Volume 287 — Illinois Reports

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

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

<p>1. Trusts—zvhat provision in will is not sufficient to create a spendthrift trust. Where a testator devises his property in trust for the use of his grandson, a provision that the lands shall not be conveyed, mortgaged or incumbered by the cestui que trust is not, alone, sufficient to create a spendthrift trust.</p> <p>2. Same—what is purpose of a spendthrift trust. Spendthrift trusts are created for the purpose of providing a fund for the benefit of another and at the same time securing it against his own improvidence or incapacity for self-protection.</p> <p>3. Same—what is a passive trust which is executed by Statute of Uses. Where no active duties are imposed upon the trustee, who is directed by a will to hold an estate in trust for the life tenant and remainder-men, the trust is a dry or passive one which the Statute of Uses executes and the cestui que trust becomes seized of the legal estate.</p> <p>4- Same—what provision in will does not make trust active. Where a testator devises a life estate in trust for the use of his grandson, with no duties to be performed by the trustee, and provides certain conditions for forfeiture upon which the property will go to the remainder-men, a mere provision that the trustee or any party in interest may give notice of the forfeiture does not impose a duty on' the trustee which will make the trust active.</p> <p>5. Same—provision in a will for notice of forfeiture must be strictly complied with. Where a will provides conditions upon which an estate may be forfeited by a cestui que trust upon notice by the trustee or any party in interest, there can be no forfeiture without the happening of the contingency or events provided for and notice given in strict compliance with the terms and provisions required for declaring a forfeiture.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. John M. NiEhaus, Judge, presiding.</p>

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

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Sain WRLTy, Judge, presiding.

<p>1. Wills—who are heirs. Heirs are the persons appointed bylaw to receive an estate in case of intestacy.</p> <p>2. Same—to whom a devise to heirs of testator applies. A devise to the heirs of the testator applies to those who are his heirs at his death unless the intention is plainly manifested in the will to refer to those who shall be his heirs at some subsequent time; and this construction is not changed by the facts that a life estate precedes the bequest to the heirs-at-law, that the life tenant is one of the heirs to whom the remainder is devised or that the devise to the heirs is contingent.</p> <p>3. Same—general rule as to when a devise over takes effect. Where a will speaks of a devise as taking effect after or upon the death of the tenant of the particular estate, such words will ordinarily, if standing alone, be construed as referring to the time when the estate will vest in possession, only.</p> <p>4. Same—when widow of deceased son shares in devise over to heirs of testator—dower. Where a testator by one clause of his will devises a life estate in certain land to a son with remainder to the son’s children in fee, and in a subsequent clause provides that if any of his four children to'whom he has devised life estates shall die without issue the remainder shall “be deemed and taken as intestate estate” of the testator, the widow of the son, if he dies without issue after the death of the testator, will inherit one-half of her husband’s share as heir of the testator, but she will not be entitled to dower in the other half, as his possession is not that of a freeholder of an inheritance.</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. Denis E. Sullivan, Judge, presiding.

<p>1. Workmen’s compensation—traffic ordinances are not such municipal regiilations as are contemplated by Compensation act. Speed and traffic ordinances are not such municipal regulations as are within the contemplation of division 8 of paragraph (b) of section 3 of the Workmen’s Compensation act, but the statutory or municipal ordinance regulations referred to therein must be such laws or ordinances as are enacted or imposed with reference to the employment.</p> <p>2. Same—cities and incorporated villages are "employers” within meaning of Compensation act. Cities and incorporated villages are “employers” within the meaning and intent of the Workmen’s Compensation act.</p> <p>3. Same—building ' improved roads is a dangerous occupation. While the building of an ordinary dirt road is not an extra-hazardous enterprise, the occupation of constructing permanent roads, whereon cement mixtures are formed and placed and where rock is crushed and placed thereon, is a dangerous occupation.</p> <p>4. Same—an improved street is a “structure” within meaning of Compensation act. The “maintaining and repairing” of an improved public street in a city is the “maintaining and repairing” of a “structure,” within the meaning of division 1 of paragraph (b) of section 3 of the Workmen’s Compensation act, when the maintaining and repairing of the same are, in fact, extra-hazardous.</p> <p>5. Same—court will take judicial notice that danger from, passing vehicles in city is greater than in country. The Supreme Court will take judicial notice of the fact that there is more travel on a city street than there is on a common dirt road in the country and that the dangers to one engaged in sweeping and cleaning the streets of a city are much greater than to one working upon a country road.</p> <p>6. Same—a city street sweeper is engaged in extra-hazardous occupation. One who is employed in sweeping and cleaning the improved streets of a city is engaged in an extra-hazardous occupation, within thé meaning of the provision of the Workmen’s Compensation act relating to maintaining a structure.</p>

Writ OB Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding.

<p>1. Inheritance taxes—what questions may be determined by county court on appeal from, order assessing tax. Under section 23 of the Inheritance Tax act the county court has jurisdiction to entertain a proceeding to determine the question of liability for an inheritance tax, and on an appeal from an order of the county judge assessing the tax the county court may determine both the question of liability and the matter of the correct appraisal of the property and assessment thereon.</p> <p>2. Same—when lien for tax continues after Uve years under section 24 of Inheritance Tax act. Section 24 of the Inheritance Tax act limits the lien on the land for the tax to five years only in case the property is sold, and where the person liable for the tax continues to own the property at his death the lien for the tax continues against the real estate until it is sold.</p> <p>3. Same—meaning of word “purchaser¡’ in section 24 of Inheritance Tax act. The word “purchaser,” in section 24 of the Inheritance Tax act, is used in its ordinary sense and means one who buys and pays a valuable consideration for property, and does not include a devisee.</p> <p>4. Same—section 24 of Inheritance Tax act does not release personal liability for tax. Section 24 of the Inheritance Tax act does not release the party liable for the tax after five years but he remains personally liable for the tax thereafter if it is not paid although he may have sold the real estate.</p> <p>5. Same—interest provided in section 3 of Inheritance Tax act is not a penalty. The interest provided for in section 3 of the Inheritance Tax act on taxes remaining unpaid is not in the nature of a penalty but is a mere measure of compensation to the State for the loss of the use of the money.</p> <p>6. Same—county court cannot remit interest in inheritance tax proceeding. Section 3 of the Inheritance Tax act, providing that interest shall be paid unless the tax is paid within the first six months from the date of the death, is positive and self-executing, and the county court, on an appeal from the order of the county judge assessing the tax, cannot remit the interest in the absence of authority given by statute.</p>

<p>Appeal from the County Court of Winnebago county; the Hon. L. M. Recichow, Judge, presiding.</p>

<p>Appeal from the County Court of Wayne county; the Hon. J. V. Heidinger, Judge, presiding.</p>

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

<p>1. Workmen’s compensation-—right to damages for death or injury at common law or under Personal Injuries act was vested. At common law or under the Personal Injuries act the right to damages where an employee suffered death or injury was vested.</p> <p>2. Same—award under the Compensation act takes the place• of damages at common law. Compensation under the Workmen’s Compensation act is analogous to and takes the place of damages at common law and under the Injuries act.</p> <p>3. Same—right to compensation, when determined according to law, is vested. While the right to compensation under the Workmen’s Compensation act is not a subject of bequest but continues in the dependents of the beneficiary only in the manner provided by the act, yet such right to compensation, when determined according to law, is a vested right and one that can be affected only by an act of the legislature.</p> <p>4. Same—Compensation act does not provide that re-marriage of beneficiary extinguishes compensation. The Workmen’s .Compensation act contains no provision for the extinguishment of compensation where the widow of the deceased employee re-marries, and it cannot be construed to so provide.</p> <p>5. Same—upon what theory Compensation act is based. The Workmen’s Compensation act is based on the broad economic theory that death or injury to an employee arising out of and in the course of employment is an incident of industrial activity and production and that compensation therefor is properly chargeable as a part of the cost of such activity and production.</p> <p>6. Statutes—courts cannot put limitation upon a right legally given by legislature. The courts have no power to put a'limitation upon a right legally given by the legislature unless by a fair construction of the act it can be said that such limitation was in furtherance of legislative intent.</p>

