Volume 269 — Illinois Reports

<p>1. .Constitutional law — constitutional provision as to amending laws construed. Section 13 of article 4 of the constitution, providing that no law shall be revived by reference to its title only, etc., was not intended to limit or control repeals by implication, and if an act is complete in itself and does not purport to amend a prior act it is not within the constitutional prohibition, although its effect may be. to repeal certain provisions contained in prior acts and substitute new provisions in lieu thereof.</p> <p>2. Same — when act is within constitutional prohibition as to amending laws. Even though an act professes to be an independent one and does not purport to amend any prior act, yet if, in fact, it makes changes in an existing act by adding new provisions and mingling the new with the old on the same subject, so as to make of the old and the new a connected piece of legislation covering the same subject, the later act must be considered an amendment of the former and is within the constitutional prohibition.</p> <p>■3. Same — part of section 58 of Municipal Court act is unconstitutional. That part of section 58 of the Municipal Court act, as amended in 1907, which provides for the payment to the city of Chicago of one-half of all moneys collected upon judgments of the municipal court in cases of violation of park ordinances and for the payment of the remaining one-half to the board of park commissioners in whose favor the judgments were rendered is not within the title of the act and is unconstitutional.</p> <p>4. Same — act of 1907, which required State’s attorneys to pay fees into county treasury, was unconstitutional. The act of 1907, (Taws of 1907, p. 320,) since repealed, which purported, by its title, to amend the Fees and Salaries act by adding section 9a, requiring State’s attorneys in counties of the third class to pay all fees collected into the county treasury, was unconstitutional, in that its effect was to amend section 8 of the Fees and Salaries act by taking away the beneficial interest-given by such section to State’s attorneys in all fees collected by them, and was therefore an amendment of an act by reference to its title, only. (Lyons v. Police Pension Fund, 255 Ill. 139, followed.)</p> <p>5. Same — act of 1907, for payment of further compensation to State’s attorney of Cook county, was unconstitutional. The act of 1907, (Taws of 1907, p. 323,) since repealed, which was entitled “An act providing for the payment by the county of Cook of further compensation to the State’s attorney of said county,” was in violation of the provision of section 13 of article 4 ,of the constitution that no act shall embrace more than one subject and that shall be expressed in its title, since the effect of the act was not merely to provide further compensation to such State’s attorney, but also to take away from him the right to fees and commissions to which he was entitled under section 8 of the Fees and Salaries act, without mention of such purpose in the title.</p> <p>6. Fees and salaries — promise to perform duties of office for compensation other than that fixed by law is illegal. Fees or salary of an officer which are fixed by law are incident to the office, and as it is contrary to public policy for á candidate to attempt to attain an office by a promise to perform the duties for any compensation other than that fixed by law, such a promise is illegal and will not be enforced, by way of estoppel, in a suit begun after the term of office has expired, to recover the legal compensation.</p> <p>7. Same — what does not raise estoppel against collecting fees. The mere fact that a public officer has, by treating an act of the legislature as valid, received less compensation for his services than he would be entitled to if the law were invalid, does not raise an estoppel against his right to attack the validity of the act after his term of office has expired and recover the fees to which he is entitled if the act be invalid.</p> <p>8. State’s attorneys — section 8 of Fees and Salaries act does not entitle State’s attorney to fees not taxed as costs. Section 8 of the Fees and Salaries act, as amended in 1907 and 1909, does not entitle the State’s attorney of Cook county to any of the fees allowed by such section until the same have been taxed as costs, and it is only when such fees have been taxed as costs and the same cannot be collected from the persons against whom they are taxed that he has the right to apply fines and forfeitures collected by him to the payment of such fees.</p> <p>9. Same — when the fines and penalties paid to clerk are “collected” by State’s attorney. Fines and penalties paid to a clerk of court are “collected” by the State’s attorney, within the meaning of section 8 of the Fees and Salaries act, when the prosecution of the case which resulted in the imposition of the fine or penalty was conducted by the State’s attorney and when the law makes it the duty of the State’s attorney to collect fines and penalties imposed in suits not prosecuted by him; and where there is no evidence to the contrary it must be presumed that the State’s attorney prosecuted all suits which it was his duty, under the statute, to prosecute.</p> <p>10. Same — what suits for penalties should be prosecuted by the State’s attorney. Prosecutions for violations of the provisions of the Pharmacy act, the Dentistry act and the Employment Offices and Agencies act are prosecutions in which the people of the State are concerned and come within the duties prescribed by law for State’s attorneys, and the fines and penalties imposed for violations of such acts are therefore to be regarded as “collected” by the State’s attorney in determining the question of commissions.</p> <p>11. Same- — effect of act of 1911 as to fines and penalties for violations of park ordinances. By the act of 1911, providing for a park police pension fund, (Laws of 1911, p. 445,) the right of the superintendent of schools to moneys collected as fines and penalties for violations of park ordinances was taken away, and with it the duty of the State’s attorney to prosecute suits for such violations, and 'his right to commissions on the fines and penalties imposed therefor, which had theretofore existed, ceased and determined, and he has no right to have fines and penalties imposed since that act took effect, applied upon uncollected fees.</p> <p>12. Same — section 8 of Fees and Salaries act was not repealed by implication. The provision of section 8 of the Fees and Salaries act, as amended in 1883, that the ten per cent commission of State’s attorneys “shall be paid out of any fines or forfeited recognizances collected by them,” and that they shall have a lien for their fees “on judgments for fines and forfeitures procured by them,” has been, in substance, embodied in all subsequent amendments of section 8 and must be regarded as having been continuously in force since 1883, and said section has not been repealed, by implication, by thé various acts providing for the disposition of fines and penalties.</p> <p>13. Interest — disposition of interest received by clerk of court upon fines and penalties. Upon a bill of interpleader by a clerk of a court to determine the rights of various claimants to a fund in his hands derived from fines and penalties, interest which he has received upon such fund should be divided into parts, proportionately, the same as the principal, and distributed accordingly among the claimants found entitled to the principal.</p>

<p>Appeal from the County Court of Cook county; the Hon. J. E. Hillskotter, Judge, presiding.</p>

<p>1. Practice — section 61 of Practice act construed. Section 61 of the Practice act, relating to the submission to the court of propositions of law and findings of fact in cases tried by the court without a jury, applies only to cases where the parties are entitled to a jury but waive that right and agree to a trial by the court. (</p> <p>2. Same — when section 61 of the Practice act does not apply. A proceeding by petition to set aside an order approving a children’s award is not within the constitutional guaranty of the right to trial by jury, and hence the provisions of section 61 of the Practice act concerning the submission of propositions of law and findings of fact do not apply, and in such case the whole record is before the Supreme Court for review, without restriction to the action of the trial court on propositions of law or findings of fact.</p> <p>3. Evidence — genuineness of signature is not to be determined 'solely by comparison with one admitted to be genuine. Whether the signature tó an application for a marriage license is genuine will not be determined solely by comparing such signature with one admitted to be genuine, but all the facts and circumstances appearing in the case will be considered, in connection with this evidence, in determining the question.</p> <p>4. Same — what evidence does not prove that party participated in marriage ceremony. Testimony that the deceased, at the time his supposed wife died, took possession of a tin box and some papers which were in her room, and that after the deceased died a tin box was produced by an inspector of police containing a marriage certificate bearing the names of the deceased and of his supposed wife, does not prove that the deceased participated in the marriage ceremony, where the box introduced in evidence is not identified as the one the deceased took possession of, and there is no proof that the box containing the marriage certificate was found among the effects of the deceased at his death or how it got into the possession of the police inspector.</p> <p>5. Same — statements by deceased recognising children as his own are admissible against the persons claiming as heirs-at-law. Statements by a person, since deceased, that a certain woman was his wife and that her children were his are admissible as declarations against interest, since he thereby assumes the responsibility of a father and becomes liable for their support, and being admissible against the declarant in any suit in which he might be a party and in which such an investigation is pertinent, they are admissible against his heirs-at-law in a proceeding by them to set aside an award by the probate court to such children.</p> <p>6. Same — when no presumption is necessary to prove identity of applicant for marriage license. The fact that there are misstatements as to parentage and place and date of birth of an applicant for a marriage license in the application supposed to bear his signature does not render it necessary to indulge in any presumptions in order to overcome the effect of such mis-statements, where there is sufficient competent evidence in the record to show, notwithstanding these mis-statements, that the deceased was, in fact, the person who made the application.</p> <p>7. Divorce — neither the bill nor publication notice need give the full name of the complainant. The fact that in the bill for divorce and in the publication notice the complainant is described as “B. N. Riggs” whereas she is known as “Beatrice K. Riggs” does not affect the jurisdiction of the court where the name of the defendant is properly given; and this is true though the statute as to service by publication requires the published notice to state “the names of the parties.”</p> <p>8. Names — middle initial is not part of a name. The common law recognizes but one Christian name, and the presence or absence of a middle initial, or a mistake in regard thereto, is not material. (Illinois Central Railroad Co. v. Hasenwinkle, 232 Ill. 224, followed.)</p>

<p>1. Wills — what instrument will not revoke former will. Under section 17 of the Statute of Wills a former will can be revoked only by a subsequent duly executed will declaring a revocation of all former wills, and not by a subsequent instrument in writing not testamentary in character declaring such revocation. (Stetson v. Stetson, 200 Ill. 601, followed.)</p> <p>2. Same — destruction of subsequent will revives former will. As a will is ambulatory, inoperative, ineffectual and without legal existence until the death of the testator, the destruction of a subsequent duly executed will containing a revocatory clause expressly revoking all former wills will revive such former will.</p> <p>3. Same — common lava rule as to revocation of will is in force in this State. The common law rule by which a former will is revived and restored by the destruction of a later one, wholly independent of the intention of the testator in destroying such later instrument, is in force in this State.</p> <p>4. Same — ■revocation clause is ambulatory with the rest of the will. A will is executed as a whole and is not to be operative until the death of the testator, and the revocation clause, like every other declaration of the testator’s will and intent therein, is ambulatory, and must stand or' fall with the other provisions of the instrument.</p> <p>5. Same — will not revoked by a subsequent will which is defectively executed. If an instrument intended as a will and containing a clause revoking a former will is so defectively executed that it is not entitled to probate; the instrument is not a will within the meaning of section 17 of the Statute of Wills and the former will is not revoked.</p>

