Volume 295 — Illinois Reports

<p>1. Mandamus—when officer may be compelled to perform act after expiration of term of office. Mandamus will not be awarded to compel an individual to do an official act after the expiration of his term of office where the action required is such as can be performed only by the incumbent of the office, but where the action is personal and does not devolve upon the successor in office its performance may be compelled by mandamus.</p> <p>2. Same—when mandamus will lie against former city treasurer. The writ of mandamus will lie to compel a former city treasurer to pay over to his successor in office a sum of money retained by him for which, in his report to the city, he has taken credit as having been paid out in satisfaction of certain special assessment bonds belonging to the relator which had been surreptitiously obtained by the treasurer and not, in fact, paid.</p> <p>3. Same—right to jury trial may be waived by parties proceeding without objection. A mandamus proceeding is an action at law and the parties to it have the right to have the issues of fact tried by a jury, but this right will be waived if the parties proceed with the trial before the court without objection.</p> <p>4. Same—writ should run in name of people whether right is private or public. Where the remedy by mandamus is resorted to for the purpose of enforcing a purely private right the person interested in having the right enforced is considered the real party in interest and must become the relator, but where the object is the enforcement of a public right the people are regarded as the real party and the relator need not show that he has any legal interest in the result, although in either case the writ should run in the name of the people.</p> <p>5. Same—existence of another remedy at law does not exclude right to writ. Where a writ of mandamus will afford a proper and sufficient remedy, the existence of a remedy upon an action at law against the defendant and his sureties does not exclude the right to the writ.</p> <p>6. Same—conflict of testimony does not affect right to writ. The writ of mandamus will be granted only where the right is clear and unequivocal, but if the court finds the facts to sustain the right to the writ it will be awarded regardless of a conflict in the testimony by which the facts are established.</p> <p>7. Estoppel—city is not estopped by action of council in approving false report. A city is not estopped by the action of the council in approving an outgoing treasurer’s report containing a false claim of credit.</p>

<p>Writ op Error to the Circuit Court of Jackson county; the Hon. W. N. Butler, Judge, presiding.</p>

<p>1. Partnership—each partner should conduct business of firm for benefit of all. It is the duty of every partner to conduct the business of the partnership for the common benefit of all the partners and use his best skill, care and judgment solely in their interest, and as agent for the partnership a partner may buy or sell partnership property, but he cannot use it, or his relation to it, for his personal gain.</p> <p>2. Principal and agent—agent for sale of land cannot agree with purchaser for a joint interest without principals consent. An agent for the sale of land is prohibited from having any interest, directly or indirectly, in the sale without the consent of his principal, given with full knowledge of every fact known to the agent which might affect the principal’s interest; and the principal may . rescind the sale and reclaim his land where the purchaser, knowing that he deals with an agent, buys ostensibly for himself but secretly for the joint benefit of himself and the agent.</p> <p>3. Same—agent for sale of land may make agreement for joint interest with purchaser after deal is closed. An agent for the sale of land is at liberty to deal with a purchaser for a joint interest in the property after the sale has been completed and no duty to the principal remains to be performed.</p> <p>4. Evidence—when former bill of complainant may be introduced in evidence against him. Parties to causes are presumed to know the contents of the pleadings filed by them, and where a complainant has begun a suit by the filing of a bill by his solicitor and is afterwards made a defendant when the court allows intervening petitioners to become complainants, the bill filed by the original complainant is admissible in evidence against him although it is not signed by him, but its effect as evidence must be determined from the circumstances under which it was drawn by the solicitor.</p> <p>5. Same—application of rule that parol evidence is not admissible to vary terms of written instrument. The rule that parol contemporaneous evidence is not admissible to contradict or vary the terms of a written instrument applies only to the engagement of the parties and the extent and manner of their undertaking, and does not exclude evidence of the circumstances of the execution of the contract, and of facts in connection with it which may tend to explain its meaning, by showing the situation of the parties and all their relations to one another and the subject matter of the contract.</p> <p>6. Same—parol evidence is admissible to explain recital of a fact in a written contract—partners. Where one of the members of a partnership in a land venture acts as agent in the sale of land belonging to one of the members of the firm and subsequently enters into an agreement with the purchaser to help him handle the property as an investment for a share in the profits, a recital in their agreement that the property was bought for their “joint benefit and account” is not conclusive of the illegality of the agent’s transactions, but the parties may show by parol evidence that the agreement was made after and independently of the sale.</p>

<p>1. Taxes—power of court of equity to enjoin collection of tax. Equity cannot enjoin a tax except where it is not authorized by law, or is assessed upon property not subject to taxation, or where the property has been fraudulently assessed at too high a rate.</p> <p>2. Same—tax will not be enjoined for mere irregularity. A tax levied by public authorities having power to levy it will not be enjoined for a mere irregularity or informality in the exercise of the power but the persons affected will be left to their legal remedy.</p> <p>3. Same—decision of village board as to sufficiency of petition for an additional appropriation is prima facie correct—burden of proof. The decision of a village board of trustees that there are a sufficient number of signers to a petition for an appropriation in addition to the annual appropriation may be attacked in a suit to enjoin the collection of the tax but is prima facie correct, and the burden is on the complainant to prove that the petition was not signed by a majority of the legal voters of the village.</p> <p>4. Same—taxing authorities have discretion as to amount and purpose of money to be raised. The levy of a tax greatly exceeding the amount necessary for the purpose of the levy and intended to be used for some other purpose or for the unnecessary accumulation of money in the treasury is illegal, but the taxing authorities have a reasonable discretion in determining the amount and purpose of the appropriation, and it is only in cases of a clear abuse of this discretionary power that the courts wijl interfere.</p> <p>5. Same—when evidence does not show that appropriation was unnecessarily increased. Where the assessed value of property in a village as reported by the county clerk to the village clerk is not sufficient to sustain the annual appropriation made by the village board and the amount is accordingly reduced, but subsequently the board of review ascertains that the value of the personal property of a certain estate is of such an amount that the assessed valuation of property in the village will be doubled, the board of trustees, upon the proper petition of a majority of the legal voters, may increase the appropriation to meet the public needs.</p>