Writ or 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>1. Drainage—commissioners cannot incur indebtedness prior to levying an assessment—estoppel. Drainage commissioners have no authority to expend money or incur indebtedness prior to the levy of an assessment, and, in an action of quo warranto by the owners of lands alleged to have been unlawfully annexed to the district, a plea of estoppel by the commissioners on the ground that because of the silence and delay of the relators in bringing their action the commissioners have spent considerable money for repairs in the district in anticipation of the taxes from the annexed lands is subject to demurrer, there being no averment that the lands of the relators have ever been assessed.</p> <p>2. Same—what does not authorize the commissioners to annex lands to district. Where land owners before the organization of a drainage district have drained their land by tile which has an outlet on land which is taken into the district when it is organized, the act of the owner of the land in the district in connecting this outlet with the district ditch does not give the commissioners authority to annex the lands outside the district.</p>

<p>1. Specific performance—when the fact that insurance policies were not assigned is no defense. The fact that insurance policies tendered to the proposed purchaser of land were not formally assigned is no defense to an action for specific performance, where the other parties were ready to make the assignment and the defendant did not refuse to perform on that ground but only on the ground that he must see his attorney.</p> <p>2. Same—when party must carry out contract to purchase. A party who in his own name signs a contract to purchase real property must carry out-his part of the agreement where the vendors tender a title free from incumbrance and other papers in accordance with the terms of the contract, although the purchase of the property was to be for the benefit of a corporation, in which the purchaser was only a stockholder.</p> <p>3. Same—when person to whom deed is to be made is not uncertain. The fact that a contract provides that the deed shall be made to the purchaser or such person, persons or company as the purchaser may in writing request, does not render uncertain the person to whom the deed is to be made, as the purchaser is the proper grantee if he fails to appoint another.</p>

<p>Appear from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.</p>

<p>1. Churches—courts will not interfere with contending factions of church society unless civil or property rights are involved. Courts have no power to pass' upon questions of differences between contending factions of a church society unless civil or property rights are involved, and they will hot interfere to control the exercise of ecclesiastical authority not violative of a civil or property right.</p> <p>2. Same—when secession of members of church cannot affect property rights of those remaining. Where members of a church society of congregational government secede and join a new organization such action cannot affect the property rights of the old society nor its identity if there still remains any membership adhering to and teaching the doctrines and practices of the old organization ; and the fact that the seceding members have paid off their notes given to cover the indebtedness of the old church does not give them an interest in property which was deeded in trust for the old organization such as entitles them to partition.</p>

<p>1. Taxes—pxirpose of statute requiring causes of objection to be specified. The purpose of section 191 of the Revenue law, providing that an objection to general taxes must be in writing, specifying the particular causes of objection, is that the public authorities may understand and prepare for the hearing, and although an objection is not stated in as clear terms as it might have been, it is sufficient if it substantially fulfills the purpose of the statute.</p> <p>2. Same—when court may vacate judgment and permit further hearing of objections. The trial court, in the exercise of sound judicial discretion, may vacate a judgment entered during the same term on an application for judgment for taxes and permit a further hearing of obj ections to the tax.</p> <p>3. Same—court may, in its discretion, permit additional proof after evidence is closed. On an application for judgment for taxes the court may, in its discretion, permit additional testimony to be taken on behalf of the objectors after the evidence is closed.</p> <p>4. Same—notice must be given of change in assessment after the quadrennial assessment has been made. Notice to the property owner must be given preceding any change in assessment or re-assessment of the real estate after the quadrennial assessment has been made.</p> <p>5. Same—burden is on the objectors to show that no notice was given of change in assessment. Where the objection on an application for judgment for taxes is that no notice was given the property owners of any change in the assessment after the quadrennial assessment had been made, the burden is on the objectors to show that no such notice was given.</p> <p>6. Same—when State cannot object that person filing objections is not the owner. While the objections "to taxes on the county collector’s application for judgment must be filed in the name of the property owner and not in the name of the agent or attorney, counsel for the State, when the public authorities have advertised property for sale as owned by a certain person, cannot, on the hearing of objections filed in the name of that person, object that such person is not the owner.</p>

<p>1. Workmen’s compensation—a claim for compensation need not be in writing. The making of a claim for compensation within six months after the accident is essential to the right to an award under the Workmen’s Compensation act, but the claim may be verbal and is sufficient if the employer is informed by it that the employee intends to claim the benefit of the act.</p> <p>2. Same—zvhen employee’s testimony as to making claim is not incompetent as a conclusion. Testimony by an employee that he went to his employer’s house and asked for his compensation because he needed it is not incompetent as a mere conclusion, nor is its effect destroyed because he testified, in answer to the question what he said, that he told his employer he wanted to know what insurance company to go to to get his money.</p>

<p>1. Wills—when witness cannot testify that he signed, will in presence of- testatrix. In a will contest case, where one of the issues submitted to the jury is whether the will was attested in the presence of the testatrix, who was in an adjoining room when the attestation took place, one of the witnesses to the will cannot testify to his conclusion that he signed in the presence of the testatrix.</p> <p>2. Same—what constitutes attestation in presence of testatrix. It is essential to the due attestation of a will under the statute that both the will and the. witnesses shall be in presence of the testatrix, so that she may without effort or change of position see both and the act of attestation; and in a will contest it is erroneous to instruct the jury that it is enough for the testatrix to be able to see the witnesses and enough of the act then being done by them to know that they were signing their names to her will.</p> <p>3. Same—evidence of confidential relation with chief beneficiary, who drew the will, makes prima facie case of ilndue influence. Evidence of a confidential relation between the testatrix and a friend who prepared the will or procured its preparation and himself profited substantially by it, standing alone and undisputed on a contest of the will, will sustain the charge that the will was procured by the undue influence of such beneficiary.</p> <p>■ 4. Same—instruction directing verdict should be supported by evidence. In a will contest case, where one of the issues is whether the execution of the will was the result of undue influence on the part of the chief beneficiary, an instruction directing a verdict should not advise the jury that a prima facie case of undue influence may be rebutted by facts and circumstances in the evidence, where there is no evidence to overcome the presumption.</p> <p>5. Same—what questions are not proper in will contest case. Where one of the grounds upon which a will is contested is undue influence by the chief beneficiary, a witness who has testified in regard to the assets of the estate should not be allowed, over objection, to state on cross-examination that such beneficiary had been attorney and administrator for estates, executor of wills, mayor and city attorney of a certain city, president of a board of education and State’s attorney of a certain county, as such facts are not material to the case and the questions not proper cross-examination.</p>