<p>1. Attorneys'1 mens — effect of Attorney’s Hen law. The Attorney’s Lien law gives an attorney who has given the notice required by the act a lien for his contract fees if he has a contract for such fees, or reasonable fees otherwise, on the amount recovered by suit or paid in settlement, and does not alter the relation of attorney and client.</p> <p>2. Same — what determines the amount of the lien where the person liable settles with claimant in full after notice. Where a corporation, after being notified of the claimant’s attorney’s contract for one-half of “whatever amount is received as damages out of said claim,” as attorney’s fees, settles with the claimant and pays him the full amount of the settlement without withholding the share of the attorney, the attorney may collect from the corporation one-half of the amount recovered by his client and not a sum equal to the whole amount paid him. (Sutton v. Chicago Railways Co. 258 Ill. 551, distinguished.)</p>

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

Writ op Error to the Appellate Court for the Third District; — heard in that court on appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding:

<p>1. Appeals and Errors — when the Supreme Court will not consider weight of evidence. Where a decree must be reversed and the cause remanded for a new trial for errors intervening during the course-of the trial the Supreme Court will not express any opinion as to the weight of the evidence.</p> <p>2. Wills — certified transcript of testimony of subscribing witnesses on probate is admissible in circuit court. Under the Wills act, which provides that on a will contest in chancery the certificate of the oath of the witnesses at the time of the first probate shall be admitted as evidence, a certified transcript of the testimony of the subscribing witnesses on the hearing in the probate court is admissible, and the fact that on'e. of the witnesses is dead at the time of the trial in the circuit court and the other is beyond the jurisdiction of the court is not material.</p> <p>3. Same- — what question as to undue influence is not proper. The question asked of a subscribing witness in a proceeding to probate the will, whether any fraud, duress or undue influence was used or applied to cause the testatrix to subscribe her name to the instrument, and the answer of the witness that there was none whatever, are improper, and if specific objections had been made when the transcript of the testimony was read in the circuit court it would have been the duty of the court to sustain the objections.</p> <p>4. Same — when proper to show financial condition of heirs of testator — rule as to beneficiary not an heir. The financial condition of those having claims upon a testator’s bounty may be taken into consideration in connection with the will itself in determining the question of testamentary capacity, provided such financial condition is shown to have been known to the testator; but the court may, in any event, exclude testimony as to the financial condition of a beneficiary who is not a relative of the testator.</p> <p>5. Same — 'contestants cannot show that the testator previously had made a different will. Complainants in a proceeding to contest a will cannot show that the testator had riiade a different will at a previous time, since a person has the right to change his mind in reference to the disposition of the property, and the mere fact that he does so has no bearing upon the question of his mental capacity.</p> <p>6. Same — when the proponents’ proof in rebuttal is properly admitted. In a will contest case, where the evidence of the proponents in rebuttal is designed to meet that produced by the contestants, the fact that it has a bearing upon the mental capacity of the testatrix does not render it improper if it is not of such a nature as should have been anticipated by the proponents.</p> <p>7. Same — when admission of coroner’s verdict as to cause of death is harmless. Where both parties to a proceeding to contest a will agree that the testatrix died of pneumonia but the contestants claim that the pneumonia was caused by administering a drug, the admission in evidence of the coroner’s verdict that the testatrix died of pneumonia is harmless.</p> <p>8. Same — question as to existence of a fiduciary relationship should be left to the jury. An instruction which attempts to state the rule as to the burden of proof where one of the beneficiaries 'sustained a fiduciary relationship to the deceased, and which assumes the existence of such relationship without leaving that question for determination by' the jury, is erroneous.</p> <p>9. Same — instruction should not ignore undue infitience where that is one of principal grounds of contest. An instruction directing a verdict sustaining the will if the jury believe, from the evidence, that the testatrix, at the time the instrument was signed, had mind and memory sufficient to transact ordinary business affairs and knew and understood the business in which she was then engaged, is improper where the element of undue influence, which was one of the principal grounds of contest, is ignored.</p> <p>10. Same — where execution of will is one of the grounds of contest it should not be assumed in instructions. Where there is evidence tending to sustain the contestants’ claim that the signature to the will is not genuine, the instructions for the proponents should not assume the execution of the instrument.</p> <p>11. Instructions — when party cannot complain of assumption in instructions. That certain instructions given at the request of the proponents assume matter which should be left to the jury is not ground for complaint by the contestants, where many of the instructions given at their request contain the same assumption.</p> <p>12. Same — instruction should contain all elements necessary to warrant verdict, where verdict is directed. Where an instruction directs a verdict all the elements necessary to warrant such verdict must be contained in the instruction.</p> <p>13. Same — jury should not be told that executor is entitled to employ expert witnesses.' Where a medical witness, testifying in support of a will, states that he expects to receive $100 a day for his services as a witness, opposite counsel have a right to argue that the fact that medical witnesses were receiving so much money for testifying affected their credibility, and it is error to give an instruction sanctioning the right of the executor to employ expert witnesses, and stating that no inference prejudicial to the executor should be drawn from the fact that he engages in the defense of the will.</p>

<p>1. Wills — rules as to vesting of devises of land apply, generally, to gifts of personal property. In Illinois the general principles applicable to the vesting of devises of real estate apply, generally, to gifts of personal property.</p> <p>2. Same — residuary clause must be kept in mind in construing will. The residuary clause of a will must be kept in mind in construing a will, as the intention of the testator as expressed in the whole will must govern.</p> <p>3. Same — distinction between words of limitation and words of condition. Words of limitation in a will mark the period which is to determine the estate, whereas words of condition denote the circumstances or contingency that may defeat the estate in the intermediate time.</p> <p>4. Same — distinction between estate upon condition subsequent and upon conditional limitation. An estate upon condition subsequent does not divest the donor of his reversionary interest reserved to the donor to re-invest in him or his heirs upon breach of the condition, but a gift or a devise upon a conditional limitation divests the donor of his reversionary interest at once and vests it in the third party in whom the estate is to vest upon the happening of the contingency that is to defeat or terminate the intermediate estate.</p> <p>5. Same — difference, as to forfeiture, between estates upon a condition subsequent and upon conditional limitation. In an estate upon condition subsequent a breach of the condition will not, alone, defeat the estate without a declaration of forfeiture by the donor or his heirs and a re-entry by them, whereas in an estate upon conditional limitation a breach of the condition of itself defeats the estate and ipso facto vests it in the third party, who, alone, can take advantage of the breach.</p> <p>'6. Same — when a gift to charity is upon condition subsequent. Where a gift to a charitable institution is in trust for a specific purpose, without words of condition or limitation to denote the character or duration of the estate or the time when it shall terminate, but there is a subsequent clause providing for a forfeiture of the gift in case the institution fails to carry out the objects of its organization or to promote the object of. the gift, the estate is upon conditional limitation.</p> <p>7. Same — what provision of a will is intended to secure the application of funds to specific purposes of bequests. Where a will contains numerous bequests in trust to charitable institutions, a subsequent clause making the bequests void if such institutions “shall at any time fail or cease to carry out effectively the purposes for which they were, respectively, organized, and to promote which the bequests to them, respectively, are by me herein made and given,” is intended to insure the application of the funds to the several specific purposes for which they were made.</p> <p>8. Same — general rule as to disposition of lapsed legacies. As a general rule, where specific bequests are made by a will containing a residuary clause and one or more of the specific bequests fail and thereby lapse, the lapsed legacies are distributed as part of the residuary estate; but this rule cannot be applied where to do so would defeat the obvious intention of 'the testator as expressed in the whole will.</p> <p>9. Same — when lapsed legacy will not pass under the residuary clause. Where the only residuary legatee who can, without violating the rule against perpetuities, take forfeited specific bequests to charitable institutions is, itself, one of such institutions and its specific bequest is subject to the same condition as the others with reference to forfeiture, the specific legacies forfeited for breach of the condition attached to them will go to the heir-at-law of the testator as intestate property and will not pass under the residuary clause.</p> <p>10. _ Same — when allegation that reasonable time has elapsed to carry out charitable bequest is unnecessary. In a bill by an heir-at-law to declare a forfeiture of a bequest in trust to a charitable institution, an allegation that a reasonable time has elapsed for carrying out the purposes of the bequest is unnecessary, where the specific allegations of the bill show that more than twenty years have elapsed since the institution received the funds and that it has never applied them to the purpose for which given.</p> <p>11. Same — when gifts to charitable institution are for specific purposes. Where one • clause in a will gives a certain fund to a charitable institution in trust for investment and re-investment, the annual income to be used in defraying the current expenses “for the home for old men to be erected as hereinafter provided,” and a later clause gives the same institution a certain sum in trust for the erection of a building for a “home for old men of American birth,” both bequests are in trust for the specific purposes mentioned and not for investment in the general funds of the institution.</p>

<p>1. Evidence — complainant has burden of proof on filing bill to set aside deed. One who files a bill to set aside a deed upon the ground that its execution was procured by undue influence and that there had never been a valid delivery of the deed has the burden of proving the allegations of his bill.</p> <p>2. Undue influence — what is not undue influence. The fact that a daughter, by appealing to the affections and sense of justice of her aged father, who was about to marry a young woman whom the daughter did not know, induced him to make a deed to her, reserving a life estate in himself, in accordance with his long declared intention that the land should belong to his daughter and her children, does not constitute undue influence.</p> <p>3. Deeds — transactions occurring after delivery of deed do not affect the validity of the delivery. If a deed has been delivered to the grantee without any condition of which she is aware or which she has authorized, the validity of such delivery is not affected by conversations or transactions subsequently taking place between the grantor and third persons.</p> <p>4. Appeals and errors — when Supreme Court will not disturb the chancellor’s findings. Where the evidence in a chancery case heard by the chancellor in open court is in irreconcilable conflict and so evenly balanced on the important features that the decision of the case must depend wholly upon which witness or group of witnesses is to be believed, the Supreme Court will not disturb the chancellor’s findings as to the facts.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.</p>

<p>1. Criminal law — what is a confidence game and not merely a breach of contract. One who advertises for a partner in the moving picture business, obtains the confidence and money of his victim by contracting to sell him an interest in a moving picture theatre and thereafter refuses to carry out his agreement or return the money is guilty of obtaining money by means of the confidence game and not merely of a breach of contract, where the evidence shows that he did not enter into the contract in good faith, with the intention of keeping it, but merely to obtain the money of his victim and thereby defraud him.</p> <p>2. Same — what evidence admissible to show guilty knowledge. In a prosecution for the confidence game, where the accused advertised for a partner in the moving picture business and obtained the confidence and money of the prosecuting witness by entering into a contract purporting to sell an interest in a moving picture theatre, proof that after such transaction the accused advertised three times for partners and each time made a similar contract with different persons for the sale of an interest in different moving picture theatres, failing each time to carry out his contract or return the money, is admissible as tending to show guilty knowledge and to disprove good faith.</p>

