Volume 297 — Illinois Reports

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

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

<p>1. Workmen’s compensation—when owner of building is liable as employer through contract by his agent. The owner of an apartment building, whose father lived in one of the apartments and had authority to “do small matters” in repairing and maintaining the building, is liable as an employer, under the Compensation act, for injuries to workmen who fell from a scaffold while cleaning the outside walls of the building pursuant to an agreement entered into by said father with their employer.</p> <p>2. Same—when person maintaining apartment building is liable for injury to workmen. Although a person is principally occupied with a business which is not hazardous, yet where he is also engaged in the maintaining and renting of an apartment building for income he is liable to pay compensation for injuries to workmen who are hired by his agent to clean the outside walls of the building.</p> <p>3. Same—when owner of building is liable to contractor’s employees under section 31 of Compensation act. The owner of an apartment building who, through his agent, engages a contractor to clean the outside walls of the building is liable, under section 31 of the Compensation act, to pay compensation for .injuries to the contractor’s employees who fell from a scaffold during the progress of the work, where the contractor is insolvent and there is no insurance.</p> <p>4. Appeals and errors—constitutional question cannot be first raised on review. The constitutionality of the Compensation act cannot be considered in the Supreme Court if the question was not raised in any way in the circuit court.</p>

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

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

<p>1. Criminal law—when defendant’s demand for trial does not set in motion the statute relating to discharge for delay in trial. A defendant who is charged with a capital offense, and who has also been admitted to bail,, cannot, by making demand for trial, set in motion the running of the limitation of section 18 of division-13 of the Criminal Code, providing for a discharge of the defendant if he is not tried within a certain time.</p> <p>2. Same—a defendant cannot be discharged for delay of trial caused by his own act. The provision of section 18 of division 13 of the Criminal Code for a discharge of a defendant if he is not tried within a certain time does not apply where the delay is occasioned by the defendant himself.</p> <p>3. Same—delay due to defendant being in the army does not entitle him to discharge. The right to a speedy trial guaranteed to a defendant by the constitution is only against arbitrary and oppressive delays; and a defendant is not entitled to a discharge under such constitutional provision for delay in trial caused by his being drafted into the United States army and sent to a foreign country, if he is tried within a short time after his return. '</p>

<p>1. Practice—effect of making a written motion for new trial. If a motion for new trial is made orally, the party may avail himself of any cause for a new trial which may appear in the record; but if the grounds for new trial are specified in writing in the motion, only such grounds as are specified can be considered.</p> <p>2. Same—motion for new trial can be preserved only by a bill of exceptions. A motion for new trial can be preserved for review only by a bill of exceptions and is not preserved by incorporating it in the record written up by the clerk.</p> <p>3. Same—when Appellate Court cannot reverse on the evidence. The Appellate Court cannot consider the weight of the evidence in an action for negligence and reverse the judgment on a finding of facts different from the trial court, where the written motion for a new trial specifying the point that the verdict is contrary to the law and the evidence is not preserved in the bill of exceptions.</p> <p>4. Same—Appellate Court should allow proper motion to supply omission in bill of exceptions. On appeal in a suit at law the Appellate Court should allow a proper motion to supply an omission in the bill of exceptions' of the written motion for new trial, and the fact that it denies the motion as unnecessary does not justify it in proceeding to consider errors assigned which it is without authority to consider in the absence of the motion for new trial from the bill of exceptions.</p>

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

<p>1. Criminal law—when record of former acquittal -is not admissible. Where a defendant is charged with assault with intent to murder a police officer, an acquittal of the defendant upon the charge of murdering another police officer at the time of the alleged assault is no bar to a prosecution for the assault, and the record of the former trial for murder is not admissible to show that the defendant was not guilty of the assault.</p> <p>2. Same—when assault upon police officer is an assault with intent to murder. The fact that police officers who have arrested a man on suspicion of his being an automobile thief have no warrant for his arrest does not reduce his deliberate killing of one of the officers from murder to manslaughter, nor preclude his being indicted upon the charge of assault with intent to murder the other police officer, who was wounded in the encounter but recovered. (Rafferty v. People, 69 Ill. 111, distinguished.)</p> <p>3. Same—jury may be instructed to apply to the facts the law as given in the instructions. In a criminal case it is proper to instruct the jury that they should apply to the facts the law as given in the instructions, and if the defendant desires that the jury be instructed that they are the judges of the law he should submit such an instruction.</p> <p>4. Same—improper remarks in argument must be objected to and a ruling obtained for assignment of error. A defendant who wishes to assign as error improper remarks by the State’s attorney in his argument to the jury should object to the argument at the time it is made and obtain a ruling or a refusal to rule thereon by the court.</p> <p>5. Same—when judgment will not be reversed for misconduct of jurymen. A judgment of conviction will not be reversed for the misconduct of two jurymen who communicated with the widow of the victim of the assault for which the defendant is being tried, where, after full investigation upon the motion for new trial, there is no showing that any remarks prejudicial to a fair trial were made by or to the jurymen during said conversation. (People v. Strause, 290 Ill. 259, followed.)</p> <p>6. Same—Supreme Court will not determine weight of conflicting evidence on defense of alibi. Where the evidence to sustain or disprove the defense of alibi is conflicting, it is for the jury to decide whether or "not the defendant was at the scene of the crime at the time it was committed, and a judgment of conviction will not be reversed on the facts unless the evidence clearly indicates á reasonable doubt of guilt.</p> <p>Cartwright, C. J., and Farmer and Stone, JJ., dissenting.</p>

