissolve drainage district. Under section 97 of the Practice act of 1907 and paragraph 82 of the Courts act it is not essential to the right to appeal from an order dismissing a petition to dissolve a drainage district that all petitioners join in the appeal, as each petitioner, alone or with others, may pray an appeal.</p> <p>2. Drainage — what are “assessed” lands, as meant by the act concerning dissolution of districts. The classification of lands under the Farm Drainage act determines what lands are charged with the burden of paying the benefits, and all lands which are placed above the zero class in the classification are therefore “assessed” lands, as meant by the act of 1889, concerning the dissolution of drainage districts, even if no assessment has been levied and spread.</p> <p>3. Same — what is sufficient prima facie showing of title in petitioners. The classification roll and other files in the proceedings for the organization of a drainage district, when introduced in evidence in support of a petition to dissolve the district, are prima facie evidence of the title of petitioners, and, unless this showing of title is contradicted, the only question for the court is whether the signers of the petition constitute four-fifths of the adult land owners of the district, owning three-fourths of the assessed lands.</p> <p>4. Same — adult land owners of district must be bona fide owners. In determining the number of adult land owners in a drainage district, only actual bona fide owners can be counted.</p> <p>5. Same — a petition to dissolve drain'age district may be signed by an agent of land, owners. A petition to dissolve a drainage district may be signed by an attorney or agent of the land owner.</p> <p>6. Same — highway commissioners may sign petition to dissolve. Where parts of highways in three towns are included in a drainage district, the highway commissioners of each town may, in their corporate capacity, sign a petition to dissolve the district, and in such case each board counts as one land owner and the signatures of two or more members of the board count as the signature of the board.</p> <p>7. Same — what is a sufficient compliance with statute concerning indebtedness. If the amount in which a drainage district is indebted is paid to the clerk of the district and is paid by him to the creditors before the entry of the final order in a proceeding to dissolve the district, there is a sufficient compliance with the act of 1889, which requires that no indebtedness shall exist when a district is dissolved.</p>

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

<p>Criminal law — when giving endorsed form of verdict to jury will reverse. In a trial for receiving stolen property, where the evidence is close, it is reversible error for the court to hand to the jury, with the instructions, two forms of verdict, one of guilty and one of not guilty, where the former was endorsed with the word “give” and the latter was without any endorsement, and where there was no direction or explanation given the jury as to the use of the respective forms.</p>

<p>1. Laches — cestui que trust must act promptly if he desires to have trustee’s sale set aside. After a cestui que trust attains his majority and reads the will creating the trust and voluntarily becomes a party complainant to a suit which has been pending many years to recover the proceeds of a trustee’s sale held when he was a minor, it is his duty to act promptly if he desires to set aside such sale, and he will not be permitted to delay such action for many years, during which time he recovers and receives a portion of the proceeds of such sale.</p> <p>2. Same — what does not excuse failure of cestui que trust to attack trustee’s sale. The fact that the cestui que trust is not entitled to possession of the entire principal of the trust estate until he is thirty-five years old does not require nor entitle him to wait until that time before attacking a trustee’s sale made while he was a minor, where he has a vested interest in the remainder from the date of the testator’s death, without any intervening estate, and is entitled to a portion of the principal of the estate when he reaches the age of twenty-four years, as he may at that time file a bill in equity and question the validity of the sale.</p>

<p>1. Deeds — when proof of custom in drawing deeds is not admissible. Where there is no ambiguity in the language of a deed which has a well settled legal meaning, evidence is not admissible to explain or add to the language used by showing that at the time such deed was made there was existing a custom of using blank forms for deeds and inserting any proviso or conditional clause in the blank space following the description of the land; but error in admitting such evidence is harmless if the construction given the deed, with the grantor’s intention as the only criterion, is correct.</p> <p>2. Same — rule in Shelley’s case has a limited application. The rule in Shelley’s case applies only where an estate of freehold is limited, by gift or conveyance, to the ancestor, and there is a limitation in the same gift or conveyance, by way of remainder, to his heirs. (Wolfer v. Henvmer, 144 111. 554, and Davis v. Sturgeon, 198 id. 520, explained; Ewing v. Barnes, 156 id. 61, and Silva v. Hopkinson, 158 id. 386, criticised.)</p> <p>3. Same — when rule in Shelley’s case does not apply to a deed. The rule in Shelley’s case does not apply to a deed the granting clause of which conveys certain described land to the grantee, “his heirs and assigns,” but which provides that if the grantee shall die without issue the premises shall revert to the grantor, his heirs and assigns.</p> <p>4. Same — fact that granting clause uses word “heirs” does not prevent limiting estate. A grant to a named person, his heirs and assigns, without limit or qualification, will convey a fee simple estate; hut the fact that the word “heirs” is used does not preclude limiting or explaining the estate granted. (Palmer v. Cook, 159 111. 300, disapproved.)</p> <p>5. Same — granting clause prevails over habendum in case of repugnancy. The portions of a deed operative to define and limit the estate are the granting clause and the habendum, the office of the habendum being to limit and define the estate granted; but in case of repugnancy between the granting clause and the habendum the former must prevail.</p> <p>6. Same — when the grantee takes an estate which may be determined. Where the granting clause of a deed conveys land to the named grantee, his heirs and assigns, but provides that the premises shall revert to the grantor, his heirs and assigns, if the grantee shall die without issue, the grantee takes an estate which will be determined by his death without issue, notwithstanding the habendum is to the grantee, his heirs and assigns, forever.</p>