<p>1. Municipal corporations — what does not render municipal ordinance invalid. A municipal ordinance is not invalid merely because it prohibits and penalizes acts already prohibited by statute.</p> <p>2. Same — object of the Local Option act of ipoy. The object of the Local Option act of 1907 is to secure to the voters of certain territory the option to determine by certain methods, under certain restrictions, that prohibition of the sale of intoxicating liquor shall prevail in such territory until otherwise determined according to law.</p> <p>3. Same — effect of provision of section 8 of Local Option act suspending operation of ordinances. ■ Section 8 of the Local Option act suspends the operation, in anti-saloon territory, of only such municipal ordinances as prohibit, regulate or restrict the traffic in intoxicating liquor in some manner or by some method inconsistent with the act or with the status of the territory as anti-saloon territory, and such' prohibitory, restrictive or regulative ordinances as are consistent with the act are not affected by the suspension clause of section 8.</p> <p>4. .Same — city in anti-saloon territory has power to pass prohibitory ordinance. A city located in territory which has become anti-saloon territory has power to enact an ordinance prohibiting the sale of intoxicating liquor within the city in any manner not inconsistent with the Local Option act and provide penalties for violation of the provisions of the ordinance.</p> <p>5. Same — what provision of ordinance with reference to nuisances is not invalid. •> A provision in an ordinance adopted by a city located in anti-saloon territory which declares to be nuisances all places where intoxicating liquor is sold in violation of law “or distributed or divided among the members of any club or association by any means whatever, when such distribution or division shall be an illegal sale or gift of liquor,” is authorized by the provision of the Local Option act making any shift or device to evade the provisions of the act an unlawful selling, and is valid.</p> <p>6. Same — when provision of an ordinance applies to so-called clubs. A provision of an ordinance declaring to be nuisances all places where intoxicating liquor is sold in violation of law or distributed or divided among the members of any club or association by any means whatever, when such distribution or division shall be an illegal sale or gift of liquor, applies to a so-called club consisting of patrons of a person engaged in the business of dispensing intoxicating liquor to them for consumption on the premises, even though such person charges for the service, only, the liquors being the property of the individual patrons and stored for them by the proprietor.</p> <p>7. Local option — act of 1907 is directed not only to the business but to the place of business of seller of liquor. The shift- and-device provision of the Local Option act of 1907 is intended to do away not only with the business but also with the place of business of the seller of intoxicating liquors.</p>

<p>1. Wills — zvhen pozver of sale by executor is not conditional on request of heirs. A provision in a will that the executor, after managing and controlling the land for a ten-year period, shall at the request of the heirs sell the land, does not make the power of sale conditional upon the request of the heirs, where the will makes no disposition of the land in case it should not be sold but shows the intention of the testatrix to be that the mortgages on the land should be paid by the executor from the rents and profits before the land was sold and that the children of the testatrix should share the proceeds.</p> <p>2. Same — when will effects an equitable conversion of land into personal property. Where the power given by will to the executor to sell land and divide the proceeds among the children of the testatrix is absolute the will operates as an equitable conversion of the land into personal property, and the children take no interest in the land which they can alienate or mortgage.</p> <p>3. Same — if interest of a child in proceeds of a sale is contingent it cannot he lawfully assigned. Where a will directs the executor, after managing the land for ten years, to sell the same and divide the proceeds equally among the named children of the testatrix “if they then all be living,” but in case any of them should die before that time then the share of such child to go to the survivors if it died leaving no children or to the children of such child if any survived it, the interest of the children is contingent until the time of distribution, and no assignment of a child’s interest made before that time will operate as an assignment of the proceeds of the sale if the child dies before the time of distribution.</p>

<p>1. Elections — production of ballots for inspection of■ grand jury is not a violation of the secrecy of the ballot. Requiring the production of ballots for inspection by the grand jury which is investigating alleged fraud in the election is not a violation of the secrecy of the ballot, within the meaning of the constitution and the statutes.</p> <p>2. Same — court may require production of ballots where a violation of the City■ Elections act is charged. The fact that the proviso to section 27 of the Ballot act of 1891 merely authorizes the opening of ballots in case of an election contest does not preclude the production of the ballots for inspection by the grand jury which is investigating an alleged violation of section 5 of the City Elections act as amended in 1899.</p> <p>3. Same — power of the court to impound ballots. While ballots should not be taken from the custody of the proper custodian during the time allowed for an election contest or pending such contest, yet after the expiration of such time or the final determination of the contest the court may, in its discretion, impound the ballots for use as evidence in any criminal prosecution pending in which such ballots are material as evidence.</p>

Thomas G. Windbs, Judge, presiding. This was a petition for leave to file an information in the nature of quo warranto by the State’s attorney of Cook county against the Union Elevated Railroad Company (hereinafter called the Union Elevated Company) to procure a forfeiture of its corporate franchise and privileges for alleged violations of its charter rights and the constitution and laws of this State.

<p>1. Counties — cotmty treasurer is not entitled to separate compensation as supervisor of assessments. The act of 1898 and the amended law of 1903, making the county treasurer ex-officio supervisor of assessments, do not create a new office but simply add other duties to the office of county treasurer, and such officer is not entitled to separate compensation as supervisor of assessments. (Foote v. Lake County, 206 Ill. 185, followed.)</p> <p>2. Sureties — when decree against surety is not conclusive in his suit on indemnity bond. In a suit on an indemnity bond given to sureties on a treasurer’s bond a decree against the sureties on the treasurer’s bond is not conclusive as to liability on the indemnity bond, where the wording of the conditions in the two bonds is not the same.</p> <p>3. Construction — what may be considered in construing condition of a bond. That construction which the parties themselves have adopted in their pleadings, together with the punctuation in the condition of the bond, may be considered in determining what is the natural and reasonable meaning of such condition.</p> <p>4. Evidence — pleadings are admissible. All pleadings are admissible in evidence, their weight to be determined from all the facts and circumstances under which they are made.</p> <p>5. Same — admissions of - attorneys are the admissions of their clients. Attorneys are deemed agents of their clients for the purpose of making admissions in all matters relating to the progress and trial of an action, and such admissions are treated as the admissions of the client.</p> <p>6. Same — when admissions may be proved at subsequent trial or in separate action. Where the admissions of attorneys are general and not limited to the purposes of the trial they may be proved at a subsequent trial of the same case or in another action.</p> <p>7. Same — when briefs are admissible. The admissions in the briefs of the attorneys, made during the trial of a case, are admissible against the client if they appear to be made by his direction and from his personal knowledge.</p> <p>8. Fraud — when retaining compensation under doubtful right will not amount to fraud. A county treasurer who retains fees as his compensation for services as supervisor of assessments under a statute providing that he shall receive such compensation and under the advice of competent attorneys that he is entitled to it will not be deemed guilty of fraud, even though the courts had held, under a former similar statute, that county treasurers were not entitled to such compensation.</p> <p>9. Same — actual or positive fraud defined. Actual or positive fraud, in its most general and fundamental conception, consists in obtaining an undue advantage by means of some act or omission which is unconscientious or a violation of good faith.</p> <p>10. Bonds — condition of indemnity bond construed. A condition in an indemnity bond that the obligor shall reimburse the obligees for any loss they may sustain by reason of any “act of fraud or dishonesty, amounting to larceny and embezzlement,” on the part of their principal, indemnifies only against a loss caused by an act of positive fraud or dishonesty on the part of the principal amounting to larceny or embezzlement, and does not include mere errors of judgment or carelessness upon his part. (City Trust Co. v. Lee, 204 Ill. 69, distinguished.)</p> <p>11. Practice — when court may direct a verdict. If there is no evidence, or but a scintilla of evidence, tending to prove the averments of the declaration, the jury should be directed to return a verdict for the defendant, but if there is in the record any evidence from which, if it stood alone, the jury can reasonably find that all material averments of the declaration have been proved, then the cause should be submitted to the jury.</p>

<p>1. Criminal law — ownership is necessary averment of indictment for receiving stolen property. The ownership of the property is a necessary averment of an indictment for receiving stolen property and must be proved as alleged.</p> <p>2. Same — in whom ownership shall be alleged. Where an averment of ownership is necessary in an indictment, the ownership must be alleged in a person, corporation or other entity that may be the owner of property.</p> <p>3. Same — indictment may refer to drug by its general term instead of complete scientific name. The general term “codeine,” used in an indictment for receiving stolen property, is sufficient to include the special preparation known as triturate of codeine.</p> <p>4. Same — what not sufficient proof of existence of corporation. The opinion of a witness that a company did business as a corporation is not sufficient proof that such company is a corporation, where no facts are shown upon which such opinion was based and there is no proof of user of corporate franchises.</p> <p>5. Same — what evidence is incompetent to prove one guilty of receiving stolen property. In a prosecution for receiving stolen property, consisting of drugs, evidence that a burglary was committed on a certain night and quantities of drugs stolen is not competent, where it is not shown that any part of the property so stolen came into possession of defendant or that he had any knowledge of or connection with the particular burglary or larceny.</p> <p>6. Instructions — those instructions may be refused which are covered by others given. Where an instruction is covered by other instructions it may be refused, but when not covered in all respects by any other instruction it should be given if otherwise unobjectionable.</p> <p>7. Same — when an ill-drawn and verbose instruction should not be refused. An instruction, though ill-drawn and verbose, stating true principles as to the presumption of innocence and reasonable doubt, should not be refused if these principles are not stated to the jury in any other instruction.</p>

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

<p>1. Criminal law — what is not sufficient proof to show embezzlement. Mere proof of the receipt of funds and failure to account therefor is not sufficient, in itself, to show embezzlement, but there must be other evidence of the conversion.</p> <p>2. Saw£ — proof must show that the defendant fraudulently converted to his own use the funds received. The mere depositing in his private account of the proceeds of notes, bonds and stocks- received by an agent from his principal does not show that he is guilty of embezzlement or fraudulent conversion, but there must be proof, beyond a reasonable doubt, that he converted to his own use some of the property received by him.</p> <p>3. Same — when conviction for embezzling proceeds of sale of bonds cannot be sustained. A conviction for embezzling the proceeds of the sale of bonds cannot be sustained where that offense is not charged in the indictment nor mentioned in the bill of particulars, the charge being embezzlement of the bonds themselves.</p> <p>4. Same — general rule as to force of positive testimony of an unimpeached witness. Positive testimony of a witness, uncontradicted and unimpeached either by direct testimony or circumstantial evidence, cannot, as a general rule, be disregarded but must control the decision of the court or jury, particularly where it is not inherently improbable or contradictory.</p> <p>5. Same — where venue of indictment for embezzlement should be laid. The venue of an indictment charging embezzlement, consisting of a failure to account, should be laid in the county and State where the accused was under obligation to account, and if the parties treated the home of the principal as the place of accounting the venue of the indictment is properly laid there, even though the power of attorney under which the accused acted is silent as to the place of accounting and no agreement in regard thereto is shown.</p> <p>6. Same — when demand is not a part of offense of embezzlement. Where an indictment for embezzlement is based upon sections 74 and 75 of the Criminal Code a demand for an accounting is not a constituent element of the offense, as a demand is not essential unless made so by statute.</p> <p>7. Same — when receipts to agent are admissible on trial for embezzlement. A written receipt, properly identified, is prima facie evidence of the truth of the recitals which it contains, and on the trial of an agent for embezzlement for failure to account, receipts given to the agent for payments made by him in the principal’s business are- competent evidence of the amounts paid.</p> <p>8. Same — when instruction as to secreting with intent to embezzle is improper. If there is no evidence tending to show that the accused secreted money, goods or property with intent to embezzle or fraudulently convert the same to his own use and no count in the indictment to that effect, instructions which embody that fact in defining the offense of embezzlement are improper.</p> <p>g. Same — instructions should confine jury to evidence supporting bill of particulars. Where a bill of particulars has been filed in an embezzlement case the instructions should confine the consideration of the jury to the evidence supporting the charges of such bill.</p>

