Volume 289 — Illinois Reports

<p>Writ or Error to the Criminal Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.</p>

Writ or Error to the Appellate Court for the First District; — heard in that court on appeal- from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.

Writ of Error to the Second Branch Appellate Court for the First District; — heard in that court on appeal from the Superior Court of Cook county; the Hon. Augustus A. Partlow, Judge, presiding.

<p>Workmen’s compensation- — when employee engaged in constructing hard road is not employed in hazardous occupation. An employee who is engaged in. assisting in the construction of a hard surface on a State-aid road is not employed in a hazardous occupation within the meaning of the Workmen’s Compensation act, where his only duty is to assist in pulling a large float over the soft concrete mixture after it has been placed on the roadway; and the fact that other employees may be engaged in some other part of the work that is extra-hazardous does not bring said employee within the provisions of the act. (McLaughlin v. Industrial Board, 281 Ill. 100, explained.)</p>

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

<p>1. Negligence — statement of counsel that defendant will be reimbursed for payment of damages is improper. ' In an action for wrongful death any statement of plaintiff’s counsel which shows that the defendant is being protected from the payment of damages by being reimbursed for such payment is improper because of its influence on the jury.</p> <p>2. Trial — counsel has no right to “badger” a witness. There is nothing in the duties of an attorney to his client requiring him to mistreat or “badger” a witness, and the mere fact that the parties are in court, where the witness is on the stand without right to retaliate, does not give counsel the right to subject the witness to mistreatment. or insult.</p> <p>3. Same — when court should' act promptly in stopping misconduct of counsel. It is the duty of a court to preserve the respect due to its dignity and the administration of the law, and where an attorney, under the pretense of arguing the case, indulges in the abuse of parties or witnesses the court should act promptly in stopping such misconduct instead of merely sustaining objections.</p> <p>4. Same — when misconduct of counsel will amount to mis-trial. While the influence of prejudicial statements of counsel, inadvertently made, may generally be overcome by sustaining objections thereto and by retraction, made in good faith, on the part of the offending counsel, yet where counsel, in the presence of the jury, purposely and persistently indulges in-acts and statements prejudicial to the rights of the opposite party such misconduct will amount to a mis-trial of the cause, although objections are sustained.</p>

<p>1. Criminal law — what is not an unlawful seizure of the defendant’s books of account. Where defendants to a charge of embezzling the funds of a bank were co-partners in the real estate business and kept books of account, in which, as officers of the bank, they also kept items of account in the bank business, it is not a violation of the fourth amendment to the Federal constitution to grant a petition of the State’s attorney to have the books of account turned over to him by a bankruptcy court, which was settling up the affairs of the partnership.</p> <p>2. Same — the defendants are not protected from introduction of books of account to which they are no longer entitled. Where officers of a bank are being tried for embezzling its funds the People may introduce in evidence books of account used by the defendants in a real estate business, in which they also kept certain accounts of the bank, and which they had surrendered to a bankruptcy court in a proceeding from which they did not appeal, as the .title to the books is no longer in the defendants but in the trustee in bankruptcy.</p> <p>3. Same — when evidence is sufficient to show defendant was an officer of a bank. A defendant who, with others, is charged with embezzling the funds of a bank under sections 75 and 76 of the Criminal Code, is sufficiently'shown to be an officer or agent of the bank where there is evidence that he acted as assistant cashier and signed his name as such and the testimony of at least one witness that he was assistant cashier.</p> <p>4. Same — when party is guilty as a principal. One who stands by and aids1 and abets in the commission of a crime is guilty as a principal; and this rule applies to the assistant cashier of a bank who knowingly participates in the fraudulent transactions carried on by the bank.</p>

<p>1. New Trial — a new trial is a de novo hearing. A new trial is a de novo hearing, and admissions or waivers as to questions of jurisdiction of the subject matter, made for the purposes of the first trial, are not binding upon a new trial of the cause.</p> <p>2. Railroads — a foreign inter-State railroad corporation must comply with foreign Corporations act. Because a foreign railroad corporation is engaged in inter-State commerce does not relieve it of the obligation to comply with the Foreign Corporations act of 1905 before it can operate in Illinois.</p> <p>3. Same — foreign railroad corporation operating under act of i8pp must comply with act of ipo¿. A foreign railroad corporation operating under the act of 1899 for the purchase of railroads by foreign corporations, in addition to compliance with that act must comply with the provisions of the Foreign Corporations act of 1905 when it seeks to do business in Illinois subsequent to the passage of the act of 1905.</p> <p>4. Same — foreign railroad corporation’s petition for condemnation must show compliance zvith laws of Illinois. Before a foreign railroad corporation can condemn land in Illinois it is jurisdictional that its petition for condemnation show compliance with the laws of Illinois authorizing it to operate in this State.</p> <p>5. Corporations — a foreign corporation must comply with conditions for transacting business before bringing action in Illinois. The legislature has power to impose such conditions on foreign corporations for the exercise of powers or privileges in Illinois as it may choose, and a foreign corporation which has not complied with the conditions prescribed for transacting business in Illinois cannot maintain an action in the courts of the State.</p> <p>6. Eminent domain — petition must show right to condemnation. As the right to condemn land is in derogation of the common right of the individual to be secure in the possession of his property, -a petition for condemnation must specifically set forth the right of the petitioner.</p> <p>7. Same — right of condemnation is based on public interest and convenience. The taking of private property by the exercise of eminent domain is a right given to public and quasi public corporations, and is based upon the necessity for the assertion either of the governmental powers or the right to develop an agency in which the public has an interest in order that the public convenience may be served.</p>

<p>Appeal from the Circuit Court of Jefferson county; the Hon. Charles H. Miller, Judge, presiding. ' .</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. George F. Barrett, Judge, presiding.</p>

<p>Appeal from the First Branch Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. Tut-hill, Judge, presiding.</p>

<p>Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.</p>

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

<p>1. Descent — rights of inheritance of illegitimates depend solely on section 2 of Statute of Descent. Under the common law illegitimates had no inheritable blood, and their rights of inheritance and the rights of their descendants through them are in Illinois determined solely by section 2 of the Statute of Descent.</p> <p>2. Same — section 2 of Statute of Descent gives illegitimates inheritable blood at birth and not after mother’s death. The words “if living,” in section 2 of the Statute of Descent, do not imply that the mother must be dead before an illegitimate child has inheritable blood, but the statute removes entirely the bar against illegitimates inheriting through the maternal line and gives the child inheritable blood through the mother when the child is born.</p> <p>3. Same — mother and her legitimate children cannot inherit to the exclusion of her illegitimate children. Where a legitimate child dies leaving no husband or child of descendant of any deceased child, the mother and the full brothers of the deceased cannot inherit its property to the exclusion of an illegitimate son and the children of an illegitimate daughter of the deceased’s mother.</p>

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

<p>Appeal from the Circuit Court of Stephenson 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.