<p>Appeals and errors — when an appeal must be dismissed under section 84 of Local Improvement act. Where each assignment of error, on appeal from an order of the county court entered under section 84 of the Local Improvement act, questions only the action of the court in finding that the improvement was in substantial conformity with the ordinance, the appeal must be dismissed, as said section 84 provides that the county court’s order shall be conclusive as to such matter and not subject to review.</p>

<p>1. Criminal law — Parole law applies to manslaughter. The crime of manslaughter is included within the Parole act of 1899, and neither the court nor jury can fix the term of imprisonment.</p> <p>2. Same — provision of verdict fixing term of imprisonment for manslaughter is surplusage. That part of a verdict of guilty of manslaughter which attempts to fix the term of imprisonment may be rejected as surplusage and a valid judgment of conviction be based upon the finding of guilty, as the question of guilt or innocence is the only issue presented to the jury. (Henderson v. People, 165 Ill. 607, followed.)</p> <p>3. Same — when cause will be remanded for re-sentence, 'only. Where no error intervenes in a murder trial prior to a verdict of guilty of the crime of manslaughter but the verdict and- sentence erroneously attempt to fix the term of imprisonment the judgment must be reversed, but the cause will not be remanded for a new trial but only for re-sentence under the Parole law, rejecting as surplusage that part of the verdict fixing term of imprisonment.</p>

<p>1. Special assessments- — -the statute must be strictly followed in condemning land under Local Improvement act. In condemning land under the Local Improvement act the statute must be strictly followed by the municipal authorities and the powers which they attempt to exercise must be clearly given.</p> <p>2. Same — part of the description of land condemned cannot be stricken out as surplusage. Where an ordinance for widening a boulevard by condemnation proceedings under the Local Improvement act describes as a part of the property to be taken a strip of land already dedicated to the city for- a parkway, the court cannot strike out the description of such strip as surplusage and order the assessment roll re-cast but must dismiss the petition.</p> <p>3. Same — ordinance must serve as the guide in a condemnation proceeding under Local Improvement act.' In a proceeding under the Local Improvement act to condemn land for widening a street the ordinance must serve as the guide to the public authorities, and they have no discretion to change the character of the improvement and cannot omit -any part provided for in the ordinance.</p>

<p>Registration oe titees — what is sufficient preliminary proof as to abstracts of title. Testimony by a witness to the effect that he was employed in the office of the abstracter of titles who made the abstract offered in evidence in a title registration proceeding, that he assisted in making the same and has personal knowledge that it was made in the regular' course of business, is sufficient preliminary proof to entitle the abstract to admission in evidence under amended section 18 of the act concerning land titles. (Waugh v. Glos, 246 111. 604, Culver v. Waters, 248 id. 163, and Jackson v. Glos, 249 id. 388, distinguished.)</p>

<p>1. Criminal law — perjury indictment need not show wherein the false testimony was material. An indictment for perjury need not show wherein the false testimony was material if the false testimony is set out and is alleged to have been material to the issue on the trial of the cause.</p> <p>2. Same — the jury are not to determine whether false testimony was as to a material issue. It is error for-an instruction in a perjury case to authorize the jury to determine whether the alleged false,testimony was as to a material issue in the case; but the error cannot be complained of by defendant if it also appears in the instructions given at his request.</p> <p>3. Same — what is not ground for a new trial. That the court, during a perjury trial and in the presence of the jury, said to the jury in a murder case which had just returned a verdict of not guilty, “Gentlemen, I must say that you put a very low estimate upon human life to return such a verdict as this,” is not ground for a new trial in the perjury case; nor is a remark by the court, during the argument by defendant’s counsel, to the effect that the presumption of innocence only obtains until overcome by proof.</p>