<p>1. Inheritance -tax — meaning of word “corporation” in the Inheritance Tax law. The word “corporation” in the Inheritance Tax law is broad enough to include municipal corporations of every character, and the language purports to apply to every corporation not afterwards exempted in the statute.</p> <p>2. Same — nature of an inheritance tax. An inheritance tax is not a tax upon the property but is a condition which the State imposes upon the privilege of succeeding to the ownership of the property, and hence where an estate escheats to a county an inheritance tax thereon is not a tax on the property of the county but is a limitation on the right of the county to succeed to the title.</p> <p>3. Same — when an inheritance tax accrues. That portion of an estate which under the Inheritance Tax law vests in the State accrues immediately upon the death of the decedent, and all questions concerning it must be determined as of the date of the decedent’s death.</p> <p>4. Same — Inheritance Tax law applies to property escheated to county. The Illinois Inheritance Tax law applies to the property of an intestate transferred to a county by the Statute of Escheat.</p> <p>5. Escheats — Statute of Escheat is part of the intestate laws of the State. The intestate laws of the State are those laws which govern the devolution of the estates of persons dying intestate, and include all applicable rules of the common law in force in this State and all statutes applicable to such estates, including the Statute of Escheat.</p>

<p>1. Fraud — party alleging fraud must state the facts relied tipon. A party alleging fraud in a partition sale must state in-the pleadings the facts relied upon to show fraud, and mere conclusions of the pleader, without averments as to the facts, are not sufficient.</p> <p>2. Judicial sales — when sale of three tracts en masse will not be set aside. Where the land offered at a partition sale consists of the homestead tract, a woodland tract and two eighty-acre tracts having no buildings, and the tracts are first offered separately but no bid is made except for the woodland tract, and a bid is then received for the homestead and the two eighties en masse, it is not error to refuse a bid at a higher price per acre for the homestead alone, where it appears that no bids could be had on the cighty-acrc tracts if detached from the homestead, and it is" not shown that the amount bid was not a fair value for the land or that more would be realized at a re-sale.</p> <p>3. Same — at a partition sale the land cannot always be sold to best advantage in separate tracts. While land offered at a partition sale should first be offered in separate tracts, yet if the property cannot be sold to best advantage in separate tracts it should be offered in other combinations and sold in such a way as to bring the best results.</p> <p>4. Same — party seeking re-sale should make an advance bid or guarantee against loss. A party seeking to set aside a partition sale should make an advance bid or bring the money into court or should give a bond against loss on re-sale.</p> <p>5. Same — what is not ground for setting aside sale. The mere fact that land is sold en masse, without proof of injury, is not ground for setting aside a partition sale; nor is mere inadequacy of price sufficient, unless it is so gross as to raise, of itself, a presumption of fraud.</p>

<p>1. Criminal law — what constitutes duplicity in criminal pleading. To constitute duplicity in criminal pleading there must be joined in the same count different, separate and distinct crimes committed at different times.</p> <p>2. Same — what constitutes a single offense. Where goods of different kinds and belonging to different owners are stolen at the same time and from the same place the crime is but a single offense against the public although there may be as many trespasses as there are separate owners; and this same rule applies to buying or receiving stolen property knowing it to be stolen.</p> <p>3. Same — what may be omitted in an indictment for receiving stolen goods. Under section 239 of the Criminal Code an indictment for receiving stolen goods need not state the name of the thief and the time and place where the goods were stolen.</p> <p>4. Same — what will not be assumed in prosecution for receiving stolen goods. In a prosecution for receiving stolen goods it will not be assumed that the articles were bought and received at different times and at different places, where the same does not appear on the face of the indictment.</p> <p>5. Same — what necessary to sustain conviction on the testimony of a thief. To sustain a conviction by the evidence of a witness who is a confessed thief and who has been convicted repeatedly of infamous crimes, the evidence in the record, considered as a whole, should leave no reasonable doubt of defendant’s guilt and the trial should be conducted without prejudicial error. .</p> <p>6. Same — defendant* is entitled to instruction as to presumption of innocence. In every case where the material facts are in controversy the defendant is absolutely entitled to have the jury properly instructed as to the law on the presumption of innocence, and such instruction should not be refused because a .part of it is a repetition of the same principles stated in other instructions.</p> <p>7. Instructions — what will make an instruction objectionable. An instruction is objectionable which contains mere statements of abstract propositions of law on other subjects, not specially applied to the case and which assumes the truth of the facts on which they are based.</p> <p>8. Witnesses — a witness cannot be impeached on immaterial matter. A witness cannot be impeached upon immaterial matter, and it is immaterial whether one accused of receiving stolen goods had purchased junk from the thief previous to the larceny involved in the prosecution.</p>

<p>1. Criminal law — rule as to reversal for insufficient evidence. The Supreme Court will not reverse a judgment of conviction in a criminal case on the ground of insufficient evidence, unless, from a consideration of the whole evidence in the cause, a reasonable doubt of guilt arises.</p> <p>2. Same — what circumstance tends to corroborate testimony of prosecuting witness. The fact that the prosecuting witness, who testifies that he kept the two men who robbed him in sight from the time they robbed him until they were arrested, was able to, and did, point out to the police officers the particular pockets of the men in which certain of the articles taken from him would be, and were, found, is a circumstance tending to corroborate his other testimony.</p> <p>3. Same — when the jury cannot disregard testimony as to age. Where the two defendants charged with robbery are asked by the court as to their ages and one answers that he is twenty-one and the other that he is twenty-two, the jury are not authorized, by considering the appearance of the defendants, to find in the verdict that the defendants are between the ages of ten and twenty-one years and are about the age of twenty years, and it is error to sentence the defendants to imprisonment in the State reformatory.</p> <p>4. Same — when error cannot be corrected by directing court to enter proper sentence. Where the trial court submits the question of the ages of the defendants in a robbery case to the jury on the statements of the defendants that they are, respectively, twenty-one and twenty-two years old, the finding of the jury that the defendants are between the ages of ten and twenty-one years and are about the age of twehty years cannot be regarded as surplusage by the Supreme Court, and the error in sentencing the defendants to the State reformatory cannot be cured by reversing the judgment and directing the court to sentence the defendants according to the evidence.</p>

<p>1. Statutes — what may be considered in determining intention of the legislature. In determining the intention of the legislature it is proper to consider the occasion and necessity for the law, the previous condition of the law on the subject, and the defects, if any, in the former law which were intended to be remedied by the later enactment.</p> <p>2. Same — when courts are not confined to the literal meaning of words used. The literal language of a statute may be departed from and words may be changed, altered, modified or supplied, or omitted entirely, if such course is necessary to obviate any repugnancy between the language used and the intention of the legislature as gathered from a consideration of the whole act and the previous condition of legislation on the subject.</p> <p>3. Criminal law — when a prisoner out on bail must be tried. The provision of section 18 of division 13 of the Criminal Code, that a person admitted to bail “shall be entitled, on demand, to be tried at some term commencing within four months after he has been admitted to bail,” means that he must first make demand for trial to set the statüte in operation, and must then be tried at some term of court commencing not more than four months after making the demand, unless the court, on the showing required by the statute, continues the case to the next term.</p> <p>4. Same — when allegation of' ownership of burned goods is not material. An allegation as to the ownership of the goods is not material in an indictment for burning goods to injure an insurance company, as the gist of the offense is the burning of the goods, whether owned by the accused or some other person, with intent to injure the insurer, and a variance between the allegation and proof as to such ownership is not fatal.</p> <p>5. Same — when rule as to former jeopardy does not apply. The rule that a person cannot be twice tried or put in jeopardy for the same offense has' no application where two separate and distinct crimes are committed by one and the same act.</p> <p>6. Same — arson and burning goods to injure insurer are distinct offenses. An acquittal on the charge of arson in burning a building is not a bar to a prosecution for burning goods to injure an insurance company, even though the goods and the building were destroyed in the same fire, as the crime of burning goods to defraud the insurer is not a part of the crime of arson but is a distinct offense.</p> <p>y. Same — -jury must be accurately instructed where chief witnesses are accomplices. Where the chief witnesses against the accused are accomplices or self-confessed criminals in the employ of the State or of corporations interested in securing a conviction, it is important that the jury be properly and accurately instructed as to the law.</p> <p>8. Same — when instruction as to reasonable doubt is misleading. An instruction telling the jury that the doubt upon which they may acquit must be a reasonable doubt and not merely one of speculation or probability, and that the State is not required to prove the defendants guilty beyond all doubt, is misleading in leaving the impression that the jury might convict the defendants even though they thought there was a probability they were' not guilty.</p> <p>9. Same — when error cannot be disregarded. It is essential to the preservation of the system of trial by jury that the jury be correctly instructed as to the rules of law governing them in weighing the evidence and determining the guilt or innocence of the accused, and no error of the court in performing its duty in that respect can be overlooked or disregarded, unless it is of such a character that it clearly appears the error could not have affected the verdict of the jury. '</p> <p>10. Same — jtiry should not be told to consider surrounding circumstances appearing on trial. An instruction which is intended to inform the jury what things to consider in determining which witnesses are more worthy of credit should not include “the surrounding circumstances appearing on the trial.”</p> <p>11. Same — right of People to an instruction as to convicting upon circumstantial evidence. The People are entitled to an instruction informing the jury of their right to convict upon circumstantial evidence if they believe, beyond a reasonable doubt, that circumstances have been proven to be true which cannot reasonably be accounted for except on the theory that the defendants are guilty of the crime charged.</p> <p>12. Same — when court does not err in calling witness. If the testimony of a witness, because of his connection with the transaction, is material in a criminal case but his relations with the parties and his testimony in other cases have been such that the State’s attorney is not in a position to vouch for his credibility, it is not an abuse of discretion for the court to call him as a witness.</p> <p>13. Same — what evidence admissible as tending to show guilty knowledge. In a prosecution for burning goods to injure the insurer, evidence showing the association of the accused, after the fire, with persons implicated therein, the paying of attorneys for furnishing them services, the procuring of bail for some of them, and other similar activities, may be introduced as tending to show guilty knowledge, but matters wholly disconnected with the case should be excluded.</p>