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

<p>1. Schools — high school district organized under void act of 1911 is neither a de jure nor de facto district. The invalid Township High School act of 1911 conferred no right to organize a high school district, and any district attempted to be organized thereunder is neither a de jure nor a de facto district.</p> <p>2. Same — when validating act of 1917 does not apply. Where a judgment of ouster against the officers of a high school district organized under the void act of 1911 has become final by a failure to prosecute an appeal the validating act of 1917 cannot affect the judgment, and on a subsequent writ of error, which is the beginning of a new suit, the judgment of ouster must be affirmed.</p> <p>■ 3. Constitutional law — legislature cannot exercise judicial power. The General Assembly cannot review, reverse or set aside a'judgment of a court, as the legislative power extends only to the making of laws, which is a determination as to what the law shall be and riot a decision or determination as to what the law has been.</p>

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

<p>1. Criminal eaw — forgery is committed by making false instrument with the intent to defraud. The crime of forgery is complete with the making of a false instrument with the intent to defraud, and it is immaterial whether anyone is, in fact, defrauded if the intent to defraud is shown.</p> <p>2. Same — the intent to defraud may be presumed from circumstances proven. Where a forged instrument is uttered the intent to defraud may be presumed or inferred from proven facts and circumstances surrounding the transaction.</p> <p>3. Same — entries by agent in his books are'not admissible in his defense against charge of forgery. Entries by an agent in his books ■ are not admissible in his behalf in defense against the charge. of forging the name of his employer, as such entries are in the nature of self-serving declarations.</p> <p>4. Same — what not «• defense to the charge of forging name of the defendant’s employer. Where an agent is charged with having forged the name of his employer, it is no defense that the employer, who finally paid the forged instrument, was indebted to the defendant and that the defendant intended to devote the money obtained by means of the instrument to the payment of the debt or that the bank which advanced the money on the instrument was reimbursed.</p> <p>5. Same — when instruction does not assume that defendant was contradicted. An instruction that the jury “are also to take into .consideration the fact, if such is the fact, that he [the defendant], has been contradicted by other credible witnesses” does not assume that the defendant has been contradicted, nor does it tell the jury to disbelieve his testimony if he has been contradicted.</p> <p>6. Same — defendant cannot complain that instruction does not define word “forge.” In a prosecution for forgery the défendant cannot complain that an instruction given for the People uses the word “forge” without defining it, particularly where he requested no instruction defining the same.</p>

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

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

<p>1. Deeds — statutory form of warranty deed conveys fee simple. A statutory form of warranty deed, under sections 9 and 13 of the Conveyance act, conveys a fee simple title unless the estate is limited by the language of the deed itself.</p> <p>2. Same — remainder cannot take effect in abridgment of particular precedent estate. An estate in- remainder is limited to take effect upon the termination of a particular precedent estate and not in abridgment of it.</p> <p>3. Same — zvhen estate subject to conditional limitations is not a life estate with remainders. Where the estate conveyed by statutory warranty deed is subject to three conditional limitations, based upon the death of the grantee leaving no widow or children, or leaving a widow and no children or leaving both widow and children, but omits to provide for the contingency of his leaving children but no widow, the estate granted is not merely a life estate but may continue indefinitely in the grantee and his heirs; and the future interests are not remainders but executory limitations, as they must take effect, if . at all, in derogation of the estate created by the granting clause. (Buck v. Garber, 261 Ill. 378, criticised.)</p> <p>4. Same — when rule that a gift over will not take effect unless contingency happens during preceding estate does not apply. The rule that where an estate is limited after a particular estate, with a gift over upon the happening of an uncertain event, the gift over will take effect only upon the happening of the contingency during the particular estate, does not apply where the instrument creating the limitations shows an intention to refer the contingency to a later date than the termination of the particular estate. (Lachenmyer v. Gehlbach, 266 Ill. 11, distinguished.)</p> <p>5. Same — meaning of deed is determined by facts existing at ■ time of delivery. The meaning of a deed must be determined by the application of its language to the facts existing at the time the deed was delivered.</p>

<p>1. Ordinances — when buildings may be considered as one structure under ordinance for prevention of ñre. Under an ordinance requiring certain buildings having a floor space of 6000 square feet to be provided with automatic sprinklers for the prevention of fire, buildings which are so connected by passageways that they form, in fact, one structure and are used as one building may be considered as such in estimating the floor space.</p> <p>2. Same — Statute of Limitations does not apply where violation of ordinance is a continuing offense. Where an ordinance requiring certain buildings to be provided with automatic sprinklers for the prevention of fire provides that every day a building is occupied contrary to the 'ordinance shall be considered a distinct offense, the violation of the ordinance is a continuing offense, and the Statute of Limitations will not bar an action for the penalty for such violation while the building continues to be so occupied.</p> <p>3. Same — ordinance may be proper exercise of police power although it results in inconvenience to individual. A city may pass any reasonable ordinance necessary or proper to carry into effect the powers granted'by the legislature, whether such powers are expressly conferred or are implied from the duty of the city to protect lives and property, even though inconvenience or loss to the individual results.</p> <p>4. Same — ordinance in exercise of police power is presumed to be valid. A party attacking an ordinance as an unreasonable or oppressive exercise of the. police power has the burden of showing affirmatively and clearly where the unreasonableness exists, as the ■presumption is that the ordinance is valid.</p> <p>5. Same — construction sustaining ordinance will be adopted, if possible. Where one construction will sustain an ordinance in the exercise of the police power and another will defeat it, the court, if possible, will adopt the construction sustaining the ordinance.</p> <p>6. Same — when ordinance requiring automatic sprinklers does not give arbitrary power to city officer. In an ordinance requiring the owners of certain buildings to install automatic sprinkler systems, a provision that the plan for such installation shall be approved by the chief of the bureau of fire prevention does not give arbitrary power to that officer, who has authority only to approve the plan and not to say what system shall be installed.</p> <p>' 7. Same — ordinance tending to prevent fires is within the police power. Any regulation which tends to lessen the damage and dangers of fire and prevent the spreading thereof in densely populated cities is one which tends toward the protection of life and property of the public, and, if not oppressive and unreasonable, is a proper exercise of p’olice power.</p> <p>8. Poeice power — exercise of police power may impair obligation of contracts. The police power is the power of the State coextensive with self-protection, and its exercise is not prohibited by the provision of the Federal constitution against the passage of laws impairing the obligation of contracts.</p> <p>9. Same — police power of the State is recognised by Federal Supreme Court. That which is recognized by the State Supreme Court as within the police power of the State is so recognized by the Supreme Court of the United States.</p>

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

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

<p>1. Workmen’s compensation — when the Industrial Commission may make azvard against insurance company. Where an employer has insured his liability for injuries to his employees and on electing to operate under the Workmen’s Compensation act has a rider attached to his policy to make it “cover such legal liability of the assured as is imposed by the aforesaid law,” the Industrial Commission, under section 28 of the act, may make an award against the insurance company as being primarily liable, provided the employer is insolvent and the claim is proper, regardless of a provision in the original policy that no action shall be brought against the company except for reimbursement of an amount actually paid by the employer.</p> <p>2. Same — Compensation act should be liberally construed. The Workmen’s Compensation act should be liberally construed in order to accomplish its purpose of making a speedy disposition of the claims of injured employees.</p> <p>3. Same — section 23 of Compensation act prevents release to insurance' company zvhich is primarily liable. Where the employer is insolvent and his insurer is primarily liable under section 28 of the Workmen’s Compensation act, a release by the employee of his claim against the insurance company is void, under section 23 of the act, when made without the approval of the Industrial Commission.</p> <p>4. Insurance — dissolution of partnership does not necessarily render policy void — waiver. Where an employer, as a member of a firm, insures his liability for injuries to his employees, a dissolution of the partnership does not necessarily render the policy void, and where the insured continues in the business alone, any statement by the insurance company recognizing the policy as valid will be treated as a waiver of any defense on accSunt of the dissolution of the partnership.</p>