<p>1. Criminal law — when a challenge to the array is properly overruled. A challenge to the array, based upon the ground that the county board had no power to make a jury list at its September meeting before the list made at its previous September meeting was exhausted, is properly overruled, where the record does not show from which list the jurors who tried accused were drawn.</p> <p>2. Same — burden is upon accused to justify or excuse his act in assaulting deceased. After it is shown that the accused participated in the killing of the deceased the burden is upon him to prove circumstances mitigating, justifying or excusing his acts, and it is the province of the jury to say whether the circumstances proven are sufficient.</p> <p>3. Same — mere fact that person is trespassing on premises does not justify an assault. The mere fact that a person is trespassing upon the premises of another and looking in the window does not justify the occupants of the premises in making such an assault upon him as to cause his death.</p> <p>4. Same — Supreme Court will not interfere with verdict on the facts unless there is a well founded doubt of guilt. A verdict of guilty will not be disturbed by the Supreme Court upon the ground of the insufficiency of the evidence unless there is a reasonable and well founded doubt of the defendant’s guilt.</p> <p>5. Instructions — proof that the hilling was by some criminal agency excludes idea of self-defense. An instruction stating that the prosecution has proved every material allegation of the indictment if it has proved, beyond a reasonable doubt, that the deceased was killed by some criminal agency, etc., and that the defendant had a criminal agency in the crime, is not erroneous as omitting all reference to the elements óf self-defense and defense of habitation, since the requirement that the killing was by some criminal agency excludes the idea of such defenses; but such an instruction is useless and should not be given.</p> <p>6. Same — instruction stating that the only question for the jury is one of fact is inaccurate. An instruction in a manslaughter case stating that the question that the jury had to determine was simply one of fact and was the guilt or innocence of the defendant, and nothing else, is inaccurate, as the jury are the judges of the law as well as the facts, and the guilt or innocence of the accused is a mixed question of law and fact.</p> <p>7. Same — act of two persons, if with a common intent, is the act of both. An instruction stating that if the defendant and another person committed the crime charged, acting with a common intent, the crime committed was the act of both, is correct.</p> <p>8. Same — when instruction as to self-defense does not require actual and positive danger,. An instruction stating that “if a person kill another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm the killing of the other apparently was absolutely necessary,” etc., does not require more than apparent danger to resort to self-defense.</p>

<p>1. Specific performance — there must be mutuality of obligation as well as mutuality of remedy. There must be mutuality of obligation as well as mutuality of remedy before a court of equity will specifically enforce a contract for the sale of real estate.</p> <p>2. Same — when no right to specific performance exists. An agreement between the heirs of an estate that the real estate belonging to the estate be sold as soon as practicable, upon the best terms and price obtainable, “such price and terms to be agreed upon by the parties hereto or a majority of them,” does not confer upon one heir, who purchases the interests of all of the other heirs but one at a uniform price, the right to compel the other heir to sell her interest to him at that price.</p> <p>3. Partition — owner in fee of undivided interest in land may demand partition. The owner in fee of an undivided interest in land may, as a matter of right, demand partition as against other adult owners.</p> <p>4. Same — obligations of an estate should be borne by shares set off to the several owners. The claims and legal obligations against the estate sought to be partitioned should be borne by the shares set off to the several owners, or, in case of a sale of the land, should be paid from the fund; but provision to that effect may be made by the confirmatory decree and need not be contained in the decree for partition.</p>

<p>1. Civil service — an appointment is complete when last act required has been performed. An appointment is complete when the last act required of the appointing power has been performed, and in such case the appointing power cannot revoke the appointment, nor can the appointee be removed except by lawful authority.</p> <p>2. Same — civil service commission of Chicago does not appoint to office. The civil service commission of Chicago has no power to appoint to any office or position, but the power to appoint is in the head of the department or office in which the' classified position is to be filled.</p> <p>3. Same — civil service commission of Chicago may revoke certificate before appointment is made. If the civil service commission of Chicago certifies a person for appointment to office who lacks a necessary qualification, the commission has power, upon learning the fact, to revoke the certificate before the appointment is made, and the revocation of the certificate is not the revocation of an appointment.</p> <p>4. Constitutional law — protection afforded by "due process of law” provision of the constitution. Section 2 of article 2 of the constitution, providing that no person shall be deprived of life, liberty or property without due process of law, secures the citizen against laws which select particular individuals of a class and impose upon them special obligations and burdens from which others in tiie same class are exempt.</p> <p>5. Same — section p of the act of i8pf, relating to licensing of architects, is not invalid. Section 9 of the act of 1897, relating to the licensing of architects, (Laws of 1897, p. 84,) is not in violation of section 2 of article 2 of the constitution, as being a discrimination against architects and in favor of builders, as architects and builders are not in the same class.</p> <p>6. - Architects — a persqn does not become an architect by planning the building he erects. Any person erecting a building may employ an architect if he sees fit or may make his own plans, and he does not become an architect by planning the building he erects.</p>

