Volume 296 — Illinois Reports

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

<p>Appeal from the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. W. K. Whitfield, Judge, presiding.</p>

<p>1. Railroads—common carrier is .not required to furnish tank cars. A common carrier is not required to furnish tank cars to shippers.</p> <p>2. Same—a shipper may resort to courts for damages for unreasonable detention of privately owned car. The Interstate Commerce Commission, in fixing the rate to be paid for the use of privately owned cars, has not attempted to provide for compensation for loss or damages for the unreasonable detention of a car belonging to a shipper, and the latter may resort to the courts to recover such damages from the carrier.</p>

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

<p>Taxes—what is not a compliance with statutory requirement for notice before increase in valuation. The provision of the Revenue act requiring the board of review to give notice and an opportunity for a hearing before making an increase in the valuation of lands is not complied with where the record shows only one resolution by the board, which provided “that the board proceed to raise the present real estate values” a certain per cent, and that afterwards the required number of land owners were notified to appear to answer why the assessment should not be increased, as such a resolution is equivalent to a final determination of the question in advance of the hearing.</p>

<p>1. Criminal law—when the record may be amended to show organization of grand jury. After a challenge to the array and to the poll of the grand jury the record may be amended, on cross-motion of the People, to show the fact that the grand jury was properly organized although several terms have elapsed since the finding of the indictment.</p> <p>2. Same—what authorizes amendment of' record to show organization of grand jury. An amendment of the record to show the proper organization of the grand jury may be based upon ’the venire showing the persons summoned as grand jurors, the notations of the clerk, made at the time, showing those who were excused and those who were called from the bystanders, and the minutes of the judge showing the appointment of the foreman and the swearing of the foreman and of the grand jurors.</p> <p>3. Same—when Supreme Court will not interfere with verdict. It is the special province of the jury to consider and weigh contradictory testimony in a criminal case, and the Supreme Court will not interfere with the verdict on the facts, unless satisfied that the evidence' is clearly insufficient to establish the defendant’s guilt beyond a reasonable doubt.</p>

<p>1. Municipal corporations—affidavit of village clerk is admissible to correct mistake as to giving notice of special meeting. In an action of debt to recover a penalty for the violation of a village ordinance, if the record kept by the village clerk is not correct in respect to the notice to members of the board of trustees of the special meeting called to consider and pass the ordinance, the affidavit of the village clerk is admissible to amend such record according to the truth.</p> <p>2. Same—record kept by village clerk need not have been prepared by his own hand. In an action to recover a penalty for the violation of a village ordinance the proof need not show that the record of the special meeting to consider and pass the ordinance was prepared by the village clerk with his own hand but only that the record is the clerk’s record and is in accord with the truth.</p> <p>3. Same—what need not appear in certificate of village clerk as to publication and passage of ordinance. To constitute the certificate of the village clerk to the copy of an ordinance prima'facie evidence of the publication and passage of the ordinance it is not necessary that the certificate recite that the newspaper in which the proposed ordinance was published had been regularly published for at least six months before the first publication.</p> <p>4. Same—when an ordinance prohibiting billiard tables includes pool tables. An ordinance prohibiting the keeping, in any place of public resort, of any “billiard, bagatelle, pigeonhole or pin alleys and ball alleys, or any other tables or implements kept or used for a similar purpose,” includes pool tables.</p> <p>5. Same—municipal corporation may prohibit billiard tables in all places of public resort. Under clause 44 of section 1 of article 5 of the Cities and Villages act, a municipal corporation may, in its discretion, either license or prohibit the keeping and use of billiard tables in all places of public resort.</p> <p>6. Same—when determination that a thing is a nuisance rests zvith municipal authorities. If a thing neither necessary nor useful may or may not be a nuisance in itself, depending upon local conditions and circumstances surrounding its use, the determination whether it is a nuisance or not rests with the legislature or the municipal authorities, and their finding is binding upon the courts.</p> <p>7. Same—zuhen ordinance is not invalid for failure to fix unit of offense. An ordinance prohibiting the keeping or using of any billiard table in any place of public resort and subjecting the offender to a fine “for each and every offense” is not invalid for failure to define what shall constitute the unit of the offense, such as an hour or a day.</p> <p>8. Same—ordinance prohibiting use of billiard tables cannot be evaded by organization of pretended- club. An ordinance prohibiting the keeping or use of any billiard table in any place of public resort cannot be evaded by the incorporation of a pretended club, which allows anyone to use the tables upon signing the by-laws and paying an initiation fee of twenty-five cents, entitling him to play three games and thereafter play at ten cents a game, as such a club is a place of public resort.</p> <p>9. Same—judgment in debt for violation of ordinance may provide imprisonment until fine is paid. Under paragraph 299 of the Cities and Villages act (Hurd’s Stat. 1917, p. 408,) a person violating an ordinance of a village may be committed to the calaboose for a term not exceeding six months until the fine is paid, although the action to recover the penalty is an action in debt.</p> <p>10. Practice—ziShere the trial court rightly directs a verdict, remarks of the judge will not be prejudicial. Where the trial court rightly directs a verdict in an action in debt for the violation of an ordinance, remarks of the judge will not prejudice the rights of the defendant and cannot be taken advantage of on appeal.</p> <p>11. Verdict—verdict will be given favorable construction, if possible. All reasonable intendments will be indulged to support a verdict, and even in criminal cases the verdict is not construed with the same strictness as the indictment.</p> <p>12. Appeals and errors—when a reversal is not justified although there is error in record. Where there is no apparent reason why a different result may be expected on a second trial the Supreme Court will not enter a judgment of reversal even if there be error in the record.</p>

<p>1. Wills—statement of the rule in Shelley’s case. Where an ancestor takes an estate of freehold and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the word “heirs” describes the extent or quality of the estate conveyed and does not designate the persons who are to take the estate.</p> <p>2. Same-—meaning of the word "heirs” in the rule in Shelley’s case. The heirs contemplated by the rule in Shelley’s case are those of the whole line of inheritable blood, designating those who are to take from generation to generation, and where the word “heirs” is used in a will in an untechnical or limited sense the rule does not apply.</p> <p>3. Same—rule in Shelley’s case should not be considered in construing word "heirs” as used in a will. In construing the word “heirs” as used in a will the rule in Shelley’s case should not be considered, as it is strictly a rule of law and not a rule of construction, but the intention of the testator must be determined by the application of the fundamental principles of construction.</p> <p>4. Same—technical words should be given technical meaning unless intention is otherwise. In construing a will words must be given their ordinary meaning, but technical words are presumed to be used according to their technical meaning and will be given that meaning unless it clearly appears that they were not used in that sense.</p> <p>5. Same—word "heirs” is presumed to have been used in technical sense but its meaning is not fixed. There is a strong legal presumption that the word “heirs” in a will is used in its technical sense, as denoting the indefinite line of inheritable succession; but the word may mean children, or where there are no children it may mean some other class of heirs less than the whole line, if the context of the entire will plainly shows such to have been the intention of the testator.</p> <p>6. Same—word "heirs” is génerally used as word of limitation. The word “heirs” is generally a word of limitation and is not to be construed as a word of purchase unless there are other controlling words showing such intention by the person using it, and if it is used as a word of limitation its effect is to mark out the estate granted.</p> <p>7. Same—later of two repugnant clauses mtist prevail. If there is any repugnancy between two clauses in a will the later expression of the testator must prevail.</p> <p>8. Same—when life tenant takes the fee under rule in Shelley’s case. A devise of a life estate in land to the son of the testatrix and at his death the land to be distributed “among his heirs according to the laws of this State,” passes the fee to the son under the rule in Shelley’s case, notwithstanding the testatrix by a preceding clause gave to her husband ten dollars in satisfaction of dower and all other claims, as such provision does hot indicate an intention to exclude the husband as an “heir” of his son if the son died without issue.</p>