<p>1. Special assessments—it is not material who mails notices to property owners. Where the notices to the property owners required by section 7 of the Local Improvement act are signed by the proper parties it is of no consequence who actually mails the notices if the parties to whom they are addressed receive them.</p> <p>2. Same—when parties waive objections to jurisdiction. In a special assessment proceeding, where property owners have filed objections to the jurisdiction of the person under a special and limited appearance, by afterwards filing objections to the merits they waive their right to insist, on appeal, that the court was deprived of jurisdiction because there were not fifteen days between the last publication and the hearing.</p> <p>3. Same—estimate for brick pavement need not itemize cost of cement filler. In a special assessment proceeding the estimate of the cost is sufficiently specific if it gives the property owner a general idea of what it is estimated the substantial component elements of the improvement will cost, and an estimate of the cost of paving a street with brick need not itemize the cost of the cement filler.</p> <p>4. Same—ordinance need not provide for payment of portion of assessment out of general fund. Under a special tax proceeding the council has the sole power to determine what proportion of the levy shall be borne by the public, and that determination is not subject to review by the court; but in a special assessment proceeding it is not necessary for the ordinance to provide that any portion of the assessment shall be paid out of the general fund but the commissioner appointed to make the assessment decides the proportionate shares, and his decision may-be reviewed.</p> <p>5. Same—when objectors cannot complain of division of assessment into installments. Objectors to a special assessment who are in no way prejudiced by the division of another property owner’s assessment into a lump sum for the first installment and only one dollar for" each of the other installments cannot complain, on appeal, that such division does not comply with the statute.</p> <p>6. Same—address of estimate is not a substantial part thereof. The fact that the estimate of cost required by section 10 of the Local Improvement act to be presented to the council or board of trustees is instead addressed to the board of local improvements cannot affect the validity of the proceedings, where such estimate is considered and acted upon by the city council.</p> <p>7. Samrequirement of the statute as to itemised estimate and certificate is mandatory. The itemized estimate of cost is not sufficiently certified where the president of the board of local improvements merely certifies, over his signature to the estimate, that the cost is a certain amount, but it is mandatory that the estimate not only be itemized to comply with the statute but that it shall also be certified to by the proper officer that in his opinion the estimate does not exceed the probable cost of the improvement.</p> <p>8. Same—preliminary steps necessary before passage of an improvement ordinance are jurisdictional. Where property of a citizen may be taken upon notice to the owner by publication and without personal service of process, no presumption can be raised in support of the jurisdiction of the court in which the proceedings are carried on unless such proceedings are in strict conformity with the statute, and all preliminary steps required to be taken before the passage of a local improvement ordinance should be strictly enforced and followed.</p> <p>9. Same—valid ordinance is foundation of any improvement by special assessment. A valid ordinance is the foundation of any improvement by special assessment, and unless a valid ordinance is shown there is nothing on which a subsequent proceeding can rest.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. Walter Brewer, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Morgan county; the Hon. Frank W. Burton, Judge, presiding.

<p>1. Criminal law—object of statute against permitting unmarried female under eighteen to room in house of prostitution. The statute making it a penitentiary offense to permit an unmarried female under the age of eighteen years to live, board, stop or room in a house of prostitution is designed for the protection of young girls and is leveled against keepers of such houses.</p> <p>2. Same—gist of offense of permitting unmarried female under eighteen to room in house of prostitution. The gist of the offense of permitting an unmarried female under the age of eighteen years to live, board, stop or room in a house of prostitution consists in permitting her to live, stop, board or room in such a house for any purpose, and it is not an element of the crime that she practiced prostitution with the assent of the keeper or was lacking in virtue.</p> <p>3. Same—what is a house of ill-fame. A house of ill-fame or assignation for the purpose of prostitution is a house where women prostitute themselves by offering their bodies to indiscriminate intercourse with men, and the term “house of ill-fame’’ has no reference to its reputation.</p> <p>4. Same—to be guilty of permitting young girl in house of prostitution the defendant must be the keeper of such house. To bring a defendant within the scope of the statute against permitting an unmarried female under the age of eighteen years to live, board, room or stop in a house of prostitution it is necessary that the party charged be the keeper of the house in question and that such house be kept for the purpose of practices referred to in the statute.</p> <p>5. Same—what constitutes keeping house of prostitution. To constitute the keeping of a house of prostitution there must be the keeping of a house, though it be but one room; but it is not essential that such keeping be done for profit.</p> <p>6. Same—character of an assignation house may be shown by circumstantial evidence. The character of an assignation house may be shown by circumstantial evidence from which the jury may fairly infer the character of such house.</p> <p>7. Same—whether house is kept for purpose of prostitution is question for fury. In the prosecution of a person charged with permitting an unmarried female under the age of eighteen years to stop in a house of prostitution, it is a question for the jury to decide, under proper instructions from the court, whether or not the house of the defendant was a house of prostitution.</p> <p>8. Same—when trial court does not err in refusing to compel State to admit truth of the defendant’s affidavit for continuance. Where the defendant files an affidavit for a continuance on the ground that certain witnesses are absent and cannot be had the trial court may require the State to admit the truth of the affidavit to avoid a continuance, but where 'there is no showing that the witnesses can be had at the next term of court it is not error for the court to require only that the State admit that if the witnesses were present they would testify as set out in the affidavit.</p>

<p>1. Insurance—definition of abandonment, in its technical sense. Abandonment, in its technical sense, means the relinquishment of a right or the giving up of one’s own property absolutely, without reference to any particular person or purpose, and in maritime insurance law it means relinquishment to the underwriters of all claim.</p> <p>2. Same—time is not an essential element of abandonment. Time is not an essential element of abandonment, but the moment the intent to abandon and the relinquishment of possession unite the abandonment is complete.</p> <p>3. Same—abandonment is voluntary but cannot be made unless loss is constructively total. Abandonment is not necessary where the loss is actually total but only where the loss is constructively total, and it is never obligatory upon the insured but operates only as a voluntary transfer of title.</p> <p>4. Same—construction of autpmobile insurance policy as to the right of abandonment. Where an automobile is insured against theft, to render the policy of value to the owner there must be some time fixed after which the return of the stolen car will not release the insurer from liability, and where such a policy provides that the insurance shall not be payable until sixty days after proof of loss, a further provision that there can be no abandonment of the property will be construed to prohibit abandonment only before the expiration of the sixty days.</p> <p>5. Same—cases of maritime insurance are applicable to automobile insurance only by analogy. Cases of maritime insurance cover a branch of the law having well understood customs and rules, distinct, in some respects, from those relating to other classes of property, and they can be applied only by analogy to a case of automobile insurance.</p> <p>6. Same—insured may rely upon agent’s assurance that proof of loss is sufficient. Although a policy of insurance requires sworn proof of loss, the insured has a right to rely upon the assurance of the agent of the company that his written notice of the loss was received and was sufficient proof of loss.</p> <p>7. Practice—what question cannot be raised for ñrst time in court of review. An objection that the wrong party is suing on an insurance policy, which was assigned, after loss, as collateral security, cannot be made in a court of review where the question was not raised in the trial court.</p> <p>8. Evidence—what evidence is not admissible in suit for automobile insurance. Where an automobile is insured against theft, in a suit on the policy after the car has been stolen, evidence that the insured purchased a new automobile shortly after the theft is not relevant to the issue, but its admission is harmless where a directed verdict is justified under a proper construction of the policy.</p>

<p>1. Specific performance—proof of an oral contract to convey must be conclusive. To justify a court in decreeing specific performance of an oral contract for the conveyance of land the proof must be clear and conclusive of its existence and terms.</p> <p>2. Same—oral contract to convey need not be proved by direct evidence. An oral contract to convey land in return for services rendered may be proved by other than direct evidence, and where the facts, including the acts of the parties, raise a convincing implication that the contract was actually made and satisfy the court that its terms and provisions are sufficient to justify its enforcement the contract should be upheld.</p> <p>3. Same—when taking possession and making permanent improvements need not be proved to avoid Statute of Frauds. In establishing an oral contract to convey a farm from father to son in return for services rendered the father until his death, it is not necessary, in order to avoid the Statute of Frauds, to show that the son took exclusive possession and made permanent improvements, where the father lived on the farm with the son, who was not, under the contract, to have full possession until the father’s death.</p> <p>4. Same—when filing claim against estate will not defeat suit for specific performance. As a suit for specific performance of an oral contract to convey land of a decedent to his son in return for services rendered up to the father’s death may not be finally decided until the year has expired for filing claims against the estate, the filing of a claim against the estate for such services is a mere legal precaution and not a confession of disbelief in the validity of the alleged contract. (Fletcher v. Osborn, 282 111. 143, followed.)</p> <p>5. Same—payment of taxes by father after making alleged contract to give land to son is not decisive. The payment of taxes on land by the owner after the making of an alleged contract to give the land to his son for services to be rendered until the father’s death is not decisive of question whether such contract was made.</p>