<p>1. Real property — section 5 of the Conveyances act authorises creation of joint tenancies notwithstanding the amendment of 1917. Section 5 of the Conveyances act of 1827, providing the manner in which an estate may be conveyed to grantees as joint tenants, did not repeal section x of the Joint Rights and Obligations act of 1821, abolishing joint tenancies, but only modified its application to real estate, and hence the amendment of 1917 to said section 1 did not re-enact that section as a new law inconsistent with section 5 of the Conveyances- act. (Mette v. Feltgen, 148 Ill. 357, followed.)</p> <p>2. StaTutes; — repetition of old law in amendment is not enactment of new statute. ' Where the legislature enacts an amendatory statute providing that a certain act shall be amended so as to read as repeated in the amendatory act, such portions of the old law as are repeated, either literally or substantially, in the new act are to be regarded as a continuation of the old law and not the enactment of a new statute.</p> <p>3. Same — old law is retained in amendatory act as originally construed. Where an amendatory act retains the same words and phraseology that were contained in the former law, which has been construed by the courts, it must be presumed that such law was retained in the amendatory act in view of the judicial construction already placed upon it.</p>

<p>1. Criminal law- — when entries made in course of business must be proved correct. Where the party who makes entries in the due course of business is living and sane and is not permanently out of the State such entries must be proved by him to have been so made and that they are correct and true entries before they can be admitted in evidence between third parties as proof of the facts therein recited.</p> <p>2. Sam® — what necessary to sustain allegation of ownership in carrier. In an indictment for larceny, charging the theft of goods from a freight car during shipment, the allegation of ownership in the railroad company must be proved beyond a reasonable doubt by evidence either that the company owned the goods or was in the actual possession thereof.</p>

<p>Appeal from the First Branch Appellate Court for the First District; — heard in that court on appeal from' the Superior Court of Cook county; the Hon. Charles M. FoELL, Judge, presiding.</p>

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

Writ oP Error to the Second Branch Appellate Court for the First District; — heard in that court on writ of error to the Criminal Court of Cook county; the Hon. ICickham Scanlan, Judge, presiding.

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

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

<p>1. Deeds — delivery is essential to operation of deed. Delivery is essential to the operation and validity of a deed.</p> <p>2. Same — question of delivery is one of intention of grantor. The question of delivery of a deed is largely a question of the intention of the grantor, which must be gathered from all the circumsfances connected with the transaction, and each case must be decided on its own facts.</p> <p>3. Same — what necessary to constitute delivery. To constitute delivery of a deed it must clearly appear that it was the grantor’s intention that the deed should pass title at the time and that he should lose control over it, and if the deed is not actually delivered but is to become effective upon the happening of some future event, such as the death of the grantor, there is no valid delivery.</p> <p>4. Same — intention to deliver may be shown either by direct or presumptive evidence. The intention of the grantor to deliver a deed and of the grantee to accept it may be shown by direct evidence of the intention or may be presumed from acts and declarations of the parties, and in like manner presumptions of delivery may be rebutted and overcome by proof or presumption of a contrary intention.</p> <p>5. Same — when decree setting aside deed will not be reversed. A decree setting aside a deed disposing of all of the grantor’s estate to her daughter will not be set aside except for apparent error, where the sole issue is as to the delivery of the deed, and the material evidence on the question, which is almost entirely contained in the conflicting testimony of the grantor and the grantee, tends to show the grantor did not intend the deed to be delivered before her death.</p>

<p>1. Wills — when allegations relating to undue influence should not be stricken. Allegations relating to undue influence should not be stricken from a bill because they contain recitals of evidentiary' facts, where the allegations, in effect, charge that the execution of the will was procured by the undue influence of one of the principal beneficiaries and where most of the evidentiary facts alleged are competent to be proved on the trial.</p> <p>2. Same — fact that attorney who drew will is subscribing witness does not affect weight of testimony.. The fact that one of the subscribing witnesses to the will in contest was the attorney who prepared the will and the other witness was an employee of said attorney is not a matter to be considered by the jury in determining the weight to be given their testimony.</p> <p>3. Same — what letters should not be admitted in evidence in a will contest case. In a will contest case, letters purporting to have been sent by the testator to a distant relative and friend are not admissible, where it is admitted that the testator was practically blind when the letters were written and was unable to read or write and it is not shown that he dictated the letters or that they were read to him; and letters from said friend to the testator are likewise not admissible, where it is not shown that the testator ever received them or that they were read to him.</p>

<p>Writ op Error to the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Bureau county; the Hon. Job A. Davis, Judge, presiding.</p>

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

<p>1. Workmen’s compensation — claimant has burden of proving deceased’s contributions for support. Under paragraph (&) of section 7 of the Compensation act of 1915 providing for the payment of an award to beneficiaries to whose support the deceased employee had contributed, the burden is on the claimant to prove the elements necessary to bring the beneficiary within the provisions of the.act.</p> <p>2. Same — surviving parent need not have been dependent upon deceased employee. Paragraph (b) of section 7 of the Compensation act of 1915 does not require that the surviving parent shall have been dependent upon the deceased employee,' but it is sufficient if the deceased leaves a parent to whose support he has contributed within four years immediately prior to the injury.</p> <p>3. Same — when there is no presumption that payment was for support of parent. On evidence that an employee within four years previous to the injury which resulted in his death had made two payments to his aged father, sending him $45 at one- time and $44 at another, no legal presumption can arise that the payments were made to assist in the father’s support rather than to pay an ordinary debt for services rendered or for money loaned. ( Victor Chemical Works v. Industrial Board, 274 Ill. 11, distinguished.) ,</p> <p>4. Same — what two courses are open to circuit court on review of proceedings of Industrial Commission. On review of .proceedings of the Industrial Commission by certiorari the circuit court may either set aside the decision and enter such judgment upon the. facts as is justified and required by law, or remand the cause to the commission for further proceedings.</p> <p>5- Same — when circuit court should remand cause to Industrial Commission. If the facts in the record before the circuit court do not justify an award, but it does not appear from the facts shown that the claimant cannot, under the law, establish his case by further competent proof, the circuit court should remand the cause to the Industrial Commission.</p> <p>6. Evidence — presumption as to payment of money is one of fact. The presumption as to whether the payment of money is a gift or for an obligation is one of fact rather than of law and is an inference to be drawn from the facts of the particular case.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.</p>

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

<p>1. Dbbds — remainder in fee may be limited after termination of life estate. As livery of seizin is no longer necessary, where an estate is given to a trustee for the life of the grantor with power in the trustee to sell and convey the fee, a remainder in fee may be limited after the termination of the life estate..</p> <p>2. Same — when deed is not a testamentary disposition. Where an estate consisting of both real" and personal property is given to a trustee fpr the life of the grantor and a remainder in fee is limited after the termination of the life estate, the fee in the real estate and the absolute title in the personal property vest in the remainder-man on the delivery of the deed, and the instrument does not make a testamentary disposition of property.</p> <p>3. Same — when remainder is vested although subject to be reduced by exercise of power. Where an estate is given to a trustee with power to sell and convey the fee or so much as is necessary to maintain the grantor during his life a remainder in fee limited to take effect after the death of the grantor is vested, and the uncertainty as to the amount of the estate which may be undisposed of by the trustee at the grantor’s death does not render the remainder contingent.</p> <p>4. Trusts — trustee takes no larger estate than the nature of the trust requires. Where an estate is granted to a trustee with power to dispose of whatever is necessary to maintain the grantor during his life, the trustee takes no larger estate than the nature of the trust requires.</p>