<p>1. Wills—a codicil must be construed with the will. A codicil is a part of the will and the two should be construed as one entire instrument, as the codicil does not supersede the will but its purpose is to alter, enlarge or restrain the will or to explain, confirm and re-publish it.</p> <p>2. Same—when codicil revokes provision of will. If a codicil expressly revokes any part of the will the part revoked must be treated as stricken out, or if any part or clause of the codicil be irreconcilably repugnant to the clause or clauses of the will then to that extent the codicil supplants the will.</p> <p>3. Same—when finding of chancellor will not be disturbed. The finding of the chancellor who heard the evidence as .to the truth of the discovery of a codicil and as to knowledge of its previous existence will not be disturbed unless the record testimony shows it to be clearly erroneous.</p> <p>4. Same—effect where codicil is discovered after will is probated. Where a codicil to a will is discovered some years after the will is probated, one who is interested in the codicil is entitled to have the probate of the will set aside and the will and codicil probated, as the original probate must have been either through fraud or mistake.</p>

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

<p>1. Special assessments—purpose of public hearing. The public hearing in a special assessment proceeding is to enable the board of local improvements and the property owners to consider questions as to the kind, character, extent and cost of the improvement and to give the property owners a chance to be heard.</p> <p>2. Same—what is sufficient estimate of deficiency in a supplemental proceeding. The estimate in an original proceeding must be itemized so as to show the cost of the substantial component elements of the improvement separately, but in a supplemental proceeding to provide for a 'deficiency an estimate of the difference between the original assessment and the actual amount for which the improvement can be made, together with the estimated deficiency of interest and the six per cent item, is a substantial compliance with the requirement of the statute to proceed in the same manner, as nearly as may be, as in the original assessment.</p> <p>3. Same—certificate of officer as to cost of improvement is not required in supplemental assessment. The certificate of the proper officer that the estimate does not exceed the probable cost of the improvement is a material requirement in an original proceeding, but in a supplemental proceeding to provide for a deficiency fixed by the difference between the original assessment and the lowest bid the probable cost is determined by the bid and the certificate is not required.</p> <p>4. Same—confirmation of original assessment is conclusive in supplemental proceeding. On the hearing of a petition to confirm a supplemental assessment to provide for a deficiency the judgment confirming the original assessment is conclusive as to everything that was or could have been raised on the original hearing.</p>

<p>1. Criminal law—when mistake in name of deceased in indictment for murder may be cured by stipulation. The absence of an accusation in the form prescribed by the constitution or statute can not be cured so as to confer jurisdiction and validate a conviction by consent, waiver or estoppel on the part of the accused or by stipulation of his counsel, but a mistake in an indictment for murder in spelling the nanie of the deceased will be cured where there is a stipulation that the accused will take no advantage of the error and it is admitted that the person described in the indictment was the person killed.</p> <p>2. Same—a defendant can admit away any part of his case. As an accused can expressly admit away his whole case by pleading guilty, he can admit away any part of it.</p> <p>3. Same—when instruction does not take from the jury their right to judge the law. An instruction that “it is the duty of the jury to find and determine the facts of the case from the evidence, and, having done so, to apply to such facts the law as stated in these instructions,” does not take from the jury their right to judge the law.</p> <p>4. Same—when delay in rendering final judgment does not deprive court of jurisdiction. A delay of ten months after the entry of a motion for new trial before final judgment and sentence is rendered does not deprive the court of jurisdiction, where all that is disclosed by the record is that the cause was continued from time to time on the motion for a new trial.</p>

<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>

<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. E. K. Jarecki, Judge, presiding.</p>

<p>1. Deeds—burden is on complainant to prove alleged insanity of grantor. In a suit to set aside a deed the burden is on the complainant alleging insanity of the grantor to prove the allegation by a preponderance of the evidence.</p> <p>2. Same—ivhen a court of review will not disturb verdict in a suit to set aside deed. In a suit to set aside a deed on the ground of mental incapacity and undue influence, if there is a conflict in the evidence and the testimony by fair and reasonable intendment authorizes the verdict of the jury, which is approved by the decree, a reviewing court will not set aside the decree as unwarranted.</p> <p>3. Same—when defendants to a suit to set aside a deed cannot testify in their own behalf. Defendants in a suit to set aside a deed are not competent witnesses in their own behalf, where the complainants are suing as heirs of the grantor and the defendants are defending as grantees.</p>

<p>This case is controlled by the decision in Jackson Coal Co. v. Industrial Com. (ante, p. 18.)</p>

<p>1. Deeds—-rules of grammatical construction will prevail unless intention appears to the contrary. The rules of grammatical construction will ordinarily be followed in ascertaining the meaning of written instruments, but the object of construction is to effectuate the intention of the parties, and the language must be considered in the light of the circumstances surrounding the parties and of all the provisions of the instrument.</p> <p>2. Building lines—doubtful provision must be resolved against restriction. Where it is doubtful whether a building line restriction is to be perpetual or to cease at the expiration of a certain period the doubt must be resolved against the restriction.</p> <p>3. Same—vendor of property may impose such lawful restrictions as he sees fit. The owner of property, in selling it, may impose such restrictions on its use as he sees fit, provided that the restrictions violate no law and are not contrary to public policy, and he may establish for .the benefit of other lots a permanent building scheme restricting' the time, use, location or value of buildings which may be erected on each of the lots in the tract, and the restrictions will be binding on each purchaser who has notice of the scheme and may be enforced by each grantee against the others.</p> <p>4. Same—limited restriction cannot be made perpetual by oral statements of grantors—notice. Where conveyances by the original owners of property subdivided into lots contain restrictions against the erection of flat-buildings for a period of twenty years, mere verbal statements of grantors that flat-buildings will never be erected because the character of the neighborhood will become fixed at the expiration of the period cannot be relied on to extend the restriction beyond twenty years as against subsequent purchasers having no notice of anything which does not appear of record.</p> <p>5. Same—appearance of neighborhood is not notice to purchasers of restrictions not of record. Where building line restrictions appearing of record are expressly limited to a certain period of time, the fact that purchasers, after the expiration of the period, are familiar with the general appearance of the locality, the character of the houses in the vicinity, their general location with respect to the streets and their use as dwelling houses does not constitute notice of the existence of restrictions which do not appear of record.</p> <p>6. Same—when restriction against flat-buildings is limited to twenty years. A provision in a deed that the grantee shall not build “any building known as a flat or tenement building, hereby covenanting to erect thereon only a single private- dwelling house (excepting the stable as aforesaid) for a period of twenty years from this date,” limits the prohibition against flat or tenement buildings to twenty years and does not apply solely to the erection of single private dwellings.</p>