<p>. 1. Public officers—when tax-payers may maintain a bill m equity against a public officer and his sureties. A tax-payer in a municipality may maintain a bill in equity in behalf of himself and all other tax-payers against a former city treasurer and his sureties to require the return to the city treasury of commissions unlawfully withheld by him upon the amount of taxes collected by him as ex-officio collector of taxes.</p> <p>2. Municipal corporations—when municipality cannot compromise claim for less than full amount due. Where the amount of commissions unlawfully withheld by a city treasurer on taxes collected by him as ex-officio collector is not disputed and it is not claimed that he or the sureties on his bond are insolvent or that the amount due cannot be collected, the city cannot compromise its suit on his bond for less than the amount due and thereby bar the right of tax-payers to have the full amount returned to the city treasury.</p>

<p>Schools—section 89 of the general School law, as amended in 19173 is unconstitutional. Section 89 of the general School law, as amended in 1917, providing for the establishment of community high schools, violates article 3 of the constitution, in that it delegates legislative powers to the county superintendent of schools by leaving to his discretion the determination of the question as to what will constitute a satisfactory and efficient high school district, with authority to deny the prayer of the petition if in his opinion the proposed district will not be satisfactory and efficient. (People v. Buskirk, 279 111. 203, distinguished.)</p>

Writ oe Error to the Appellate Court for the Second District;—heard in that court on writ of error to the County Court of Lake county; the Hon. David T, Smiley, Judge, presiding.

<p>1. Taxes—objection stating legal ground of defense cannot be stricken on motion. A motion to strike objections from the files is in the nature of a demurrer and necessarily admits every fact alleged in the objections and the legal conclusions arising therefrom, and they can be stricken from the files only in a case where no legal objection is stated and where no proof of the facts alleged would constitute a defense to the application nor justify a refusal of judgment.</p> <p>2. Same—the fact that property is mortgaged for more than its •worth does not exempt mortgagor. Proof that a bridge company is indebted and has issued mortgage bonds which are in arrears and exceed the value of its property does not make the bondholders the owners of the property nor exempt the property from taxation in the name of the bridge company.</p> <p>3. Same—when railroad bridge is not to be assessed as railroad track. In a proceeding for judgment for taxes, where a bridge company owning a bridge which is used by various railroads makes no allegation in its objections that the bridge is a part of any railroad or railroad system which it owns, the bridge is not a railroad and the property is not to be assessed by the State Board of Equalization as railroad track but is to be assessed by the local assessor as real estate.</p> <p>4. Same—property used in inter-State commerce is not exempt from taxation. The fact that property is used in inter-State commerce does not exempt it from taxation, as inter-State commerce is not taxed by taxing property devoted to such use.</p> <p>5. Same—fact that railroads are controlled by Federal government is no defense against payment of local taxes. The fact that by the act of Congress of March 21,1918, and the President’s proclamation thereunder, railroads have been taken charge of by the United States and are being operated and controlled by the government is not a defense against the payment of local taxes on the property, and any question of taxation can only arise between the Federal government and the State.</p> <p>6. Same—what objection should not be stricken from Mes. On an application for judgment for taxes, an objection that the property is assessed its full market value while other property is assessed at about forty per cent of its value is an objection which the property owner has a right to prove, and any matter of defense, such as neglect of other remedies, estoppel or res judicata, must be shown in answer to the objection and is no ground for striking the objection from the files.</p> <p>7. Same-—courts will relieve against willful violation of constitutional rule of uniformity. Where an assessment against the property of a bridge company shows a very great disparity' and discrimination as compared with the assessment of all other property, which could not reasonably have arisen from an error of judgment, the courts will give relief against the violation of the constitutional rule of uniformity of taxation.</p> <p>8. Same—ike court cannot take judicial notice of alleged facts on motion to strike objections to taxes. The doctrine of judicial notice is a branch of the law of evidence, and authorizes the court, whenever a fact is material, to take judicial notice of the fact, but it must be presented to the court in some way, and is not raised by demurrer or motion to strike from the files an objection to taxes on the collector’s application for judgment.</p>

<p>1. Deeds—possession of deeds by grantee is evidence of delivery. The possession of deeds by the grantee is evidence of their delivery, and the burden is on one who claims they were not delivered to overcome the presumption of delivery arising out of such possession.</p> <p>2. Same—a deed takes effect upon delivery. A deed takes effect upon its delivery, and, if once delivered, the fact that it is not recorded does not affect its operation as a conveyance.</p> <p>3. Same—-trustee cannot convey trust property against interests of heirs of beneficiary. Where property is held in trust and the beneficiary dies, the trustee holds the property in trust for the heirs, and he has no right to make a conveyance to the widow and ignore the interests of the children of the beneficiary, even though a deed had been prepared before his death for a conveyance of the property to the widow.</p> <p>4. Same—declarations of grantor in absence of grantee cannot be received to defeat grantee’s title. The declarations of a grantor in a deed when the grantee is not present, whether made before or after the execution of the deed, cannot be received to defeat the grantee’s title, unless, with full knowledge of them, the grantee acquiesces in or sanctions them.</p> <p>5. Same—presumption of undue influence from fiduciary relation does not apply to conveyance from husband to wife. Where a conveyance is made to a person occupying a relation of trust and confidence to the grantor and confers a beneficial interest on the grantee it is presumed that it was obtained through fraud or undue influence and the burden of proof is on the grantee to rebut the presumption; but this doctrine has no application to the relation of husband and wife.</p> <p>6. Same—conveyance from husband to wife is presumed to be a gift. Where a husband voluntarily conveys land to his wife or procures its conveyance to her by a third person a presumption arises that he intends to make an absolute gift to her, and to overcome this presumption it must appear that there was an obligation on her part to hold the property in trust for him.</p> <p>7. Trusts—constructive trust arises only from fraud in procuring conveyance. A constructive trust will only arise in case of some fraud or advantage taken in the procurement of the conveyance to the alleged trustee, and the mere breach of a grantee’s oral promise to convey does not constitute such fraud as takes the case out of the Statute of Frauds, but there must be an element of fraud accompanying the promise and by means of which the acquisition of the legal title is wrongfully consummated.</p> <p>8. Same—zvhat does not make wife tmstee in conveyance from her husband. Where a husband voluntarily conveys his property to his wife, the mere fact that he expects her to permit him to control and dispose of the property does not create any trust in her for his benefit.</p>

Writ oe Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding.

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

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

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding.</p>

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

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

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

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

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

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

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

<p>1. Parties—when non-joinder of defendant in equity may be raised for first time on appeal. All persons materially interested, either legally or beneficially, in the subject matter of a suit in equity and the relief asked for must be made parties, and the nonjoinder of a defendant whose interest will be materially affected by the decree may be raised for the first time on appeal.</p> <p>2. Same—when, only, will decree be reversed on objection. to non-joinder of defendant raised for first time on appeal. An objection to the non-joinder of a defendant in equity, when raised for the first time on appeal, is never favored, and a decree will be reversed on such objection only where the interest of the omitted party is a present substantial one and where a decree will result in depriving such party of some material right without a hearing.</p> <p>3. Same—when mortgagee is not necessary party to proceeding to enjoin obstruction of alley. A proceeding for an injunction is personal against the individual, and in a proceeding to enjoin the erection of a building which obstructs the right of way in an alley a mortgagee whose interest is less than the value of the property without the building is not a necessary party.</p> <p>4. Easements—easement will be construed to be appurtenant, if possible. An easement is never construed to be in gross and purely personal when it can fairly be construed to be appurtenant.</p> <p>5. Same—an easement which is appurtenant runs with the land. An easement which is appurtenant runs with the land and passes by a conveyance without any reference to it.</p> <p>6. Same—when conveyance of portion of property divided into lots is subject to easements. Where the owner of a tract of land has divided it into different parts, as lots and alleys or ways, in such a manner that one part derives from another an advantage of a permanent, open and physical character, and the owner after-wards sells a part of the property, the purchaser takes the part sold with all the benefits and burdens which appear at the time of sale.</p> <p>7. Same—when complainant is- not estopped to enjoin obstruction of alley. The fact that complainants have areaways and an unloading chute which extend into an alley but do not interfere with its beneficial use as a right of way will not estop them from enjoining the complete obstruction of the alley by the erection of a building thereon, though they may be compelled to remove the areaways and chute.</p> <p>8. Same—when expense to wrongdoer will not prevent removal of obstruction. In a proceeding to enjoin the erection of a building which obstructs the right of way in an alley, a defendant who has notice of the existence of the alley and the complainants’ rights by his own chain of title cannot, by incurring the expense of completing his building after notice by the complainants not to invade their rights, deprive the court of the right to compel the removal of the building, even though no temporary injunction was asked for.</p>