<p>1. Workmen’s compensation — when employee’s failure to observe directions for safety will not relieve employer of liability. Where an employee of a power company is electrocuted by coming too near a live wire while on a tower for the purpose of doing his work, his contributory negligence in carelessly failing to observe a positive direction not to go near the live wire will not relieve the employer from liability to make compensation.</p> <p>2. Same — -filing of a claim with commission is sufficient if employer has notice. Under section 24 of the Workmen’s Compensation act, requiring claim for compensation to be made within six months after the accident, it is not essential that a claim shall have been made previous to presenting the claim to the Industrial Commission, provided the latter claim shall have been presented and the employer notified within the six months.</p> <p>3. Same — section 7f of Compensation act, as amended in ipiff, applies only where employer pays compensation voluntarily. Section 7/ of the Workmen’s Compensation act, as amended in 1915, giving the employer the option of paying compensation either to the deceased employee’s personal representative or to his beneficiaries, applies only to cases where the employer pays compensation voluntarily, without a hearing and determination before an arbitrator or the Industrial Commission. (Smith-Lohr Coal Co. v. Industrial Com. 286 Ill. 34, followed.)</p> <p>4. Same — section ip of Compensation act does not require claim for death to be presented by administrator. While the term “personal representative” ordinarily means an executor or an "administrator, the use of the term in section 19 of the Compensation act does not require that in case of the death of an employee the petition shall be filed by the administrator or executor but it may be filed by the beneficiary.</p> <p>5. Same — the Compensation act takes away action for wrongful death of employee. Where the Workmen’s Compensation act applies it takes away all causes of action for the death of an employee and provides compensation according to an established scale.</p> <p>6. Injuries — proceedings for wrongful death are statutory— parties. A cause of action for an injury resulting in death was unknown to the common law and is purely statutory, but an amendment of the statute substituting one party for another as the proper person to. bring the action merely affects the procedure and does not affect the substantial rights of the parties.</p> <p>Thompson, dissenting.</p>

<p>1. Trusts — resulting trust arises by operation of law. A resulting trust does not spring-from a contract between the parties but arises by operation of law from the acts of the parties.</p> <p>2. Same — when a resulting trust arises. A resulting trust arises where one person has the money of another to invest for the owner, uses the money to purchase land and takes title in his own name.</p> <p>3. Same — when evidence is not sufficient to establish resulting trust. To establish a resulting trust the evidence must be full, clear and satisfactory that the title" was taken by the grantee under such circumstances that the trust at once resulted; and where the more reasonable construction of the evidence is that the owner of the money permitted it to be used in the purchase of the property with the understanding that it was to be re-paid him when he wanted it, proof to establish and enforce a resulting trust is not sufficient.</p>

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

<p>Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding.</p>

<p>1. Bonds — when application for indemnity bond forms part of the contract. An application for a bond of indemnity against loss through the dishonesty of an employee, which contains written answers by the employer to questions concerning the business and the employee, forms a part of the contract of indemnity, where the bond provides that “certain statements in writing relative to the employee and to other things connected with this bond” shall be a part of the agreement, and in a suit on the bond the employer can not allege want of knowledge as to the truth of said statements.</p> <p>’ 2. Same — what defense is available under general issue. Where the application for a bond of indemnity against loss through the dishonesty of an employee contains written answers by the employer to questions concerning the employee and is made a part of the contract of indemnity, in a suit on the bond the plaintiff is not bound to set out in the declaration the statements made by it to procure the bond or to prove the truth of the .statements, but such facts are matters of defense available to the defendant under a plea of the general issue, with notice of special matters to be proved and relied upon.</p> <p>3. Practice — when court may amend form of verdict at subsequent term. Where the jury returns a verdict finding the issues for the plaintiff but assessing the “defendant’s” damages at a certain sum, arid a motion for a new trial is made and continued to the -next term, the court has power to correct the mistake in the verdict at the subsequent term before overruling the motion for a new trial and entering judgment.</p>

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

<p>1. Negugence — the question whether insanity resulted from injuries is for the jury. Where there* is evidence fairly tending to show that the plaintiff’s insanity resulted from the injuries sued for, the question whether the insanity did result from such injuries is for the jury to finally determine upon proper instructions and is not a question of law, and the Supreme .Court is concluded by the judgment of the Appellate Court affirming that of the trial court.</p> <p>2. Same — when a city is not liable for negligent acts of its officers. A city is not liable for the negligent acts of its officers or employees who are acting under the police power granted to the city or who are endeavoring to carry out the regulations of the city for the public health, nor for its officers’ negligence while exercising judicial, discretionary or legislative authority conferred by its charter or while discharging duties imposed solely for the benefit of the public.</p> <p>3. Same — when a city is liable for failure to keep its streets in safe condition. Where a municipal corporation is acting, within its authority, in a ministerial capacity in the management of its property or in the discharge of its duties in repairing or removing obstructions from streets, or is negligent in failing to discharge its duties of keeping its streets in repair and in safe condidtion for travel, it is liable for all injuries caused by such negligence when the injured party was exercising due care for his safety.</p> <p>4. Same — city acts ministerially in removing obstructions from streets. A city acts judicially when it selects and adopts a plan for the construction of a public improvement, but in carrying out such plan or in removing obstructions or dangers from its streets it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner.</p> <p>5. Same — city cannot allow streets to be incumbered with dangerous awnings. The positive duties of incorporated cities require them to keep their streets in a reasonably safe condition for travel and to remove all obstructions and dangers below, on and above the -surface of the streets, including dangerous awnings and other overhead structures, and for failure to exercise due care in discovering and removing the same the city is liable for personal injuries occasioned thereby.</p> <p>6. Same — when an expert witness may testify that insanity resulted from injuries. Where there is no dispute as to the manner or cause of the injury and no dispute that there was an injury sustained by reason of the acts for which complaint is made,, a physician may testify that a later malady was or was not caused by the accident without invading the province of the jury, and where a plaintiff suing for damages for an injury to. his head has become insane, after the accident, the court may permit an expert witness to testify that the insanity resulted from the injury.</p>

<p>1. Special assessments — when, only, can railroad right of way be assessed for paving street. As the limit of a special assessment for benefits resulting from paving a street is the enhanced value of the property assessed, if the use of railroad property is restricted to the running of trains there can be no assessment unless the value is increased for that use.</p> <p>2. Same — property devoted to restricted use must be benefited for that use. Where property is restricted by statute or grant to a particular use and is at the time of the improvement devoted to such use, the true measure of the benefit which the improvement will confer is the increased value for the restricted use, in the absence of proof reasonably tending to show that the property, under present conditions, is about to be devoted to other uses:</p> <p>3. Same — increase in freight traffic cannot be considered in assessing benefits to right of way of railroad. An increase in freight traffic and the general business of a railroad company cannot be considered in assessing benefits to its right of way from the paving of a street.</p> <p>4. Same — property assessed need not abut upon the improvement. In assessing property for the paving of a street it is not necessary that the property assessed shall abut upon the improvement; nor is a special assessment made upon the number of square feet in the property or upon the feet of frontage, but it is made upon a basis of benefits.</p>