<p>1. Evidence—a doctor of chiropractics may testify as an expert. Anyone who is shown to have special knowledge and skill in diagnosing and treating human ailments is qualified to testify as an expert if his learning and training show that he is qualified to give an opinion upon the particular questions in issue, and where the extent of an injury to the spine is the subject of investigation, the testimony of a doctor of chiropractics who is shown to be qualified to give an opinion should be admitted.</p> <p>2. Same—what determines weight of testimony of expert. The weight of the testimony of an expert witness is to be determined by the character, capacity, skill and opportunity of the witness to know and understand the matters about which he testifies and his state of mind or fairness to the parties litigant.</p> <p>3. Workmen’s compensation—when an award for partial incapacity is not justified. An employee is physically able to work when he can do so without seriously endangering his health or his life, and if an injured employee earns, or is able to earn, in a suitable employment the same amount of wages as he received before he was injured, an award for partial incapacity is not justified under paragraph (d) of section 8 of the Compensation act, even though the employee suffers pain when he works.</p>

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

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

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

<p>1. Appeals and errors—when parties cannot unite in joint appeal. The right to appeal is statutory, and parties having separate and distinct conflicting interests cannot unite in a joint appeal upon a joint bond unless authorized to do so by statute.</p> <p>2. Same—when appeal on joint bond cannot be saved by filing separate bonds. After a joint appeal on a joint bond has been taken in a case where no joint appeal is allowed by statute the appeal can not be saved by filing new bonds but must be dismissed.</p> <p>3. Drainage—section 24 of the Farm Drainage act does not authorise a joint appeal by land owners. Section 24 of the Farm Drainage act, as amended in 1919, (Laws of 1919, p. 445,) does not authorize land owners to join in an appeal, on a joint bond, from an order of the commissioners confirming the classification of lands, as the object of the provision for the appeal is to enable a land owner to have the classification reviewed as to his own land and not to enable him to complain as to the lands of others.</p>

<p>1. Wills—prejudice against relatives will not invalidate will unless there is an insane delusion. Unreasonable prejudice against relatives is not ground for invalidating a will unless the testator’s prejudice is shown to be the result of an insane delusion and his conduct cannot be explained on any other ground.</p> <p>2. Same—when instruction as to unsoundness of mind on certain subjects is improper. An instruction authorizing the jury to find that the will in contest is not the will of the testatrix, even though they believe she had sufficient capacity to attend to the ordinary business affairs of life, if she was of unsound mind with regard to subjects connected with the testamentary disposition and distribution of her property and the natural objects of her bounty and made the will while laboring under- such unsoundness of mind, necessarily means that the testatrix was under an insane delusion, and should not be given where the issue of insane delusion was properly taken from the jury by the court for want of proof.</p> <p>3. Same—'when an instruction as to preponderance of evidence and credibility of witnesses is erroneous. In a will contest case, where the number of witnesses testifying is important, an instruction which attempts to deal both with the credibility of the witnesses and the preponderance of the evidence is erroneous, where its whole effect is to minimize the influence of the number of witnesses testifying and to encourage the jury to disregard such element in comparison with other elements they are directed to consider as affecting the credibility of each witness and the weight to be given his testimony.</p> <p>4. Same—when instruction as to burden of proof in will contest case is misleading. In a will contest case an instruction stating merely that the burden of proof in the first instance is upon the proponents of the will to show that at the time of its execution the testatrix was of sound mind and memory is correct as an abstract proposition but is misleading unless considered in connection with the effect of the presumption of sanity.</p> <p>5. Same—when statements of testatrix may be admitted. Declarations by a testatrix several years prior to the making of her will, showing a feeling of kindness toward her sister, whom she practically ignores in the' will, may be admitted, with other evidence, on the question of the mental capacity of the testatrix, but it cannot be considered as tending to invalidate the will.</p> <p>6. Practice—exclusion of witnesses from court room rests in discretion of court. The separation of witnesses and their exclusion from the court room are matters resting in the discretion of the court, and the order is usually made without requiring any special showing.</p> <p>Farmer, J., dissenting.</p>

<p>1. Workmen’s compensation—when an award will not be set aside for clerical error in the finding. Where the evidence in the record shows jurisdiction of the parties and contains sufficient facts to sustain the award the Industrial Commission need not make a specific finding of all the essential facts, and an award to an administratrix will not be set aside for a clerical error in the finding which makes it appear that the petitioner had sustained the injury instead of tlie petitioner’s intestate.</p> <p>2. Same—when an azvard will not be set aside though different treatment of injury might have prevented death. Where there is sufficient evidence in the record to sustain a finding of the commission that an employee’s death was the result of his injury, the circuit court and the Supreme Court are not warranted in setting aside the award because there is testimony that a different treat-" ment of the injury might have prevented death.</p> <p>3. Same—when statutory provisions relating to action of an employee in retarding recovery do not apply. The statutory provisions for reducing or suspending compensation if an injured employee persists in such unsanitary practices as tend to either imperil or retard a recovery, or refuses to submit to such medical or surgical treatment as will reasonably be essential to promote his recovery, do not apply to an original application for compensation.</p> <p>4. Practice—questions not raised belozo cannot be considered. The question of the constitutionality of the Workmen’s Compensation act cannot .be considered by the Supreme Court unless the question was raised in the lower court for a ruling and such ruling is challenged by a proper assignment of error on the record.</p>

