Volume 294 — Illinois Reports

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

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. William F. Cooper, Judge, presiding.

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

<p>1. Deeds—direct evidence is not essential to prove undue influence. Direct evidence is not essential to prove undue influence, and where the facts and circumstances lead to the conclusion that such influence has been exercised in the execution of a deed, and such proof has not been met by satisfactory evidence but there has been a failure to produce evidence which was available, the chancellor is warranted in setting aside the deed.</p> <p>2. Partition—when decree setting aside deed and granting partition properly denies relief as to bank deposit. A decree setting aside a deed for undue influence of the complainants in a partition suit and granting partition in accordance with the prayer of the defendants is correct in not requiring the complainants to also account for the misappropriation of a bank deposit, which was a distinct transaction having nothing to do with the deed.</p>

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

<p>1. Parent and child—when emancipation is inferred from conduct of child. Where a child who is physically and mentally' able to take care of himself voluntarily abandons the parent, and goes out to fight the battle of life on his own account the parent is no longer under legal obligation to support him, and emancipation is inferred where the child contracts for his services and collects and uses his own earnings.</p> <p>2. Same—parent is under no legal obligation to support child who is old enough to support himself. If a boy has attained an age at which he is capable of supporting himself, neither justice, reason nor the law requires the parent to maintain him in idleness.</p> <p>3. Same—minor who enlists in military service is emancipated for term of enlistment. Where a minor enlists in the military service he ceases to be a part of his father’s family and puts himself under the control of the government and is emancipated so long as this service continues.</p> <p>4. Same—emancipation is a severance of the filial relation—question of law and fact. Emancipation works a severance of the filial ■ relation as completely as f the child were of age, and it is a question of law as to what is an emancipation, but whether there has been an emancipation is a question of fact.</p> <p>5. Workmen’s compensation—when son who was in military service at time of death of his father is not entitled to compensation. A minor son who was in the military service at the time of an injury resulting in the death of his father is not entitled to compensation under paragraph (a) of section 7 of the Compensation act, as the father at the time of the injury was under no legal obligation to support the son, who enlisted with his father’s consent and whose term of enlistment does not expire until after he reaches the age of majority.</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. Oscar E. Heard, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.</p>

<p>1. Wills—definition of base or determinable fee. A base or determinable fee is such a fee as has a qualification subjoined thereto and which must be determined whenever the qualification annexed to it is at an end, and such qualification may be a condition independent of the estate granted, but if the contingency does not happen the fee becomes absolute.</p> <p>2. Same—how a base or determinable fee may be created. A base or determinable fee may be granted by deed so long as the land is devoted to a particular purpose, or the title may go over by springing or shifting use, and it may also be devised by will with reversion to the heirs of the testator or a valid limitation over by way of executory devise, and such a devise may be limited upon any collateral circumstance which is lawful and not opposed to public policy, such as a definite failure of issue, re-marriage of widow, or the like.</p> <p>3. Same—when devise with restraint upon alienation is not a base or determinable fee. Where a testator devises land to his son “in fee simple,” with a restraint upon alienation until the devisee reaches thirty years of age, and upon breach of the condition a future contingent interest is limited to the surviving issue, or, in default of such issue, to the brothers and sisters of the devisee, the devise is not a determinable fee.</p> <p>4. Same—when devise contains a condition subsequent and not precedent. Where a testator devises land “in fee simple” to his son, with a devise over to the surviving issue of the son or to his brothers and sisters if the devisee shall, attempt to alienate the estate before reaching thirty years of age, the condition is a subsequent one, by which the estate already vested is to be defeated.</p> <p>5. Same—a subsequent condition repugnant to estate granted is void at common law. At common law a condition subsequent which is repugnant to the estate to which it is annexed is void and the estate vests free from the condition.</p> <p>6. Same—restraint upon alienation of fee is void although limited to certain number of years. Where a testator devises land “in fee simple” to his son, with a devise over to the surviving issue of the son, or, in default of such issue, to his brothers and sisters if the devisee shall sell the property before he reaches the age of thirty years, the condition is void as being repugnant to the estate devised, as there is no distinction to be made because the restraint on alienation is limited to a definite time nor because the testator has designated who shall take the estate should the contingency happen.</p>

<p>Municipal corporations—when a city is bound to re-pay fund deposited to meet damages from vacation of streets and alleys—estoppel. Where a property owner is required to deposit in the city treasury a certain sum of money to meet all claims for damages arising from the vacation of portions of certain streets and alleys the city has no right to retain the fund after the Statute of Limitations has run against all such claims for damages, and in an action of assumpsit by the property owner to recover the money the city is estopped to urge the illegality of the ordinance for the vacation. (Lockwood & Strickland Co. v. City of Chicago, 279 Ill. 445, followed.)</p>

<p>1. Appeals and errors—appellant cannot take advantage of imperfections in record which do not affect his interest. An appellant cannot take advantage of alleged imperfections in the record which do not in any way concern him or his interest but relate to other persons as to whom the errors, if they exist, can be availed of by no one but themselves.</p> <p>2. Taxes-—party notified of petition for tax deed cannot object that trustee in trust deed was not notified as trustee. Where lots have been sold for taxes and the purchasers at the sale after the expiration of the period for redemption file their petition for deeds to be issued to them, a party who is notified of the petition cannot object that one to whom he has executed a trust deed has not been notified as trustee though said trustee is notified individually for whatever interest he has.</p> <p>3. Same—section 217 of the Revenue act does not apply to foreclosure sale for tax lien. Section 217 of the Revenue act does not apply to a sale under a decree foreclosing a tax lien, and a compliance with that section is not necessary in order to obtain deeds.</p>