<p>Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Wells M. Cooic, Judge, presiding.</p>

<p>1. Insurance—when insurable interest of mortgagee is not extinguished by foreclosure. Where a fire policy on mortgaged premises provides that loss or damage shall be payable to the mortgagee “as interest may appear” and that the insurance as to the mortgagee’s interest shall not be invalidated by foreclosure, a foreclosure by a decree and sale will not extinguish the insurable interest of the mortgagee where he becomes the purchaser at the sale, but such interest, to the extent of the debt, continues during the redemption period, while the mortgagor has an insurable interest for the full value of the property during the same period.</p> <p>2. Same—what does not, of itself, amount to an increased hazard. The mere foreclosure of a mortgage on insured premises and a sale thereof under the decree to the mortgagee does not, of itself, amount to an increased hazard.</p> <p>3. Mortgages—foreclosure by legal proceeding cuts off right of redemption. A foreclosure by legal proceeding is the process of cutting off the mortgagor’s right of redemption, and in case of a sale and failure to redeem, all existing rights in the mortgagor to redeem the property are lost and the purchaser at the mortgage sale is entitled to a deed conveying the absolute title.</p>

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

<p>1. Criminal law—when silence constitutes admission of guilt. An admission of guilt may be implied when a party charged with crime remains silent when statements, which he hears and understands, are made by third persons in his presence implicating him, where the circumstances are such as tó afford him an opportunity to act and speak in reply and are such that a person similarly situated would naturally make a reply.</p> <p>2. Same—when silence does not amount to an admission. Ari admission of guilt is not implied from the silence of a party charged with crime where the circumstances are such that the accused is not in a position to deny the charge, or where his silence is of a character which does not justify an inference that he should have spoken, or where he is restrained in any way from speaking by fear, doubt of his rights, instruction by his attorney or a reasonable belief that his security will be best promoted by silence.</p> <p>3. Same—what evidence as to accusation in presence of defendant is admissible. In a trial for murder, evidence of the conduct of the defendant and of what was said in his presence when he was accused by the victim of the assault is admissible upon the question of an implied admission of guilt, but his conduct should not be regarded as such admission where the identification of the accused is not positive and there is a difference in the testimony regarding the circumstances of the accusation.</p> <p>4. Same—when judgment will not be reversed for faulty instructions. Though an instruction for the People on the subject of reasonable doubt and one for the defendant' on the presumption of innocence are both faulty in submitting to the jury the question what are material facts, the judgment will not be reversed for such error provided the instructions are not contradictory.</p> <p>5. Same—what are material facts in a criminal case. In a criminal prosecution the material facts are the final essential elements of the crime and the ultimate conclusions of fact from every variety of evidence tending to establish them.</p> <p>6. Same—instructions should not submit to the jury propositions which are for the court—material facts. Although in a criminal prosecution the jury are judges of the law as well as of the facts, instructions should not submit to them propositions of law which it is the duty of the court to decide, such as the question what are the material facts in the case.</p> <p>7. Same—when- improper argument by the State’s attorney is not ground for reversal. In a trial for murder, though the only-purpose in admitting evidence of the accusation of the defendant by the victim of the assault was to enable the jury to determine whether there was an implied admission of guilt, an improper statement in the State’s attorney’s argument in referring to such evidence as the identification of the accused is not ground for reversal, where an objection to the argument was sustained and the jury instructed that the accusation was not to be considered as evidence of identification.</p>

<p>Wills—subsequent marriage revokes will unless its provisions are on expressed condition of marriage—evidence. A subsequent marriage is a revocation of a will unless the will provides on its face for a- future marriage and makes provision for the wife conditioned upon such marriage taking place, and on application for probate of a will made two days before marriage but which makes no express provision for future marriage, evidence that the testator was engaged to be married to the legatee, who became his wife, and that there was an understanding in regard to the will, is incompetent. (Ford v. Greenawalt, 292 Ill. 121, distinguished.)</p>

<p>1. Wills—•construction of will depends upon intention of testator and circumstances of the case. Each will must be construed in the light of its own phraseology and the facts surrounding the testator at the time of its execution, and the object to be attained in the construction of a will is to ascertain the meaning which the testator intended and to give effect to that intention if it is not prohibited by law or public policy.</p> <p>2. Same—general rule as to construction of devise over in case of death. As a general rule, in construing a devise over in case of the death of a devisee, if there are no contingent circumstances connected with such death, the testator will be presumed to intend a death preceding his own, but if the devise over is to take effect in case of the death of the first taker under circumstances which may or may not take place, the devise over, unless controlled by other provisions of the will, will take effect upon the death of the first taker under the circumstancés specified, either before or after the death of the testator.</p> <p>3. Same—the law favors vesting of estates. If possible, courts will adopt that construction of a will that will give an estate of inheritance to the first devisee, and estates, legal or equitable, given by will will always be regarded as vesting immediately unless the testator has by very clear words manifested an intention that they shall be contingent on a future event.</p> <p>4. Same—when “death without issue” means death before time of distribution. If a fund to be distributed under a will is vested in a trustee or in an executor as trustee, who is directed to distribute it at a certain time so ■ that the trusts then determine, and the legatees who are to take upon the death of prior legatees without issue are contemplated as taking through the medium of the same trustee, then the words “death without issue” mean death before the time of distribution.</p> <p>5. Same—when executor is a trustee. Where an executor is ordered by the will to sell and distribute property he becomes a trustee for that purpose.</p> <p>6. Same—when death “without children living” means before distribution. Where, after executing a will providing for his wife during her lifetime and devising one-third of-his property to each of his two sons and dividing the remaining one-third among his four daughters, the testator, after his wife’s death and the conveyance by him to his two sons of the shares described in the will, executes a codicil giving each son five dollars and directing his executors to sell his remaining real estate and divide the proceeds, equally among his four daughters, a provision in the original will for a devise over “if any, of the above named children shall die without children living” will be construed to refer to death before distribution is made.</p>

<p>1. Deeds—to set aside deed complainants must prove allegation-of mental incapacity. The burden is on the complainants in a bill to set aside a deed and for partition to prove their allegation of mental incapacity on the part of the grantor.</p> <p>2. Same—a grantor is presumed to have conveyed property he owned. The presumption is that a grantor, in executing a deed, intended to convey property he owned.</p> <p>3. Same—rule that' intention of grantor should be given effect applies to description. The rule that the intention of the parties is the test by which to determine the effect of deeds applies to the description of the property as well as to other parts of the instrument.</p> <p>4. Same—deed may be good without usual mode of description. A 'deed may be good without the usual mode of description by a governmental survey or by lots and blocks or metes and bounds, provided the property can be "definitely located from the description in the deed. „</p> <p>5. Same—description is sufficiently definite if it can be made certain by aid of extrinsic evidence. A deed will not be held void for uncertainty in description if the description can be made certain and the property located by the aid of extrinsic evidence, and a false description may be rejected for the purpose of giving effect to the deed if the true words are sufficient to designate the land.</p> <p>6. Same—deed will be construed most favorably to grantee. A deed will be construed most favorably to the grantee, and conflicting descriptions should be reconciled, if possible, and that construction adopted which best comports with the intention of the parties.</p> <p>7. Same—deed from husband to wife is not presumed fraudulent as to heirs. As against his heirs a husband has a" legal right to convey property to his wife as a gift, and the mere existence of the relation of husband and wife between grantor and grantee will not create any presumption of fraud, where rights of creditors are not involved requiring the grantee to prove the fairness of the transaction.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. John H. Marshall, Judge, presiding.</p>