<p>1. Fences — the ozvnersliip, maintenance or control of a division fence is a purely statutory matter. The ownership, maintenance or control of distinct or separate parts of a division fence by adjoining property owners, and their rights and duties with reference to the same, are purely statutory matters.</p> <p>2. Same — what necessary to render person liable to contribute ■ to repair of division fence. Under the various provisions of the act relating to fences no person is liable to contribute to the repair or re-building of a division fence until there has first been a finding by fence viewers,' legally chosen, that his portion of the fence needs repair or re-building.</p> <p>3. Same — province of fence viewers not limited to apportioning division fences for repair. The apportioning of certain parts of a division fence to the adjoining owners to be kept in repair is not the only province of fence viewers, as it is clear from the various provisions of the act relating to fences that other questions may be submitted to and decided by them.</p> <p>4. Same — section 11 of act relating to fences construed. Section 11 of the act relating to fences does not authorize one adjoining owner to repair or re-build another’s portion of the division fence and recover the cost thereof unless fence viewers have previously determined that such work is necessary; and this is true even though the portion of the fence which each owner is to maintain has been fixed for many years by agreement.</p> <p>3. Statutes — rule for construing a section of a statute. A section of a statute should be construed with reference to other sections of the act relating to the same subject, so that, if possible, no clause, sentence or word will be superfluous, void or insignificant.</p>

<p>1. Registration of title — when applicants for registration of title are not chargeable with notice of inctmibrances. Applicants for registration of title are not chargeable with constructive notice of incumbrances not in their chain of title, and in the absence of actual notice neither the transcript of a judgment against an apparent stranger nor the certificate of sale will be notice to them unless the names of the judgment debtor and their grantor are idem sonans.</p> <p>2. Same — when additional fees may be awarded — decree should not be in favor of registrar. Although section 108 of the Torrens law provides that the payment of $15 by the applicant for registration of title shall be in full of all services of the registrar and examiners up to the granting of the certificate, yet in a proper case the court may decree the allowance of an additional fee for the services of an examiner and may tax the additional fee as costs against the defendant if the services were occasioned by his unfounded claim, but the decree should not be in favor of the registrar. (Waugh v. Glos, 246 Ill. 604, distinguished.)</p> <p>3. Names — variance in the spelling of names is not always material. Not every variance in the spelling of names in deeds or judicial proceedings is material, and if names sound substantially alike when pronounced according to the usual method of speaking, they will be held to designate the same person even though spelled differently.</p> <p>4. Same — what names are not idem sonans. Where the name of the grantor of the applicants for registration of title is “Walenty Cierniak,” they will not be bound by the record of a judgment against “W. Czerionak” unless they had actual knowledge that the names referred to the same person, as there is no practical similarity in sound and the spelling is noticeably different.</p>

<p>1. Quo warranto — when the court does not err in refusing to carry demurrer back to information. Where a demurrer to an information in the nature of quo warranto is overruled and the defendants instead of standing, by the demurrer file pleas, it is not error for the court to refuse to carry back to the information a demurrer filed to the pleas.</p> <p>2. Same — when a demurrer to pleas must be sustained. A demurrer to pleas to an information in the nature of quo warranto is properly sustained where the defendants do not by their pleas attempt to disclaim or justify but set up matters of estoppel and acquiescence on the part of certain of the relators, which, however, do not apply as to other relators who are not shown to be in any way barred from asserting their rights.</p>

<p>1. Deeds — restrictions upon the use of property are not favored. In construing a deed which conveys a fee, restrictions and limitations upon the use of the property are not favored, and, as a general rule, all doubts are resolved against them.</p> <p>2. Same — what necessary to authorise a court of equity to enforce personal covenant. While a court of equity may, in a proper case, enforce a personal covenant against a grantee or an assignee with notice, yet to authorize it to do so the instrument must be clear, unambiguous and certain, and of such a character that a court of equity can make ari efficient decree and enforce it.</p> <p>3. Same — what is not a covenant running with the land. A provision in a deed that the purchaser of a lot adjoining one owned by the grantors shall within two years construct a cement driveway along the east side of the premises, which the grantors shall have the right to use for access to their adj oining premises so long as friendly relations exist between the parties, is not a covenant running with the land but is a personal covenant, and since either party may terminate the easement when friendly relations cease to exist, the covenant is not one which a court of equity will enforce against a purchaser, with notice, from the grantee.</p>

<p>1. Ante-nuptial contracts — an engagement to marry is necessary to create confidential relation. If an engagement to marry exists a confidential relation is created which imposes upon the intended husband the duty to disclose to his intended wife the amount and value .of his property, but it is incumbent upon a wife who seeks to repudiate an ante-nuptial contract to show that a marriage engagement existed when the contract was made.</p> <p>2. Same — when ante-nuptial contract does not show an engagement to marry. A statement in an ante-nuptial contract that the contract is made in contemplation of the marriage of the parties does not show that an engagement to marry existed when the contract was made. <</p> <p>3. Same — when an ante-nuptial contract remains in force. The fact that the husband may have said, after his marriage, that the ante-nuptial contract under seal, made before the marriage, did not amount to anything and that he had done away with it, does not establish a cancellation of the contract, where it was, in fact, not canceled but was afterward recorded by the husband and reaffirmed in his will.</p> <p>4. Same — wife’s assent to cancellation of ante-nuptial contract is necessary. In order that the proposed cancellation by the husband of an ante-nuptial contract under seal may be effective the wife’s assent to such 'cancellation is necessary.</p> <p>5. Same — when an ante-nuptial contract does not bar widow’s award. A provision in an ante-nuptial contract that the intended wife accepts the provisions made for her “in lieu of and in satisfaction and bar of dower or thirds to which by the common law or by custom or otherwise she might be entitled to, in or out of the property” of the intended husband, is not broad enough to bar the widow’s award.</p> <p>6. Adoption — what does not affect jurisdiction of court. If the averments of an adoption petition are sufficient to give the county court jurisdiction the order of adoption is not open to collateral attack, and the fact that the petition does not allege that the parents are .dead but merely that they are supposed to be dead does not affect the jurisdiction of the court, as no one but the parents, if living, have the right to complain.</p>

<p>Appeal from the Appellate Court for the Second District ; — heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Joe A. Davis, Judge, presiding.</p>

<p>1. Deeds — general rule as to delivery of a deed to third person for grantee. Delivery of a deed by the grantor to a third person for delivery to the grantee upon the grantor’s death is a valid delivery if the grantor intends by it that the deed shall pass out of his control, but if he does not so intend but merely delivers the deed to the third person as a convenient place of deposit it is not a valid delivery and is not effective to pass title to the grantee.</p> <p>2. Sams, — grantor’s intention at time of delivery to third person controls. The grantor’s intention at the time of the delivery to a third person controls, and such intention may be evidenced by acts or words or both, but, however shown, it must appear that the grantor intended to reserve no control over the deed after delivering it to the third person.</p> <p>3. Same — after valid delivery the grantor’s change of mind has no effect. If the grantor, at the time of delivering a deed to a third person for delivery to the grantee at the grantor’s death, intended to relinquish all control over the instrument, the act of the grantor in subsequently changing his mind and re-possessing himself of the deed does not operate to divest the grantee of title and re-invest it in the grantor.</p> <p>4. Same — what is a sufficient acceptance of voluntary conveyance to stranger. Even though there may be no presumption of an acceptance of a voluntary conveyance where the grantor and grantee occupy no fiduciary relation, yet if the grantee knows that the deed has been executed and delivered to a third person for delivery to him at the grantor’s death and expresses his consent thereto in some manner there is a sufficient acceptance.</p> <p>5. Same — sale of land in accordance with an executed parol partition conveys title. Where tenants in common divide the sixty-acre tract they own in common into north and south halves, go into exclusive possession thereof and erect a fence between the halves and thereafter continue in such possession for many years, each paying the taxes, assessed in his own name, on the respective thirty-acre tract of which he' is in possession and receiving the rents and profits from it when rented, there is a parol partition, and a deed by one conveying the whole thirty-acre tract in his possession to a third person will pass the title.</p>

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

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

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

Writ oe Error to the Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding.

<p>1. Specific performance- — when decree may require execution of deed with release of homestead. In decreeing specific performance by husband and wife of a contract by them to convey the premises by warranty deed, with a “waiver and conveyance of all estate of homestead therein,” the court may require the execution of a deed with release of homestead, notwithstanding the contract was not acknowledged. (Hedrick v. Donovan, 248 Ill. 479, adhered to.)</p> <p>2. Same — when the court may order defendants to furnish title guaranty policy. If the defendants to a bill for specific performance agreed in their contract to furnish a title guaranty policy, it is incumbent upon them, if it is beyond.their control to perform in that respect, to prove the fact, and in the absence of any proof by them it is not error for the court, in decreeing specific performance, to require them to furnish the policy, or in default to authorize the complainant to procure it and deduct the cost.</p> <p>3. Same — a decree should not leave compliance optional with complainant. A decree for specific performance should not leave it optional with the complainant whether he will comply with the contract but should provide for payment withinv a short day, and ■ in default of payment within the time specified that all right and interest of the complainant under the contract be extinguished.</p> <p>4. Same — complainant not entitled to credit for payments on costs not properly taxed. The complainant in a bill for specific performance is entitled to credit for any advancement by way of costs properly taxed where he is successful in his suit, but until the compensation of the master has been regularly fixed and the fees of the stenographer properly certified and allowed he is not entitled to credit for any payment he has made to be applied on such fees.</p>