<p>Writ or Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. .</p>

<p>1. Boundaries — rule as to boundaries where the original monument is lost or destroyed. Where the original monument from which a plat was surveyed is lost or destroyed, courts will not, upon uncertain evidence or the mere conjecture of surveyors, disturb the boundary lines long established and practically acquiesced in by the lot owners when improving their lots.</p> <p>2. Same-^rule where a tract of land between monuments overruns or falls short. Where a tract of land lying between fixed monuments is all conveyed in parcels and it overruns or falls short on actual measurement, the surplus or loss will be divided pro rata among the several lot owners.</p>

Writ of Error to the Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.

<p>1. Wiils — heir may invoke jurisdiction of equity to construe will though he denies validity of trust. The right to invoke the jurisdiction of a court of equity to construe a will creating a trust is not confined to the trustees but extends to the cestuis que trustent and others interested, including an heir who denies the validity of the trust.</p> <p>2. Same — rule where a will is susceptible of two constructions. Where a will is susceptible of two constructions, one of which will render it valid and the other void, the courts, if they can do so without violating the testator’s intention, will adopt the construction which will render the will valid.</p> <p>3. Same — effect of rule against perpetuities. The rule against perpetuities declares no interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest.</p> <p>4. Same — when a trust provision does not violate rule against perpetuities. A clause creating a trust does not violate the rule against perpetuities even though it provides that the title to the real estate shall vest in the trustees upon the order of the discharge of the executor having been entered, (which might never be done,) where it also fixes a definite time for the termination of the trust and directs the trustees to make distribution at that time, as in such case the title will vest in the trustees for the purpose of making distribution, whether the order discharging the executor has been entered or not.</p> <p>5. Same — when executor is entitled to collect income from real estate. A clause in a will empowering the executor, until discharged, to mortgage or sell any or all the real estate and re-in vest the same, and to invest all the income arising from the estate over and above the amount necessary to pay the bequests or annuities to be paid to the beneficiaries, authorizes the executor, until discharged, to collect the income from the estate, both real and personal, and to invest the surplus after paying the bequests and annuities, even though there is no specific devise of the real estate to the executor.</p>

<p>1. Criminal law — alleged improper relations between prosecuting witness and accused cannot be shown. In a prosecution for larceny and embezzlement by an agent, alleged improper relations between the prosecuting witness and the accused cannot he shown, as such proof would furnish no justification for the larceny nor tend to show any motive on the part of the prosecuting witness to testify falsely.</p> <p>2. Same — what is not such joint ownership of fund as precludes embezzlement. The mere fact that at the time when an agent took and converted to his own use $5000 of his principal’s money, which he took from her safety deposit box in his capacity as her deputy, the principal was indebted to him for some $300 does not constitute the agent a joint owner of the fund, such as would preclude his committing embezzlement by using the money. (McBlroy v. People, 202 111. 473, distinguished.)</p> <p>3. Same — the pronouns "he" and "his" in instruction concerning the credibility of witnesses refer to both sexes. The pronouns “he” and “his,” used in an instruction stating that the jury should consider the circumstances under which any witness has testified; his interest, if any, in the outcome of the case; the relations which he bears to the State or to the defendant, etc., refer to both male and female witne'sses, and the instruction is not prejudicial even though the principal witness for the prosecution is a woman.</p> <p>4. Appeals and errors — party is required to show in his brief wherein ruling is erroneous. The rule of the Supreme Court requiring a party to show by his brief the errors relied upon for reversal does not mean that he shall only set out the alleged erroneous rulings, but means that he shall present his reasons to show wherein the ruling complained of is erroneous.</p>