<p>1. Criminal law—conviction cannot be sustained by mere .presence of defendants and opportunity to commit the crime. Proof of mere presence and an opportunity to commit the crime charged is not sufficient to justify a conviction even though the defendants are unable to show who did commit it, but the burden still rests upon the prosecution to show, beyond a reasonable doubt, that the crime was actually committed by the defendants and not by some other person.</p> <p>2. Same—when proof of motive is material. Proof which establishes guilt beyond a reasonable doubt is sufficient without proof of motive, but the presence or absence of a motive which would lead the defendant to commit the crime is material and important in determining whether he did, in fact, commit it, where the evidence of guilt is entirely circumstantial.</p> <p>3. Same—proof of motive is not, alone, sufficient to sustain a conviction. Proof of motive, though competent, is not sufficient to sustain a conviction unless a consideration of all the evidence convinces of the truth of the charge beyond a reasonable doubt.</p> <p>4. Same—existence of insurance policies and joint ownership of property do not show motive for murder. Where two women are charged with the murder of the husband of one of them during a shooting in which the husband of the other was wounded and which they cannot explain except by the presence of burglars in the house, the existence of insurance policies on the lives of the husbands, in which the wives are, respectively, beneficiaries, and the fact that one of the wives was joint owner with her husband of the home in which both families lived, do not, alone, show a motive for the crime.</p> <p>5. Same—what is necessary to conviction upon circumstantial evidence. It is essential to a conviction upon circumstantial evidence that the facts proved be not only consistent with the defendant’s guilt, but that they be inconsistent with his innocence upon any reasonable hypothesis.</p> <p>6. Same—husband or wife cannot testify for a co-defendant if the testimony affects the defendant wife or husband. Where a wife or husband is indicted with another defendant the respective husband or wife cannot testify for said other defendant if the testimony concerns or directly affects the defendant wife or husband, but where the grounds of defense are several and distinct the husband or wife of one defendant may testify for another as to any matter bearing exclusively upon such other.</p> <p>7. Same—what is necessary to prove a conspiracy—circumstantial evidence. To prove a conspiracy there must be evidence of some agreement or some joint action toward accomplishing the object of the conspiracy, but, like any other fact, it may be proved by circumstantial evidence.</p> <p>8. Same—subsequent conduct will not make defendant responsible as a conspirator for acts already done. Subsequent acts or words will not make a defendant a conspirator and responsible for acts already done without her knowledge; nor will knowledge of the crime and subsequent conduct make the defendant responsible as an accessory for its commission but will only tend to estabi-Ti responsibility as an accessory after the fact.</p>

<p>1. Practice—briefs should not contain discussion of matters not before the court. Counsel should not in their briefs discuss matters that are not before the court, as such practice and the citation of authorities that are not in point tend to confuse the issues and make unnecessary labor for the court in determining the real issues.</p> <p>2. Appeals and, errors—who is entitled to sue out a writ of error. As a general rule a writ of error must be sued out in the name of the parties to the action in the lower court, and to entitle a person to sue out a writ of error he must be a party or a privy to the record, or be one who is injured by the judgment or who will be benefited by its reversal, or is competent to release errors.</p> <p>3. Same—legatees are entitled to review judgment for unpaid taxes against estate. Legatees who are entitled to all of the testator’s property after the payment of debts are entitled to a writ of error to review a judgment of the circuit court dismissing their appeal from an order of the probate court allowing a claim for unpaid taxes against the estate.</p> <p>4. Same—interest of parties suing out a writ of error must appear from, record or be alleged in assignment of errors. Before parties can sue out a writ of error their interest must appear from the record, and if they are parties to the record their interest sufficiently appears without an allegation of interest, but if their interest does not appear from the record it must be alleged in the assignment of errors so as to show their relation to the suit.</p> <p>5. Same—fact stated in assignment of errors are admitted by joinder in error. An assignment of errors stands as the declaration of parties suing out a writ of error, and a joinder in error has the effect of a demurrer and admits the facts alleged in the assignment of errors, in the absence of a special plea denying them.</p> <p>6. Same—when case may be reviewed by direct writ of error from Supreme Court as involving revenue. Review of a judgment of the circuit court dismissing an appeal from an order of the probate court allowing a claim for unpaid taxes against an estate may be obtained by a direct writ of error from the Supreme Court, as the case is one relating to the revenue.</p> <p>7. Same—when order dismissing appeal to circuit court must be affirmed. An order of the circuit court dismissing an appeal from an order of the probate court for failure to comply with a rule extending the time to file a good and sufficient appeal bond must be affirmed where, so far as the record shows, the ruling was right.</p>

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

<p>1. Equity—general rule as to application of maxim that complainant must have clean hands. The maxim that he who comes into a court of equity must come with clean hands does not bar everyone guilty of wrongful conduct from relief in a court of equity, but as a general rule it is required that the wrongdoing or fraud of the complainant must be connected with the subject of the litigation and have some relation to the rights of the parties arising out of the transaction.</p> <p>2. Same—a court of equity will not protect complainant in defrauding the ptiblic. A court of equity will not take cognizance of a bill to enjoin an interference with the complainant’s business, which is maintained by misrepresentations amounting to a fraud upon the public, as said court will not exercise its extraordinary powers to aid a litigant in perpetrating a fraud upon the public.</p>