<p>1. Highways — difference between a common law and a statutory dedication. A statutory dedication vests the legal title to the ground set apart for public purposes in the municipal corporation in trust for the public, while a common law dedication leaves the title to such ground in the original owner, charged, however, with the public easement.</p> <p>2. Same — effect where streets and alleys in statutory plat are vacated by ordinance. Where the streets and alleys shown on a statutory plat are vacated by ordinance, the fee thereof reverts to the dedicator, his heirs and assigns, and not to the abutting lot owner and his grantees, and neither the legislature nor the city can divest him of such title.</p> <p>3. Same — what does not affect validity of vacation proceedings. The power of a city to vacate streets and alleys must be exercised in the public interest and not solely to benefit private parties; but the validity of vacation proceedings is not affected by the fact that the land embraced within the street or alley vacated reverts to the dedicator or the adjoining owner and becomes private property.</p> <p>4. Same — parol evidence not admissible to show that vacation ordinance was for private benefit. Parol evidence is not admissible to show that a vacation ordinance was passed for private benefit, particularly where the ordinance recites that the streets and alleys are no longer required by the public and that the public interest will be subserved by their vacation.</p> <p>5. Same — when property owner is entitled to damages for vacating streets and alleys. If property sustains a special and peculiar damage from the vacation of streets and alleys the owner is entitled to damages even though the property does not abut upon the streets or alleys vacated, but it is not essential that such damages be ascertained before the vacation.</p> <p>6. Injunction — when property owner is not entitled to injunction against vacating alley. One whose property abuts upon an alley shown on a statutory plat may be entitled to damages for the closing of the alley in pursuance of a vacation ordinance regularly passed by the city in compliance with the statutory requirements, but he is not entitled to injunctive relief.</p> <p>7. Same — zvhat should be considered zvhere mandatory injunction is asked for. Where a mandatory injunction is asked for, the court should consider the inconvenience and damage that will result to the defendant as well as the benefit to accrue to the complainant from granting the writ, and must determine, in the exercise of a sound discretion, whether the writ shall issue.</p>

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

<p>Appeals and errors — Supreme Court will not consider arguments couched in contemptuous language. A brief and argument which is couched in contemptuous language and which goes into matters entirely outside the record to find a basis for personal abuse of the trial judge and of opposing counsel will be stricken from the files by the Supreme Court of its own motion.</p>

<p>1. Deeds — when delivery of a deed is not shown. Where the only two witnesses competent to testify as to the delivery of a deed contradict each other, but the witness testifying to facts showing delivery is the son of the complainant, who is seeking to establish the delivery, whereas the witness testifying to the facts showing non-delivery is disinterested and is not shown to be less worthy of credit than the other witness, a delivery is not established. ■</p> <p>2. Same — when finding that grantor was competent to make the deed will be upheld. A finding by the chancellor that the grantor was competent to make the deed in question will be sustained by a court of review where the preponderance of both expert and non-expert testimony is in accordance with such finding, when all the evidence in the case, together with the opportunities of the witnesses for observation and their bias or lack of bias, is considered.</p> <p>3. Witnesses — when co-defendant is competent to testify. On a bill to set aside a deed, filed by the complainant against her brother and sister, if the interest of the sister is identical with that of the complainant she is a competent witness when called as a witness by her co-defendant.</p>

<p>1. Wills — when record showing appointment of conservator is admissible. As bearing on the issue of mental capacity in a will contest case, where the evidence shows the testator had always been weak-minded, the record of the county court showing the appointment of a conservator for the testator about a month before the will was made, upon the verdict of a jury finding him insane, is admissible, not as conclusive of the question of insanity, but to be considered with the other evidence. (Entwistle v. Meikle, 180 Ill. 9, and In re Weedman’s Estate, 254 id. 504, distinguished.)</p> <p>2. Same — when declaration by testator after execution of will is admissible. Testimony by one of the witnesses to the will in contest that one reason why he thought the testator, who was a weak-minded man, did not understand what he was about when he made the will, was that the testator, a few days after the will was made, stated to him that he had disposed of his property by the will in a certain way detailed by him which was not in accordance with the will, is admissible as bearing upon the question of testamentary capacity.</p> <p>3. Appeals and errors — what questions will not be considered on appeal. Questions which are raised in the reply brief for the first time will not be considered by the Supreme Court, nor will errors which are assigned but not argued.</p>

<p>1. Limitations — what is necessary to establish title under section 1 of the Statute of Limitations. To establish title under section 1 of the Statute of Limitations there must not only be twenty years’ continuous and uninterrupted possession, but such possession must also be hostile in its inception and so continue, being visible, exclusive and notorious, acquired and retained under claim of title inconsistent with that of the true owner.</p> <p>2. Same — when possession is not hostile in its inception. A wife who goes into possession of her husband’s land because of his absence and continues in possession at his death as owner, by descent from him, of an undivided one-half interest in the» land with a dower interest in the other half, does not have possession, hostile in its inception, as against heirs-at-law of the husband, who at his death succeeded to an-undivided one-half interest in the land.</p> <p>3. Same — possession by one tenant in common must amount to a disseisin to be adverse. While one tenant in common may obtain title by limitation against his co-tenants, it must be by acts that would amount to a disseizin, and there must be something more than mere possession, appropriation of the rents and profits and payment of taxes by one tenant in common to bar the right of other co-tenants.</p> <p>4. Same — strong evidence necessary to show adverse possession by a co-tenant. The evidence must be stronger to establish adverse possession against co-tenants than is necessary, to establish ordinary adverse possession, and there must be outward acts of exclusive ownership of an unequivocal character, of such a nature as by their own import will give notice to the co-tenants that an actual disseizin is to be asserted against them.</p> <p>5. Same — co-tenants must be given notice in some way in order to start the Statute of Limitations. Where one claims title by adverse possession and limitation against co-tenants, the co-tenants must be given notice in some way that an adverse possession is being asserted against them in order that the Statute of Limitations may begin to run.</p> <p>6. Laches — equity ordinarily follows the law in barring claims by laches. In fixing the period in which claims will be barred by laches equity ordinarily follows the law, and it is only when the delay is accompanied by some other element rendering it inequitable to permit the owner to assert his title that laches will be held to bar his right within the statutory limitation period.</p> <p>7. Same — what may be considered on question of laches. In' determining whether heirs have been guilty of laches in delaying suit for partition until the co-tenant in possession has made a deed purporting to convey the whole/title, the facts that the ancestor is merely presumed, from absence, to be dead, that there were rumors after the seven-year period of his disappearance that he was alive, and that the improvements made by the co-tenant in possession were only such as were necessary and did not equal the rents received by her, may-be considered.</p> <p>8. Same — what may be shown as bearing upon the question of laches. As bearing upon the question of laches by heirs in waiting until their co-tenant had conveyed the whole title before beginning suit against the grantee for partition, the facts that the grantee knew of the existence and rights of the heirs, that he knew his grantor had unquestioned title to an undivided one-half interest in the land, and that he paid only about one-half of what the land was worth, may be shown in connection with the other circumstances.</p>

<p>1. Special assessments — a paving ordinance should establish grade of concrete culvert. An ordinance for improving a street by grading, curbing and paving the roadway, which includes the construction of a concrete culvert seventy feet long, with suitable wing-walls, should in some way establish the grade of the culvert, and should describe both the culvert and wing-walls with such certainty as not to leave the matter to the discretion of the builders.</p> <p>2. Same — when county court need not pass upon certain objections. If the county court, in a proceeding to confirm a special assessment, holds that the ordinance is so insufficient that it will not sustain any assessment, the court is not required to pass upon objections which would arise had the ordinance been valid.</p> <p>3. Appeals and Errors — what must appear in abstract of record. Everything necessary to a decision of the questions raised by an appeal must appear in the abstract of record.</p>

<p>1. Appeals and errors — when certificate of evidence is sufficient to present error as to instructions. Upon a writ of error to review a decree sustaining a will where the assignment of errors and argument in support thereof relate only to the giving and modifying of instructions, it is sufficient for the certificate of evidence to state in a general way what facts were proved, that each party introduced evidence tending to prove the issues in his favor, and that the evidence upon the issues of undue influence and unsoundness of mind was. conflicting.</p> <p>2. Wills — when it is not error to give instruction stating the ultimate question as to mental capacity. It is not error to give an instruction giving the capacity of the testator to understand the particular business in which he was engaged as the test of testamentary capacity, particularly where other instructions state the various elements embraced in such ultimate test, including his ability to know what property he possesses and who are the natural objects of his bounty and to understand the nature and consequences of his act in making the will.</p> <p>3. Same — it is not improper for instruction to tell jury what kind of influence is regarded as undue. Where undue influence is charged in a bill to set-aside the probate of a will, it is not improper to state to the jury in an instruction what kind and degree of influence exercised over a testator is regarded in law as undue and sufficient to destroy his free agency.</p> <p>4. Same — what statement in instruction does not increase complainant’s burden of proof. An instruction in a will contest case stating that upon making the statutory proof the validity of the paper as a will would be prima facie “established,” does not throw upon the complainants a greater burden than that of proving their claims by a preponderance of the evidence, particularly where the instruction recognizes the right of the complainants to prove either want of mental capacity or undue influence.</p>

<p>1. Pleading — facts in contract which is made part .of bill control. Where a bill for specific performance makes the contract a part of the bill, if any facts alleged in the bill differ from the facts stated in the contract the latter must control in case of demurrer, as a demurrer does not admit the truth of such inconsistent allegations of the bill.</p> <p>2. Specific performance — when proposed vendors are not required to convey. Where a contract for the sale of land provides that the money deposited on the purchase price shall be refunded if the title to the property does not prove good, the proposed vendors are not bound to convey if the proposed vendee objects té the abstract of title, and they may treat the objections as ending the contract and may thereafter convey to another party. (Brizzolara v. Mosher, 71 Ill. 41, followed.)</p>

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. AdELOr J. Petit, Judge, presiding.</p>

<p>1. Appeals and Errors — when the qicestion of competency of a witness is immaterial. Whether the wife was a competent witness to testify to any or all of the matters to which she testified is immaterial on appeal in an inheritance tax case, where the facts were clearly proved by other competent testimony which is not contradicted.</p> <p>2. Evidence — when books of account are competent evidence to prove claim against an estate. Books of account are competent evidence to prove a claim against an estate in an inheritance tax case, where it is shown that the entries were made under the direction of the deceased; that he had access to the books and frequently examined them; that he was an experienced book-keeper, was familiar with the books and took off a trial balance at the end of each year, figuring the interest himself before he made the balance.</p> <p>3. Same — when objection to testimony of witnesses as to what was shown by books is obviated.. An objection to testimony of witnesses as to what was shown by books of account is obviated by the introduction in evidence of a stipulation as to what was shown by such books.</p> <p>4. Limitations — when the Statute of Limitations does not run in favor of agent. The Statute of Limitations does not begin to run against the principal and in favor of his general investing agent upon each item as received, and where there is a continuing genéral agency it cannot be terminated during the life of the parties, so as to set the Statute of Limitations in motion, until an accounting is had or a demand therefor made and refused or there is an express repudiation of the agency.</p> <p>5. Same — when Statute of Limitations does not run as between husband and wife. Where a wife, by power of attorney, appoints her husband as her agent for the investment and management of her estate, with power to sell and control her property, both real and personal, to the same extent she could, and with the right to re-invest the proceeds, the husband is under obligation to account and pay over when demand is made, but in the absence of any demand or breach the Statute of Limitations does not begin to run as to any of the claims and accounts between them during the continuance of the agency.</p>