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

<p>1. Constitutional law—fact that part of statute is unconstitutional does not necessarily render remainder void. The fact that a part , of a statute is unconstitutional will not authorize the courts to declare the remainder void unless all the provisions are so connected in subject matter and are so dependent on each other that the legislature would not be presumed to have passed the one without the other.</p> <p>2. Same—when the court will decline to pass on validity of provision of statute. Courts avoid the determination of questions as to the constitutionality of statutes except when necessary to decide the case under consideration, and will ordinarily decline to decide whether a particular provision of a statute is unconstitutional when of opinion that if such provision is, in fact, invalid, it may be severed from the remaining provisions, the validity of which, alone, is necessarily involved.</p> <p>3. Schools—section 8pa of act for organisation of community high school districts is not invalid. The legislature has full authority, under the constitution, to authorize the organization of community high school districts as provided in section 89a of the act of 1919, (Laws of 1919, p. 908,,) amending the general School law, and said section is not dependent for its validity upon the provisions of section 90.</p> <p>4. Same—qualifications of voters in elections for community high school districts are governed by general election laws. The provisions of the general election laws apply to elections held under the act of 1919 for the organization of community high school districts as respects the qualifications of voters and the methods of conducting the elections.</p>

<p>1. Removal of causes—when Federal court does not have jurisdiction. A Federal court does not have jurisdiction on the ground of diversity of citizenship of the parties where the controversy is between a State and a citizen of another State, as a State is not a citizen.</p> <p>2. Same—whether cause is removable is determined by allegations of the petition. Whether a cause is removable to the Federal court under the Federal statute is to be determined by the petition for removal, and if it is not removable under the petition it cannot be made removable by subsequent pleadings.</p> <p>3. Same—the State is the real party in an application for judgment for taxes. The State is the real party plaintiff in an application by a county collector for judgment and order of sale for delinquent taxes, and such a proceeding against a citizen of another State is not removable to the Federal court upon the ground of diversity of citizenship.</p> <p>4. Taxes—when tax is assessed by due process of law. If a State having0the authority to assess property for taxation provides a mode of confirming or contesting the tax in the ordinary courts of justice, with notice to the property owner, there is due process of law.</p> <p>. 5- Same—when tax does not violate the fourteenth amendment</p> <p>to Federal constitution. A tax imposed by a State is not in violation of the fourteenth amendment to the Federal constitution even though there is a different classification or method in the levying of the taxes, so long as no person or class is denied the same protection of the laws afforded other persons in the same class or in like situation.</p> <p>6. Other questions are controlled by the decision in People v. City of St. Louis, 291 Ill. 600.</p>

<p>1. Wills—when children of testator take base fee with an expectancy in each other’s share. Where a will gives an estate to the testator’s wife for life or during widowhood, with remainder to the testator’s four children in equal shares, and provides that if any of the children die before the life tenant and leave “no heirs” then his or her share shall be divided equally among the surviving children or their heirs, each child takes a base fee in an undivided one-fourth interest and an expectant interest in the share of any child dying without issue.</p> <p>2. Deeds—when quit-claim deed conveys an expectant interest. Ordinarily a quit-claim deed conveys nothing more than the present interest of the grantor and does not convey an 'expectancy, but where a will creates a base fee in each of testator’s children, giving each child an expectant interest in the share of any child dying before the life tenant without issue, a quit-claim deed from one child to another, reciting that the grantor conveys “all right, title and interest the grantor has or may have” by virtue of heirship to the testator or under his will, conveys the after-acquired title of the grantor based upon such expectant interest.</p> <p>3. Same—equity will enforce, assignment of expectancy as contract to convey. Where the expectancy of an heir presumptive is assigned' or conveyed to another person the right of inheritance is not extinguished, but equity will enforce the assignment as a contract to convey the legal estate or interest when it ceases to be an expectancy and becomes a vested estate.</p> <p>4. Same—statement of principle of estoppel by deed. Whatever the form or nature of a conveyance, if the grantor recites on the face of the instrument, either by express terms or necessary implication, that he is seized or possessed of a particular estate which the deed purports to convey, the grantor and all persons in privity with him are estopped from afterwards denying it.</p>