<p>1. Criminal law—when refusal to strike out testimony of admissions is not error. Refusal of the trial court to strike'out testimony as to admissions of guilt is not error, where the defendants’ testimony that the admissions were made under duress is contradicted and the whole question is submitted to the jury under instructions requested by the defendants.</p> <p>2. Same—when conclusion of jury as to credibility of witnesses cannot be interfered with. Where the issue, depends upon the credibility of the witnesses, the conclusion of the jury, when approved by the trial judge, cannot be interfered with, unless some fact or circumstance appears in the evidence from which the court can say that some witnesses have been truthful and worthy of credit while others have been untruthful or mistaken.</p> <p>3. Same—newly discovered evidence must be of such character as to change result if a new trial is granted. A new trial will be granted for newly discovered evidence only where it is shown that the evidence could not have been produced on the trial by the use of reasonable diligence and is not merely cumulative; and even if the question of reasonable diligence is waived and the evidence is not cumulative, it must appear that it is of such a nature that it will probably change the result if a new trial is granted.</p> <p>4. Same—when it cannot be said that newly discovered evidence will change result. Where newly discovered evidence set forth in affidavits on a motion for a new trial is inconsistent with uncontradicted physical facts which the jury cannot disregard, it cannot be said that the result of a new trial will be different if the newly discovered evidence is admitted.</p>

<p>1. Constitutional law—what authority may be delegated by the legislature. The power to make a law cannot be delegated by the legislature but it may confer authority and discretion as to the execution of a law which it has made, which authority is to be exercised under and in pursuance of the law.</p> <p>2. Same—legislature cannot delegate arbitrary power. The purpose of constitutional provisions is to protect every citizen in his personal and property rights against the arbitrary action of any person, or authority, and a statute which subjects any person’s rights to the discretion of an officer, without any rules or provisions in the law to control the officer, violates such constitutional provisions.</p> <p>3. Same—section p of the act creating office of State fire marshal is unconstitutional. Section 9 of the act of 1909 creating the office of State fire marshal (Hurd’s Stat. 1917, p. 2799,) and authorizing that officer to recover penalties for failure to obey his orders relative to the maintenance of buildings delegates arbitrary power and is unconstitutional, in that it lays down no rule by which the fire marshal is to determine when or why a building is especially liable to fire but leaves it to his discretion to, determine when a building is so liable “for any cause.” (Arms v. Ayer, 192 Ill. 601, and Block v. City of Chicago, 239 id. 251, distinguished.)</p> <p>4. Same—act of 1909, concerning State fire marshal, construed. The act of 1909, concerning the State fire marshal, does not give the owner of a building the right to a hearing in court as to whether he has violated the act but only as to whether he has complied with the fire marshal’s order, however arbitrary it may be.</p>

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

<p>1. Constitutional law—courts cannot inquire into expediency of acts within legislative power. The courts have no right to inquire into the motives of a legislative body nor into the wisdom or expediency of an act which is within the legislative power, but it is the duty of courts to interpret laws and to protect the rights of individuals against acts beyond the scope of legislative power.</p> <p>2. Municipal corporations—a city cannot vacate an alley for private benefit—estoppel. While city councils have power to lay out, alter and improve streets and alleys and to vacate the same, it is not in the power of the council to lay out a street for any other than the public use nor to give away or vacate any part of a street or alley solely for private use and benefit, and it is the duty of the courts, when their authority is invoked by individuals injured by such vacation, to declare the act beyond the delegated power, unless there is an equitable estoppel against such individuals.</p> <p>3. Same—proper vacation of street or alley is not void because substantial benefit results to individuals. It is not ground for declaring a vacation of a street or alley beyond the power of a city council that the vacation will result in substantial benefit to an individual or individuals, as that is always the case where the city has the fee, which upon vacation reverts to the original dedicator, or only an easement, of which the fee is relieved by the vacation.</p> <p>4. Same—courts will not question expediency of a proper vacation of property devoted to public use. If property devoted to a public use is no longer needed for such use or there is any benefit to the public from the vacation, the courts will not substitute their judgment for that of the legislative body concerning the extent of the benefit or the expediency of the vacation.</p> <p>5. Same—when court cannot say that vacation of alley is solely for the benefit of adjoining proprietors. Where an alley originally dedicated to be sixteen feet wide has for more than forty years been open only for the width of twelve feet, and where the only inconvenience resulting from such use is the difficulty of large vehicles turning into connecting alleys which are only twelve feet wide, the court cannot say that the vacation of the unused four feet, which will relieve the city of the burden of its maintenance, is solely for the benefit of the adjoining proprietors, whose buildings have extended into the vacated portion for more than forty years.</p>

<p>1. Pleading—relief must correspond with allegations of a bill. A bill in equity must allege every fact necessary to the relief prayed, and the relief must correspond with the allegations and the decree must conform to the prayer of the bill.</p> <p>2. Same—when words “said real estate” refer only to property specifically described in the bill. Where a bill to construe a will alleges that the testator owned, “together with other property,” certain lots which are specifically described in the bill, and avers that he disposed of “said real estate” by his will, the words “said real estate” refer only to the lots specifically described in the bill, where no other real estate is mentioned.</p> <p>3. Wills—when decree should not construe particular paragraph of will. Where a bill asks the court to construe certain provisions of a will as giving the executrix power to sell certain lots disposed of by the testator, and specifically prays that the executrix be appointed trustee and directed to sell the lots, but contains no allegations as to any other property owned by the testator or as to any other ambiguity in the will, the decree should not construe another paragraph of the will which does not come within the allegations and prayer of the bill.</p>