<p>1. Corporations — when appointment of a receiver may be attacked collaterally. Where a court has jurisdiction both of the subject matter and the necessary parties its appointment of a receiver of a corporation cannot be assailed in a collateral proceeding however erroneous it may be, but where the court has no jurisdiction to entertain the bill and appoint the receiver with the powers given, the decree is void and is open to collateral attack.</p> <p>2. Same — courts of chancery have only statutory power to appoint receivers. Courts of chancery can appoint receivers of corporations only when expressly authorized by statute, and they have no general power to make such appointments.</p> <p>3. Same — courts are not inclined to appoint receiver merely to preserve assets, on application of stockholders. Courts are particularly' disinclined to appoint a receiver for misconduct or mismanagement of a corporation, or for the purpose of merely preserving its assets, where the application is made by stockholders.</p> <p>4. Same — stockholder cannot secure appointment of receiver to' defeat action by the creditors. While a stockholder may invoke the power of a court of equity to appoint a receiver where the corporation is fraudulently mismanaged by its officers, the stockholder cannot invoke the jurisdiction of the court to take charge of all the company assets by a receiver and thus defeat action by the creditors under section 25 of the Corporation act. (People v. Weigley, 155 Ill. 491, followed.)</p> <p>5- Same — appointment of receiver to distribute assets is equal to dissolution of corporation. Appointing a receiver to take possession of the assets of a corporation and to distribute them is tantamount to dissolving the corporation by decree in equity.</p> <p>6. Same- — when rule of caveat emptor applies to sale by receiver. Where the court has no jurisdiction to appoint a receiver of the assets of a corporation the receiver acquires and can convey no title to any of the property, and in any judicial sale by the receiver the rule of caveat emptor applies.</p> <p>7. Same — when defense that a creditor is estopped to question sale by receiver cannot be set tip by demurrer. In an action by a creditor under section 25 of the Corporation act, attacking the appointment of a receiver and a sale of assets by him, the defense that the creditor is estopped by having accepted its share of the proceeds of the sale cannot be set up by demurrer but must be made by plea or answer, where the creditor’s bill merely alleges that a certain per cent of its claim has been paid and does not disclose by whom or in what manner it was. paid.</p>

<p>1. Workmen’s compensation — burden is on employer to prove employment was casual. The burden of proof is upon the claimant to prove the employment and the injury, but the burden rests upon the employer to prove that the employment was but casual.</p> <p>2. Same — definition of the word “casual." The word “casual” means that which comes without regularity and is occasional or incidental.</p> <p>3. Same — regularly recurring employment is not casual. Where one is employed to do a particular kind of work, which employment recurs with regularity, and where it is probable that such recurrence will continue for a reasonable period of time, such employment is not casual.</p> <p>4. Same — when employment is casual. Where a laborer is hired • to do a particular piece of work connected with the operation of ■an oil well, with the understanding that the work will require but a few weeks, the employment is casual.</p>

<p>1. Master and servant — what necessary to deprive employer of defense of contributory negligence of an employee. To deprive an employer of the full defense of contributory, negligence of his employee on the ground that the employer had elected not to come under the Workmen’s Compensation act the injury must be one arising out of and in the course of the employment; and this question is raised by a motion, at the close of the evidence, to direct a verdict of not guilty.</p> <p>2. Same — when an accident arises out of employment. To arise out of the employment the accident must be incidental to performing the contract of service, and the origin or cause of the accident must belong to and be connected with the contract of service.</p> <p>3. Same — when an accident occurs in the course of employment. An injury is suffered in the course of the employment where the accident occurs in the doing of something which the employee may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time to do that thing.</p> <p>4; Same — act of procuring lunch is incidental to employment. The act of procuring lunch is reasonably incidental to the performance of the work of an employee, and an injury to an employee while on his way to order a lunch prepared at the proper time, and which occurs while he is still on the premises of the employer, arises out of and in the course of the employment.</p>

<p>1. Constitutional law — act requiring county to pay for maintenance of girls at industrial schools does not violate constitution. Section 9 of the act requiring the county to pay $15 a month for the care of dependent girls at industrial schools, (Hurd’s Stat. 1917, p. 2705,) does not violate that section of the constitution prohibiting a donation of public funds to denominational institutions, although the schools to which the girls are sent are conducted by religious denominations, where said sum is less than the actual cost for the care of the girls at such institutions and at the State institutions. (Dunn v. Chicago Industrial School, 280 Ill. 613, followed.)</p> <p>2. Same — act for care of girls at industrial schools does not impose a tax for local purpose. Section 9 of the act requiring the county to pay for the care of dependent girls at industrial schools does not violate section 10 of article 9 of the constitution, providing that the General Assembly shall not impose taxes upon municipal corporations for corporate purposes, as such expense is not only for a local purpose but is also a means of discharging obligations resting upon the State.</p> <p>3. Same — when General Assembly may .impose tax on municipality. Section 10 of article 9 of the constitution prohibits the General Assembly from creating debts against a municipal corporation only for purposes which are purely corporate, and does not prohibit the imposition of such taxes in the performance of duties which relate to the general welfare of the State or which may be performed by the municipal corporation as an agency of the State.</p> <p>4. SAME — a county is an agent of the State in the exercise of the police power. A county is a mere agent of the State, and the power of the General Assembly is paramount over the property of citizens in such political subdivisions as to all provisions for the exercise of the police powers.</p> <p>5. Schools — charge for the care of dependent girls in industrial schools is claim fixed by law, for which suit may be brought against county. The sum of $15 per month to be charged against a county under section 9 of the act for the care of dependent girls at industrial schools is a definite claim fixed by law, for which the county should make an appropriation according to the number of dependents cared for, and for which suit in assumpsit may be brought against the county by the schools to which the girls are sent.</p> <p>6. Municipal corporations — limitation on power to levy is not necessarily a limitation on power to .contract a debt. A limitation on the power of a municipality to levy taxes is not necessarily a limitation on the power to contract a debt.</p> <p>7. Same — assumpsit may be brought against a municipality for failure to perform duty enjoined by law. In legal contemplation a municipality assumes to perform whatever duty the law enjoins upon it, and assumpsit lies upon all such implied contracts that are broken.</p> <p>8. Counties — legal claims fixed by law cannot be defeated by failure to make appropriations. Neither section 2 of the Juul law nor the provisions of paragraph 6 of section 6i-of the act requiring the county commissioners of Cook county to adopt an annual appropriation bill can have the effect of defeating legal claims fixed by law, where the county board fails to do its full duty in allowing and paying the same, and a failure to make an appropriation in any year will not relieve the county of the obligation to provide for such payment by an appropriation in some succeeding year.</p>

<p>1. Brokers — when motion for instructed verdict is properly denied. In a suit by a real estate agent to recover commissions under a brokerage contract, if the terms of his agreement with the defendants and his knowledge of the. conditions upon which the enforcement of their contract with the purchaser depended are disputed questions, the defendants’ motion .for an instructed verdict in their favor is properly denied.</p> <p>2. Same — what evidence admissible to show terms of brokerage contract. Where a'contract with a broker to secure an exchange of properties is made through conversations, a statement in the written contract of exchange in regard to commissions, as well as evidence of the conversations constituting the brokerage contract, is admissible in an action by the broker for his commissions.</p> <p>3. Same — burden is on broker suing for commissions to prove his contract. In an action by a real estate agent to recover commissions in a brokerage contract the burden is on the plaintiff to prove his contract, and an instruction should not put the burden on the defendants to prove a special agreement that the broker was not to be paid in case the deal did not go through, where there is no special contract on which such defense is founded other than the contract on which the suit is brought, the terms of which are disputed.</p> <p>4. Same — when instruction should not refer to ordinary brokerage contract. Where a real estate agent sues for commissions on a special contract with the defendants as to the terms of which the parties disagree, an instruction should not refer to an “ordinary contract made without any conditions, the broker employed in the usual way,” but the jury should be instructed in regard to the particular contract on which suit is brought.</p>