<p>This case is controlled by the decision in Village of Winnetka v. Handy, (ante, p. 54.)</p>

Writ oE Error to the Appellate Court for the Eirst District;—heard in that court on appeal from the Superior Court of Cook county; the Eton. Charles M. Eoell, Judge, presiding.

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

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

<p>1. Wills—when unsoundness of mind is presumed continuous— instruction. _ Proved unsoundness of mind which is of a permanent and progressive nature and not occasional or intermittent is presumed to exist until the contrary is shown, and the jury may be so instructed in a will contest case where a physician has testified that such was the mental condition’of the testator.</p> <p>2. Same—proponent must offer all evidence of sanity as evidence in chief. In a proceeding to contest a will the proponent has the burden of proof and the right to open and close the argument, and must offer in chief not only the evidence making a prima facie case, but all other evidence relating to the issue of testamentary capacity.</p> <p>3. Same—burden of proof in will contest proceeding is always on proponent. Although a proponent in a will contest case has made out a prima facie case the burden of proof does not shift to the contestant but is always on the proponent, as the jury must determine from the whole evidence whether the instrument offered is the will of the testator.</p> <p>4. Same—contestant must prove his charge of fraud or undue influence. After the proponent has made a prima facie case in favor of the will the contestant must prove his charge of fraud and undue influence, and where a jury has found in favor of the validity of a will the Supreme Court will not set aside the verdict on the facts unless it is against the clear preponderance of the evidence.</p> <p>5. Same—what understanding is necessary to make a will. It is not a sufficient test of testamentary capacity that the testator understand what he is doing when making a will, but be must have mind and memory sound enough to appreciate the business in which he is engaged, to comprehend what property he has to dispose of and the natural objects of his bounty and to understand the nature of his act and the effect of his will.</p> <p>6. Same—executor must defend will in contest after probate. In a suit to set aside the probate of a will the jury may be instructed that it is the duty of the exécutor to sustain the document and establish it as a will.</p> <p>7. Same—when instruction as to presumption of sanity is erroneous. In a will contest case it is error to instruct the jury that “the law presumes that every person of legal age has sufficient mind and memory to make a valid will, and cásts. upon those who contest a will the burden of establishing by the greater weight of evidence that the person seeking to make the will was not at the time of a sufficiently sound mind to make a valid will.”</p> <p>8. Same—term "burden of "proof" has two distinct meanings. The term “burden of proof” in one sense expresses the burden of the pahty who has the affirmative of the issue a^nd must ultimately establish such affirmative, but in another sense the term expresses the duty of a party to offer evidence at any particular stage .of the proceedings in order to prevent■ an adverse judgment.</p>

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

<p>Writ of Error to the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>1. Pleading—answer should set forth facts claimed as a defense. An answer in equity should set forth the facts claimed as a defense, so that the complainant may question their legal sufficiency or take issue on the answer by amending his bill and disputing the facts, and hence a defendant cannot avail himself of any matter of defense not stated in his answer, even though it should appear in evidence.</p> <p>2. Contracts—what does not render an agreement illegal. An agreement to marry when one of the parties has become qualified to marry by the expiration of the statutory period following her divorce is legal and is not rendered illegal by the fact that the parties thereafter contracted a void marriage in another State before they were legally married.</p> <p>3. Deeds—intention to pass title is essential to valid delivery. A deed takes effect from delivery, and to constitute a valid delivery it must clearly appéar that it was the intention that the deed should pass title at the time it was delivered.</p> <p>4. Same—presumption of delivery of deed arising from its possession by grantee is not conclusive. The presumption that a deed has been delivered when it is found in the hands of the grantee is not conclusive but the inquiry in such case is as to the intention of the parties at the time the deed was handed to the grantee, as it may have been intended as a testamentary disposition or for other reasons was not intended to operate as a present conveyance.</p> <p>5. Same—when recording of a deed does not vest title. Where the grantee accepts possession of a deed merely as security for the performance by the grantor of his promise of marriage and without any intention of claiming title, the fact that the deed is surreptitiously taken from her possession and recorded does not vest title in her.</p> <p>6. Same—intention at time of delivery may be shown by parol evidence. If a deed has taken effect as a conveyance by delivery it is not competent to control or alter its effect by parol evidence, but it is competent to show that a deed, although in the hands of the grantee, has never been delivered but something else was to have been done before it should take effect.</p> <p>7. Same—acceptance of deed is essential to a delivery. It is essential to the delivery of a deed that there be an acceptance by the grantee as a present conveyance of title.</p>

<p>Eminent domain—value of property is not determined by rental value, alone. The owner is entitled to be paid .the fair cash market value of property taken for public purposes, and while rental value is to be considered with other circumstances, it is not the rule that market value should be fixed by capitalizing the net rental value at five per cent. (City of Chicago v. Lord, 276 Ill. 357, and City of Chicago v. Witt, 289 id. 520, explained.)</p>

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

<p>Appeal from the County Court of Hancock county; the Hon. Fred G. Wolfe, Judge, presiding.</p>