<p>1. Criminal law—acquittal of co-defendant is not ground for granting accomplices a new trial. The fact that the jury acquitted a co-defendant, even though the evidence may have pointed more strongly to his guilt than to that of his accomplices, is not ground for granting the accomplices a new trial.</p> <p>2. Same—officer may testify that key found on defendant fitted the lock on barn where stolen property was found. Where defendants are charged with receiving a stolen automobile, testimony as to what was in a barn where the stolen car was being kept at the time of its re-sale is admissible, and the officer who arrested one of the defendants may testify that a key found on the person of said defendant fitted the lock on the barn.</p> <p>3. Same—when secondary evidence of a note given in sale of stolen property is admissible. Where defendants are charged with receiving a stolen automobile, police officers may testify that pieces of. paper taken from the pocket of one of the defendants constituted, when pieced together, a note signed by the party to whom the defendants had sold the car, where the officer who took the note from the prisoner also testifies that it has been lost and can not be found.</p> <p>4. Same—what testimony by police officer is proper. Testimony by a police officer tending to show that certain parts of an automobile which were identified at detective headquarters by the owner of a stolen car were the parts found by the police in the barn where the stolen automobile was kept is properly admitted on the trial of persons charged with receiving the stolen car.</p> <p>5. Same—when an instruction cautioning jury to confine themselves to a consideration of the evidence is not improper. An instruction cautioning the jury against considering any argument not based on the evidence, any evidence stricken out by the court or any action or statement of the court as an expression of opinion upon the facts of the case, and stating that the jury should determine the facts of the case from the evidence and apply to such facts the law as stated in the instructions, is not erroneous as taking from the jury their right to be judges of the law.</p> <p>6. Same—when instruction as to possession of stolen property should be limited. Where defendants are on trial for larceny and receiving stolen property, an instruction that unexplained possession of stolen property soon after the larceny is prima facie evidence of guilt of the possessor is not applicable to the offense of receiving stolen property and should be limited to the count for larceny.</p>

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

<p>This case is controlled by the decisions in People v. Doras, 290 Ill. 188, and People v. O’Donnell, 291 id. 178.</p>

<p>1. Appeals and errors—general rule as to when decree dismissing bill is final and appealable. The dismissal of a bill as to one party cannot be appealed from until the case is disposed of as to all of the parties, as a judgment or decree is final only when it terminates the litigation between the parties, and where the cause is retained for the future determination of matters substantially in controversy between the parties the judgment or decree is not final and appealable.</p> <p>2. Same—when decree dismissing bill to quiet title is final and appealable. A decree sustaining a demurrer on the ground that a bill to quiet title is barred by limitation or laches and dismissing the bill is final and appealable as to all parties, where intervening-defendants ask for no affirmative relief but only for a dismissal of the bill for want of equity.</p> <p>3. Pleading—special demurrer setting up limitation or laches in equity admits allegations well pleaded. A special demurrer alleging that complainants’ bill to quiet title is barred by limitation or laches admits the truth of the allegations well pleaded in the bill.</p> <p>4. Cloud on title—when complainants are not barred by limitation or laches. Where it appears from the allegations of the bill, which are admitted upon demurrer, that the complainants are owners in fee by mesne conveyances from the United States government, that the land is unimproved and that no one has ever invaded the complainants’ rights by entering into possession, the complainants are not barred by limitation or laches although the instrument alleged to be a cloud upon the title has existed more than twenty years.</p> <p>5. Same—what must appear to entitle parties to intervene and be made defendants to bill. To entitle parties to intervene and be made defendants to a bill to quiet title it must appear from their petition that they have a direct interest in the subject matter of the litigation of a character that they will gain or lose by the decree entered, and the interest must be of a different kind from that sustained by the general public.</p>

<p>1. Constitutional law—clause 2 of section 9 of Primary Election law of 1919 is unconstitutional. Clause 2 of section 9 of the Primary Election law of 1919, delegating to the county central committee power to divide the county into voting districts, is an unlawful delegation of legislative authority, in that it does not establish rules for the exercise of that power to protect the citizen and the voter in the rights guaranteed to him by the constitution.</p> <p>2. Same—section 10 of Primary Election law of 1919 discriminates against electors similarly situated—entire act is void. In the organization and other proceedings of the county convention, section 10 of the Primary Election law of 1919, in violation of section 18 of the bill of rights, gives to small wards or districts an unequal and controlling power, destroys the freedom and equality of elections and discriminates against electors similarly situated, and as the operation of the act depends upon section 10 the entire act is void.</p> <p>3. Same—meaning of section 18 of bill of rights that elections shall be free and equal. Section 18 of the bill of rights, providing that all elections shall be free and equal, means that the vote of every qualified elector shall be equal in its influence with every other vote.</p> <p>4. Same—when repealing clause of unconstitutional statute is void. Whether the repealing clause of an unconstitutional statute is void with the rest of the act depends upon the legislative intent, and where the purpose of the repealing clause is merely to displace the old law with the new statute, if the new law be unconstitutional the repealing clause becomes inoperative and falls with the main purpose of the act containing it.</p> <p>5. Same.—unconstitutional statute does not repeal former law by implication. An unconstitutional statute does not repeal a former law or part of law by. implication, for the unconstitutional law being void is not inconsistent with any former law.</p> <p>6. Same—Primary law of 1919 being void does not repeal existing primary laws. As the repealing clause of the Primary law of 1919 was merely for the purpose of displacing the old laws with the new and is necessarily void with the rest of the act, the primary laws existing prior to the act of 1919 are still in force and not repealed by the act of 1919.</p> <p>7. Elections—term "election” applies to primaries for nomination of candidates. The term “election” applies to a primary for the nomination of candidates as well as to the election of such candidates to office, and the right to choose candidates for public offices, whose names are to be placed on the official ballot, is as valuable as the right to vote for them after they are chosen.</p> <p>8. Criminal law—judgment must be reversed if law under which conviction is had is void. A conviction based upon an unconstitutional statute is void, and on writ of error, if the question has been preserved for review, the judgment will be reversed.</p>

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. Charles M. Foell, Judge, presiding.