<p>1. Wills—form of words will not determine whether condition of devise is precedent or subsequent. There is no technical form of words by which the condition of a devise is determined to be precedent or subsequent but the distinction depends upon the connection in which the words are used, and in case of doubt the courts favor a construction making the condition subsequent.</p> <p>2. Same—when an estate upon condition will vest. An estate upon condition precedent does not vest unless and until the condition has been performed, but an estate upon a condition subsequent vests at once, and upon a breach of the condition there is a right of re-entry by the person entitled to take advantage of the breach.</p> <p>3. Same—zvhen a devise is upon a condition subsequent. If the performance of the condition of a devise does not necessarily precede the vesting of the estate but may accompany or follow it, or if from the nature of the act and the time required for its performance it is evident that the intention of the parties was that the estate should vest and the devisee perform the act after taking possession, the condition is subsequent.</p> <p>4. Same—effect on devise where condition subsequent is rendered impossible of performance. A condition subsequent is void if it is impossible to be complied with at the time of its creation or afterward becomes so by the act of God or of the testator, and the effect is to vest the estate in the devisee discharged from the condition and as though no condition had ever attached.</p> <p>5. Same—when devise, and condition upon which it is based, fail. A devise of land to a trustee with directions to pay a certain amount of the income each month to the son of the testatrix and the residue to another person provided the latter shall furnish room and board for the son, is as to such person a devise upon condition subsequent of an equitable estate for the life of the son, and if the son dies before the testatrix, both the devise and the condition fail.</p> <p>6. Same—when a trust estate does not become intestate property. The rule that where the purpose of a trust fails and no other disposition of the fee is made the trust estate becomes intestate property does not apply where there are two purposes of the trust and only the first one fails, and in such case the second purpose is accelerated.</p> <p>. 7. Same—when condition must he treated as waived. Where the testatrix directs 'her trustee, upon the death of her son, to make a deed of the trust estate to a certain woman provided she has furnished the son room and board, and upon the further express provision that she shall furnish him a decent Christian burial, the latter provision is, in form, a condition precedent; but if the son dies in the lifetime of the testatrix, who furnishes his burial herself, the condition must be treated as waived and the trustee is authorized to make the deed as directed.</p> <p>Duncan, J., dissenting.</p>

<p>1. Contracts—executory contract of sale does not convey title to real property. An executory contract for the conveyance of real property does not convey title to the vendee but the vendor retains the legal title, and the vendee does not even take an equitable title until he performs all acts necessary to entitle him to a deed.</p> <p>2. Insurance—contract for a, deed does not change vendor’s interest under fire insurance policy. A contrac-t for the conveyance of real property after the completion of the payment of installments does not change the vendor’s interest within the meaning of a fire insurance policy which is to become void upon the change of “interest, title or possession of the subject of insurance,” as the word “interest” means “legal interest,” and the vendor is still the holder of the legal title and the risk is his, although the proceeds of the insurance are impressed with a trust which a court of equity will compel him to execute.</p> <p>3. Same—occupancy of premises by vendee under contract for conveyance is not such change of “possession” as will affect insurance. Occupancy of the premises by the vendee under a contract for the conveyance of the property after the payment of installments of the purchase price is not a change in the possession which will affect the vendor’s insurance under a policy which provides that it shall become void upon any change “in the interest, title or possession of the subject of insurance, (except change of occupants without increase of hazard,)” as the word “possession” must be held to be used in its legal sense as distinct from “occupancy,” and legal possession follows legal title.</p> <p>4. Same—vendee under contract for conveyance has insurable interest. The vendee under a contract for the conveyance of real property upon the payment of installments of the purchase price has contract rights which he can enforce against the vendor, and to protect his interest in the property against the insolvency of the vendor he may insure his interest.</p> <p>5. Same—insurance contract will be construed in favor of insured. An insurance contract will be construed most strongly in favor of the insured, and the courts will not forfeit a policy except where a clear right of forfeiture is shown.</p>

<p>1. Banks—banking business is subject to statutory regulations for protection of public. In the absence of a statute the right of an individual to engage in the banking business in all or any of its departments is unrestricted, but the business is of a public character and is properly subject to statutory regulations for the protection of the public.</p> <p>2. Same—section ipfi/z °f revision of the Banking law embraces subject not mentioned in title of act. While it is within the scope of the ordinary functions of a bank to deal in foreign exchange and money, an individual who is engaged in the business of transmitting money to foreign countries and buying and selling foreign money but does none of the other things distinctively characteristic of a bank is not a banker, and in so far as the provisions of section 15^2 of the revision of the Banking law (Laws of 1919, p. 235,) apply to such business they embrace a subject not mentioned in the title of the act.</p> <p>3. Same—when an individual is not engaged in banking business. An individual is not engaged in the banking business because he does some of the things which are frequently or usually done by banks, such as loaning money and taking bonds and mortgages therefor.</p> <p>4. Same—what corporations are not within title of act relating to banks and banking. Brokerage corporations, collection agencies and mortgage loan and trust companies are not bankers merely because a certain branch of the business which they transact is frequently done by banks, and a statute which by its title refers to banks and banking, only, cannot apply to such companies, although it may regulate such business when conducted by banks.</p> <p>5. Same—section igyí of revision of Banking law violates constitutional provisions. The provision of section 15% of the revision of the Banking law (Laws of 1919, p. 235,) prohibiting any natural person, firm or partnership from engaging in the business of transmitting money to foreign countries or buying and selling foreign money, except express, steamship and telegraph companies, violates the provision of section 22 of article 4 of the constitution against special privileges, and since it unlawfully prevents such persons or firms from engaging in a lawful business and denies them equal protection of the laws it violates section 2 of article 2 of the constitution and section 1 of the fourteenth amendment to the Federal constitution.</p> <p>6. Constitutional law—privilege of engaging in lawful business is subject only to the police power. The privilege of engaging in any lawful business is the right of every individual, of which no one can be deprived except by a general law acting equally on all individuals in the sáme situation, but the business must be exercised in accordance with the requirements of statutes passed in the exercise of the police power for the protection of the public.</p> <p>7. Same—a classification must be based upon a reasonable difference. A classification used as a basis for legislation regulating business does not violate the constitutional provision against granting special privileges provided a reasonable distinction exists which has a just relation to the object to be accomplished by the statute, but a merely arbitrary classification cannot be sustained.</p>