<p>1. Criminal law—when plaintiff in error is not in position to object to variance. On review of a criminal case the plaintiff in error is not in a position to avail himself of any claim of a variance where no objection to the testimony on the ground of a variance was raised at any time during the trial.</p> <p>2. Same—when variance as to names will be regarded as material. A variance as to the names alleged in 'an indictment and proved by the evidence is not to he regarded as material unless it shall be made to appear to the court that the jury were misled by it or that some substantial injury was done to the accused thereby, such as that by reason thereof he was unable intelligently to make his defense or was exposed to the danger of a second trial on the same charge.</p> <p>3. Same—to raise question of improper argument the record should show the argument was made and objected to. To entitle a plaintiff in error to make complaint against improper argument the record should show that the argument was made and also that an objection was made.</p> <p>4. Same—new trial zvill not be granted where new evidence is cumulative. A new trial will not be granted for newly discovered .evidence which is merely cumulative, especially where it is shown that due diligence was not used to obtain the witnesses or to have the trial continued to a time when they could be produced.</p> <p>5. Same—new trial will not be granted merely upon affidavit of defendant. A new trial will not be granted where only the affidavit of the defendant is to be relied upon to show what the new evidence will be and where there are no affidavits of the witnesses themselves by whom it is proposed to prove the facts relied upon.</p> <p>6. Same—when instruction as to accessories before the fact is harmless. Where the circumstances connected with the burglary of a bank are such that it may never be known whether the accused took part in the act 'as a. principal or as an accessory but his guilt is presumed from discovery of the stolen articles in his possession, it is not harmful to give the jury an instruction in the language of the statute defining an accessory before the fact.</p> <p>7. Same—possession of stolen articles raises a presumption of guilt of burglary. Where it is an undisputed fact that a burglary was committed, the defendant’s recent arid unexplained possession of the articles stolen at the time raises a presumption that he is guilty of the burglary as well as of the larceny.</p> <p>8. Same—when the possession of stolen property is sufficient to authorize a conviction—instruction. The recent and unexplained possession of stolen property is sufficiént, of itself, to authorize a conviction of the possessor for the theft, unless the inference of guilt thereby raised is overcome by other facts and circumstances in evidence which create in the minds of the jury a reasonable doubt of such guilt; but an instruction that such possession constitutes a prima facie case of guilt is not strictly accurate.</p> <p>9. Same—evidence to convict of burglary need not be confined to stolen articles found on defendant. Where it is an undisputed fact that a bank was burglarized and property taken therefrom, it is proper on the trial of a defendant on whom some of the stolen property was found to prove the burglary completely in all its details as well as the larceny.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding.</p>

<p>1. Criminal law—question of credibility of witnesses is for the jury. In a prosecution for manslaughter against the driver of an automobile it is for the jury to decide as to the credibility of the witnesses for the State and those for the defendant and the reasonableness of their respective accounts of the occurrence.</p> <p>2. Same—jury may be instructed that they are judges of the law. As the statute provides that juries in all criminal cases shall be judges of the law as well as the facts, it is proper in an instruction to state that rule to the jury. (People v. Mirabella, 294 Ill. 246, explained.)</p> <p>3. Same—when jury may be instructed as to what is prima facie an unreasonable rate of speed for automobile. In a prosecution for manslaughter committed by careless driving of an automobile, it is not error to instruct the jury that a speed exceeding ten miles an hour in a closely built-up section of a city or fifteen miles in a residence portion is prima facie evidence of a rate of speed greater than is reasonable or proper, where there is evidence fairly tending to show that the accident happened in a residence portion of a city and that the automobile was then going about sixteen miles an hour.</p> <p>4. Same—when instruction as to duty of jury to apply the law is not erroneous. In a criminal case, an instruction stating that it is the duty of the jury to determine the facts from the evidence and “to apply to such facts the law,” is not erroneous in not adding the words, “as stated in these instructions.”</p>

<p>Appeal from the County Court of Kankakee county; the Hon. James T. Burns, Judge, presiding.</p>

<p>1. Criminal law—what is not evidence that the property was stolen. Evidence that a rug. was in a stock of goods in a store on a certain day and was missing the" next day does not sustain a charge that the rug was stolen.</p> <p>2. Same—possession of stolen property must be exclusive in defendant to be prima facie evidence of guilt. The possession of stolen property soon after it was stolen is prima facie evidence of guilt only when the possession is exclusive in the defendant, and if the place where the property is found is such that others have access to it as well as the defendant, the circumstance is not evidence that the defendant, and not someone else, stole the property.</p> <p>3. Same—instruction that the possession of stolen property is prima facie evidence of guilt should be limited to count for larceny. Where defendants are indicted for larceny and receiving stolen property, an instruction that possession of stolen property soon after the commission of the offense is prima facie evidence of guilt should be limited to the count for larceny.</p> <p>4. Same—effect of verdict of guilty of receiving stolen property under indictment also charging larceny. Under an indictment for larceny and for receiving stolen property, the effect of a verdict of guilty of the latter charge, without any finding on the larceny count, is to acquit the defendant of larceny.</p> <p>5. Same—mere possession of stolen property is not evidence of knowledge that it was stolen. Knowledge by the defendant that the property was stolen when he received it is essential to a, conviction of the crime of receiving stolen property, and the recent possession of stolen property is not evidence of such knowledge, which must be'proved beyond a reasonable doubt.</p> <p>6. Same—instruction should not encourage jury to disagree. An instruction that if any juror should entertain a reasonable doubt of the defendant’s guilt after consultation with, fellow-jurymen they cannot find the defendant guilty amounts to little more than an invitation to the jury to disagree and is properly refused.</p> <p>7. Same—when instruction on reasonable doiibt is properly refused. An instruction on the subject of reasonable doubt stating it does not require a strong doubt to justify an acquittal is properly refused, as it is not a question, in arriving at a verdict, whether a doubt is strong or weak but whether it is a reasonable doubt.</p>

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

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

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

Writ or 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. Denis F. Sullivan, Judge, presiding.

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

<p>■ Writ oE Error to the Circuit Court of Marion county; the Hon. Thomas E. Ford, Judge, presiding.</p>

<p>1. Workmen’s compensation—claimant’s testimony as to per cent of loss of earning capacity is incompetent. The opinion of an injured employee as to the per cent of loss of his former earning capacity sustained by him is not competent.</p> <p>2. Same—commission cannot ignore testimony as to earnings since injury. In determining what per cent of loss of former earning capacity an injured employee has sustained the Industrial Commission cannot ignore the evidence as to what he has earned since his injury, and the finding of the commission must be based upon competent evidence and not on conjecture or surmise.</p> <p>3. Same—when finding of fifty per cent loss of earning capacity is unauthorized. A finding that an injured employee whose average weekly wage before his injury was $26.53 has sustained a fifty per cent reduction of his earning capacity is not authorized, where the only competent evidence on the question is that he has earned about $18 or $20 a week since going to work in another employment after his injury.</p>

<p>Taxes—a.tax to pay judgments of court of record cannot be scaled. A tax levied for the purpose of paying judgments of a court of record cannot be diminished by any scaling process; and it is immaterial whether the tax is levied by the county board as part of the regular county tax or is an additional tax levied pursuant to a vote of the people. (People v. Cairo, Vincennes and Chicago Railway Co. 261 Ill. 162, followed.)</p>