<p>1. Constitutional law — every presumption must be indulged in favor of constitutionality of law. Where the constitutionality of a law is involved every presumption must be indulged and every reasonable doubt resolved in favor of its validity.</p> <p>2. Same — a law will not be held unconstitutional unless it is clearly proved so. A law will not be declared unconstitutional un-. less it is clearly proved that the requirements of the constitution have not been observed; and this rule applies to the constitutionality of a law when any defect is claimed in its passage.</p> <p>3. Same — constitution does not require that legislative journals shall show affirmatively that a bill was printed. The constitution does not require that the legislative journals shall show affirmatively that a bill or its amendments have been printed.</p> <p>4. Same — when it will be inferred that the amendments were printed. Where the journal shows that the amendments to a bill were ordered to be printed and engrossed and that the committee on engrossed bills reported that the amendments were engrossed it will be inferred that the amendments were printed in compliance' with the order, if there is nothing in the journal indicating the contrary. (Neiberger v. McCullough, 253 Ill. 312, and McAuliffe v. O’Connell, 258 id. 186, explained.)</p> <p>5. Same — Workmen’s Compensation act of 1911 is not invalid. The Workmen’s Compensation act of 1911 is not invalid upon the alleged ground that it was not passed in the manner required by the constitution, in that the journals of the legislature did not show affirmatively that the amendments to the bill were printed.</p> <p>6. Workmen's compensation — when injury is one “arising out of and in the course of the employment.” The provision of section i of the Workmen’s Compensation act of 1911 that compensation may be had for accidental injuries sustained by an employee “arising out of and in the course of his employment,” applies to an-employee who had momentarily left the duties in which he was engaged to attempt to save the life of a fellow-employee, who, while engaged in his duties, had fallen through a hole in the floor of the shop into a quantity of hot water and was screaming for help.</p> <p>7. Same — when a verdict is not insufficient. A verdict of the jury in the circuit court on appeal from an award under the Workmen’s Compensation act of 1911, which finds the issues “in favor of the petitioner and that he is entitled to compensation,” is not insufficient on the ground that it should have fixed the amount of compensation and stated from whom recoverable, where there is only one defendant and the amount of compensation to which the petitioner is entitled is merely a matter of computation under the evidence and the provisions of thé act.</p>

<p>1. Deeds — the grantor’s intention is without effect unless deeds, are delivered. The fact that the grantor intended- that his children should have the land described in their respective deeds is without effect to pass- title unless the deeds are delivered.</p> <p>2. Same- — what will be held, to be a parol partition. Where the owner of land deeds the same in parcels to his children and puts each in possession of his or her respective parcel but the deeds are not delivered until after his death, when the widow and children meet, and after reading the last will of the deceased, which purports to devise all the estate to the widow, decide not to probate the will but to divide the land according to the deeds and the previous possession of the children, and they thereafter carry out such arrangement for several years, there is a parol partition, which those assenting to are estopped to deny in a court of equity.</p> <p>3. Equity — when parol partition may be decreed under a general prayer for relief. Even though the specific prayer of a bill is to set aside a will and deed as clouds upon complainant’s title, yet if there is a prayer for general relief the court may decree relief upon the ground there had been a parol partition of the land, where the bill alleges all the facts necessary for a specific prayer for such decree and the facts proven authorize it.</p>

<p>1. Corporations — by-laws will not take the place of a notice required by statute. By-laws of a corporation providing for the • holding of an annual meeting on a certain day each year, regardless of whether or' not they provide the hour of meeting, will not take the place of a written notice of the meeting required by the statute under which the corporation was organized.</p> <p>2. Same — what necessary to zvaive notice of meeting of stockholders. Where a .notice of the holding of an annual meeting is required by law to be given each year it must be given unless it is waived by all the stockholders, either expressly or by consenting to or participating in the meeting.</p> <p>3. Same — what does not constitute participation in meeting of stockholders. A stockholder who attends the annual meeting for the election of directors merely to demand that no business be transacted and who withdraws from the meeting after his effort to secure a pledge from the chairman that the meeting will do nothing but adjourn has failed, will not be deemed to have participated in the meeting to the extent of waiving his right to statutory notice thereof.</p> <p>4. Same — the mere presence of stockholder at annual meeting is not, alone, sufficient to constitute waiver of notice. The mere presence of a stockholder at an annual meeting of which notice is required to be given by statute will not amount to waiver of notice where the stockholder refuses to consent to the meeting and takes no part therein.</p>

<p>1. Criminal law — right of self-defense extends to the killing, by a brother, of assailant of his sister. The right of self-defense extends to the killing, by a brother, of an assailant of his sister, where the circumstances are such that the sister would have been justified in killing her assailant in her own defense.</p> <p>2. Same — when it is error to give instructions stating correct rules of law. Giving instructions stating correct abstract rules of law is not error if they can be fairly applied to the facts -in the case, but it is error to give such instructions if they are liable, under the facts, to mislead the jury.</p> <p>3. Same — when right of self-defense revives. Even though a young girl, by firing a revolver at her tormentor across the street, may be regarded as being the assailant, yet if she abandons her purpose and flees for safety toward her home but is overtaken by her tormentor, who throws her down and proceeds to choke her, then her right to exercise self-defense revives, and if her brother finds her in apparent danger of losing her life or sustaining great bodily injury at the hands of her tormentor, he has the same right to defend his sister that he would have had had her tormentor been the original assailant.</p>

<p>1. Taxes — road, and bridge tax must be certified on first Tuesday in September. Section 56 of the Roads and Bridges law of 1913, requiring the highway commissioners to meet on the first Tuesday in September and determine and certify the amount necessary to be raised for road and bridge purposes, is mandatory, and the certificate must be made on that day.</p> <p>2. Same — what cannot be considered an amendment of certificate. A certificate made by highway commissioners three days after the first Tuesday in September cannot be considered as an amendment of a previous certificate made in compliance with sections 13 and 14 of the Roads and Bridges law as it existed prior to the new law of 1913, and neither certificate is authority for extending the tax.</p> <p>3. Same — under the act of 1913 the original certificates of levy must be Med with county clerk. Under the Roads and Bridges law of 1913 the original certificates of levy of road and bridge taxes must be filed with the county clerk, and n'o valid tax can be extended by him upon a copy of the certificate of levy the original of which is filed with the town clerk, as was the practice under the old law.</p> <p>4. Same — objections are properly preserved if copied in the record. Objections to an application for judgment and order of sale for delinquent taxes are properly preserved if copied in full in the record, and it is not essential that they be preserved by a bill of exceptions.</p> <p>5. Same — when right of the objector to object to tax cannot be questioned. If no question is raised in the county court as to the right of the objecting railroad company to object to taxes charged against it on a certain line of railway not having the same name as that of the objecting company, it cannot be urged on appeal that the objector should have made some proof that it owned or controlled the line on which the taxes were levied.</p>

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

<p>Solicitors'’ fees — court of equity cannot allow solicitor’s fee to party filing a bill of interpleader. Under the rule in Illinois that a court.oí equity, in exercising its discretion in awarding costs, must confine that discretion to the fees authorized by statute, a court of equity has no power to allow a solicitor’s fee to the party filing a bill of interpleader, notwithstanding the court finds that the bill is properly filed. (Chapin v. Dake, 57 Ill. 295, followed.)</p>

<p>1. Ejectment — when the defendant cannot insist that plaintiff should have proved title from the government. A defendant in ejectment cannot insist, upon appeal, that the plaintiff should have proved title from the government because her affidavit of title from a common source was not introduced in evidence, where the defendant did not raise such objection on the trial.</p> <p>2. Judgments and decrees — judgment for money must specify the precise stim in words or figures. A judgment for money must specify the precise sum in words or figures, and an alleged judgment for “twenty-four eighty and costs of suit, herein taxed at three and eight cents,” is no judgment at all.</p> <p>3. Same — transcript of judgment of a justice of peace is the clerk’s authority for issuing execution. The transcript of the judgment of a justice of the peace is the clerk’s authority for issuing execution, and if the transcript fails to show the amount of the judgment in dollars and cents, neither the transcript nor the judgment in the justice’s docket is admissible in evidence to sustain the sheriff’s deed based upon the sale under the execution.</p>

<p>1. Appeals and errors — when it will be presumed that issue was joined. If the judgment in a suit at law recites that issue was joined and the cause heard by the jury, it will be presumed on appeal, even though there is no similiter in the record to the plea of the general issue, that the issue was joined or that the filing of the similiter, which is considered a matter of form, was waived.</p> <p>2. Same — alleged error in ruling on the pleadings is preserved •without a bill of exceptions. Alleged error in overruling a demurrer to a replication is preserved for review without a bill of exceptions, as the object of a bill of exceptions is to preserve for review such matters as occur during the trial which do not appear in the record proper.</p> <p>3. Same — in absence of a bill of exceptions it will be presumed the evidence was sufficient. In the absence of a bill of exceptions it will be presumed, on appeal in a suit at law, that the plaintiff introduced evidence sufficient to justify the judgment.</p> <p>4. Pleading — when a replication amounts to a plea of confession and avoidance. A replication to a plea of nul tiel corporation, which admits that the plaintiff is a foreign corporation not having an office in Illinois but which alleges that the contract sued upon was made and entered into and is performable in the foreign State, amounts to a plea of confession and avoidance, and if established by the evidence will authorize the plaintiff to maintain the suit.</p>

<p>1. Injunction — rules applicable to specific performance apply to bill to enjoin breach of negative covenant. The jurisdiction of a court of equity to enjoin the breach of a negative covenant in a contract is substantially the same as its jurisdiction to compel specific performance of such contract and is governed by the same rules and principles of law.</p> <p>2. Same — breach of negative covenant will not be enjoined if there is a want of mutuality. The breach of a negative covenant in a contract will not be enjoined where there is a want of mutuality in its obligations; and this is true although the contract may be of such a character that the difficulties attending its enforcement against one party may not be encountered in enforcing it against the other.</p> <p>3. Contracts — what provision in case of breach is not a penalty. Where the object of a contract between a brewery company and a saloon-keeper is to secure to the company the profits from the sale of its beer, exclusively, during the life of the contract, a provision for the payment of $50 liquidated damages for each month, during the life of the contract, in which the saloon-keeper fails to keep the agreement will not be regarded as a penalty but as the measure of compensation in case of a breach of the contract.</p> <p>4. Solicitors' eees — when allowance on dissolution of injtmction is proper. Where the sole object of a bill is to secure an injunction, and a temporary injunction is issued which is subsequently dissolved and the bill dismissed for want of equity, the expense incurred by the defendant for solicitor’s fees in securing the dissolution of the injunction, if the amount is reasonable and within the range of the evidence as to the value of the services rendered, is properly assessed against the complainant as damages.</p>