<p>1. Wills—verdict in will contest does not depend altogether on number of witnesses. A verdict in a will contest on the ground of mental incapacity of the testator depends not only upon the number of witnesses but upon the weight to be given to their testimony, based upon their opportunities for observation and the formation of an opinion, their intelligence, their apparent honesty and interest in the case, their relation to the parties, and the various circumstances appearing on the trial which might affect their credibility.</p> <p>2. Same—when judgment setting aside will will be sustained. Where a will is contested on the grounds of mental incapacity and undue influence, a judgment setting aside the will in accordance with the verdict will not be reversed where there is evidence to support a finding of mental incapacity, and a new trial will not be allowed solely because the evidence does not sustain the charge of undue influence.</p> <p>3. Same—when defendants cannot object that the jury were instructed on the issue of undue influence. Defendants to a bill to contest a will upon the grounds of mental incapacity and undue influence cannot object that the jury were instructed on the issue of undue influence, even though there is no evidence to sustain such issue, where they made no motion to withdraw that issue from the jury but joined in submitting it to the jury and requested instructions upon it; and the correctness of the instructions will not be considered if the verdict on the other issue is supported by the evidence and is decisive of the case.</p> <p>4. Same—when evidence is not admissible as being a mere conclusion. Evidence in a will contest case upon the issue of mental incapacity that the testator was as bright as the common run of men and that his ability to discuss current events was above the average is not admissible as the statements are mere conclusions of the witness; and an objection to the question whether the testator was able to do ordinary business should be sustained as calling for a mere conclusion.</p> <p>5. Same—when party in interest may testify in rebuttal of improper evidence. In a will contest case, where evidence has been improperly admitted of a statement by one of the proponents, in the absence of the testator, which amounted to an admission by her that he was of unsound mind, the party charged with having made the statement is competent, under the fourth clause of section 2 of the Evidence act, to testify in rebuttal as to the alleged admission or conversation. ,</p>

<p>1. Constitutional law—full faith and credit provision of Federal constitution does not apply .to void judgment. The requirement of the Federal constitution that full faith and credit shall be given the proceedings in courts of other States does not apply where it appears that the court had no jurisdiction of the subject matter or-the person or that the proceeding was under a law in violation of the Federal constitution, as the judgment in such case is a nullity.</p> <p>2. Wills—constitutional provision for full faith and credit to judicial proceedings applies to prohate courts. The constitutional provision for giving full faith and credit to judicial proceedings in other States includes proceedings in probate courts, and requires that such proceedings be given such faith and credit as they have by law and usage in the courts of the State where the proceedings are had.</p> <p>3. Same—effect,of making probate of will a proceeding inter partes. In Illinois a proceeding to admit a will to probate has been made an inter partes proceeding by the statutory provision requiring notice to all persons interested, but as property rights are not adjudicated in a probate proceeding, the requirement of notice, although jurisdictional, is not imposed for the purpose of protecting property rights.</p> <p>4. Same—probate of will does not affect right to contest—burden of proof. A proceeding to probate a will in Illinois is not a strictly adversary proceeding, as interested parties, although notified and appearing, have no right to introduce evidence to defeat the will but must resort to a bill in chancery, and the proponents of the will, notwithstanding the probate, still have the burden of proving its execution and validity.</p> <p>5. Same—descent and distribution of property are controlled by statute. The right to take as an heir is statutory, and the rules regulating the right of succession to intestate property are within the control of each State, which may make laws authorizing such succession either by will or by descent and distribution.</p> <p>6. Same—Uniform Foreign Probate act is not unconstitutional. An heir or devisee is not entitled to notice of a proceeding to probate a will in the absence of a statute requiring it, and the Uniform Foreign Probate act (Laws of 1917, p." 800,) is not unconstitutional in requiring a State to give full faith and credit to a judgment of a foreign State admitting a will to probate in accordance with its laws limiting notice to residents of such State, even though the State called upon to accept such judgment requires notice to all parties interested when a will is probated within its own jurisdiction.</p> <p>7. Same—when an heir residing in Illinois is bound by foreign judgment of probate. A judgment of probate by a court of another State entered in accordance with its laws limiting notice to next of kin residing within such State is binding upon an heir residing in Illinois who received no notice, and when a duly authenticated copy of such judgment is filed with a petition to probate the will in Illinois he is not entitled to resist such probate upon the ground that he had no notice of the original proceeding, but his right to contest the will is not affected by its admission to probate.</p>