<p>1. Taxes—commissioner must determine the rate for road and bridge tax. The commissioner of highways must determine the rate for the road and bridge tax of his township as well as the amount of the táx, as both determinations are mandatory under sections 50 and 56 of the Road and Bridge act.</p> <p>2. Same—when record may be amended to show tax rate was determined. On application for judgment for taxes the court may authorize the amendment of a tax record to show that the commissioner of highways determined the rate for the road and bridge tax, and the amendment may be made by the town clerk where the commissioner who fixed the rate is dead at the time of the trial and where it is clearly shown that the proposed amendment will cause the record to speak the truth.</p>

<p>1. Principal and agent—what may be included in parol authority to agent. Whatever a party may do in his own proper person he may, in general, do by an agent lawfully appointed, and an agent may be appointed by parol to do anything which does not require the execution of a deed for his principal.</p> <p>2. Same—agent may be authorised by parol to sign contracts— Statute of Frauds. An agent may be authorized by parol to make and sign contracts in writing even though such contracts are not binding upon the principal unless in writing signed by him; and where the Statute of Frauds requires an instrument to be in writing in order to bind the party, he may, without writing, authorize an agent to sign it in his behalf unless the statute positively requires that the authority shall be in writing.</p> <p>3. Arbitration—arbitration agreement signed by counsel at request of the parties is binding upon them. Where the names of the parties to an arbitration agreement are signed by counsel in the presence of the parties and at their request the signatures will be regarded as the personal signatures of the parties, as an instrument or deed signed by one man in the name of another under such circumstances is as binding on the principal as if signed with his own hand by writing his name or placing his mark upon it.'</p> <p>4. Same—Arbitration act confers no judicial powers on arbitrators. Arbitration is in the nature of a judicial inquiry, but the Arbitration act confers no judicial powers on arbitrators, as the proceeding is net compulsory but entirely voluntary, and the statute merely regulates the method by which the arbitration may be conducted.</p> <p>5. Same—making an arbitration agreement irrevocable by statute does not violate constitutional rights. Before the enactment of the Arbitration act the court could not specifically enforce an agreement to arbitrate but left the parties to their remedies at law for a breach of the contract, and the effect of the statute making the agreement irrevocable is merely to provide for the specific enforcement of the contract, and the statute violates no constitutional rights.</p> <p>6. Same—an arbitration agreement is not invalid as being contrary to public policy. The principle that an executory contract to submit any controversy which may arise under it to arbitration Qis invalid as being contrary to public policy and as being an attempt to divest the courts of their jurisdiction applies only where there is a general agreement to submit all controversies to arbitration, and does not apply to cases where a controversy has arisen and an agreement is made to submit the particular controversy fo arbitration nor to agreements to, arbitrate special questions.</p>

<p>Appeal from the County Court of Douglas county; the' Hon. D. H. WamslEy, Judge, presiding.</p>

<p>Appeal from the County Court of Winnebago county; the Hon. Fred E. Carpenter, Judge, presiding.</p>

<p>1. Taxes—when admission by objector cures defect in proof of publication. An objector’s admission in a proceeding to collect a drainage tax that the property had been advertised for the delinquent assessment will cure a defect in the proof of publication.</p> <p>2. Same—when levee drainage tax may exceed thirty cents per acre. The provision of section 26% of the Levee act of 1879, as amended in 1913, that the aggregate amount of a drainage assessment of annual benefits shall not exceed thirty cents per acre, expressly excludes districts which have pumping plants, and in such districts the assessment may be an amount sufficient to keep the levees, drains and other works in operation and repair.</p> <p>3. Drainage—whether assessment of annual benefits is excessive is a question of fact.' Whether an assessment for annual maintenance and benefits in a levee drainage district is excessive is a question of fact, which the Supreme Court will not review on appeal from a judgment for the collection of a delinquent assessment unless the finding of the trial court is clearly against the weight of the evidence.</p> <p>4. Same—when tax for annual benefits is not invalid because of insufficient outlet. Land owners may compel the commissioners of a levee drainage district to provide sufficient outlets to take care of the waters of the district, and a tax for annual benefits will not be held invalid because of the alleged insufficiency of an outlet near the property objected for, unless it appears that the outlet cannot be made adequate.</p>

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

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

<p>Writ op Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>1. Workmen’s compensation—when suit by certiorari in circuit court must begin. The Compensation act provides that suit by writ of certiorari in the circuit court shall be commenced within twenty days of the receipt of notice of the decision of the Industrial Commission and not from the time when the decision is made or filed.</p> <p>2. Same—Compensation act should be construed to give justice to both employer and employee. The remedial nature of the Compensation act and its beneficent purpose should be given due weight in its construction, but its purpose can only be realized by evenhanded justice to both employer and employee, so the latter shall receive what he is entitled to and the former shall pay no more.</p> <p>3. Same—commission’s finding must be based upon substantial evidence. A finding of the Industrial Commission as to the extent of an injury cannot be based on mere conjecture but must have some substantial foundation in the evidence.</p> <p>4. Same—claimant’s opinion as to per cent of loss of use of injured member is not competent evidence. In making an award for permanent partial disability it is for the Industrial Commission to determine the per cent of loss of use of the injured member, but the opinion of the claimant as to the per cent of loss of the use of such member is not competent evidence. (Hafer Washed Coal Co. v. Industrial Com. 293 Ill. 425, followed.)</p>

<p>Writ oe 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. M. L. McKinley, Judge, presiding.</p>

<p>1. Deeds—entire granting clause should be considered. In determining whether a less estate than a fee has been limited by the granting clause in a deed the entire clause should be considered, and in case of an apparent conflict between printed and written words the written words will prevail.</p> <p>2. Same—when the granting clause conveys a life estate, only. Where the printed part of the granting clause in a warranty deed recites that the land has been sold to the “party of the second part, her heirs and assigns,” but after the description of the land written words are inserted stating that the object of the deed is to convey to the grantee “a life estate only, the remainder in fee simple to the legitimate children” of the grantee, and on failure of children then to others, the grantee takes a life estate, only.</p> <p>3. Same—when limiting words in granting clause do not violate rule against perpetuities. Words limiting the estate granted to the grantee, who is in being, to a life estate, only, with remainder to her legitimate children, and if she has no children then at her death the property to descend and “is hereby conveyed” to the legitimate children and heirs of other named persons and their heirs forever, do not violate the rule against perpetuities, as there will be no postponement of the vesting of the legal title at the death of the life tenant.</p>

<p>1. Special assessments—-effect where part of a street where sewer is to be laid has no water mains. An ordinance providing for a sewer in a street one-half of which is not provided with water mains is not necessarily unreasonable, as the court has power, under section 52 of the Local Improvement act, to modify the assessment roll so that no lot shall be assessed more than it is benefited.</p> <p>2. Appeals and errors—when right to trial by jury is deemed .waived. The right of the objector in a special assessment proceeding to a trial by jury must, on appeal, be deemed to have been waived, where the record shows she was present by her attorney, participated in the trial, offered evidence and made no demand for a jury, although the record shows no express waiver of a jury.</p> <p>3. Same—Supreme Court cannot consider facts not shown by the record. On appeal in a special assessment proceeding the Supreme Court cannot consider the facts of the case as recited in the brief but is limited to the facts as they appear from the record under review.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding.</p>

Writ or 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. Marcus Kavanagh, Judge, presiding.