<p>1. Mandamus—when proceeding may be brought originally in the Supreme Court. The constitution gives original jurisdiction in mandamus to the Supreme Court as well as to the circuit courts, but the proceeding in the Supreme Court should be confined to certain classes of cases which involve the performance of high official duties in which no exercise of discretion is allowed.</p> <p>2. Banks—Auditor can exercise no discretion in granting permit to organize bank. Where a petition to organize a State bank complies with all the statutory requirements the Auditor of Public Accounts is given no discretion in granting or refusing the permit on the ground that the proposed bank is unnecessary or will be injurious to the public interest. (People v. Brady, 273 Ill. 178, followed.)</p> <p>3. Statutes—courts cannot declare law void because it is unwise. The wisdom of the enactment of any law is vested in the discretion of the legislature, and courts cannot declare a' law invalid because it is unwise or unreasonable.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Peoria county; the Hon. Charles V. Miles, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. Frank D. Ramsay, Judge, presiding.</p>

Writ of 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. Thomas G. Windes, Judge, presiding.

<p>Appeal from the Circuit Court of Fayette county; the Hon. Thomas E. Ford, Judge, presiding.</p>

<p>1. Appeals and errors—when objection to appeal bond comes too late. An objection in the briefs of counsel to the sufficiency of an appeal bond comes too late where it does not point out wherein the bond is defective and is not supported by a motion in proper time to remedy defects in form or as to the sufficiency of sureties.</p> <p>2. Executors and administrators—when court should not approve sale by administrator. On the ground of public policy the court should not approve, over the objection of parties in interest, a sale by an administrator to any person acting in a fiduciary capacity with respect to the sale.</p> <p>3. Same—attorney for administrator cannot purchase at sale if objection is made. The rule that administrators, executors or other persons occupying a fiduciary relation cannot sell to themselves property held by them in a fiduciary capacity requires that an attorney for an administrator shall not be permitted, over objection by parties in interest, to purchase real estate at an administrator’s sale to pay debts.</p> <p>4. Same—fees should not be allowed to attorney for administrator in a proceeding to sell land to pay debts. Fees for services of an attorney for the administrator of an estate should not be allowed and charged to the estate as part of the costs of a proceeding to sell land to pay debts of the estate but should be included in the general costs of the administration.</p>

<p>1. Corporations—distinction between mandatory and directory provisions for organisation of corporations. There is a distinction between mandatory and directory provisions in the statutory requirements for the organization of corporations, and not every direction will be construed into a mandatory prerequisite of corporate existence where the true intention and object of the law will not be promoted by such construction.</p> <p>2. Same—requirement of section 4 of general Corporation act that statement of incorporation shall be sealed is not mandatory. The requirement of section 4 of the general Corporation act that the statement of incorporation shall be sealed is not a mandatory requirement that the signatures be followed by a scrawl or printed seal, as the purpose of the statement is to make a public record of the corporation, and the object of the law is not promoted by making the seal a prerequisite to the legal existence of the corporation.</p> <p>3. Seals—an individual seal is a mere formality. The requirement of a seal in the execution of documents by individuals is a mere formality, and while courts of law cannot disregard the legal quality of the sealed instrument, courts of equity will relieve parties from difficulties arising from the application of the rigid rules of the common law to such instruments.</p>

<p>Writ of Error to the Circuit Court of Marion county; the Hon. William B. Wright, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. John H. Williams, Judge, presiding.</p>

<p>1. Criminal law—what constitutes perjury. Perjury is willfully, corruptly and falsely testifying to a matter material to the issue or point in question, and the testimony must be known to the witness to be false and intended to mislead the court or jury.</p> <p>2. Same—when evidence of prior testimony before grand jury is not, alone, sufficient to convict of perjury. A witness who testifies on a trial for the illegal sale of intoxicating liquor that he did not buy liquor of the defendant cannot be convicted of perjury in making such statement on the mere evidence of a contrary sworn statement by him before the grand jury, and if he denies the truth of his statement before the grand jury it must be proved that he did buy the liquor before he can be convicted for committing perjury at the trial.</p> <p>3. Same—instruction should not refer to stenographer’s notes as “the record of a former judicial proceeding.” In a trial for perjury an instruction should not refer to stenographer’s notes of former testimony by the defendant as “the record of a former judicial proceeding” and as the best evidence of the alleged false testimony, there being no record of a former judicial proceeding, or certified copy thereof, offered in evidence.</p> <p>4. Same—materiality of the alleged false testimony is a question of law. In a prosecution for perjury the materiality of the alleged false testimony on the point or issue involved is a question of law and not one of fact, and an instruction treating it as a mixed question of law and fact for the jury to determine is erroneous.</p>

<p>Writ of Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Marion county; the Hon. William B. Wright, Judge, presiding.</p>