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

<p>1. Trial — court should allow great latitude in cross-examining witness voho has been an attorney in the case. While an attorney in a case is not disqualified by the law from testifying as a witness, particularly where he testifies that he has withdrawn from the case, yet the court should permit great latitude in the cross-examination of such witness in order to show his interest in the suit, and it is error to unduly restrict such cross-examination.</p> <p>2. Wills — witness cannot be asked whether testator had sufficient mental capacity to make a will. It is not proper in a will contest case to allow witnesses to answer the question whether, from their acquaintance and conversations with the testator and their knowledge and observation of him, they believed he had sufficient mental capacity, at the time he signed the instrument, to engage in making a last will and testament and to understand the nature and effect of the act.</p> <p>3. Evidence — when partner of one of the executors is disqualified. In a suit by heirs to set aside a will, a witness who is a partner in the banking business with one of the executors, and who testifies that he supposes the partnership agreement applies to fees received by his partner in the administration of the estate and that he has a financial interest in the result of the suit, is disqualified, under section 2 of the Evidence act, from testifying in his own behalf against the contestants.</p> <p>4. Same — in civil case the conviction of a witness need not be proved by the record. In a civil case the fact that, a witness has been convicted of a crime may be shown for the purpose of affecting his credibility, and may be, proved, like any fact not of record, by the witness himself or any other witness cognizant of the conviction or by any other competent evidence, and it is not necessary, as in a criminal case, to prove the conviction by the record thereof.</p> <p>5. Instructions — when instructions in a will contest case are misleading. Instructions for the proponents in a will contest case are misleading and should not be given, where, by reason of mentioning the names of the subscribing witnesses and the attorney who drew the will and reciting the circumstances under which the will was prepared and attested, they are calculated to impress the jury with the belief that the testimony of the named persons should be given greater weight than the testimony of the other witness.</p>

<p>Writ oE Error to the Circuit Court of Cass county; the Hon. Harry HigbEE, Judge, presiding.</p>

<p>1. Eminent domain — parties may waive right to have their controversy as to title decided on formal pleadings. While there should be some pleading in a condemnation case as the basis of a controversy among the defendants as to title, such defendants may waive their right to submit the question on formal pleadings.</p> <p>2. Same — when defendants cannot complain of lack of formal issue. In a condemnation proceeding, where the issue of ownership is between the holder of the legal title and the holder of tax deeds, if other persons alleged in the petition to have some interest in the premises, without stating what such interest is, are parties to the suit and appear, but, though represented by the attorney for the holder of the tax deed, make no attempt to raise any formal issue as to their interests or make any proof of the same, they can not complain, on appeal, that the question of their interests was not included in the formal issue on' which the court based its findings.</p> <p>3. Same — petitioners averment of ownership is not binding on the defendants. A petitioner for the condemnation of property must ascertain who are the owners of and interested in the property, but the averments of ownership, while binding upon the petitioner, are not binding on the defendants, and upon a proper issue the court may determine disputes between them; and it is proper to settle such questions before the jury is empaneled to ascertain compensation.</p> <p>4. Same — when it is proper to ascertain compensation in gross sum. In a condemnation proceeding the petitioner is not interested in a'controversy among the defendants as to their interests, and if there is a determination of such a controversy which -is not acquiesced in by a defendant, the petitioner should not be required to delay its case pending such defendant’s appeal, but it is proper, in such case, to ascertain the compensation in a gross sum, to be distributed under further order of the court.</p> <p>5. Same — a condemnation judgment is merely conditional until compensation is paid. A decision of the court, in a condemnation proceeding, of a controversy between defendants as to their title relates only to their right to participate in a fund which, as yet, has no existence and which may never have, as the condemnation judgment is merely conditional and confers no right until the "compensation is paid.</p> <p>6. Same — defendant may appeal from order settling his interest, after a final award is made. Where there is a controversy between the defendants to a condemnation proceeding as to their title and the decision is not satisfactory to one of them, the dissatisfied party is not required to take an appeal at once, as is the case where a partition decree settles the interests of the parties, but may take his appeal after the judgment awarding compensation is entered.</p> <p>7. Same — holder of invalid tax deed not entitled to reimbursement out of compensation awarded. A condemnation proceeding is not a proceeding instituted by the holder of the legal title but is instituted against him without his consent, and in such case the holder of an invalid tax deed is not entitled to reimbursement out of the compensation awarded, for money expended in procuring such tax deed and for taxes subsequently paid.</p> <p>8. Tax deeds — right of holder of invalid tax deed to reimbursement is limited. The holder .of an invalid tax title is only entitled to reimbursement when his tax title is attacked and set aside in a proceeding brought for that purpose by the owner of the land.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Karlin Q. Ball, Judge, presiding.</p>

Mazzini Slusser, Judge, presiding. This was a proceeding brought by the city of Chicago in the circuit court of Cook county, under the Local Improvement act, for the opening of South Rockwell street, in Chicago, from West Eighteenth place to West Nineteenth street. The appellants appeared and filed legal objections to said proceedings, which were overruled, and the case was then submitted to a jury upon the questions of compensation and benefits.