<p>Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.</p>

<p>1. Elections—appeal in election contest may be transferred to Supreme Court. Under section 123 of the Election act an appeal from a decree of the circuit court in an election contest should be taken to the Supreme .Court, and an appeal to the Appellate Court may be transferred, under section 102 of the Practice act, whether it was taken to the wrong court intentionally or by mistake.</p> <p>2. Same—when defendant waives objection to definiteness of points in petition for contest. Where a defendant in an election contest, after his motion to dismiss is denied, answers the petition and makes - an issue of the facts, and evidence is received upon the allegations of the petition, he waives the right to argue in the Supreme Court that the petition should have been dismissed because it did not set out clearly the points upon which the election was contested.</p> <p>3. Same—petition for contest not invalid because sworn to on information and belief. A petition to contest an election is not invalid because it is sworn to on information and belief.</p> <p>4. 'Same—in an election contest evidence must show that ballots have been preserved. In an election contest, unless the evidence shows that the ballots have been preserved in such a way that there was no reasonable opportunity for tampering with them, they can not overcome the returns of the judges and clerks of election.</p> <p>5. Same-—party appealing from election contest must preserve the evidence. In an election contest the burden of preserving the evidence to sustain an attack on the judgment of the lower court rests upon the party who questions the decision of that court.</p> <p>6. Same—finding of lower court in election contest will not be disturbed unless palpably against weight of evidence. Although a proceeding to contest an election is a statutory proceeding, the finding of the trial court will not’be disturbed on appeal unless it is palpably against the weight of the evidence.</p> <p>7. Same—incorrectness of court’s rulings must appear affirmatively. On an appeal from a decree in- an election contest it is necessary, in order to reverse the decree of the trial court, that the incorrectness of the court’s rulings be made to appear affirmatively.</p> <p>8. Same—ballots are admissible in an election contest though not properly preserved. Although there has been carelessness in caring for the ballots after an election, the ballots, in case of contest, are admissible in evidence for what they are worth and may be considered in connection with the other evidence in the case.</p> <p>9. Same—ballots containing stickers with name of candidate are invalid. Under the Australian Ballot law ballots upon which the voters have placed pasters or stickers with the name of their candidate written or printed thereon are invalid and cannot be counted.</p> <p>10. Same—when value of tally-sheets and poll-lists as evidence in contest is lessened. In an election contest the value of the tally-sheets and poll-lists as evidence is lessened where no public proclamation of the result has been made.</p> <p>11. Same—when result of an election must be determined from both the returns and ballots and surrounding circumstances. • In an election contest, where the evidence shows that both the judges of election and the custodian of the ballots have failed properly to perform their duties, neither the returns of the judges nor the ballots will prevail over the other but the result must be determined from a consideration both of the returns and the ballots, with all the circumstances surrounding the case.</p>

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

<p>Writ or Error to the Circuit Court of Massac county; the Hon. William N. Butler, Judge, presiding.</p>

<p>1. Inheritance tax—conveyance to take effect after death of donor is subject to tax. Where a conveyance is intended to take effect in possession or enjoyment after the death of the donor it is subject to an inheritance tax, even though the intention of the parties is not evidenced in writing.</p> <p>2. Same—tax applies to a conveyance where contemplation of death is the motive of transfer. A conveyance, is subject to an inheritance tax where the grantor’s contemplation of death is the impelling motive which caused him to make the transfer, even though no evidence of that motive appears in the deed.</p> <p>3. Same—when tax applies to conveyance to grantor's son, who lived with his father until the father’s death. Where a conveyance is made by a grantor to his son, who had lived with his father until the father’s death, and there is no evidence of any contract for services rendered by the son but the evidence shows that the conveyance was made in contemplation of .death and the enjoyment and possession were postponed until the death of the grantor, the property involved in the transfer is subject to an inheritance tax.</p> <p>■ 4. Contracts—-no contract for services is implied where parties live together as one family. Where parties live together as members of one family the law does not imply a contract on the part of one to pay for the services rendered by another but the presumption arising from the relation is that such services are rendered gratuitously, and in such case there can be a recovery only by proving the making of an express contract or circumstances from which a reasonable inference will arise that such a contract was made.</p> <p>5. Same—moral obligation must have once been legal to be a consideration. A moral obligation does not suffice for a consideration unless the moral obligation was once a legal one.</p>

<p>Writ oe Error to the Circuit Court of Christian county; the Hon. J. C. McBride, Judge, presiding.</p>

<p>1. Public utilities—findings of the commission on questions of fact are prima facie true. For the purpose of determining the reasonableness or lawfulness of an order or decision the findings and conclusions of the Public Utilities Commission on questions of fact are prima facie true, and a court is not warranted in setting the same aside unless it clearly appears to be against the manifest weight of the evidence presented before the commission or that the commission in its order or decision exceeded its jurisdiction.</p> <p>2. Same—orders of commission are prima facie reasonable— burden of pPoof on appeal. The rules, regulations, orders or decisions of the Public Utilities Commission are prima facie reasonable, and the burden of proof of the issue raised by an appeal is upon the person prosecuting the appeal, either in the Supreme Court or in the circuit court.</p> <p>3. Same—Public Utilities Commission has no arbitrary power. The Public Utilities Commission is given no arbitrary power by the statute and the orders of the commission must be lawful and reasonable.</p> <p>4. Same—what is an unjust freight charge. A carrier cannot fix a minimum weight per car on produce from a certain point and compel the shipper to pay the full freight fór a car of such capacity on shipments in smaller cars furnished for the convenience of the carrier, which, under the the rules of the company, cannot be and are not loaded to such fixed minimum Weight, and the shipper may recover from the carrier the excess freight so paid.</p> <p>5. Same—when questions are controlled by State laws. Questions as to the reasonableness of rates charged by carriers are controlled entirely by the laws of Illinois where the shipments in question have their origin and termini in the State of Illinois.</p>

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

<p>1. Pleading—of incapacity to sue are pleas in ,abatement. Pleas of incapacity to sue are pleas in abatement and do not go to the merits of the bill but only tend to an abatement of the suit.</p> <p>2. Same—pleas to .the person should be filed in apt time. A plea that a complainant is an alien enemy is a plea to the person and should be filed in apt time, and when not filed until the parties are engaged in the trial of the cause the chancellor does not err in striking the plea from the files.</p> <p>3. Wills—mental capacity at time of making zvill determines validity of zvill on that isszie. Where a will is contested on the ground that the testatrix was not of sound mind the test is the mental condition of the testatrix at the time of making the will.</p> <p>4. Same—physical zveakness may be considered on question of mental capacity. While physical weakness does not, of itself, render a person mentally incapable of making a will, such weakness may be considered by the jury with the other evidence on the issue of testamentary capacity.</p> <p>5. Same—zvhen finding of jury on question of mental capacity zvill be sustained. In a will contest, where the testimony is conflicting on the question of the mental capacity of the testatrix and the verdict 'of the jury is not clearly against the weight of the evidence, the finding of the jury must be regarded as conclusive.</p>