<p>Municipal corporations — city has no power to prohibit advertisements of liquor dealers. A city has no power to enact an ordinance prohibiting the display, within the city limits, of any sign or advertisement of a wholesale or retail liquor dealer, where the prohibition is not limited to advertisements for the sale or the taking of orders for sale of liquor in the city, which is anti-saloon terri-. tory, but purports to prohibit the posting or displaying of any advertisement of intoxicating liquor.</p>

<p>1. Highways — when abandonment of an old road may be presumed. Where the public has ceased to travel a road and has acquired a new road which accommodates public travel an abandonment of the old road may be presumed.</p> <p>2. Same — commissioners have the power to decide between two roads. Public authorities having charge of highways are invested with the right to decide between relative advantage's of two roads.</p> <p>3. Same — when an old road will be regarded as abandoned. Where a highway ceases to be used and another is acquired in its place with the consent and approval of the public authorities, and the use of the old road has ceased for a sufficient period to clearly indicate an acceptance by the public of the new highway, the old one will be regarded as abandoned.</p> <p>4. Same — when doctrine of equitable estoppel will be applied. While mere non-user or adverse possession, alone, cannot divest public rights in a highway, yet where there are circumstances indicating a complete abandonment by the public, and persons in good faith have expended money and so acted that to permit the assertion of the public right would perpetrate a fraud upon them, the doctrine of equitable estoppel will be applied and the public will be bound by the apparent complete abandonment of its rights.</p>

<p>1. Debtor and creditor — when issuing execution does not bar right to capias ad satisfaciendum. In cases where an execution against the body is authorized by law, the judgment creditor does not, by having an execution issued, waive or bar his right to a capias ad satisfaciendum when the execution is returned unsatisfied, as both remedies are authorized by section 4 of the act on judgments, decrees and executions and both may be followed, although there can be but one satisfaction.</p> <p>2. Same — judgment creditor in action for tort not required to make affidavit for a capias. In an action for a tort the judgment creditor may have a capias ad-satisfaciendum after the return of an execution unsatisfied, without making the affidavit required by section 62 of the act concerning judgments, decrees and executions.</p> <p>3. Same — section 62 of act concerning judgments, decrees and executions construed. The purpose of section 62 of the act concerning judgments, decrees and executions is to authorize an execution against the body upon any judgment, whether in contract or in tort, if the judgment creditor will make the affidavit therein provided for; but where the judgment is for a tort the plaintiff is entitled to a capias ad satisfaciendum upon motion, without any affidavit or showing in support of it.</p>

<p>1. Real property — the expectancy of a prospective heir may be released or assigned. The expectancy of a prospective heir of a living person may be released to the ancestor or assigned to a stranger, and in case of a release to the ancestor a court of equity will enforce the contract for the benefit of the other heirs.</p> <p>2. Same — effect of release by an heir presumptive. A release by an heir presumptive of his expectancy operates as an extinguishment of the right of inheritance, cutting it off at its source, and such release is binding not only upon him but upon those who take as heirs in his place.</p> <p>3. Same — effect of assignment of expectancy of heir. Where the expectancy of an heir is assigned to another and not released the right of inheritance still exists and the assignment is enforced in equity as a contract to convey the legal estate or interest when it ceases to be an expectancy and becomes a vested estate; but if the legal estate never vests in the assignor the assignee acquires nothing. (Simpson v. Simpson, 114 Ill. 603, explained.)</p>

<p>1. Practice — effect of motion to dismiss bill for want of equity. A motion by the defendants to dismiss a bill to enjoin the obstruction of an alleged alley, made at the close of the complainants’ evidence, is not considered proper practice, but it amounts to nothing but a submission of the case to the chancellor on the merits.</p> <p>2. Highways — what necessary to determination of question of highway by prescription. In order to determine whether an alleged street or alley is a public highway by prescription, it must be decided whether the same has been used by the public as such highway for the period named in the statute.</p> <p>3. Same — effect where proof shows uninterrupted use for the reqtiisite period. Where the proof shows uninterrupted use by the public of an alleged alley for the period necessary to establish a highway by prescription, the burden is upon the owner of the land to show that such use was under some license, indulgence or special contract inconsistent with a claim of right by the public.</p> <p>4. Same — elements essential to establish highway by prescription. In order to establish a highway by prescription the public use must be adverse, uninterrupted, continuous, exclusive and under claim of right; but there need be no claim of right in words, nor a declaration that the use is adverse, nor an admission by the land owner that he has knowledge of the adverse claim of right.</p> <p>5. Same — when nature of use and knowledge of the land owner may be inferred. The nature of the use of land by the public and the knowledge of the land owner of such use may be inferred from the manner, character and frequency of the exercise of the right and from the situation of the parties.</p> <p>6. Same — whether the acts of the public charge notice depends largely upon the circumstances of each case. The question whether the acts of the public are of such a nature that it will be inferred the land owner has notice of their adverse character depends largely upon the circumstances of each particular case.</p> <p>7. Same — when owner must he presumed to have knowledge of claim of right. Where the line of travel over an alleged public alley has been substantially the same for half a century, during which time the use by the public has been continuous and uninterrupted, the owner of land over which the alley extends must be held to have knowledge of the claim of right by the public and adjoining owners to use the land as a public highway.</p>

<p>1. Homestead — -when leasing homestead is not abandoning it. One does not abandon or lose his right of homestead by leasing the premises so long as he occupies a part of it as a homestead.</p> <p>2. Same — when homestead is not abandoned though dwelling is destroyed by fire. One who leaves the homestead premises because the dwelling has been destroyed by fire but never acquires another homestead and always claims a residence and votes in the township in which the homestead premises are situated, cannot be said to have abandoned his homestead right in the premises.</p> <p>3. Same — when a householder need not account for insurance money. A householder who occupies the homestead premises before allotment and improves the same has an insurable interest in the dwelling, and if it is destroyed by fire he is not required to account for the insurance money as part of the value of the homestead in a subsequent proceeding by the heirs for partition.</p> <p>4. Same — section 7 of' Exemptions act, as to homestead insurance, construed. Section 7 of the Exemptions act, which provides that the insurance money on homestead buildings destroyed by fire shall be exempt to the same extent the buildings would have been, does not make the money received from the destruction of the dwelling, before homestead is allotted, a part of the realty, but means that the money shall be exempt from attachment or garnishment, subject to the rules governing the homestead.</p> <p>5. Same — value of homestead premises to be determined as of the time of allotment. If the homestead premises are worth more than $1000 the surviving husband or wife and the heirs hold the estate as tenants in common until the homestead is allotted, and the fact that the parties neglect to have the homestead allotted until after the dwelling is destroyed by fire does not change the rule that the value of the premises is to be determined as of the time of the allotment.</p>

<p>Wills — what does not preclude probate of will. Where a will contains a full and formal attestation clause, the signature to the will is shown to be in the handwriting of the testatrix and the subscribing witnesses went at the request of the testatrix to witness her will and signed as witnesses a paper they understood was the will, the fact that they do not remember seeing the testatrix sign the will or that she acknowledged it to be her act and deed does not preclude the probate of the will.</p>

<p>1. Mandamus — petition on relation of Attorney General need not make State’s attorney a party. A petition for mandamus on the relation of the Attorney General to compel a circuit judge to enter an order remanding a convicted prisoner to the custody of the warden of the penitentiary need not make the State’s attorney a party, even though the prisoner was removed from the warden’s custody on a petition for a writ of habeas corpus ad testificandum presented by the State’s attorney, as the Attorney General is the chief law officer of the State and the object of the mandamus petition is to conserve the rights of the people.</p> <p>2. Same — what question cannot be considered on petition for mandamus. On petition for mandamus on the relation of the Attorney General to compel a circuit judge to enter an order remanding to the custody of the warden of the penitentiary a convicted prisoner who has been taken from such custody on a petition for a writ of habeas corpus ad testificandum, the question whether such writ was improvidently issued cannot be considered, as that question is a matter personal to the warden and can only be raised by him upon a motion to quash the writ.</p> <p>3. Habeas corpus — circuit court has no power to take a convicted prisoner from custody of the warden. A circuit court has power, under the statute, to issue a writ of habeas corpus ad testificandum where the testimony of a prisoner in the penitentiary is required, but it is the duty of the warden, in producing the prisoner in answer to the writ, to retain the custody of him and return him to the penitentiary upon the conclusion of his testimony, and the circuit court has no power to make an order transferring the custody of the prisoner to the sheriff.</p> <p>4. Practice — when effect of a writ of mandamus is to expunge void order.. The fact that the order entered by the circuit court transferring a convicted prisoner from the custody of the warden of the penitentiary to the sheriff is void does not preclude the Supreme Court from issuing a writ of mandamus to compel the circuit court to enter an order remanding the prisoner to the custody of the warden, as the effect of the writ is to expunge a void order of the court, which is a proper office of the writ.</p>

<p>This case is controlled by the decision in the case of People v. Lihme, (ante, p. 351.)</p>

<p>1. Pkactice — when separate order granting leave for new parties to join as complainants is unnecessary. Where the complainant in a bill filed by him in his capacity as a tax-payer files a petition stating that certain other tax-payers desire to join with him as complainants and that they have prepared an amended and supplemental bill which they ask leave to file, the granting of leave to file the supplemental bill includes leave for the parties to join as complainants and no separate order is necessary.</p> <p>2. Same — when the original complainant cannot dismiss suit to prejudice of others. Where a bill is brought by the complainant in his capacity as a tax-payer to enjoin the collection of certain taxes, other tax-payers who are permitted to become complainants acquire an interest in the subject matter of the suit and the original complainant cannot thereafter abandon or discontinue the suit without their consent, and the fact that the suit is dismissed as to the original complainant and part of the new ones does not have the effect of dismissing the suit as to others not consenting.</p>

<p>Writ op Error to the Branch “D” Appellate Court for the First District; — heard in that court on appeal from the Municipal Court of Chicago; the Hon. Hosea M. Wells, Judge, presiding.</p>

<p>1. Municipal corporations — an appropriation ordinance must cover miscellaneous receipts. Under paragraphs 89, 90, 91 and ill of the Cities and Villages act the appropriation ordinance to be passed during the first quarter of the fiscal year is not intended to be limited to funds received from taxation, but to include also receipts of the city from miscellaneous sources.</p> <p>2. Sams — city cannot, after first fiscal quarter, appropriate miscellaneous receipts for expenses. A city has no power to take miscellaneous receipts not derived from taxation and appropriate them, after the expiration of the first quarter of the fiscal year, to the payment of current liabilities.</p>

<p>Writ of Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.</p>