<p>1. Negligence—when an instruction as to measure of damages should not mention amount named in declaration. In a suit under the Federal Safety Appliance act an instruction as to the measure of damages, which concludes with the statement that the damages should not exceed a certain sum, which was the sum claimed in the declaration, is improper without further explanation of such statement, as it implies that the jury may be warranted in giving the full sum claimed.</p> <p>2. Same—when experts may give opinion evidence in an action under Federal Safety Appliance act. In an action under the Federal Safety Appliance act brought by a railroad employee who was injured while coupling cars, expert witnesses may give opinion evidence to the effect that the couplers, in the position in which they were found by the employee, would not have coupled by impact if the employee had not manipulated the draw-bars as he did when he received his injury.</p> <p>3. Railroads—duty to provide automatic couplers is absolute under Federal Safety Appliance act. Under the Federal Safety Appliance act an absolute duty to provide couplers automatically coupling by impact and which can be uncoupled without the necessity of going between the cars is imposed on railroads engaged in interstate commerce.</p> <p>4. Same—assumed risk is not a defense under the Safety Appliance act—contributory negligence. Assumed risk is not a defense under the Federal Safety Appliance act, nor can the action of the employee be defeated by the carrier showing that it has exercised reasonable care in providing and keeping in repair its safety appliances, nor by showing contributory negligence on the part of the employee when he is injured by reason of a violation of the act.</p> <p>5- Evidence—what evidence admissible in action under Federal Safety Appliance act. In an action under the Federal Safety Appliance act by a switchman who received an injury while coupling cars, evidence that a certain device is known and in general use for the purpose of keeping the draw-bars in alignment for coupling by impact without the necessity of going between the cars is admissible to show that the statute does not require an impossibility.</p> <p>6. Same—when entries in book kept by car inspector are not admissible. Entries in a book kept by a car inspector who examined the draw-bars and couplers on the day the plaintiff was injured while coupling cars are properly excluded from the jury in an action under the Federal Safety Appliance act, as such entries, made after the accident, are self-serving declarations when the making of them is not brought in issue in any way.</p> <p>7. Same—when reporter’s notes of plaintiff’s statements to the claim agent of employer are not admissible. In an action under the Federal - Safety Appliance act for an injury received while coupling cars, a court reporter’s notes of statements made-by the employee to the claim agent of the employer just after the accident are not admissible when not verified by the signature of the employee nor by the reporter but are read' by another stenographer, who admitted that he could not read all the notes.</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. Anton T. Zeman, Judge, presiding.

<p>1. Criminal law—when record may be amended to show grand jury was sworn. A cause may be continued to enable the Attorney General to have the record amended to show that the grand jury, was sworn as of a certain date, where the record of the court shows that on the day following said date, which was in the term at which the conviction was had, the grand jury, “chosen and sworn as aforesaid,” made their report in open court.</p> <p>2. Same—record should show defendant was instructed as to consequences of pleading guilty. A judgment of conviction on a plea of guilty cannot be sustained where the record contains no reference to the explaining of the consequences of such plea.</p> <p>3. Same—amendment of the record after term must be based upon official memorandum. The record in a criminal case may be amended after the term at which it was made, but the amendment must be based upon some official or quasi official note or memorandum. remaining in the files of the case or upon the records of the court, and not upon recollection of the judge or other person nor upon ex parte affidavits or testimony after the event has occurred.</p> <p>4. Same-reporter’s notes cannot be made basis for amending record after term. It is not the statutory duty of the shorthand reporter to keep notes for the judge or memoranda from which the clerk may subsequently write up the record proper, and the reporter’s notes, supported by his affidavit, cannot be made the basis for amending such record after the term.</p>

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

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

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

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

<p>1. Criminal law—admissibility and weight of evidence of identification. Testimony of the complaining witness tending to identify the defendant is competent and admissible even though not positive, but the weight of such evidence is for the jury in connection with the other circumstances of the case.</p> <p>2. Same—defendant may be convicted on the testimony of one prosecuting witness. The fact that only one witness testifies for the State as against the testimony of the defendant is no reason for reversing a judgment of conviction if the jury believe the prosecuting witness.</p> <p>3. Same—when revolvers found by officers are admissible in evidence. Where the evidence shows that the complaining witness was robbed by men armed with revolvers and the witness identifies one of the defendants on trial, two revolvers found by the police officers who arrested three of the defendants at the home of one of them are admissible in evidence, where one of the defendants, in the presence of the other two, admitted that he owned one of the revolvers, and that he, with three other men, had committed a robbery.'</p> <p>4. Same—what instruction as to credibility of defendant’s testimony is proper. An instruction as to the right of a defendant to testify in his own behalf and as to his credibility may properly state that “the jury have a right to take into consideration the fact that he is interested in the result of the prosecution as well as his demeanor and conduct upon the witness stand.”</p> <p>5. Same—State is not responsible for evidence brought out on examination by. attorney for defendant. The State is not responsible for questions asked by the attorney for the defendant, and a judgment of conviction will not be reversed for incompetent evidence brought out by defendant’s cross-examination of police officers, where such evidence is stricken and the jury are instructed to disregard it.</p>

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

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding.</p>

<p>1. Municipal corporations—power to enact police regulations must be expressly granted or necessarily implied. Cities and villages have no inherent power to enact police regulations but can exercise only such .powers in that respect as are expressly delegated by the legislature and such as are necessarily implied from those expressly granted.</p> <p>2. Same—city cannot require license for wholesale business of delivering soft drinks to retailers. There is no power expressly delegated or necessarily implied in any of the clauses of paragraph 62 of the Cities and Villages act which gives a city authority to license or prohibit the lawful business of delivering to retail dealers non-intoxicating beverages containing less than one-half of one per cent alcohol by volume.</p> <p>3. Same—the power to license or prohibit a business which affects public interest must be reasonably exercised. Under its police power a city may regulate any occupation or business the unrestrained pursuit of which might injuriously affect the public, but an ordinance requiring a business to be licensed must in some degree tend toward the prevention of some evil and. have for its aim the protection of the public health, safety, morals or welfare.</p>