<p>Appeals and errors—constitutional question must be raised in the trial court. A judgment convicting the defendant of a misdemeanor cannot he reviewed by the Supreme Court in a direct proceeding on the ground that the validity of a statute is involved, where that question was not in any manner presented to the trial court for decision.</p>

<p>1. Workmen’s compensation—what determines whether workman is an employee or an independent contractor. The principal consideration in determining whether a workman is an employee or an independent contractor is the right to .control the manner of doing the work, and not the actual exercise of that right by interfering with the work.</p> <p>2. Same—definition of an independent contractor. An independent contractor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result.</p> <p>3. Same—method of payment does not necessarily determine whether workman is independent contractor. The fact that payment is to be made by the piece or the job or by the day or hour does not necessarily determine whether a workman is an independent contractor or an employee, where the workman is subject to the control of the employer.</p> <p>4. Same—whether injured workman was an independent contractor or an employee is a question of fact—review. Whether a workman was at the time of his injury an independent contractor or an employee is a question of fact, and the circuit court should not set aside an award where there is evidence tending to support the finding of the Industrial Commission that the workman was an employee, which was the only question in controversy.</p> <p>5. Same—when finding that injured workman was an employee is not without basis. A finding that a workman injured while helping another workman build pit-cars for a mining company was an employee of such company is not without basis where the evidence shows that both workmen were regular employees of the company; that they built the cars when not doing other work for the company; that the cars were built on the company’s premises.in a shop and with materials and tools furnished by the company and according to the company’s specifications; and that the men had agreed to build a certain number of such cars, for which they were paid an agreed price per car.</p>

<p>1. Workmen’s compensation—what is the-test of dependency. The test of dependency under the Compensation act is whether the contributions of the deceased were relied on by the dependent for his or her means of living according to the dependent’s position in life or whether the dependent was to a substantial degree supported by the deceased, and it is not necessary to show that the dependent would have been without the necessaries of life in the absence of such contributions.</p> <p>2. Same—dependency is a question of fact. Dependency, and the extent thereof, are questions of fact, and the courts will not interfere with the finding of the Industrial Commission on those questions if there is evidence to sustain the finding.</p> <p>3. Same—when child contributes to support of parents. A child contributes to the support of its parents, within the meaning of the Compensation act, when it contributes a substantial sum to the support of the family although that sum is less than the actual cost and expense of its support and maintenance, if the child is a minor or is in a condition to demand legal support from its parents.</p> <p>4. Same—what evidence warrants finding that son contributed to support of parents. A finding by the Industrial Commission that a minor son contributed to the support of his parents is warranted by evidence that the parents were truck farmers, and that when crops were poor the son’s contributions from his own earnings, in addition to the amount he paid his parents for board and room, assisted in their support.</p>

<p>1. Taxes—exemption law must be strictly construed. A law exempting property from taxation must be strictly construed, and it devolves upon those claiming that specific property is exempt to clearly show that it is within the contemplation of the law.</p> <p>2. Same—to be exempt as a charity, property must be actually in use for charitable purposes. The constitution contemplates, and the statute provides, that only property actually and exclusively used for charitable purposes shall be exempt from taxation, and a trust fund or' real estate held by trustees for charitable purposes, not actually and exclusively in use for charitable purposes but only held for such use in the future, is not exempt from taxation under the provisions of the statute.</p> <p>3. Same—when real property is not exempt for agricultural purposes. Real property deeded to trustees for agricultural purposes and to be managed by the county farm adviser as a model and experimental farm to demonstrate the most approved methods of farming is not exempt from taxation under section 2 of the Revenue act, where the proof does not show that the land was held and used for such purpose at the time it was assessed, although it is proved it is not to be used for pecuniary profit.</p>

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

<p>1. Wills—contingent remainder may be destroyed by merger. A contingent remainder created by will is destroyed, under the law of merger, when the life tenant and the reversioners join in conveying their respective interests to a third person. (Bond v. Moore, 236 Ill. 576, adhered to.)</p> <p>2. Same—when reversion in fee does not pass under residuary clause. Where land is specifically disposed of in a particular clause of a will by creating a life estate and a contingent interest without disposing of the reversion in fee, the reversion is in the heirs and will not pass under a general residuary clause giving the trustees power to dispose of all the residue of-the testator’s estate. (Kolb v. Landes, 277 Ill. 440, followed.)</p> <p>3. Same—when remainder in fee vests immediately upon birth of issue. Under a devise to the testator’s grandson and “to the heirs of his body begotten, * * * and in case of his death without heirs of his body begotten” then to the testator’s heirs-at-law, the grandson takes a life estate under section 6 of the Conveyances act, and if issue is born to him the remainder in fee will vest immediately in such issue and the limitation over to the testator’s heirs will be defeated.</p> <p>4. Same—when limitation over to testator’s heirs is not an ex-ecutory devise. A devise to the testator’s "grandson and “to the heirs of his body begotten, * * * and in case of his death without heirs of his body begotten” then to the testator’s heirs-at-law, does not create an executory devise to said heirs-at-law after the termination of the life estate which the grandson has under sec-' tion 6 of the Conveyances act, but the limitation over is contingent on the grandson ever having issue born to him, and will be destroyed by merger where the life tenant and the heirs-at-law join in a conveyance to a third party. (Hickox v. Klaholt, 291 Ill. 544, distinguished.)</p>

<p>1. Elections—petition to contest must show that contestants are electors. As the proceeding to contest an election is wholly statutory the jurisdiction of the court must be exercised only in accordance with the statute, and the petition to contest must set forth the points on which the election is to be contested, must be verified by affidavit, must be filed within the time prescribed by statute and must allege that the petitioners are electors.</p> <p>2. Same—one petition cannot contest election to two different offices. Electors may join as petitioners to contest an election, but the petition cannot contest in one proceeding the election of two persons to entirely different offices.</p> <p>3. Same—when electors may correct defects in their petition to contest by filing an amended petition. Where a petition to contest an election has been filed by electors within the time required by statute and is verified by affidavit, an amendment showing that the petitioners are electors and that the petition is to contest the election to only one office may be made even after the thirty days allowed for a contest have expired, and such amendment may be by way of an amended petition instead of an amendment to the original petition.</p> <p>4. Same—election contest is a statutory proceeding but is tried as in chancery. An election contest is a purely statutory proceeding, but after the petition is filed the case is to be tried in like manner as in cases in chancery.</p> <p>5. Same—burden is on the contestant to show ballots have been properly preserved. The burden is on the contestant in an election contest to show that the ballots counted in the contest are those cast at the election and that they are in the same condition as when cast.</p> <p>6. Same—the ballots cannot overcome returns unless they are shown to have been properly preserved. In an election contest, unless the preservation of the ballots is shown to have been such that there has been no reasonable opportunity for tampering with them they cannot overcome the returns when carefully made; and it is not necessary that an unlawful interference with the ballots be shown by the contestee, but it is sufficient to invalidate them as evidence that the opportunity for interference by unauthorized persons existed.</p> <p>7. Same—any evidence bearing on question of preservation of ballots should be admitted in contest. In an election contest any competent evidence should be admitted which has a bearing upon the question whether or not the ballots have been properly preserved and are in the same condition as when canvassed, as the question whether ballots or the election returns are the best evidence must necessarily depend upon all the proof that may be legitimately offered which supports or tends to support the re-count as well as that supporting the returns.</p> <p>8. Same—evidence of preservation of ballots goes to determine their weight as evidence in contest. Under the statute the ballots are admissible in evidence in an election contest without regard to what the evidence shows as to their preservation, but to be controlling as evidence the ballots must affirmatively be shown to have - been preserved in the manner and by the officers required by statute.</p> <p>9. Same—election pidgés are presumed to have discharged their duty in canvassing votes. Until the contrary is shown, election judges are presumed to have discharged their duty in canvassing the votes, in making returns and in making proper announcement of the vote after the ballots have been canvassed.</p> <p>10. Same—when petitioner in an election contest makes prima facie case that he is an elect.or. Proof that the petitioner in an election contest has lived in the precinct up to the time of the election and has voted there establishes prima facie that he is an elector of the township, and mere proof that he is foreign born does not overcome the prima facie case nor require him to prove his naturalization.</p>