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

<p>1. Taxes — when objection fo taxes may be amended. On the application of the county collector for judgment for taxes, an objection that the valuation was raised during the. quadrennial period without notice to the objector is sufficiently clear to be amended at the hearing by adding the averment that there has been no physical change in the property.</p> <p>2. .Same — objector has burden of showing failure to give notice of increase in valuation. Taxing authorities are presumed to have done their duty, and as every presumption will be indulged in favor of the validity of their acts, an objector who avers that the assessed valuation of his property was raised during the quadrennial period without notice to him has the burden of proving such averment.</p>

<p>1. Choses in action — xvhat is a chose in action. A chose in action is property of which the owner does not have the actual or constructive possession but for which an action may be brought to reduce it to possession.</p> <p>2. Same — a present right of action is not necessary. While a chose in action is a personal right to demand money or property by an action a present right of action is not necessary, and the evidence of the right to the money or property may be a note or contract, provided it is absolute. 0</p> <p>3. Debtor and creditor — judgment creditor may acquire a lien bn chose in action. A judgment creditor may acquire a lien on a chose in action belonging to the debtor by filing a bill in chancery and having it applied to the satisfaction of his judgment; but a creditor can have no greater right to the property than his debtor has, and the chose in action must be a fixed present right of the owner to‘recover the money or property by action in his own name.</p> <p>4. -Same-^-unearned commissions cannot be subjected to claim of judgment creditor. Where a judgment creditor files a bill to have choses in action belonging to the debtor applied to the satisfaction of his judgment, unearned commissions cannot be'subjected to the claim, as the court cannot compel the debtor to render his personal services and earn the commissions for the creditor. x</p>

<p>1. Houses oE iee-eamE — keeper of hozise of prostitution may be enjoined from maintaining szich house within jurisdiction of court. Under the act providing that houses of prostitution shall be declared nuisances and that the owners and the keepers of them may be enjoined from -maintaining súch houses, the keeper of-the house may be enjoined perpetually from committing any other such nuisance within jurisdiction of the court. (Hurd’s Stat. 1917, pp. 2022-24.)</p> <p>2. Same — meaning of zvord “defendantin sections 2 and 5 of act for enjoining keeping of houses of prostitution. In sections 2 and 5 of the act for enjoining as nuisances the keeping of houses of prostitution, the word “defendant,” in the provisions for perpetually restraining the defendant from maintaining such nuisance within the jurisdiction of the court, refers to the lessee or the party who is directly conducting the nuisance.</p>

<p>1. Wills — testator is presumed to have intended to dispose of all his estate. Where a person makes a will he is presumed to have intended to dispose of his entire estate, and the instrument will be so construed unless such presumption is clearly rebutted by the provisions of the will.</p> <p>2. Same — when word “children" will be construed to include adopted child. Where a testator uses the word “children” in his will he is presumed to know the law in relation to the adoption of children, and a devise over to the children of a deceased son or daughter will include a child legally adopted by his daughter, where the testator knew of such adoption and knew that the adopted child was everywhere recognized as the child of his daughter.</p>

<p>1. Inheritance Tax — Federal estate tax should be deducted before computing State inheritance tax. The Federal estate tax is a charge or an expense against the estate of the decedent rather than against the shares of the legatees or the distributees, and as a part •of the expense of administration this tax should be deducted before computing the State inheritance tax.</p> <p>2. Same — when conveyance of property in trust for grantor’s children is not subject to tax. A conveyance of property to a trustee, to be held in trust for the grantor’s children, is not subject to an inheritance tax, where the deeds were not made in contemplation of death and were not intended to take effect in possession or enjoyment only at or after the death of the grantor, although the right of revocation by the grantor is reserved in the' deeds.</p> <p>3. Same — transfer will be taxed where deed was manifestly intended- to evade statute. Whenever it becomes manifest that a deed was intended as an evasion of the Inheritance Tax act the State will be protected in the collection of the tax, no matter what the form of the deed may be.</p> <p>4. Deeds — clause of revocation in conveyance in trust does not render deed testamentary. A conveyance to a trustee for the benefit of the grantor’s children, with a power of revocation in the grantor, is a proper mode of deeding property to one’s children and of protecting them in its use, and the clause of revocation does not render the deed testamentary nor cause it to take effect only after the death of the grantor, but the deed takes effect at once and continues in force unless revoked by the grantor in his lifetime. •</p> <p>5. Statutes — construction of a statute adopted from another State. Where a statute is adopted from another State or country and has been construed by the courts of that State or country the statute will be held to have been adopted with the construction so given to it, if it does not express án intention to the contrary.</p>

<p>1. Workmen’s compensation- — burden is on claimant to prove accident arose out of and in the course of employment. The burden is on the claimant for compensation to prove by direct and positive evidence, or by evidence from which such inference can be fairly drawn, that the accident arose out of and in the course of the employment.</p> <p>2. Same — injury to an employee while acting as a volunteer does not arise out of the employment. • An injury to an employee while engaged in a voluntary act not accepted by or known to the employer and outside the duties for which he is employed does not arise out of his employment.</p> <p>3. Same — who is a volunteer. A volunteer is one who introduces himself into matters which do not concern him, by doing or undertaking to do something which he is not bound to do, which he has not been in the habit of doing with his employer’s knowledge or consent, which is not in pursuance of any interest of the master, and which is undertaken in the absence of any peril requiring him to act as in an emergency.</p>

<p>1. Criminal law — when judgment of conviction will not be reversed on evidence. It is only where the court is able to say, from a careful consideration of the whole of the testimony, that there is a well founded doubt of the guilt of the accused, that the Supreme Court will interfere on the ground that the evidence does not support the verdict.</p> <p>2. Same — when case will not be reversed because of inexperience of counsel for defendant. Where the defendant is unable to employ his own counsel and the court appoints two attorneys for the defense while the State’s attorney is unassisted in the prosecution, a judgment of conviction will not be reversed because of the inexperience of the counsel for the defense, where there was ample time to prepare for the trial and there is nothing in the record with reference to the experience of counsel for the defense in criminal trials. (People v. Blevins, 251 Ill. 381, distinguished.)</p> <p>3. Same — what evidence is proper to show motive in homicide. Evidence of jealousy and unrequited love, and the facts on which it rests, is relevant for the purpose of showing motive in homicide.</p> <p>4. Same — when evidence as to meaning of foreign words used by defendant is proper. Where there is a dispute.in a murder trial over the proper translation by the interpreter of foreign words used by the defendant in making a threat or in talking about the deceased, the court may permit other testimony with reference to the meaning of the words by witnesses who are familiar with the language used, so as to obtain a proper interpretation. (Schnier v. People, 23 Ill. 11, followed.)</p> <p>5. Same — when evidence of another distinct offense is competent. The test of relevancy is the connection of the facts proved with the offense charged, and whatever testimony tends directly to show the defendant guilty of the crime charged is competent, although it also tends to show him guilty of-another offense.</p> <p>6. Same — one instruction may refer to another. Instructions should be considered as a series, and it is not improper to refer in one instruction to another.</p> <p>7. Same — instruction quoting sections 14.8 and 149 of Criminal Code correctly states law of self-defense. An instruction quoting sections 148 and 149 of the Criminal Code, fairly connected, correctly states the law of self-defense and is not misleading.</p> <p>8. Same — when new trial will not be granted for newly discovered evidence. The granting of a motion for a- new trial on newly discovered evidence rests largely in the discretion of the trial court, and the motion will not be granted for the purpose of admitting inconclusive, cumulative or impeaching testimony, especially where there has been a lack of proper diligence to procure the' evidence on the trial.</p>