<p>1. Railroads—city has no right to establish rates of fare by contract with railroad company. Neither by statute nor by any provision of the constitution does a city have the right to establish by an inviolable contract the rates of fare to be charged by railroad companies operating within the city, whether they are street railway companies or railroad corporations organized under the general Railroad act, but the power to regulate and fix such rates belongs to the State as a part of its police power.</p> <p>2. Same—what contract may be made by city when giving its consent to use of streets. Under section 4 of article 11 of the constitution, prohibiting the legislature from granting the right to operate a street railroad within any city without the consent of the local authorities, the city may give its consent by any legal and reasonable contract not infringing upon the rights of the State to exercise its police powers in the interest of public safety, welfare, comfort or convenience, and such contract will be binding on the railway company and the municipality.</p> <p>3. Same—elevated railroads are not street railways under section 4 of article 11 of constitution. Elevated railroads are organized under the general Railroad act and are not street railways within the meaning of section 4 of article 11 of the constitution, requiring the consent of the city to the construction and operation of street railways.</p> <p>4. Same—what obligations to city the legislature is prohibited from extinguishing by section 23 of article 4 of constitution. The liability or obligation of a corporation or individual to a city which the legislature is prohibited from extinguishing by section 23 of article 4 of the constitution is such an obligation as the municipality has a legal right to contract for, not only as between the parties to the agreement but also as against the right of the State to interfere.</p> <p>5. Same—interference of the State with municipal contract for rates of fare does not violate provision of Federal constitution. An order of the Public Utilities Commission interfering with a contract a city has with a railroad corporation relating to rates of fare does not violate the provisions of the State or Federal constitution against the passage of laws impairing the obligations of contracts.</p> <p>6. Public utilities—equity has no jurisdiction to restrain collection of fares allowed by the Public Utilities Commission. The Public Utilities act provides for an appeal in case a party is not satisfied with an order of the commission, and as the commission has jurisdiction to regulate the rates of fare of elevated railroad companies, neither the city nor anyone affected by an order for increase in fares can apply to a court of equity to enjoin the collection of fares on the ground that the order is invalid or érroneous.</p>

<p>1. Wills—when contingency must happen where gift over is preceded by particular estate. Where there is a devise of a future interest which depends upon a contingency and is to take effect in possession upon the termination of an intervening particular estate, the intention is construed to be that the gift over shall take effect if the contingency happens at any time during the existence of the particular estate, unless there is something in the will showing that the testator referred to a later date.</p> <p>2. Same—first devisee will be given estate of inheritance if intention is not to the contrary. On grounds of public policy, where the meaning of a devise over is doubtful, such construction will be adopted which will give an estate of inheritance to the first devisee, provided the will itself does not indicate a contrary intention.</p> <p>3. Same—the word “issue” may be construed to mean “children.” In a legal sense the word “issue” means descendants and includes the whole line of lineal descendants, but in a popular sense the word may mean child or children and may be used in that sense in a will.</p> <p>4. Same—when a devise over depending upon death without children will take effect if such contingency happens at any time. Where a testator, after giving his wife a life estate with remainder to his grand-daughter, provides that the latter shall not take control until she becomes of age but that a trustee shall act until that time, if necessary, and further provides that if the grand-daughter dies before the wife or subsequent thereto, leaving no surviving child or descendants of such, the land shall go to the testator’s brother, the devise over will take effect if such death occurs at any time without leaving a surviving child or descendants of such.</p> <p>5. Homestead—there is no homestead after determinable estate ends with death of householder. Although a homestead is now an estate the purpose of the statute is merely to exempt the property from the householder’s debts, and the estate is measured by the value of the interest which the householder actually has in the premises; and where the householder has a determinable fee, which comes to an end at her death, her husband is not entitled to an estate of homestead.</p> <p>6. Dower—husband is entitled to dower in wife’s determinable fee. Where a wife has come into possession of an estate by a provision in a will, with a devise over in case of her death without issue, upon the happening of the contingency her surviving husband is entitled to dower.</p> <p>7. Same—dower may be assigned with dwelling house if there is no homestead right. Under section 37 of the Dower act dower may be assigned to a husband so as to include the dwelling house if it can be done without injustice to any party and there is no homestead right.</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. Oscar E. Heard, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Morgan county; the Hon. Norman L. Jones, Judge, presiding.</p>

<p>1. Arbitration—decision of arbitrators is conclusive. The object of arbitration is to avoid the formalities, delay and expense of litigation in court, and the decision of the arbitrators, acting within the scope of their authority under a.submission agreement, is conclusive on the parties upon matters of law and fact.</p> <p>2. Same—arbitrators are limited to the arbitration agreement. The submission agreement is the instrument clothing the arbitrators with power to make an award, and they are limited to a decision of the particular matters submitted.</p> <p>3. Same—courts construing arbitration agreements should ascertain intention of the parties. In the construction of arbitration agreements courts seek to ascertain the intention of the parties as evidenced by the agreements and give effect to the intention.</p> <p>4. Same—every presumption favors an award where whole controversy is submitted. Where the whole controversy growing out of the transactions between the parties is submitted for arbitration and not merely a part of it, every presumption favors the award as being within the limits of the arbitration agreement.</p> <p>5. Same—award need not be clothed in technical language. It is not necessary for an award to be clothed in technical language nor that the evidence and each matter considered be set out to show how the arbitrators reached their conclusions of law or fact, but a simple announcement of their investigation and deliberations is all the law requires.</p> <p>6. Same—when award will not be set aside. An award which is in conformity with the general submission agreement and on the face of which no fraud or mistake appears will not be interfered with or set aside by the court for errors either of law or fact.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>Information to disbar.</p>

<p>Criminal law—Parole law of 1899 is not invalid. The Parole law of 1899, in providing for an indeterminate sentence on a plea or verdict of guilty to a charge of burglary, is not invalid as violating the right to due process of law guaranteed by the fourteenth amendment to the Federal constitution. (People v. Joyce, 246 Ill. 124, and Dreyer v. People, 188 id. 40, followed.)</p>

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

<p>Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>1. Limitations—title may be acquired by limitation where parties are ignorant as to location of lot line. The party in possession, for the statutory period, of improvements built over a lot line acquires title by limitation to that portion of the adjoining lot on which the improvements extend without having made oral declarations of his claims, and the facts that the improvements were inexpensive and that the parties were ignorant as to the location of the lot line will not affect the operation of the statute.</p> <p>2. Same—negotiations with party in possession will not re-vest title after statute has run. After title by limitation has become vested in the owner of a lot whose improvements were built over the line of the adjoining lot through ignorance as to its location, ineffectual negotiations for the removal of the improvements can not be set up by the owner of the adjoining lot as a recognition of her title, as the bar of the statute, when once complete, cannot be destroyed except by purchase, by limitation or in some other manner* recognized by law.</p>