<p>1. Bills of exceptions—rulings during the trial are subject to review without formal exceptions. Under the amendment of 1911 to section 81 of the Practice act, any ruling of the court in the progress of the trial is subject to review without formal exception being taken at the time, and may be included either in a bill of exceptions, a certificate of evidence or a stenographic report of the trial made at the term when final judgment is entered or within such 'further time as the court during such term may fix.</p> <p>2. Same—formal exceptions are necessary to preserve rulings as to motions and in' proceedings other than the trial. The amendment of 1911 to section 81 of the Practice act doing away with formal exceptions to rulings does not apply to motions made during the progress of the case or to proceedings other than the trial, and hence rulings in respect to such motions or proceedings must be preserved at the time they are made or within such time after the term at which they occur as the court during such term may fix.</p> <p>3. Dedication—when reservation for railroad use makes dedication of street cum on ere. A dedication of a highway or street to the public may be made cum onere, and where a dedication is made with a reservation of a right to construct a railroad in the street the reservation imposes on a portion of the street the burden of a railroad use, and if the owner subsequently conveys to a railroad company the right to build and operate the railroad, the public use will be suspended so long as said portion of the street. is devoted to railroad purposes.</p> <p>4. Special assessments—when railroad company is entitled to prove damages from interruption of btesiness. Where the original owner, after dedicating a street to a village with a reservation of the right to build a railroad in the street, sells said right to a railroad company, in a subsequent proceeding to confirm a special assessment for a system of sewers which will require the railroad tracks of said company to be moved to one side during the construction of the sewer, the company is entitled to make proof of the expense of such removal and damages for interruption of its business, even though the company has also .paid the village a consideration for the right to build and operate its road in the streets.</p> <p>5. Same—when fact that the property is already provided with sewer facilities does not relieve it from assessment. In a proceeding to levy a special assessment for the construction of a system of sewers in a village, the fact that certain property is at the time provided with sufficient sewer facilities for its present use will not relieve it from assessment if the effect of the improvement will be to enhance its value for the use to which it is best adapted.</p> <p>6. Judicial notice—court will take judicial notice that letters N. and S., when applied to directions, mean north and south. The Supreme Court will take judicial notice of the fact that the letters N. and S., when applied to directions, are properly read north and south.</p>

<p>1. Criminal law—what is not, in itself, evidence of insanity. The facts that the defendant in a criminal case is a man of depraved character and abandoned habits and that he has committed an atrocious crime are not in themselves evidence that he is insane.</p> <p>2. Same—when People may prove that defendant has committed other crimes. In a murder trial, where evidence has been introduced by the defendant tending'to show that he was insane, and to establish that he has insane delusions proof is made of statements by him to the effect that he had committed certain other crimes, the People may show, without proving the details, that the defendant did, in fact, commit the crimes he talked about.</p> <p>3. Same—what is not ground for sustaining challenge to the array. The mere fact that the sheriff who summoned the regular panel is a witness for the People is not ground for challenge to the array, where there is nothing tending to show any misconduct by him in any way, as substantial rights must be impaired to constitute error in overruling a challenge to the array.</p> <p>4. Same—expert’s opinion as to sanity may be based on all the evidence. In a criminal case an expert medical witness who is called upon to express an opinion as to the defendant’s sanity may base his opinion upon all the evidence in the case, including the facts detailed by lay witnesses, and upon the examination of the defendant which the witness has made.</p> <p>5. Same—what improper testimony will not reverse. Permitting a witness in a murder trial to state that the deceased left four children is not error requiring a reversal, where the statement of the witness is stricken out by the court and there is evidence in the record, admitted without objection, that the deceased had been living on a farm with his wife and children.</p>

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

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

<p>1. Specific performance—time of payment may be waived although stated to be of the essence. Although time of payment is stated to be of the essence of a contract to sell land, if the parties treat the time clause as waived or suspended the seller cannot suddenly insist upon a forfeiture for delay in payment without giving reasonable notice to the purchaser of his intention.</p> <p>2. Same—when failure of the purchaser to have legal tender bn hand to make payment is not fatal. Where the proposed purchaser of land has made his first payment by check, which the seller accepts without complaint, and the seller then delays the completion of the contract until near the close of hanking hours on the day for final payment, the failure of the purchaser to have on hand legal tender to complete the final payment of over $22,000 is not fatal to his right to have the contract performed, where he had prepared checks of unquestioned character for the amount due and when they were refused offered to get the legal tender in Chicago • and present it next day, which he did, the seller making no objection when the offer was made but later refusing to take the money.</p> <p>3. Samé—when seller must give ptirchaser a reasonable time to comply with contract. Where the proposed seller of land has failed to comply with his contract to deliver an abstract showing a merchantable title within ten days before the date set for closing the sale, he must give the proposed purchaser a reasonable time to close the contract after the abstract of title is furnished.</p> <p>4. Same—rise in value subsequent to making of contract is not ground for denying specific performance.^ The fact that land has risen in value since the making of the contract for its sale does not present such a case of harshness or unfairness as authorizes denying specific performance.</p>

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

<p>Writ op Error to the County Court of Pulaski county; the Hon. Fred Hood, Judge, presiding.</p>

<p>Writ oE Error to the Circuit Court of Kendall county; the Hon. Adam Clieee, Judge, presiding.</p>

<p>1. Criminal law—when statements made in presence of accused and concerning his giiilt are admissible. Statements made by one in the presence of the accused and concerning his guilt are admissible in evidence, where the proof shows that the accused remained silent and that the circumstances were such that a person in his situation would naturally deny guilt or make explanations, and the question whether such statements amount to an implied admission of guilt is to be determined by the jury.</p> <p>2. Same—previous or subsequent denials do not affect admissibility of statements in presence of accused. The admissibility of evidence of statements made in the prese'nce of the accused concerning his guilt depends upon the circumstances under which the statements are made and is not affected by his previous denials to the officers who arrested him or by his subsequent written statement or testimony on the witness stand.</p> <p>3. Same—what is proper instruction as to presumption of innocence. It is proper to instruct the jury that the rule as to the presumption of innocence and the burden of proving guilt beyond a reasonable doubt is not intended to aid the guilty to escape, “but is a humane provision of law intended, as far as human agency can, to prevent an innocent person from being convicted.”</p> <p>4. Same—argumentative instructions may be refused. The purpose of instructions is to advise the jury as to the law, and it is not error to refuse to give instructions which are argumentative.</p> <p>5. Same—whether co-defendant shall have separate trial rests in discretion of the Court. A separate trial is not to be had as a matter of right by one indicted with others but the allowing of a separate trial rests within the discretion of the trial court, and unless that discretion is abused the decision of the trial court is not subject to review.</p> <p>6. Same—when statements by court during tUking of testimony are not improper. A presiding judge has no right to give his opinions on controverted questions of fact, but during a controversy between counsel as to the form of a certain question during the examination of a witness the court may explain what it understood by the question asked the witness, where there is nothing in the statement of the court amounting to an opinion as to the weight of the testimony.</p>