<p>1. Wms—when presumption of undue influence arises. Where a person bearing a confidential relation to a testator has himself prepared a will by which he receives a substantial benefit, these facts, unexplained, raise a presumption that the will was procured by undue influence of such beneficiary, but the presumption arises out of the fact that the beneficiary prepared the will and not because of the fiduciary relation.</p> <p>2. Same—evidence offered in rebuttal may be received although properly admissible in first instance. Where evidence properly admissible in the first instance is offered in rebuttal it is within the sound discretion of the court whether it shall be received, and the exercise of such discretion will not be reviewed nor will it be held that there has been an abuse of such discretionary power unless some injury has been occasioned.</p> <p>3.. Same—what proof sufficient to overcome presumption of undue influence. While the amount of proof required to overcome the presumption of undue influence arising from the preparation of a will by a beneficiary bearing a fiduciary relation to the deceased depends upon the circumstances of each case, yet where the evidence is convincing that the instrument is the free expression of the wish of the testator the legal presumption of undue influence is overcome.</p>

<p>1. Public utilities—commission investigating reasonableness of rates may require telephone company to Me a schedule. Under section 41 of the Public Utilities act the commission, seeking to establish a schedule of reasonable telephone rates, may, of its own motion or upon complaint, enter upon an investigation sufficient to enable it to acquire the information necessary for the making of such a schedule, and as a step in that investigation the commission may require the telephone company to file its schedule of rates eliminating all discriminations.</p> <p>2. Same—when appeal is prematurely taken. Section 68 of the Public Utilities act authorizes an appeal only from an order or decision of the commission made after a final hearing, and where the commission does not find that any particular telephone rate is or is not just or reasonable but the record shows that apparent discriminations exist, an order requiring the telephone company to file a schedule of rates eliminating all discriminations is only an interlocutory order and an appeal therefrom is premature.</p>

Writ oe Error to the ‘Appellate Court for the Third District;—heard in that court on appeal from the County Court of McLean county; the Hon. James C. Riley, Judge, presiding.

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

<p>1. Evidence—testimony of attorney conducting a case will be given little weight. While it is not proper practice for an attorney-in a case he is conducting to testify in his client’s behalf he is not for that reason incompetent though his testimony should be given little weight, but an attorney should not be criticised for testifying where he is called as a witness, over his own objection, and thereafter does not appear as attorney in the case.</p> <p>2. Vendors’ eiens—vendor’s lien is creature of equity and not of contract. A vendor’s lien does not grow out of an agreement between the parties but is an equity raised by courts of chancery for the benefit of vendors of realty, which 'will be enforced or denied, as the exigencies of each case may require, in every sale and conveyance of land where the purchaser has not paid in full.</p> <p>3. Same—burden is on vendee to prove lien was excluded by agreement. The law presumes the retention of a vendor’s lien in favor of the unpaid vendor, and the burden is on the vendee to prove that the terms of the contract of sale or the concomitant circumstances of the transaction satisfactorily show that the lien was purposely excluded and that the vendor relied on the personal credit of the vendee or other security.</p> <p>4. Same—it is not essential to lien that the purchase price is to be paid in money. The vendor’s lien arises whether the purchase price is to be paid in money or by the rendition of services or any other valuable consideration, definite and ascertained, and stipulated as the equivalent of the amount of the purchase price and arising out of the sale of land against which the lien is sought to be enforced.</p> <p>5. Same—agreement for support of the grantor is an equitable mortgage. An agreement contained either in the conveyance or in a separate instrument for annuity or the support of the grantor will convert such conveyance or instrument into an equitable mortgage.</p> <p>6. Same—vendor’s lien does not attach to gift. The vendor’s lien does not attach where land is conveyed as a gift.</p> <p>7. Same—recitation of payment of consideration is not conclusive against vendor’s lien. The recitation of payment of consideration in a deed or other like document executed at the time of the transaction is not conclusive as against the vendor’s lien but is only prima facie evidence of the payment, which the vendor may explain or rebut by parol testimony in seeking to enforce his lien.</p> <p>8. Same—proof must be clear to establish gift. A gift, whether direct or in trust, must be established by clear proof, with no uncertainty either as to the subject or object of the gift, and the acts constituting the transaction must be consummated and not remain incomplete or rest in mere contention.</p> <p>9. Same—lien may be enforced although action at law lies upon notes. Where the purchase money of land has not been paid the vendor may file his bill for specific performance or for a vendor’s lien and subject the land to sale and satisfaction, even though an action at law lies upon notes given for the purchase price.</p> <p>10. Same—a vendor's lien will exist against land conveyed to minors and may be enforced after grantees become of age. Where land is conveyed to minors and notes are given for the unpaid purchase price a vendor’s lien will exist against the land, and if, after the minors have become of age, they refuse either to pay the notes or agree to cancellation of the deed the lien may be enforced.</p> <p>11. Minors—notes of infants are voidable and not void. Promissory notes issued by infants, whether negotiable or not, are voidable and not void.</p> <p>12. Same—right of infant to avoid contracts is personal. The right of an infant to avoid contracts is personal and cannot be taken advantage of by an adult with whom he deals.</p> <p>13. Same—adult contracts with infant at his peril. An adult contracts with an infant at his peril as the infant may decline to perform his part of the agreement, while the adult is bound by the contract and is liable for its breach as fully as if the other party had been of full age.</p> <p>14. Same—contract must be repudiated by infant after becoming of age and within period fixed by Statute of Limitations. In order to take advantage of minority as ground for refusing to carry out a contract the infant must repudiate the contract after becoming of age and within the period fixed by the Statute of Limitations.</p>

<p>1. Specific performance—specific performance of contract to convey may be demanded as a matter of right. The proper function of courts is to uphold contracts and enforce their performance as made or give damages for a failure or refusal to perform them, and where a valid contract for the conveyance of real estate is fairly entered into and understandingly made, each party is entitled to specific performance as a matter of right.</p> <p>2. Same—when purchaser from widow cannot demand a deed signed by children also. One who has entered into a contract for the purchase of real estate from a widow, who has only a life estate therein but who has a power to convey the fee and has agreed to convey the same by general warranty deed, is entitled to demand such a deed from the widow but cannot insist upon a deed signed also by the widow’s children, even though they will be entitled to a remainder in case the widow does not sell, where the contract does not require such signatures.</p> <p>3. Same—power to convey fee does not enlarge life estate into fee. A power to sell and convey the fee, annexed to a widow’s estate for life or until her re-marriage, will not enlarge her estate into an estate in fee, but if the widow has agreed to convey a good merchantable title by warranty deed, a tender by her of a deed conveying only her estate for life or until re-marriage is not a compliance with the contract.</p> <p>4. Same—intention to execute power should appear in conveyance of fee by life tenant. Where a life tenant has power to convey a fee, in the execution of the power it is not essential that there should be a direct reference to the power, but it is necessary that the conveyance shall disclose the power and that an intention to execute it shall fairly and reasonably appear.</p>