<p>Writ oE Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.</p>

<p>1. Specific performance—when contract for conveyance may be canceled for fraud. A contract for the conveyance of land may ■ be canceled for fraud and misrepresentation where the false statement is of a material fact, is made with knowledge of its falsity and with intention that it shall be relied on, and is, in fact, relied on by the party who is to take the property.</p> <p>2. F4AUD—a vendee in a contract for conveyance cannot be charged with negligence in relying on vendor’s fraud. Where two persons are dealing at arm’s length the law does not require that neither shall believe the statements of the other, and a vendee in a contract for a conveyance cannot be charged with negligence in relying upon fraudulent statements of the vendor as to material facts which the vender knows to be false and which he intends shall be relied on.</p>

<p>1. Criminal law—both burglary and larceny may be charged in one indictment or in one count. Where the single offense with which defendants are charged may amount to either burglary or larceny, they may be charged with-both burglary and larceny in the same indictment or even in the same count.</p> <p>2. Same—effect of general verdict where counts for burglary and larceny are joined. Where a count for larceny is joined in the same indictment with a count for burglary based on one transaction and a general verdict is returned, the effect of the verdict is that the defendants are guilty as charged in each count, and where the punishment imposed is authorized. to be inflicted for the offense charged in any one or more counts the verdict must be sustained.</p> <p>3. ‘Same—effect of separate verdicts for burglary and larceny. Where counts for burglary and larceny are joined in one indictment based upon a single transaction, the effect of two separate verdicts, one for burglary and one for larceny, is that the defendants are guilty as charged in some one or more counts charging each offense, the same as if there was a single general verdict, and the' punishment .under both verdicts will run concurrently.</p> <p>4. Same—what is sufficient proof of corporate existence of railroad company. In a prosecution for the burglary of a freight car, the corporate existence of the railroad company is sufficiently shown, under section 486 of the Criminal Code, by uncontradicted proof that the company was operating a railroad with freight cars, right of way and tracks and was doing the ordinary business of a common carrier.</p> <p>5. Same—proof of possession of railroad company is sufficient proof of ownership to establish larceny. Proof of special owner-. ship or interest in or possession of property is sufficient as against a party charged with the larceny of the property, and in a prosectition for the theft of goods from a freight car, proof by the bill of lading that the goods were in the possession of the railroad company for the purpose of transportation is sufficient proof of ownership.</p> <p>6. Same—an objection that record does not show jury were in charge of sworn officer comes too late in Supreme Court. An objection that the record does not show that the jury, upon their retirement to consider their verdict, were in charge of a sworn officer, as required by law, cannot be considered in the Supreme Court where the point was not raised in the trial court.</p> <p>7. Same—when time of commission of the crime sufficiently appears from evidence—Statute of Limitations. The contention that the evidence fails to show that the crime was committed within the period of the Statute of Limitations because no date is given in the testimony as the day upon which the crime was committed cannot be sustained, where it appears from the questions and answers in the record that the crime was committed “the twenty-second day of last July,” the trial being in October.</p> <p>8. Same—when instruction as to credibility of defendanfs testimony is not in proper form. The interests of a defendant differ from those of other witnesses and it is proper to point out this difference to the jury, but instructions should not put the defendant in a class wholly different from that of other witnesses or disparage or discredit his testimony or refer to it as having “only such weight” as the jury believe it is entitled to.</p>

<p>Liens—the Garage Keepers’ Lien act is unconstitutional. Sections 3a, 3b and 3c of the statute relating to liens, (Hurd’s Stat. 1917, p. 1871,) known as the Garage Keeper’s Lien act, are unconstitutional. (Jensen v. Wilcox Lumber Co. 295 Ill. 294, followed.)</p>

<p>1. Wills—evidence of what testator said as to construction of Ms will is incompetent. On the hearing of a bill to construe a wil-1, the executor, who drew the will, should not be permitted to testify as to what was said by the testator at the time the will was executed, with reference to the testator’s desire to have certain grandchildren take their deceased mother’s share.</p> <p>2. Same—court may consider conditions under zvhich will was made. In construing a will the intention of the testator is to be gathered from the words and expressions used in the will itself, but the court may consider the state of facts under which the will was made.</p> <p>3. Same—when children of a deceased child take per stirpes and not per capita. Where the testator, after giving the life use of all his property to his wife, provides that at her death it shall be divided, “share and share alike,” among his children (naming them) and the children of a deceased daughter, (without naming them,) the children of the deceased daughter will take per stirpes and not per capita, as the reference to the grandchildren as a class indicates an intention that they should represent the deceased daughter.</p> <p>4. Same—the words "share and share alike” do not necessarily mean a per capita distribution. The fact that the testator uses the words “share and share alike” with respect to the division of his property among his named children and the children of a deceased daughter, who are referred to as a class and not by name, does not necessarily mean that the grandchildren shall take per capita with the named children.</p>