<p>1. Criminal law—mistake in indorsing character of offense on indictment is not fatal. A mistake by the State’s attorney or the foreman of the grand jury in indorsing an indictment as being for a certain offense when another offense is charged is not fatal, and the indictment will be sustained regardless of the indorsement.</p> <p>2. Same—zvhen indictment sufficiently charges mutilation of public record. An indictment charging the defendants with cutting a leaf out of a certain deed record in the office of the circuit clerk and ex-officio recorder of a certain county and that the leaf so cut contained the record of a certain deed sufficiently charges mutilation of a public record under section 176 of the Criminal Code, although the ownership of the record is not alleged and there are other averments in the indictment not essential to the offense.</p> <p>3. Same—zvhen instruction is prejudicial. Where the defendants are charged with having cut a leaf out of a deed record and the charge is denied by them, an instruction authorizing the jury to find them guilty if they believe from the evidence that the defendants conspired and .agreed to cut the leaf out, is erroneous in assuming that one of the defendants did cut out the leaf instead of requiring the jury to find that fact from the evidence.</p> <p>4. " Same—zahat does not prechide the defendants from assigning error. An order releasing certain defendants on probation after they have been sentenced is unauthorized and cannot be regarded as an acceptance of the verdict so as to preclude such defendants from assigning error.</p>

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

<p>1. Deeds—description must be such that property can be identified. Where a grantor makes a deed to a grantee without valuable consideration and a mistake is made in the description of the property so that the property cannot be identified or located, a court of equity will not lend its aid to make the gift effective by correcting the mistake.</p> <p>2: Same—description is sufficient if it furnishes the means of identifying the property by aid of extrinsic evidence. The purpose of a description of the land conveyed in a.deed is either to identify the land or to furnish the means of identification, and a deed will not be declared void for uncertainty if it is possible, by any reasonable rule of construction, to ascertain from the description, aided by extrinsic evidence, what property is conveyed.</p> <p>3. Same—when a deed must be held to have been delivered. Where a grantor has been advised by an attorney just what is meant by delivery of a deed, and, pursuant to this advice, hands the deed to the grantee with directions to have it recorded, it must be held, in the absence of evidence to the contrary, that the deed was effectively delivered.</p> <p>4. Same—delivered deed is not void because made in lieu of a will. If a quit-claim deed reserving a life estate in the grantor and directing the grantee to distribute the property at the grantor’s death, as directed in a separate trust agreement, is delivered to the grantee in the grantor’s lifetime, it is not void because the deed and trust agreement were made in lieu of a will, to prevent the grantor’s property from going to her husband or his heirs.</p> <p>5. Same—subsequent control of premises by grantor will not overcome positive evidence of delivery of deed. The fact that a grantor in a deed made in lieu of a will exercised full control over the premises during the time intervening between the execution of the deed and her death will not overcome positive evidence of the delivery of the deed, particularly where the deed reserved her a life estate.</p>

<p>Writ of Error to the County Court of White county; the Hon. Ulys Pyle, Judge, presiding.</p>

Writs oE Error to the First Branch Appellate Court for the First District;—heard in that court on appeals from the Circuit Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding.

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

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

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

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

<p>Taxes—tax for community high school district levied after first Tuesday of August is void. Statutory provisions as to the time for levying taxes are jurisdictional and mandatory, and the levy of a tax for school purposes by a community high school district which was made and certified by the board of education after the > first Tuesday of August is void, notwithstanding the district was not organized until after such date.</p>

<p>1. Taxes—amount required to meet loss and cost of collection rests in discretion of officer extending the tax. The question what is a proper rate of tax to produce the required amount is a matter which must rest largely within the discretion of the officer extending the tax, as it is not certain what the deficiencies in collection will amount to, and one objecting to such rate has the burden of proving an abuse of discretion.</p> <p>2. Same—objector to item for loss and cost should be allowed to question clerk as to how he arrived at rate. As the burden of proving that items for loss and cost of collection are excessive rests upon the person raising such objection, he should be' allowed to question the county clerk as to how he arrived at the rate of taxation as applied to the loss and cost items.</p> <p>3. Same—when ordinance does not change date for commencement of fiscal year. Under section 1 of article 7 of the Cities and Villages act the only way in which a change in the date for the commencement of the fiscal year for villages can be effected is by the passage of a valid ordinance for that purpose, and the mere recital in the preamble of a levy ordinance as to when the fiscal year commenced cannot have the effect of changing the date fixed by statute.</p> <p>4. Same—community high school district must levy tax before first Tuesday in August. The levy of taxes for a community high school district must be made and certified by the board of education before the first Tuesday of August, as required by section 190 of the School law, notwithstanding the further provision of said section that a failure by the school board to file the certificate or of the treasurer to return it to the county clerk in the time required shall not vitiate the assessment, and notwithstanding the fact that the district was not organized until after that date. (People v.-Wabash Railway Co. ante, p. 518, followed.)</p> <p>5. Same—a judgment against railroad right of way should be confined to right of way in taxing district. A judgment for taxes against the right of way of a railroad company should be confined to the right of way of the company within the boundaries of the district levying the tax.</p>

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

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

<p>1. Deeds—when deed will not be set aside for mental incapacity. Old age, eccentricity, or even partial impairment of mental faculties, is not necessarily sufficient to set aside a deed, and if a grantor has sufficient mental capacity to comprehend the nature of the transaction in making the deed and its meaning and effect, and is able to protect his own interests, the deed will not be set aside.</p> <p>2. Same—what undue influence will justify setting aside a deed. Undue influence which will justify the setting aside of a deed must have been of such a nature as to deprive the grantor of his free agency and make his act more the will of another than his own.</p> <p>3. Same—mere advice or argument does not constitute undue influence. Honest advice, argument or persuasion, if the grantor’s mind acts freely thereunder, does riot constitute undue influence though it may lead to the making of a deed which would not otherwise have been made.</p> <p>4. Same—what does not show undue influence by grantee. The fact that a grantor who had no one dependent upon him deeded his property to his niece because he was grateful for her care and attention during his illness, does not, of itself, show undue influence.</p> <p>5. Same—what does not establish fiduciary relation. The facts that the grantee in the deeds sought to be set aside was the grant- or’s niece, who was keeping house for him and caring for him during his illness, and that he had bought a home for her, do not establish a fiduciary relation between them such as puts the burden upon her to show the fairness of the transaction.</p> <p>6. Appeals and errors—when finding of chancellor will not be set aside. ' The finding of the chancellor approving the verdict of the jury in a suit to set aside deeds will not be set aside unless it is manifestly against- the clear weight of the evidence.</p>

<p>Information to disbar.</p>

<p>1. Principal and agent—principal is entitled to profits of real estate agenfs transaction. One who employs another as his agent to sell or exchange real estate is entitled to all the agent’s skill, ability and industry in making the purchase or exchange on the best terms that can be had, and is entitled to the property, in case of an exchange, at the price the agent paid; and the agent cannot avail himself of any advantage his position may give him to speculate to the injury of his principal but all the profits and advantages gained in the transaction belong to the principal.</p> <p>2. Same—an agency is a relation of trust regardless of the consideration. The relation of principal and agent is one of trust and confidence, and where such relation exists it must be faithfully acted upon and preserved from any intermixture of imposition, no matter how large or how small the commission paid may be or whether the agent is a mere volunteer at a nominal consideration.</p> <p>3. Same—party selling farm to agent without knowledge that agent is defrauding his principal is protected. One who sells his farm to an agent without knowledge that the agent is buying the farm to defraud his principal by conveying it to him at an advance will be protected in subsequent litigation between the agent and the principal and cannot be required to take back the farm and return the consideration. .</p>