<p>Writ oe Error to the Circuit Court of Boone county; the Hon. R K. WELSH, Judge, presiding.</p>

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

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

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

<p>Appeal from the Superior Court of Cook county; the Hon. J. J. Sullivan, Judge, presiding.</p>

<p>1. Sales — section 4 of Uniform Sales act does not amend Statute of Frauds. Section 4 of the Uniform Sales act does not amend the Statute of Frauds although it relates to a subject which might properly have been included in that statute, and the use of the words “Statute of Frauds” as a sub-head for said section does not make that section purport to be an amendment of the Statute of Frauds.</p> <p>2. Statutes- — when an act is not amendatory of previous law. The character of an act as amendatory or independent legislation must be determined by a comparison of its provisions with those of previous laws, and an act which neither restricts nor enlarges the scope of the previous laws cannot be amendatory.</p> <p>3. Constitutional law — section 4 of the Uniform Sales law of IQ15 is not invalid. Section 4 of the Uniform Sales law of 1915 (Laws of 1915, p. 606,) is not invalid as an attempted amendment of the Statute of Frauds without compliance with section" 13 of article 4 of the constitution.</p>

<p>Appeal from the Appellate Court for the Third District ; — heard in that court on appeal from the Circuit Court of Clark county'; the Hon. Walter Brewer,. Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding.</p>

<p>1. Inheritance tax — Inheritance Tax act does not apply unless conveyance is testamentary or in contemplation of death. The Inheritance Tax act does not prevent a person from disposing of his property in any legitimate way he sees fit nor prevent a parent from giving the whole or any part of his estate to his children so long as the gift is not intended as a testamentary disposition or made in contemplation of death, but the act merely imposes a tax upon the right of succession through the laws of descent and devise.</p> <p>2. Same — purpose of taxing transfers made in contemplation of death. The purpose of the provisions of the Inheritance Tax act imposing a tax upon gifts or transfers to take effect after the death of the donor or made in contemplation of his death is to prevent an evasion of the act by a distribution of property just before or in anticipation of the owner’s death or by a disposition of a testamentary nature.</p> <p>3. Same — meaning of term "in contemplation of death.” The term “in contemplation of death” does not mean that general expectation which all rational persons have that they must die some time, but refers more particularly to that apprehension of death which arises from some existing infirmity of such a character as-prompts one to make a disposition of his property, and a gift is made in contemplation of death when it is made in expectation of that event or with that event in view.</p> <p>4. Same — what circumstances may he considered in determining whether gift is made in contemplation of death. Whether a voluntary disposition of property is made in contemplation of death rests upon the facts and circumstances in each case, and in determining this question the donor’s age, physical condition, any action contemplated .to be taken by him with respect to his health, and the length of time he survives the making of the transfer, are all proper matters to be considered.</p> <p>5. Same — when gift is made in contemplation of death. Where it is apparent from all the facts that the donor’s condition was such that he might reasonably have expected death at any time, and where the disposition of his property is such as he had contemplated making or such as he might reasonably be supposed to have desired to be made at his death, and no other cause is apparent for máking the transfer at the time it was ma,de, a conveyance to the donor’s daughter will be deemed to have been made in contemplation of death, even though the transfer is absolute in form and effective in the grantor’s lifetime.</p>

<p>Appeal from the County Court of. Saline county; ■ the Hon. J. M.-Fndicott,- Judge, presiding.</p>

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

<p>Writ oe Error to the Circuit Court of Clinton county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>1. Deeds — intention of grantor determines delivery of a deed. The intention of the grantor in a deed concerning the matter of delivery is the controlling element which determines whether the deed has been delivered.</p> <p>2. Same — deed, to be delivered, must pass beyond grantor’s control. It is essential to the delivery of a deed that the deed pass beyond the grantor’s control, and in determining whether the grantor intended a delivery the test is whether the deed remains in his control and is subject to his call.</p> <p>3. Same — when grantor may retain deed in his possession. The grantor may retain the deed in his possession in case of a voluntary conveyance and such retention will not destroy the effect as a deed in the absence of circumstances showing that it was not intended to be an absolute conveyance and operate as such; but where the grantor hands the deed to the grantee for safe keeping but not for the purpose of passing title there is no legal delivery.</p> <p>4. Same — when delivery to third person passes title to grantee. The delivery of a deed to a third person, who receives it as the grantor’s agent without any direction to deliver to the grantee, does not pass title, but if it be given to a third person to-be held for the grantee and is subsequently accepted by the grantee there is a good delivery.</p> <p>5. Same — delivery of deed must be unconditional. The delivery of a deed must be unconditional, and where the grantor delivers the deed to a third person upon the express direction that it shall not be delivered to the grantee unless the latter survives the grantor, the deed is intended to operate as a will and there is no valid delivery. (Elliott v. Murray, 225 Ill. 107, followed.)</p>

<p>1. Guarantors — when plaintiff does not lose benefit of contract of guaranty by alleging it to be one of indemnity. Where a plaintiff, suing on a contract of guaranty, attaches to his statement of claim the obligation which the defendant signed and on which suit is brought, he does not lose the benefit of the contract by calling it, in his affidavit, a contract of indemnity.</p> <p>2. Same — to stand back of an agreement is a contract of guaranty. A contract of guaranty is an undertaking to be responsible for the performance of an obligation of a third person upon his failure to perform it, and an agreement to “stand back of any obligation” which the principal may incur in a certain matter is a promise to pay if the principal debtor does not, and is a guaranty contract.</p> <p>3. Same — guarantor is liable only according to terms of his contract. The statute requiring the assignee of a promissory note, before suing his assignor, to prosecute the maker to insolvency, does not apply to a general contract of guaranty, as a guarantor may impose any terms or conditions in his guaranty which he may choose and will only be liable to the holder according to the terms of the agreement.</p> <p>4. Same — holder of guaranty is not bound to institute' legal proceedings against debtor. While a guarantor may be entitled to require demand of performance to be made on the principal debtor and notice of his default to be given to the guarantor, yet the holder of the guaranty is not bound to institute any legal proceedings against thé debtor unless this is required by the terms of the guaranty.</p> <p>5. Same — surety on bond required by statute is bound by judgment in accordance with statute — process. A party who is surety on a bond required by statute is bound by a judgment on the bond in accordance with the terms of the act, and where an act requiring a bond for costs provides that in case of a recovery in the suit in which the bond is given judgment shall be rendered against the principal and surety in the bond, such a judgment is valid although there is no service of process on the surety or appearance by him in the case.</p> <p>6. Same — items taxed as costs cannot be questioned in collateral suit against surety. In an action by a surety company against a guarantor who had agreed to “stand back of any obligation” which his principal might incur through securing a cost bond from the company in a suit the principal was prosecuting, the question whether certain items were properly charged as costs in such suit cannot be raised by the guarantor, who is bound by the judgment for costs against the principal until that judgment is reversed in a direct proceeding.</p>