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

<p>1. Taxes—introduction of assessment roll makes a prima facie case of liability for taxes. In an action of debt to recover unpaid taxes the People make a prima facie case by the introduction of a copy of the assessment roll showing that the defendant was the owner of the property and liable for the taxes for the year or years for which the assessment was made.</p> <p>2. Same—when defendant in a suit for taxes is bound by evidence of a return. A defendant in a suit for unpaid taxes cannot make the defense that the property was not liable for taxes in the municipality in which the assessment was made where the assessment book contains the initial “R,” which is proved to mean that a return was made, notwithstanding there is evidence that in exceptional cases, for the purpose of preventing a penalty for not making a return, the assessment is marked with the letter “R” as though a return had been made.</p> <p>3. Evidence—parol evidence is admissible to explain initials—■ judicial notice. The courts take judicial notice of abbreviations which are in common use, but parol evidence is admissible to explain initials or abbreviations not in common use but having a special meaning.</p>

<p>Appeal from the County Court of LaSalle county; the Hon. Harry Reck, Judge, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Joseph Sabath, Judge, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Harry A. Lewis, Judge, presiding.</p>

<p>1. Taxes—limitation by the legislature on total rate for county taxes is binding. ■ A valid limitation made by the General Assembly on the total rate which may be levied for county taxes is as binding upon county authorities as though the limitation were fixed by the constitution.</p> <p>2. Same—tax for a mothers’ pension fund must be’ included in fifty cent rate in absence of vote. The provision of the Mothers’ Pension Fund act that the tax shall be in addition to other county taxes does not authorize the levy of a mothers’ pension fund tax in addition to the fifty cent total rate fixed for county taxes by the amendments to the Revenue law in 1919 unless it is authorized by a vote óf the electors.</p> <p>3. Same—limitation in section iSp of Revenue act is on the aggregate rate for educational and building purposes. The limitation in section 189 of the Revenue law as amended in 1919 (Laws of 1919, p. 856,) is on the aggregate rate for educational' and building purposes, and school authorities, under the vote therein provided for, may levy up to one per cent for building purposes, provided the aggregate rate for educational and building purposes does not exceed two and two-thirds per cent.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>1. Easements—acceptance of dedication does not estop a city from proving prior prescriptive right. A city which has accepted a dedication of the fee in a strip of land is not estopped from proving, in a subsequent special assessment proceeding where its right to occupy the strip is challenged by a prior grantee of the dedicator, that the strip was a highway by prescription before the dedication was made.</p> <p>2. Same—what user is necessary to create road by prescription. To create a road by prescription the user must be adverse to the owner under a claim of right, continuous, uninterrupted, and with the knowledge of the owner yet without his consent, and there must be something more than mere travel over unenclosed lands.</p> <p>3. Same—proof of user for less than statutory period is not sufficient—presumption as to claim of right. A continued and uninterrupted tise'of land for a highway for the statutory period, in the absence of proof to the contrary, will be presumed to have been under a claim of right, but proof of user for less than the statutory period is not sufficient to show a prescriptive right.</p> <p>4. Same—railway company is entitled to protection of its easement although it has not acquired right of enjoyment. A perpetual easement granted by deed in a strip of land for constructing a street railway is protected by the constitutional provision that private property cannot be taken or damaged without just compensation, even though the railway company has not yet complied with statutory requirements essential to its right to construct its track.</p> <p>5. Plats—dedication by plat does not take effect until plat is recorded. A deed takes effect from delivery, but as there is no delivery in the case of a dedication to the public by means of a plat the recording of the plat takes the place of delivery and is essential to a complete dedication.</p> <p>6. Special assessments—the resolution and ordinance must describe the property to be taken for local improvement. Under sections 7 and 8 of the Local Improvement act the resolution of the board and the ordinance must describe the property proposed to be taken for a local improvement, and where the construction of a proposed lighting system in a street will interfere with an easement therein which a street railway company has lawfully acquired but which is not described, the petition for the assessment is properly dismissed.</p>

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

<p>1. Criminal law-—-fact of former'quarrel is admissible on trial for assault. In trial for assault with intent to murder, it is proper to admit evidence that the prosecuting witness and the defendant had a quarrel some two years before the assault and that bad feelings existed between them, but the details of the quarrel or the defendant’s subsequent statements to other witnesses as to what occurred during the quarrel are not competent evidence.</p> <p>2. Same—when instruction as to effect of putting defendanfs reputation in issue is erroneous. In a criminal case it is error to instruct the jury that as the defendant has put in issue his reputation for being a peaceable and law-abiding citizen, “such evidence is proper to be considered as a circumstance tending to prove his guilt or innocence,” as reputation does not tend to prove either guilt or innocence but is a circumstance to be considered with the other evidence.</p> <p>3. Same—when instruction as to defense of alibi is erroneous. An instruction is erroneous which states that the defense of alibi, “to be entitled to consideration, must be such as to show that at the very time of the commission of the crime charged the accused was at another place so far away or under such circumstances that he could, not with any ordinary exertion have reached the place where the crime was committed so as to have participated in the commission thereof.”</p> <p>4. Same-—any evidence tending to prove alibi must be considered. A defendant relying upon the defense of alibi is only required to -make such proof upon that question as will raise a reasonable doubt of his guilt, and he is entitled to have such evidence considered even though it does not establish a perfect defense.</p>

<p>Special taxation—-objector to supplemental tax cannot question validity of alteration in ordinance—res judicata. Confirmation of a special tax for an improvement settles the question whether the tax was lawful under the ordinance, and in a subsequent proceeding to levy a supplemental tax of a certain per cent of the original levy an objector cannot question the validity of an alleged alteration in the original ordinance with respect to the basis of the tax on each frontage.</p>

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Harry A. Lewis, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.</p>

<p>Appeal from 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. Joseph B. David, Judge, presiding.</p>

<p>Appeal from the County Court of Williamson county; the Hon. W. E. Slater, Judge, presiding.</p>