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

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

<p>Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Knox county; the Hon. George W. Thompson, Judge, presiding.</p>

<p>1. Inheritance tax—an administrator’s fee is a proper deduction. An administrator’s fee as an expense of administration is a proper deduction before computing an inheritance tax, and when the county judge, although he has not fixed the fee in the settlement of the estate, has exercised his judgment in the tax proceeding and determined what is the proper compensation to be allowed for the services of an administratrix, the Supreme Court will not change the amount unless it is against the manifest weight of the evidence.</p> <p>2. Same—when real and personal property tax should be deducted. The 1918 real and personal property taxes of one who died April 2 of that year should be deducted before computing ah inheritance tax, "as the real property tax becomes a. lien on the land before it is taken by the heirs, and the personal property tax must be paid by the administratrix before distribution to the next of kin.</p> <p>3. Same—a transfer tax due another State should not be deducted. Where an ancestor dies leaving his daughter as his only heir, who is administratrix of his estate, a transfer tax which she is compelled to pay to another State as next of kin of the decedent and not as administratrix should not be deducted before computing the inheritance tax in Illinois, as the transfer tax is not on the property of the estate but on the right to succeed to such property by the next of kin or heir.</p> <p>4. Same—when appellee may question tax rate by cross-errors. Where the Attorney General has appealed because of alleged improper deductions before computing an inheritance tax, the appellee, who is the sole heir, may, by assigning cross-errors, question the tax rate, as the one ultimate question in the case is the amount of the tax to be paid by her. (People v. Schaefer, 266 Ill. 334, distinguished.)</p> <p>5. Same—rate is two per cent of entire amount received if in excess of $100,000. The provision of the Inheritance Tax act that “the rate of tax shall be two dollars on every one hundred dollars of the clear market value of such property received by each person, when the amount so received exceeds in amount the sum of one hundred thousand dollars,” means that the rate shall be two per cent of the entire amount received and not two per cent of the excess, only.</p> <p>6. Taxes—a liability for personal, property taxes is personal. There is a personal liability for personal property taxes independently of the tax lien, and an action may be brought against the taxpayer whether or not there is a lien in existence.</p> <p>7. Same—administrator is personally liable for decedent’s personal property tax. The administrator is regarded by statute, in matters of taxation, as the legal owner and possessor of the personal property after appointment and until the property is distributed, and he is therefore made personally responsible for the decedent’s personal property tax.</p>

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

<p>1. Partition—mortgagee is a necessary party to suit—costs. Under the Partition act a mortgagee of premises sought to be partitioned is a necessary party to the suit, and may, in the discretion of the court, be considered a party in interest, within the meaning of section 40 of said act, concerning the apportionment of costs.</p> <p>2. Costs—apportionment of costs in partition suit rests in discretion of court. There is no technical rule governing the exact apportionment of costs in a partition suit and the subject is one for the exercise of a sound discretion in the application of equitable principles.</p> <p>3. Same—when complainant’s solicitor’s fee should not be paid from proceeds of sale. Where a mortgagee, made a party to a partition suit, declares a forfeiture for non-payment of interest and proves the amount due, it is equitable that some portion of the costs be paid from the proceeds of the sale even though such proceeds are less than the amount due the mortgagee, but the deficit should not be further increased by allowing complainant’s solicitor’s fee to be paid from such proceeds.</p> <p>4. Mortgages—what amounts to consent by mortgagee to sale free from lien. A mortgagee who, when made a party to a partition suit, elects to declare the mortgage due, answers setting up the forfeiture and proves the amount due, consents that the premises may be sold free from the lien of the mortgage and the proceeds of the sale be applied to payijient of the debt.</p>

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

<p>Criminal law—when conviction should be reversed and defendant given a new trial. A judgment of conviction for an assault with intent to murder should be reversed and the defendant given a new trial where his testimony establishing an alibi is corroborated by the unimpeached testimony of his employer, and no attempt is made to identify the defendant as one of the assailants but only to show that he was near the place of the assault.</p>

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

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

<p>1. Contracts—a contract drawn up by real estate broker with his client will be construed most favorably to client. A contract drawn up by a real estate broker for a deed to the property of his client will be construed most favorably to the client, where the broker has been the client’s confidential adviser and has been her agent in the care and management of the property.</p> <p>2. Same—time, although fixed, is not necessarily of essence of contract in equity. The parties may make time of the essence of their agreement, and when it distinctly appears that they have done so and no peculiar circumstances have intervened to prevent or excuse a strict compliance it must be considered and treated as of the essence, but the mere fact that the time is fixed does not necessarily, in equity, make it of the essence of the contract.</p> <p>3. Deeds—party who has contracted to return deed given for a loan is not entitled to partition. One who accepts a deed under a contract to return it when the grantor shall have paid him a certain sum above his expenses in taking over and maintaining the property until the grantor finds a purchaser is not entitled to demand partition upon conveying an undivided one-half interest in the property, but he and his grantee with notice will be required to deed the property to the purchaser found by the first grantor in accordance with the terms of the contract.</p> <p>4. Same—when a grantee must furnish correct statement of his account. A grantee who accepts a deed under an agreement to re-convey the property for a stipulated sum over and above his expenses in clearing up and maintaining the property if the grantor finds a purchaser within a fixed time, owes the duty of furnishing a correct statement of the amount legally due him when requested so to do by the ptirchaser secured by the grantor.</p>

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