<p>1. Registration of titee — when purported copies of abstracts of title should not be admitted in evidence. Where purported copies of abstracts of title are offered in evidence in a proceeding to register title the copies must contain a certificate or signed statement of the maker that they are true copies of the originals, and the mere words “a true copy,” above the signature of the maker of the copies, is not such a certificate or statement as will satisfy the statute and render the copies admissible.</p> <p>2. Same — applicant must prove premises were vacant when application was filed. In 'a proceeding to register title the allegation that the land is vacant is material, and the applicant is required to prove that the premises were vacant when the application was filed.</p>

<p>Debtor and creditor — when assignment, absolute on its face, is fraudulent as to creditors. Where a creditor of a corporation seeks to garnishee certain debtors of the corporation, an assignment of said debtors’ accounts, although absolute on its face, is fraudulent as to creditors where it is made to secure loans by stockholders of the corporation a few days before the corporation filed its voluntary petition in bankruptcy, and the assignment will not be enforced in favor of the assignee who has filed an intervening petition after being made a defendant in the garnishment proceeding.</p>

<p>1. Criminal law — when record shows indictment was reUirned into open court. The circuit court record shows that an indictment was returned into open court by the grand jury where the record shows that the return of the indictment was a part of the report of the grand jury made in open court, a full panel being present.</p> <p>2. Same — Supreme Court will not weigh credibility of witnesses whose testimony is conflicting. The Supreme Court will not sustain a conviction on a criminal charge when the evidence is improbable, unsatisfactory or reasonably doubtful, but it will not substitute its judgment for that of a jury in merely weighing the credibility of witnesses, where the testimony is conflicting.</p>

<p>Writ or Error to the Circuit Court of Peoria county; the Hon. John M. Nirhaus,- Judge, presiding.</p>

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

<p>1. Wills — attesting witnesses need not sign in presence of each other. The statute on wills makes no requirement that the two attesting witnesses shall witness the will in the presence of each other, but merely requires that each of them attest the will in the presence of the deceased and at his request.</p> <p>2. Same — proper attestation clause is prima facie evidence of due execution of will. Where the attestation clause to a will recites all the particulars of. a good execution it is prima facie evidence of the due execution of the will, and such proof may prevail over testimony of the attesting witnesses which tends to show that some of the requisites were omitted.</p> <p>3. ' Same — when failure of recollection of the attesting witnesses will 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 testator and the will is fully identified as the instrument attested by the witnesses, the fact that they do not remember seeing the testator sign the will nor recollect that he acknowledged it to be his act and deed does not preclude the probate of the will.</p>

<p>Workmen’s compensation — circuit court may exercise discretion on motion to vacate judgment. A motion to vacate a judgment on an award, which judgment was entered after due notice to the employer, is addressed to the 'discretion of the court, and where no good reason is shown why payments were not made to the claimant or why there was no appearance to contest the application for judgment there is no abuse of discretion in denying the motion.</p>

<p>Writ oe Error to the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. •</p>

<p>Writ pF Errpr to the First Branch Appellate Court for the First District; — heard in that court on writ of error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.</p>

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

<p>1. Mortgages — when purchaser at master’s sale cannot object to right of another creditor to redeem. Where a company goes out of business and conveys its property to a trustee for the benefit of creditors the conveyance is, in effect, a mortgage, and a creditor who has filed a bill for dissolution of the trust and has purchased the property at the master’s sale cannot object to the right of another creditor of the grantor to redeem, on the ground that the redeeming creditor is not a creditor of the trustee.</p> <p>2. Same — when a deed absolute on its face is a mortgage. A deed-, although absolute on its face, is in law a mortgage where it is given to secure a debt or to secure the performance of a certain act.</p> <p>3. Redemption — meaning of term “any judgment creditor,” in section 20 of statute on judgments and decrees. In section 20 of the statute on judgments and decrees, giving any judgment creditor the right to redeem, the term “any judgment creditor” means any creditor having a judgment upon which execution may be issued at the time he seeks to redeem, without respect to when the judgment was obtained.,</p> <p>4. Same — judgment need not be a lien on land to give right of redemption from execution sale. To entitle a judgment creditor to redeem from execution sale it is not necessary that his judgment be a lien on the land involved.</p> <p>5. Same — when holder of certificate of sale is not entitled to be reimbursed for taxes and expenses. Under section 27a of the statute on judgments and decrees (Hurd’s Stat. 1916, p. 1589,) the holder of a certificate of a master’s sale will not be entitled to be reimbursed for taxes and expenses when a judgment creditor subsequently redeems from the sale, unless said holder has filed receipts for such taxes and expenses with the sheriff or other officer who made the sale.</p> <p>6. Pleading — filing replication admits plea to be good in law. Where a complainant files a replication to the plea to his bill he admits the plea to be good in law and raises only an issue on the facts alleged.</p> <p>7. Statutes — statutes of redemption should be liberally construed. Statutes of redemption should be liberally construed, in order that the property of the debtor may pay as many of his debts and liabilities as possible.</p>

<p>1. Appeals and errors — when Supreme Court is not bound by finding of chancellor on conflicting evidence. Where all the testimony in a proceeding in chancery is taken before the master and the chancellor does not hear any of the witnesses, the Supreme Court is not bound by the rule that the finding of the chancellor will not be disturbed unless it is manifestly against the weight of the evidence.</p> <p>2. Pleading — when a supplemental bill forms a part of original case. Where a supplemental bill is, in effect,, but an amendment to the original bill, by which matter which has transpired since the filing of the original bill is brought into the case, the supplemental bill forms a part of the original case.</p> <p>3. DEEDS' — beneficiary must prove parties dealt at arm’s length where fiduciary relation exists. Where a fiduciary relation exists between parties any transaction involving the transfer of property between them and in which one of the parties becomes a beneficiary will be looked upon with disfavor, and the burden is on the beneficiary to show that the dealing was at arm’s length.</p> <p>4. Same — charge that deed is a forgery must be proved beyond reasonable doubt. In a proceeding in equity where a party seeks to set aside a deed because it is a forgery, the charge of forgery must be proved beyond a reasonable doubt.</p> <p>5. Estoppel — estoppel may arise from omission to assert right. Estoppel may arise from silence as well as words, where there is the duty to speak and the party on whom the duty rests keeps silent after knowing the circumstances and having opportunity to speak, and it is the duty of a person having a right and seeing another about to commit an act infringing upon it, to assert his right.</p> <p>6. Same — party challenging title to real property must be diligent in discovering its invalidity. The party who challenges the title of his adversary to real property must be diligent in discovering that which will render the title invalid and must be diligent in his application for relief.</p> <p>7. Same — when a wife is estopped to assert title. A wife who, without asserting any claim of her own, participates in a chancery suit in which her husband claims to own the land involved, will be estopped to present her claim of ownership after the master makes a finding adverse to her husband.</p> <p>8. Fraud — when deeds and a will should be set aside. Deeds and a will procured by the chief beneficiary from her mother should be set aside where the preponderance of the evidence shows they were obtained by fraudulent representations and undue influence by the daughter.</p>