<p>1. Wills—instrument for sole purpose of revoking will is valid if properly attested. An instrument executed for the sole purpose of revoking a will and' re-affirming a former one should be sustained and the former will given effect if the revoking instrument is attested by two witnesses, as required by the statute governing wills, and there is no question as to the intention of the testator tó re-adopt .the provisions of the former will; and it is not material that the testator does not call the instrument a will.</p> <p>2. Same—when proof of codicil establishes the will. Proof of a codicil which refers to a will so as to preclude all doubt of its identity establishes the will without further proof.</p>

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

<p>1. Constitutional law—Garage Keeper’s Lien act of 1917 is ■ unconstitutional. The Garage Keeper’s Lien act of 1917 is void as special legislation in that it gives garage keepers rights superior to those of other persons similarly situated, and in so far as it purports to give the garage keeper a lien prior to that of a recorded chattel mortgage and enables him to dispose of the property without regard to the mortgagee’s rights it violates section 2 of the bill of rights and impairs the obligations of contracts.</p> <p>2. Same—when statute may make classification. The legislature may classify persons and occupations for the purpose of legislative regulation, provided the classification is not arbitrary and is based on some substantial difference which bears a proper relation to the classification.</p> <p>3. Same—when statute violates prohibition against special legislation. An act which arbitrarily discriminates in favor of one class, leaving unaffected others similarly situated between whom and the class favored there exists no reasonable basis for distinction or discrimination, violates the constitutional provision prohibiting special legislation.</p> <p>4. Same—what is a proper classification. To sustain legislation in favor of a class the classification must be of individuals possessing in common some disability, attribute or qualification which distinguishes the class as objects of legislative favor.</p> <p>5. Notice—distinction between a conditional sale and chattel mortgage as to notice. A contract for the purchase of personal ■property which provides the vendee shall have possession but the title is to remain in the vendor as security for deferred payments is for a conditional sale, and the fact that it is acknowledged and. recorded is not notice to third persons, but a chattel mortgage executed, acknowledged and filed for record as the statute requires is notice to all the world.</p>

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

<p>1. Taxes—assessment for road labor is not a tax and is not subject to provision for uniformity of taxation. An assessment for road labor authorized by the charter of a town is not a tax, and an exemption therefrom does not contravene section 5 of article 9 of the constitution of 1848 nor section 9 of article 9 of the constitution of 1870, providing for uniformity of taxation.</p> <p>2. Same—an exemption from road labor in a town charter is not an exemption from road and bridge tax. The provision of section 1 of article 9 of the charter of the town of Normal exempting inhabitants of the town from working on any road beyond the limits of the town and from paying any tax to procure laborers to work on the same does not exempt them from a general road and bridge tax levied by the commissioner of highways of the township under section 56 of the Roads and Bridges act. (Town of Pleasant v. Kost, 29 Ill. 490, followed.)</p> <p>3. Same—town of Normal is not a separate road district. The provisions of the charter of the town of Normal authorizing it to levy and collect taxes, improve streets and alleys, construct and repair bridges and 'assess road labor do not create said town a separate road district, and where there is no provision against the taxing power of township officers, property lying within the incorporated town is not exempt from a road and bridge tax assessed under section 56 of the Roads and Bridges act. (Butz v. Kerr, 123 Ill. 659, and Cooper v. Ash, 76 id. 11, distinguished.)</p>

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

<p>Writ of Error to the Circuit Court of Monroe county; the Hon. J. F. Gillham, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. J. B. Messick, Judge, presiding.</p>

<p>Appeal from the County Court of Morgan county; the Hon. Paul Samuell, Judge, presiding.</p>

<p>Appeal from the County Court of Stark county; the Hon. Frank Thomas, Judge, presiding.</p>

<p>1. Workmen’s compensation—when pre-existing disease does not preclude compensation. Compensation may be awarded although there is a pre-existing disease, if the disease is aggravated and accelerated-by an accidental injury in the course of the employment.</p> <p>2. Same—burden is on employer to prove employee was engaged in interstate commerce. The burden is on the employer to show that the employee at the time of his injury was engaged in interstate commerce, where it seeks to avoid liability under the State Compensation act on that ground.</p> <p>3. Same—both employer and employee must be engaged in interstate commerce. To bring an injury to an employee within the provisions of the Federal Employers’ Liability act it must be shown that both the employer and the employee were at the time of the injury engaged in interstate commerce within the meaning of the act.</p> <p>4. Same—'when employee is not engaged in interstate dommerce. An employee who is injured while working upon the tracks of a street railway company which émployed and paid him is not engaged in interstate commerce merely because an interurban railway corporation uses the same tracks in its interstate business.</p>

<p>Appeal from the Circuit Court of Ogle county; the Hon. Mazzini SlusseR, Judge, presiding.</p>

<p>. Appeal from the Circuit Court of Peoria county; the Hon. Charles V. Miles, 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. Leo J. Doyle, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding.

<p>Writ of Error to the Circuit Court of Vermilion county; the Hon. A. A. ParTlow, Judge, presiding.</p>

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

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

<p>1. Taxes—rate fixed by highway commissioner cannot be raised by county clerk. The rate fixed by the highway commissioner for a. road and bridge tax cannot be raised by the county clerk so as to produce the amount certified to him, although section 56 of the Revenue act, as amended in 1919, would have justified the raise had it been made by the commissioner. (People v. Cincinnati, Lafayette and Chicago Railroad Co. 271 Ill. 487, followed.)</p> <p>2. ' Same—amendment of June 30, 1919, to section 112 of Road and Bridge act-repeals amendment of June 21. The amendment of June 30, 1919, to section 112 of the Road and Bridge act, providing that the amount of taxes to pay bonds for road purposes shall not exceed sixty-six and two-thirds cents on each $100, is inconsistent with and repeals the. amendment of June 21 to the same ■ section, which provided that the sum should not exceed one dollar for each $100.</p> <p>3. Same—-power of highway commissioner to impose tax must be strictly construed. The power of the commissioner of highways to impose a tax is 'limited and must be strictly construed, and the provisions of the statute with reference to the same are designed . for the protection of the tax-payer and are mandatory.</p> <p>4. Same—special tax for hard roads must be certified by highway commissioner and not by town clerk. The provision of section no of the Road and Bridge act that whére there has been an election in favor of a special tax for hard roads it shall be the duty of the commissioner of highways to levy an annual tax “and certify the same to the county clerk” is mandatory, and a certification by the town clerk furnishes no legal authority to the county clerk to extend the tax.</p> <p>5. Statutes—the later of two inconsistent acts must prevail.Two acts that are passed at the same, session of the legislature are not to be construed as inconsistent if it is possible to construe them otherwise, but where it is impossible to give effect to both acts the later in point of time will prevail.</p>