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

<p>1. Specific performance—a verbal contract for conveyance of land must be certain and unequivocal. A verbal contract for the conveyance of land, to be capable of enforcement in equity, must possess all the elements and features necessary to the specific performance of any agreement and must be certain in its terms.</p> <p>2. Same—mere declarations of promisor not sufficient to establish oral contract to convey. Mere declarations of the promisor do not constitute such clear and unequivocal testimony as is necessary to establish the existence of an oral contract to convey land.</p> <p>3. Same—what part performance is necessary to take oral con-1 tract to convey out of Statute of Frauds. An oral contract for the" conveyance of land will not be enforced in equity unless the promise has been acted on by the taking of possession and the expenditure of money in making improvements by the person requesting ' such enforcement, and such acts must be definite and referable ex- ' clusively to the contract.</p> <p>4. Same—when equity is not justified in decreeing specific performance of oral contract to convey. Where the evidence of an oral agreement to convey, in return for services rendered the alleged grantor until his death, is not of a clear, conclusive and undoubted character and compensation for the services rendered may be had by filing a claim against the estate, a court of equity is not justified in decreeing specific performance of the alleged agreement.</p> <p>5. Same—admission of additional evidence after case is closed rests in discretion of court. The question as to whether further evidence shall be allowed after a party has closed his case rests largely in the sound discretion of the trial court, and rulings thereon will not be disturbed unless palpably erroneous.</p>

<p>Writ or Error to the Circuit Court of Douglas county; the Hon. George A. SENTEL, Judge, presiding.</p>

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

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

<p>1. Equity—the jurisdiction of equity is freely exercised where there is fraud. Fraud is a recognized subject of general equity jurisdiction, and there is no ground on which the jurisdiction is so readily entertained and so freely exercised as that of fraud.</p> <p>2. Same—equity will relieve tax-payers against fraud at election resulting in tax. Courts of equity will relieve against fraud affecting substantial rights in whatever form it may appear, and the fact that such rights arise out of or in consequence of an election and that the legality of the election is involved is no objection to the exercise of the jurisdiction of equity.</p>

<p>1. Appeals and errors—when a freehold is involved in a proceeding to sell real estate to pay debts. Where the petition of an administratrix to sell real estate to pay debts of an intestate is resisted by one of the defendants on the ground that it includes more than the homestead, which was all that the deceased had at his death after he had conveyed the rest of his real estate by quit-claim deed to grantees through whom such defendant claims, a freehold is involved and an appeal may be properly taken to the Supreme Court.</p> <p>2. Administration—what must be proved by an administratrix who petitions to sell real estate. An administratrix petitioning to sell real estate to pay debts of her intestate must prove that the title to the real estate in question was in the deceased at the time of his death and that there is a deficiency of personal property to pay debts due. and unpaid.</p> <p>3. Same—equity does not favor stale claims. Equity does not favor stale claims, and presumptions are not indulged in their favor but strict proof of them is required.</p> <p>4. Same—a judgment is a good claim although not originally sworn to. Under section 65 of the act on administration of estates a judgment regularly obtained will be taken as duly proved and held valid even though it was not originally sworn to when the claim was filed.</p> <p>5. Same—when a debt is presumed to have been paid. In the absence of explanatory evidence, a debt which has been due and unclaimed, without recognition or payment of interest, for twenty years is presumed to have been paid.</p> <p>■ 6. Same—widow’s award may be waived or estopped by laches. The widow may waive her right to an award, and the doctrine of laches and estoppel applies to such claim.</p> <p>7. Same—fee in homestead descends to heirs. Where an intestate has an estate of homestead at the time of his death the fee in the homestead descends to and vests in his heirs, subject to the widow’s right of dower and homestead interest.</p> <p>8. Same—homestead interest can be assigned under a petition for sale to pay debts—amendment. An estate of homestead, if not previously assigned, can be assigned in a proceeding under a petition to sell land to pay debts against the estate, and it is not necessary that the petition request the assignment although it is the better practice, and the court may authorize an amendment for that purpose.</p> <p>9. Same—when laches will not prevent Ming a petition to sell real estate—notice. The doctrine of laches will not preclude an administratrix de bonis non from filing a petition to sell the homestead of an intestate to pay debts more than twenty years after his death, where the petition is filed four years after the death of the widow and a year after the appointment of the administratrix; and an heir purchasing from the- widow is presumed to have notice of the liability of the estate for the debts of the ancestor after the termination of the widow’s homestead right.</p>

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

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

<p>Appeal from the First Branch Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.</p>

<p>1. Workmen’s compensation—when an employee is injured in course of employment. An employee is injured in the course of his employment when the injury occurs within the period of his employment at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or is engaged in doing something incidental to it.</p> <p>2. Same—when injury arises out of employment. For an injury to arise out of the employment there must be some causal relation between the employment and the injury, and while it is not necessary that the injury be one which ought to have been foreseen or expected, it must be one which after the event may be seen to have had its origin in the nature of the employment.</p> <p>3. Same—bitrden of proof is on the applicant. The burden of proof rests upon the applicant for compensation to furnish evidence from which an inference can logically be drawn that the injury arose out of and in the course of the employment, but such proof may be circumstantial as well as direct and need not be beyond all reasonable doubt.</p> <p>4. Same-—what degree of proof justifies inference as to manner of injury. To justify an inference being drawn by the Industrial Board that an injury arose out of and in the course of the employment the evidence must be such as will induce a reasonable man to draw such conclusion after weighing the probabilities raised by the evidence.</p> <p>5. Same—finding of Industrial Board cannot be set aside if record contains competent evidence to sustain it. If the record contains competent evidence to sustain the finding of the Industrial Board in making an award the finding cannot be set aside, although the Supreme Court might feel that a different conclusion would have been reached if it had been called upon to decide the question in the first instance.</p> <p>6. Same—when injury in fight arises out of and in course of employment. Where an employee whose duty it is to repair leaks in steam pipes in a large packing plant is injured in a fight with the foreman of a department whither the employee had been summoned by the blowing of a whistle in accordance with the custom when a leak was discovered the injury is one arising out of and in the course of the employment, where the evidence warrants the conclusion that the altercation was not personal but grew out of matters connected with the injured employee’s work.</p>

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

<p>1. Criminal law—a new trial will not be granted for merely cumulative evidence. A new trial will not be granted upon the ground of newly discovered evidence where such evidence is simply cumulative and inconclusive or where there has been a want of proper diligence to procure the evidence on the trial, but to justify a new trial the newly discovered evidence must appear to be such as will probably change the result.</p> <p>2. Same—when new trial shovild be granted for newly discovered evidence. Where it is shown, on motion for new trial, that there is newly discovered evidence, not cumulative, in regard to a particular point, the importance of which could not have been foreseen and which strengthens the view of the court that justice has not been done, a new trial should be granted to the defendant.</p> <p>3. Same—drunkenness is no excuse for crime except as provided by statute. Neither at common law nor under the statute is drunkenness any excuse for crime except as provided by the statute in some cases requiring the existence of criminal intent.</p> <p>4. Same—when court should permit liberal examination of defendant’s former associations. Where a defendant is charged with the theft of an automobile because he was found asleep in the car when it was discovered on the highway, and his defense is that he did not know the car' was stolen but had been invited to ride with companions who had left him there drunk, the court should permit a liberal examination as to the defendant’s former association with his companions.</p>

<p>1. Schools—school grounds purchased by board of education need not be contiguous to school house site. Clause 5.of section 127 of the School law, authorizing the board of education to acquire necessary school grounds by purchase or condemnation, does not require that such grounds shall all be contiguous to the school house site or be purchased in connection therewith.</p> <p>2. Same—all school taxes are levied ufor educational purposes” or “for building purposes.” All school taxes are levied under the terms “for educational purposes” or “for building purposes,” and all payments must be made from one or the other of these two funds.</p> <p>3. Same—when school grounds may be paid for without issuing bonds. The provisions of the School law giving boards of education and directors the power to borrow money and issue bonds for buying school house sites and building school houses do not limit the power of such boards to levy taxes to pay for necessary grounds to be used in connection with building sites when the same may be paid for by proper levies of taxes without making a debt.</p> <p>4. Same—purchase of land subject to vendor’s lien is not a purchase on credit. A purchase of land by a board of education subject to a vendor’s lien is not a purchase on credit, and the board has power to levy taxes to discharge such lien.</p> <p>5. Same—board of education is authorised to receive donations. Under section 39 of the School law a board of education is authorized to receive donations of land for school purposes.</p> <p>6. Same—a board of education may purchase land for school playground. A board of.education has power, under the general School law, to purchase necessary grounds for a school playground and pay for the same by a tax levied for building purposes, regardless of the question whether such power is also given by the act of June 23, 1915, (Laws of 1915, p. 640,) relating to the acquiring of property by condemnation.</p>