<p>1. Wills —r^ule in Shelley’s case will be applied regardless of testator’s intention, but the zvill must first be construed. The rule in Shelley’s case is not a rule of construction but a rule of property and will be applied 'without regard to the testator’s intention, but the will must first be construed by the ordinary rules of construction to ascertain the testator’s intention, and it will then be determined whether the devise comes within the rule.</p> <p>2. Same—•testator’s intention must be ascertained fróm consideration of whole will. A fundamental rule in construing wills is to ascertain the intention of the testator from a consideration of the whole will, and such intention must be given effect if not in conflict with an established rule of law or of public policy.</p> <p>3. Same—all clauses and words of a will must be considered in its construction. The intention sought in construing a will is not what may by inference be "presumed to have been in the mind of the testator but that which he expressed by the words of his will, and all clauses and words must be construed as intended to have some meaning and to have been used for some purpose and must be given effect in arriving at the intention.</p> <p>4. Same—when rule in Shelley’s case does not apply. The rule in Shelley’s case does not apply to a devise to the testator’s daughter and her husband during their lives and the life of the survivor of them, with remainder in fee simple, “after the death of my said daughter Mary, and after the death of her husband, the said John,” to the heirs-at-law of said daughter according to the laws of descent of the State of Illinois “then in force,” as the class of persons to take the remainder must be ascertained after the death of both the daughter and her husband, and not at the death of, the daughter, should she die first.</p>

<p>1. Divorce—property settlement in lieu of alimony does not release the father from obligation to support minor children. Where a divorce has been granted with custody of the children to the mother, and a gross sum is allowed her as alimony or there is a property settlement and a waiver of claim of alimony, the father is not thereby released from his legal liability to provide the necessary support for his minor children.</p> <p>2. Workmen’s compensation—minor child is entitled to award in absence of proof on question of emancipation. Where an employee dies of an injury arising out of and in the course of his employment, his minor son, though twenty years old at the time of the injury, is entitled to an award in the absence of proof that he is emancipated.</p>

<p>1. Parent and child—what is sufficient proof of emancipation. To prove that a boy who is twenty years of age and who has been living away from home for a number of years has been emancipated and that the father is not under legal obligation to support him, it is sufficient to show that he has been supporting himself and that the father has not been contributing to his support.</p> <p>2. Workmen’s compensation—parent is under legal obligation to support minor child in absence of proof of emancipation. In a proceeding under the Compensation act by an administrator in behalf of a minor child of a deceased employee it must be held that the parent was under legal obligation to support the child unless the. employer produces some evidence from which the Industrial Commission can reasonably find emancipation. (Panther Creek Mines v. Industrial Com. ante, p. 565, followed.)</p>

Writ oe Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Fulton county; the Hon. G. W. Thompson, Judge, presiding.

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

<p>1. Divorce—what is a sufficient finding that adultery was not condoned. Where no defense of condonation is set up in an answer to a bill sufficiently alleging adultery as a ground for divorce, a decree finding that the defendant had committed adultery “as charged in the bill of complaint” must be considered as a finding that the offense proved had not been condoned, especially where the wife is the complainant and the bill alleges reasons why- the complainant submitted to the misconduct of her husband.</p> <p>2. Deeds—when deed from wife to husband may be set aside. A deed from a wife to her husband may be set aside in a suit-by the wife for divorce where the bill prays for such relief and the evidence shows the deed was obtained by the husband in bad faith and for no consideration except promises of good behavior, which he did not intend to carry out.</p>

<p>1. Elections—elector must indicate his vote by a cross. Under the statute an elector must indicate his vote by making a cross either in the circle at the head of the ticket or in the square to the left of the name of a candidate, whether such name is printed or is written in in a blank space; and a ballot containing no cross cannot be counted.</p> <p>. 2. Same—when ballot having name written in must be counted for another candidate. Where a ballot has a cross in the party circle on one ticket and the single name “Alexander” written in the blank space for the candidate for commissioner of highways on another ticket but having no cross in the square to the left of the name written in, the ballot must be counted for the candidate for commissioner of highways on the ticket marked with a cross in the party circle.</p> <p>3. Same—when ballot cannot be counted though name is written in. In a proceeding to contest an election for commissioner of highways, ballots in which the .single name “Alexander” is written in and a cross marked in the square to the left of his name can not be counted, where the evidence shows there are four male persons of the name of Alexander living in the town who are eligible to hold the office of commissioner of highways.</p> <p>4. Same—substantial accuracy in spelling name written in is required. While it is not necessary that the name of a candidate written upon a ballot shall be spelled correctly, yet it must be spelled with sufficient accuracy for the election officials to ascertain from the ballot the intention of the voter.</p> <p>5. Same—what is not a distinguishing mark. A ballot having a plain cross in the square to the left of the name of a candidate for commissioner of highways should be counted for him, although there is on the same ticket, in the square to the left of the name of the candidate for supervisor, a diagonal line intersected at practically right angles by three short lines.</p> <p>6. Same—when ballots should be counted because of cross in party circle. Ballots having a cross in the party circle at the head of one ticket should be counted for the candidate for commissioner of highways on such ticket though one of the ballots has a diagonal line in the square to the left of his name and crosses in the squares to the left of the names of all other candidates for office on such ticket, and the other is in the same condition except that there is no mark in the square to the left of his name but a name is written in on another ticket in the space left for candidate' for supervisor, though the name written in is the name of the man whom others were supporting for highway commissioner on such other ticket.</p>

Writ op Error to the Second Branch Appellate Court for the Eirst District;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. 'Theodore Brentano, Judge, presiding.

<p>1. Practice—motion to dismiss bill for want of equity has no effect. A motion to dismiss a bill for want of equity is not recognized in chancery practice and amounts to nothing but a submission of the cause.</p> <p>2. Equity—jurisdiction of equity to enjoin a trespass. A court of equity may enjoin a trespass where the complainant has no adequate remedy at law, or where it is necessary to prevent a multiplicity of suits, or where the complainant’s title is admitted or has been established in an action at law and repeated trespasses are threatened of such a character that the amounts recoverable as damages in actions at law would be so small and disproportionate to the vexation and expense of the actions as to render the remedy at law inadequate.</p> <p>3. Same—general allegation of inadequacy of remedy at law is not sufficient. A general allegation of the inadequacy of any remedy at law is not sufficient to maintain a bill to enjoin a trespass, but such facts and circumstances must be alleged and proved as to show that an irreparable injury for which the law affords no adequate redress will result from the acts complained of.</p> <p>4. Injunction—when equity will not enjoin alleged trespass by commissioner of highways. Equity will not e'njoin an alleged trespass of a commissioner of highways in destroying a -fence along a highway, which complainant claims is on his land, where the complainant’s title is denied by the commissioner, as an action at law for damages will settle the question of title and will be conclusive in all future actions.</p> <p>5. Same—when defendant is entitled to damages., consisting of solicitors’ fees. Where a temporary injunction is dissolved the defendant is entitled to suggest his damages, consisting of his solicitors’ fees upon the hearing on the motion to dissolve, and may have the damages assessed whether or not the case has been disposed of upon the merits.</p>

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

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding.</p>