<p>Appeal from the County Court of Montgomery county the Hon. J. H. Ragsdale, Judge, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Joseph Sabath, 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>Writ of Error to the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding.</p>

<p>1. Wills—when a remainder is vested and when contingent. A remainder is vested when it stands ready throughout its continuance to take effect in possession 'whenever and however the preceding estate of freehold determines, and a remainder is contingent when it is limited to take effect upon, an event which may happen either before or at the time of or after the termination of the particular estate of freehold.</p> <p>2: Same—when remainders are alternative or depend on contingency with a double aspect. Remainders are said to run concurrently and are spoken of as alternative remainders or remainders on a contingency with a double aspect where the disposition of the property is made in the alternative, the one to take effect only in case the other does not and in substitution of it.</p> <p>3. Same—when the remainder is contingent and destructible. Where a testator devises an estate to his daughter “as long as she and her husband, H. W. Stevens, live,” with a remainder in fee to the daughter should the husband die first but in equal shares to the daughter’s children and her husband should she die first, the persons to take cannot be ascertained until the particular estate terminates by the death of either the daughter or the husband, and the future estate limited to depend upon the particular estate is not an executory devise but an alternative contingent remainder, which is destructible under the rule of merger.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding.

<p>1. Criminal law—how former conviction of witness must be proved. To affect credibility the former conviction of a witness must be shown by a properly authenticated copy of the record, which must contain at least the caption, the entry showing the return of the indictment into open court by the grand jury, the indictment and record of arraignment, the empaneling of the jury or the waiver of a jury, and the final judgment.</p> <p>2. Same—pardon does not preclude proof of conviction to affect credibility of a witness. The admission in evidence of the record of a former conviction of a witness for the purpose of affecting his credibility is not precluded because he was pardoned or obtained a commutation of the sentence.</p> <p>3. Same—effect of filing petition for release on probation. As section 2 of the act providing for a system of probation provides that the convicted person may be admitted to probation when “nothing remains to be done by the court except to pronounce sentence,” the filing, after denial of a motion for new trial, of a petition for release on probation waives defendant’s right to make a motion in arrest of judgment and is an admission that nothing rémains to be done by the trial court except to pronounce sentence.</p> <p>4. Same-—what is meant by “after entry of judgment/’’ in section 2 of Probation act. The phrase “after entry of judgment,” used in section 2 of the act providing for a system of probation, (Hurd’s Stat. 1917, p. 1049,) means that period in the proceedings where the accused has taken all the steps he desires to take and where the court has decided finally to receive and enter the plea or verdict of guilty on the records of the court.</p> <p>5. Same—a defendant is convicted though released on probation. As affecting the credibility of the testimony of a defendant in a murder trial, a record showing that he had previously been tried on a charge of burglary and found guilty by the jury is admissible as showing a former conviction even though no sentence was pronounced, where such record also shows that after his motion for new trial was denied the defendant filed a petition for release on probation and that an order releasing him on probation was entered. (Faunce v. People, 51 Ill. 311, distinguished.) .</p> <p>6. Same—release on probation does not set aside the conviction. A release on probation does not in any way set aside the conviction. of, the accused nor preclude the admission of the record of his conviction in evidence for the purpose of affecting the credibility of-his testimony in a subsequent trial.</p> <p>7. Same—when all participants in a burglary are guilty of resulting murder. Where all participants in a burglary were armed with loaded revolvers each is guilty of a murder committed by one of them, who, while the others were in another part of the building, shot and killed a watchman who had refused to hold up his hands.</p> <p>8. Same—when conviction may be had on testimony of accomplice. The testimony of an accomplice is admissible against a defendant, and a conviction upon such testimony may be sustained if it is of such a character as to prove the guilt of the accused beyond a reasonable doubt.</p> <p>9. Same—what credibility should be given testimony of an accomplice. The testimony of an accomplice should be acted upon with great caution, and the jury should subject such testimony to careful examination in the light of all other evidence in the case and consider the influence under which the testimony is given and whether the purpose of the witness is to shield himself from punishment, obtain some benefit or gratify his malice.</p> <p>10. Same—court should allow liberal cross-examination of accomplice who testifies for prosecution. Where the identity of the defendants and their connection with the crime charged depends wholly upon the testimony of an accomplice who is á witness for the People, the court should allow a liberal cross-examination of the witness so as to show, if possible, what influences caused him to testify for the People.</p> <p>11. Same—what remark by court is improper. A remark by the court in a murder trial during a colloquy with the counsel, the effect of which is to imply that counsel for the accused are attempting to try the case by unfair means, is improper, where there is nothing in the record to justify such remark.</p> <p>12. Same—what evidence is inadmissible as implying-participation- in another offense. In a trial for murder committed as a re-suit of a burglary, a confessed accomplice should not be permitted to testify for the People that some time previous to the commission of the crime charged he and one of the defendants delivered a load of automobile tires to a junk dealer, even though there was no attempt to show that the tires were stolen, as the impression left in the minds of the jurors would naturally be that such defendant had been associated with the witness in other thefts.</p> <p>13. Same—court should refuse argumentative instructions on subject of reasonable doubt. The trial court should refuse lengthy and argumentative instructions as to the meaning of the term “reasonable doubt,” whether the instructions are offered by the People or the accused.</p>