<p>1. Workmen’s compensation—when injured employee is entitled to compensation for disfigurement. Where an employee receives two injuries,—one that disables him and another that causes disfigurement of his hands, face or head,—he is entitled to compensation" for the disability and the disfigurement, but where he is disabled and disfigured by the same injury he is not entitled to recover for the disfigurement.</p> <p>2. Same—when compensation is not authorized for disfigurement resulting from tetanus. Under paragraph (c) of section 8 of the Compensation act of 1915 compensation is not authorized to be paid for disfigurement of the face due to a swollen jaw resulting from tetanus following an injury to the hand, where compensation is paid for the injury and for the full period of disability.</p>

<p>1. Criminal law—when instruction may be given on subject of flight. Under certain facts it is erroneous to instruct the jury that flight is evidence of guilt, but where there is evidence which tends to show that the defendants were observed at the scene of the crime, left immediately thereafter in an automobile, shot several times at their pursuers and resisted arrest when overtaken about twenty miles from the scene of the crime, it is not error to give such an instruction.</p> <p>2. Same—what argument is not objectionable as a reference to failure of defendants to testify. Where certain contradictory remarks made by one of the defendants at the time of his arrest in attempting to explain his presence with the other defendants are proved, comment by the State’s attorney in his argument that an innocent man would not need to make false statements about where he was or what he was doing at a particular time is not an indirect reference to the failure of the defendants to testify.</p>

<p>This case is controlled by the decision in Marsh v. Field, (ante, P- 251.)</p>

<p>1. Public utilities—State cannot compel public utility corporation to serve the public without compensation. The State has no power to compel a public utility corporation to serve the public without reasonable compensation, as legislation, in whatever form, by which the property of one is applied to the use of another or of the public without compensation is forbidden by section 2 of the bill of rights of the. State constitution and by the fourteenth amendment of the Federal constitution, but a corporation may be required to fulfill an obligation imposed by its charter even though it may be done at a loss.</p> <p>2. Same—a public utility cannot be compelled to carry on any branch of its business at a loss. Where a public utility corporation is engaged in furnishing to the public, through various departments of its business, different kinds of service, it cannot be compelled to carry on a branch of its business which furnishes one kind of such service at a loss even though at the same time its whole business may be conducted at a profit.</p> <p>3. Same—when order to compel a heating company to repair plant and'furnish heat to customers is unreasonable. Where a heating and lighting company which is authorized but is not required by its charter to furnish heat to customers files a petition with the Public Utilities Commission to abandon its heating service and makes a prima facie showing that to continue the service will require an expenditure equal to the value of the plant and that the plant will not then give any return on the investment, an order made without investigation and without any finding of facts on which it is based, practically requiring the construction of a new plant and compelling the company to continue its service indefinitely, is unreasonable and amounts to an appropriation of property to public use without compensation.</p>

<p>1. Criminal law—no appeal lies from a finding, under paragraph 285 of Criminal Code, that defendant is not insane. A proceeding under paragraph 285 of the Criminal Code to determine whether a defendant has become insane since he was indicted does not involve the question of the guilt or innocence of the defendant, and as the proceeding is wholly statutory and no appeal is provided for by statute, no appeal lies from a finding that the defendant is not insane.</p> <p>2. Same—verdict, under paragraph 285 of Criminal Code, on question of insanity is not admissible on the trial under the indictment. The verdict of a jury in a proceeding under paragraph 285 of the Criminal Code as to the sanity or insanity of a defendant is not competent as evidence against him on the trial under the indictment, and the defense of insanity at the time of the commission of the crime may be urged on such trial, unaffected by a finding that he was not insane at the time of the preliminary proceeding.</p>

<p>1. Criminal LAW'—constitutional objection must relate to rights of defendant under the statute. The courts will not entertain objections to the constitutionality of a statute unless the objections are made by one whose rights have been in some way actually affected, and a defendant who is indicted under the Motor Vehicle act for driving a tractor engine over the unprotected edge of a pavement cannot raise the question that the act is unconstitutional because it is so worded that it may apply to vehicles propelled by .muscular power.</p> <p>2. Same—whether statutory classification is arbitrary should' not be submitted to jury. Whether a classification in a statute defining an offense is based upon substantial differences, or is arbitrary and consequently illegal, is a judicial question and is not to be submitted to the jury.</p> <p>3. .Motor vehicles—classification of motor vehicles under section 7 of Motor Vehicle act is not unreasonable. Construing section 7 of the Motor Vehicle act as applying only to motor vehicles does not render it invalid as making an unreasonable or arbitrary classification, as motor vehicles, both on account of their speed and because of their power, may properly be put in a class by themselves without such legislation being unconstitutional on the ground that the classification is arbitrary.</p> <p>4. Same—section 7 of the Motor Vehicle act is a proper police regulation. Section 7 of the Motor Vehicle act is a proper exercise of the general police powers of the State, as the .protection of paved highways from injury to the edges thereof may be considered a police measure for the protection of persons who travel over said highways.</p> <p>5. Same—provisions of section 7 of°Motor Vehicle act are not foreign to its title. Section 7 of the Motor Vehicle act does not violate the constitutional provision that an act shall not contain subject matter not embraced within its title, as said section is a proper regulation of motor-driven vehicles although its purpose tends also to protect hard roads.</p> <p>6. Constitutional law>—a classification is proper if all members of a class are affected alike. Laws will not be regarded as special or class legislation merely because they affect one class and not another, provided they affect all members of the same class alike.</p> <p>7. Same—statute cannot be held invalid because it is unwise. If a statute is not obnoxious to the provisions of the State or Federal constitution the Supreme Court will not declare it invalid because it is unwise.</p> <p>8. Same—purpose of provision that subject of act must be expressed in title. The purpose of the constitutional provision that the subject of an act must be expressed in the title is to prevent the joining in one act of incongruous and unrelated matters and to prevent the inclusion in an act of provisions foreign to the subject of legislation and which have no legitimate tendency to accomplish the purpose of the act as expressed in the title.</p> <p>9. Same—■“provisions" of an act may be diverse and still be in furtherance of the “subject." Any number of provisions may be contained in an act, however diverse they may be, so long as they are not inconsistent with or foreign to the general subject and so long as they may be considered in furtherance of such subject, as the word “subject” is not synonymous with “provision.”</p>