<p>1. Evidence—when administratrix is competent ivitness in her suit to set aside deed of intestate. Where a father has filed a bill to set aside his deed to his son, and upon the father’s death his daughter, who is administratrix, is substituted as complainant, the daughter is a competent witness in her own behalf, as the son is defending only as grantee.</p> <p>2. Same—when a grantee may testify against deposition of a grantor. Under the fifth exception to section 2 of the Evidence act, in a suit begun by a grantor to set aside his deed to his son, and continued, after the death of the grantor, by his administratrix as substituted complainant, the grantee may testify in -his own behalf as to matters testified to in a deposition of the grantor.</p> <p>3. Deeds—equity will set aside a deed where grantee fails to carry out consideration of support of grantor. Where one voluntarily conveys all his property in consideration of his support and maintenance during his life and the grantee afterward refuses to perform the contract, a court of equity will be justified in presuming a fraudulent intention in the first instance in entering into the agreement and will grant relief by the rescission of the contract and the cancellation of the deed.</p>

<p>1. Criminal law—a prosecution upon information verified on information and belief contravenes the bill of rights—waiver. A prosecution for a criminal offense upon an information verified upon information and belief contravenes section 6 of the bill of rights, but the constitutional right is waived by making no objection in the trial court and by taking the record to the Appellate Court for review.</p> <p>2. Same—an information verified by affidavit is not subject to constitutional objection. An information verified by aEdavit, not upon information and belief but of the aEant’s own knowledge, is not subject to the objection that it contravenes section 6 of the bill of rights of the constitution.</p> <p>3. Same—when information may charge defendant with committing various acts as one offense. A statute which defines different acts by which one may be guilty of a crime is usually construed as creating but a single offense, and an information under such statute may charge the defendant with committing all of such acts as one offense.</p> <p>4. Same—objections to form of an information are waived by going to trial—duplicity. All objections to the form of an information are waived by going to trial, and a motion in arrest of judgment will not reach the question of duplicity.</p> <p>5. Same—when a judgment of conviction will not be reversed. The Supreme Court will not reverse a judgment of conviction upon competent evidence unless it clearly appears that there is a reasonable doubt of guilt.</p> <p>6. Same—evidence that the defendant committed another independent offense is inadmissible. On a prosecution for a particular crime, evidence which shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial is irrelevant and inadmissible.</p> <p>7. Same—what necessary to make one criminal act evidence of another. To make one criminal act evidence of another offense there must be some connection between the crimes, so that proof of the other crime tends in some way to prove the defendant guilty of the crime for which he is being tried.</p> <p>8. Same—proof of former conviction must be made by record. Where proof of a former conviction is admissible to prove the defendant’s guilt of the crime charged the proof must be made by producing the record.</p> <p>9. Same—when judgment must be reversed for error in admission of evidence although trial is before the court without a jury. Where a defendant is on trial for the crime of pandering, and the court, over objection, admits parol evidence of the fact that he had formerly been convicted of stealing an automobile, if there is nothing in the record indicating that such evidence was stricken or disregarded the judgment must be reversed although the trial was before the court without a jury.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding.</p>

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

<p>1. Injunction—motion to dissolve injunction operates as demurrer. A motion to dissolve an injunction for want of equity on the face of the bill operates as a demurrer and all matters "of fact well pleaded in the bill are thereby admitted, and, where an injunction is the only relief sought, if "the facts do not justify the relief it is proper to dismiss the bill.</p> <p>2. Equity—equity has no jurisdiction over matters of a political nature. The jurisdiction of a court of equity pertains only to the maintenance of civil, personal or property rights, and it has no jurisdiction over matters or questions of a political nature unless civil rights are involved.</p> <p>3. Constitutional law—the courts cannot enjoin an election which is part of the process of legislation. Under the provision of the constitution requiring a vote of the people on all laws creating corporations with banking powers, the submission of such a law at an election is a part of the process of legislation, and the courts cannot enjoin such election at the suit of a tax-payer even though it involves a useless expense because the law as signed by the Governor and submitted to the people omits certain adopted amendments and is therefore not the act which was finally passed by the General Assembly.</p> <p>4. .Same—courts can consider validity of a statute only after it is in force and civil rights are involved. Courts have no general power to consider proposed and uncompleted legislation to determine whether an act will be valid or invalid if enacted into law, but it is only after legislation has been completed that the courts, in determining the civil, personal or property rights of litigants, may refuse to enforce a statute which is invalid, and their jurisdiction in that respect is limited to the determination of such rights.</p>

<p>1. Wills—word “heirs” may be construed to mean children. The word “heirs” is a technical term to designate those whom the law appoints to take intestate estates; but it may have a different meaning, and where it is evident that a testator meant children it will be so construed.</p> <p>2. Same—when estates devised to “heirs” of the life tenants are vested. Where a testator divides his estate among his children by separate devises of different tracts “unto the heirs” of each child, (naming such child,) “subject to his (or her) use, benefit and control” for life, and where grandchildren of the testator were living when he made the will and at his death, the word “heirs” will be construed to mean grandchildren, and they will take vested estates in fee, subject to the life estates of their parents.</p> <p>3. Same—definition of a remainder. A remainder is a remnant of an estate in land depending upon a particular prior estate created at the same time and by the same instrument in the same property and limited to arise immediately on the termination of that estate and not in abridgment of it.</p> <p>4. Same—when limitation is by way of an executory devise. Where a testator, after devising vested estates in fee to his grandchildren subject to life estates in their parents, provides in a subsequent clause that if any of the heirs of his body die without issue the estate devised in such case shall revert to the heirs of his body in equal shares, the limitation can take effect only in abridgment of the fee devised, and is not a remainder depending upon a prior particular estate but is an executory devise.</p> <p>5. Same—when executory devise takes effect. An executory devise does not require a particular estate for its support, but on the happening of the event on which it is limited the devise comes into existence by its own inherent capacity.</p> <p>6. Same—a reversion is always vested. In the case of property devised by will a reversion is the residue of the estate remaining in the' heirs-at-law of the testator where less than the whole has been disposed of by the will, and a reversion is always vested, remaining in the heirs-at-law simply because the whole estate has not been devised.</p> <p>7. Same—when devise over in case of death without issue takes effect. Where the death of the first taker is coupled with circumstances which may or may not take place, such as death without living issue, a devise over, unless controlled by other provisions of the will, takes effect upon death under the circumstances indicated, whether before or after the death of the testator; but if the devise over is preceded by a particular estate and there is nothing in the will indicating a different intention, the executory devise will take effect in case of death before the termination of the particular estate.</p>

<p>1. Judicial sales—the chancellor may exercise discretion in approving master’s sales. The chancellor has a broad discretion in the matter of approving or disapproving a master’s sale made subject to the court’s approval by the terms of the decree, but such discretion is not arbitrary and must be exercised according to law.</p> <p>2. Same—judicial sales will not he set aside for mere informalities or irregularities. Public policy requires stability in all judicial sales in order that the property may bring its full value, and such a sale will not, as a rule, be set aside for mere informalities or irregularities or for causes which the parties complaining might with a reasonable degree of diligence have avoided.</p>

<p>Writ or Error to the Circuit Court of Rock Island county; the Hon. F. D. Ramsay, Judge, presiding.</p>