<p>Writ of Error to the Circuit Court of Madison county; .the Hon. J. E. Gillham, Judge, presiding.</p>

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

<p>1. Bills of exceptions—bill of exceptions is necessary to preserve for review ruling on motion. In order to preserve for review the action of the county court in sustaining a motion to strike certain objections to a drainage assessment from the files the record must contain a bill of exceptions showing the motion, the ruling of the court and an exception thereto.</p> <p>2. Drainage-—when judgment confirming drainage assessment will not be disturbed. A judgment of the county court confirming a drainage assessment after a hearing upon and the overruling of objections raising.questions of fact, only, as to the amount of benefits and the fairness of the apportionment of the amount assessed will not be disturbed on review unless it is manifestly against the weight of the evidence.</p>

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

<p>1. Criminal law—statement of witness out of court is admissible to impeach testimony. It is competent to show, as a matter of impeachment, that a witness, even though he be the defendant, made a statement out of court concerning material matters inconsistent with his testimony on the witness stand.</p> <p>2. Same—verdict will not be set aside unless it is clearly the result of passion or prejudice. The Supreme Court will not set aside a verdict of guilty as unwarranted by the proof unless it is so palpably against the weight of the evidence as to show the verdict to have been the result of prejudice or passion.</p> <p>3. Same—evidence of particular circumstance to show violent character of the deceased is not admissible. Although several witnesses in a murder trial testify that the deceased had a reputation for being a violent and dangerous man, testimony of a witness to the effect that the deceased at one time drew a pistol on him is properly denied admission.</p> <p>4. Same—instructions should be considered as a series. Instructions to a jury are to be considered as a series, and omissions in one instruction which are supplied in others will be considered harmless unless there is an obvious tendency to mislead the jury.</p>

<p>Wills—when interest of named grandchild is limited to a specific legacy. Under a will providing that after the death of the testator’s wife the real and personal property “shall go to my children, (nine) in number, share and share alike, except Katherine, deceased wife of Seraphine Willmeng, whose issue, (child) Anna Willmeng, shall receive her deceased mother’s share, being the amount of five hundred dollars, when she has become of lawful age, that is to say, eighteen years old,” the interest which the named grand-daughter takes is limited to the specific legacy mentioned.</p>

<p>Appeal from the County Court of Cass county; the Hon. John GrEEnway, Judge, presiding.</p>

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

<p>1. Appeals and errors—point not assigned in Appellate Court is waived in Supreme Court. An appellant who fails to assign and argue a point in the Appellate Court waives his right to urge the point in the Supreme Court.</p> <p>2. Same—when finding of the chancellor will not be disturbed. The Supreme Court will not disturb the finding of the chancellor on a question of fact unless it is manifestly against the weight of the evidence.</p> <p>3. Mechanics’ liens—rights of parties are governed by law in force when contract was made. The rights of the parties in a suit under the Mechanic’s Lien act are governed by the law in force at the time the contract was made.</p> <p>4. Same—the statutes for mechanics’ liens must be strictly construed. Mechanics’ liens exist only by virtue of statutes creating them, and such statutes must be strictly construed with reference to all requirements upon which the right to a lien depends.</p> <p>5. Same—bill must allege facts showing action is brought within required time. As the limitation of the time in which a suit may be brought under the Mechanic’s Lien act is not merely of the remedy but of the right of action itself and the cause of action exists subject to the limitation, a bill to enforce a lien must allege or state facts showing that the action is brought within the time prescribed by the statute.</p> <p>6. Same—when amendment of bill is beginning of new suit. Where the original bill to enforce a mechanic’s lien against a purchaser shows that the last delivery of material was not made within four months before the filing of the bill an amendment changing the date of the last delivery amounts to the bringing of a new suit, and no lien can arise, where no claim for lien was filed, if the date of the amendment is more than four months after the date of the last delivery. (Treloar v. Hamilton, 225 Ill. 102, and Eisendrath Co. v. Gebhardt, 222 id.113, distinguished.)</p> <p>7. Same—section 12 of Mechanic’s Lien act is merely declaratory of right to amend under chancery practice. Section 12 of the Mechanic’s Lien act, allowing the court to permit amendments to any part of the pleadings in a suit under the act, is merely declaratory of the right to amend under the existing chancery practice and does not purport to authorize an amendment that shall be effective from the beginning of the original suit.</p> <p>8. Same—bill must allege facts showing complainant is entitled to relief. It is essential to the jurisdiction of the court in a proceeding to enforce a mechanic’s lien that the bill show on its face a cause of action, which includes every fact necessary for the complainant to prove to entitle him to- succeed or which the defendant would have a right to traverse.</p>

<p>1. Courts—courts will not entertain litigation by person having no interest. It is contrary to the policy of the law 'for courts to entertain litigation initiated by one who has no right, either public or private, involved.</p> <p>2. Public utilities—when appeal from decision of commission is properly dismissed. An appeal from a decision of the Public Utilities Commission upon a complaint filed by a non-resident having an equity of redemption in certain water lots, charging the collection of unjust water rates, is properly dismissed, where at the time of the hearing by the commission such person has lost all right and interest in the lots, and the owner thereof, being satisfied with the rates charged, intervenes and moves to dismiss the appeal.</p>

<p>1. Criminal law—exact words of false testimony need not be set out in indictment for perjury. By section 227 of.the Criminal Code it is sufficient for an indictment for perjury to set forth the substance of the offense, and it is not required that the exact words of the false testimony be set out.</p> <p>2. Same—acquittal is not a bar to subsequent indictment for perjury in giving false testimony. If a defendant secures or influences his acquittal of a charge by giving false testimony his acquittal is no bar or estoppel to a subsequent indictment and trial on the charge of perjury.</p> <p>3. Same—materiality of false testimony is a question of law in a prosecution for perjury. In a prosecution for perjury the materiality of the alleged false testimony is a question of law and should not be submitted to the jury to determine as one of fact.</p> <p>4. Same—in a trial for perjury the jury should not be instructed as to value of testimony of an accomplice. In a trial for perjury committed on a former trial of the defendant on a charge of larceny and of receiving stolen property, an instruction as to the value and effect of the testimony of an accomplice is inapplicable to the case and should not be given, though an alleged accomplice to the larceny testified on the former trial.</p>

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

Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding'.

<p>1. Registration' of title—when former decree is res judicata of cross-application to foreclose trust deed. Where the court has jurisdiction of the parties and of the subject matter of a suit to foreclose a trust deed and dismisses the bill as to certain defendants, in a subsequent proceeding by said defendants to register their title to the property the decree in the foreclosure suit is res judicata of a cross-application to foreclose the trust deed.</p> <p>2. Mortgages—when provision for release of trust deed to a building loan company is binding. A provision in an application for a loan from a building loan company that upon proof of death or total and permanent disability the applicant and her heirs and assigns shall be discharged from all obligations under the contract and that all unpaid obligations shall be charged to the reserve fund of the company and the company’s interest in the property be released and quit-claimed to her or her heirs and assigns is binding on the company, where the applicant fully performs her contract by paying all notes which matured up to the day of her death.</p> <p>3. Same—when foreclosure decree is null and void. Where a bill to foreclose a trust deed is dismissed by the court as to certain defendants who demurred to the bill such defendants are out of the case, and a subsequent decree of foreclosure against them by default, without further process and notice, is without jurisdiction and void.</p>

<p>'Appeal from the Circuit Court of Gallatin county; the Hon. Julius C. Kern, Judge, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Theodore BrEntano, Judge, presiding.</p>

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Anton T. Zeman, Judge, presiding.</p>

<p>1. Workmen’s compensation—when injury to miner arises out of and in course of employment. An injury to a coal miner who was caught between low-hanging coal and the pit-car he was driving in the execution of an order to haul timbers, arises out of and in the course of his employment although he was not employed to drive the mules hauling the car.</p> <p>2. Same—award for period of sixty-six and two-thirds weeks for one-third loss of use of arm is proper. Under clause 17 of paragraph (e) of section 8 of the Compensation act an award for a period of sixty-six and two-thirds weeks is proper where the injuries sustained cause a permanent loss of one-third of the use of an arm.</p> <p>3. Same—when error in allowing applicant to testify as to per cent of loss of use of arm will not justify reversal. Error in allowing the applicant to testify that he believed the injuries sustained caused a loss of one-third of the use of his arm will not justify a reversal, where, aside from the incompetent statement, his other testimony and actual demonstration with the injured arm show that he has sustained loss of the use of his arm to that extent. (International Coal Co. v. Industrial Com. 293 Ill. 524, distinguished.)</p>

<p>1. Taxes—action of board of review must be shown by its records. On application by a county collector for judgment for delinquent taxes where an increase in the assessment by the board of review is objected to, the action of the board of review must be shown by its records.</p> <p>2. Same—property owner must be notified before his assessment is raised. Notice to the property owner of any action by the board of review to raise the assessment of his property for taxation is essential, and to constitute due process of law the notice must precede the action taken, so as to give an opportunity for a hearing.</p> <p>3. Same—failure to give notice previous to raising assessment is not a curable omission. Failure of a board of review to give notice to a property owner previous to the passage of a resolution raising the assessment of his property for taxation is not cured by subsequent notice to appear and show cause why the raise should not be made as provided in the resolution, nor by the provisions of sections 36 and 191 of the Revenue act, relating to defects and informalities in tax levies.</p> <p>4. Notice—statute requiring constructive notice must be strictly complied with. Every requirement of a statute providing for constructive notice must be strictly complied with, and nothing else will give validity to the proceedings.</p>

<p>1. Criminal law-—it is for the jury to determine the credibility of witnesses. Where the testimony of the witnesses for the defendant contradicts that for the People it is for the jury to determine which testimony is most credible and worthy of belief.</p> <p>2. Same—a charge of assault with intent to rob may be sustained although no property was taken. Evidence that the defendant stopped the prosecuting witness on the street near midnight, pointed a revolver at him and told him to put his hands up and stand still, and then shot at him and made his escape, will sustain a charge of assault with intent to rob though nothing was taken from, the prosecuting witness or specifically demanded.</p>

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Anton T. Zeman, Judge, presiding.</p>

<p>1. Evidence—complainant need not prove facts admitted by the answer. Allegations of conclusions of law not based upon facts pleaded are immaterial and may be disregarded, and where the answer merely denies conclusions of law the complainant need not im troduce evidence of facts alleged which are admitted by the answer. •</p> <p>2. Same—when complainant need not prove issue of valid execution. Where a bill to assign dower alleges, in respect to complainant’s title, that an execution was sued out and levied upon the property, and the answer admits that an execution was issued and levied and a sale had but denies in general terms that the execution, levy and sale were regular, such denial is not the denial of any fact, and it is unnecessary for the complainant to prove that a.valid execution was issued.</p> <p>3. Homestead—section 16 of Husband and Wife act does not enlarge estate of homestead. Section 16 of the act on the relation of husband and wife, providing that neither the husband nor wife can remove the other or their children from their homestead without the consent of the other unless a suitable homestead is provided, does not enlarge the estate of homestead given by section 1 of the Exemption act. (Jones v. Jones, 281 Ill. 595, explained.)</p> <p>4. ° Same—grantee of the owner of the'fee may have homestead rights adjusted by court of equity. The owner of a homestead estate is not entitled to retain the exclusive possession of real estate worth more than $1000 because the property is incapable of division and the homestead estate in it therefore cannot b'e assigned, but a court of equity, upon the application of the heir, devisee or grantee of the owner of the fee, may set off the homestead, or, if that cannot be done, require the holder of that estate to surrender possession of the premises upon the payment of $1000.</p>

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