<p>1. Wills—when a devise over takes effect after death of first taker either before or after death of testator. Where there is a devise simpliciter to one person and in case of his. death to another the testator will be presumed to intend a death preceding his own, but where it appears that the testator intended the first taker to take possession at the testator’s death without any preceding life estate, a devise over upon the death of the first taker without children will take effect upon the death of the first taker without chil- • dren either before or after the death of the testator, unless controlled by other provisions of the will.</p> <p>• 2. Same—when word “heirs” must be construed to mean “descendants.” Where a testator gives land to his son and provides that if the son shall die without “heirs” the estate shall be equally divided among the testator’s “living heirs,” the word “heirs” in both instances must be construed to mean “descendants” where, such is the testator’s apparent intention, and the expression “living heirs” will be construed to mean the testator’s descendants who survive the son, where there is no intention appearing in the will to include the son.</p> <p>3. Same—meaning of the word “heirs.” The word “heirs” in its strict and technical sense applies to the person or persons appointed by law to succeed to the estate in case of intestacy, but the word may be construed to mean “children” or “issue” or “descendants,” according to the context.</p> <p>4. Deeds—grantees of base or determinable fee take only estate of the grantor. The determinable quality of a determinable or base fee follows any transfer of it, and a conveyance by a devisee who has been given an estate subject to a gift over upon his death without descendants passes only the base or determinable fee, which terminates when the grantor dies without ever having had children born to him.</p> <p>5. Appeals and errors—when decree may be reversed as to one defendant. Where a decree is jointly binding on several defendants, so that each is liable for the whole or is jointly liable, a reversal on the appeal of one defendant vacates the decree as to all the defendants, but when the decree is joint in form but several in effect it may be reversed as to part of the defendants, only.</p>

<p>1. Pleading—when a cross-bill is proper. A cross-bill must be germane to the original bill, must be concerned with the same subject matter and must be between the same parties, and a cross-bill is proper whenever it is necessary to adjust all the equities between the parties connected with the subject matter of the original bill, where such equities entitle the defendants to affirmative relief which they cannot otherwise obtain.</p> <p>2. Partition—when question as to rights of deserted wife is properly raised by supplemental cross-bill. Where the decree in a partition suit, in which a husband and wife are defendants, reserves the matter of partitioning the premises until further order of court, a supplemental cross-bill by the wife after she has been deserted by the husband is proper to set up her rights, under section 11 of the Husband and Wife act, in the husband’s interests under the decree, and the court has jurisdiction to proceed with the hearing on the supplemental cross-bill where the attorneys of the parties to the original suit are before the court.</p> <p>3. Attorney and client—notice to attorney is notice to his client. After an attorney has entered his appearance for his client, unless there is a withdrawal of record by leave of court, the relation of attorney and client continues until the end of the litigation, and notice to the attorney is notice to the client.</p>

<p>1. Wills—questions of law settled on former appeal are binding on all parties. Questions of law settled on a former appeal from a decree construing- a will in a partition suit are binding on a second appeal, and additional evidence to prove a fact which the former decision conceded will not affect the judgment of the court on the second appeal.</p> <p>2. Same—when devise will be good after striking out false description. A devise of land in section 8, township 7, north, range 6, west, which the testator did not own, will be good as a devise of property in section 8, township 6, north, range 7, west, which he did own, if, after striking out the false reference to township and range, a sufficient particular description referring to a hedge, ditch and other land remains to identify the property with the aid of the oral evidence establishing the existence of the latent ambiguity.</p> <p>3. Same-—existence of latent ambiguity is not, alone, siifficient for devise to be given effect. Proof of a latent ambiguity by reason of a false description in a devise is not, alone, sufficient to authorize giving effect to the devise, but it must further appear that after discarding the false description there are left in the will sufficient words by which the land may be identified and located without adding to the description any words not authorized by the will.</p> <p>4. Same—appellants cannot assign error as to part of decree which does not affect their interests. Parties appealing from a decree construing a will in a partition suit have no right to assign error on any part of the decree which does not affect their interests.</p> <p>5. Same—when appellee cannot take advantage of construction of will on appeal. One who joins in a bill asking the court to construe certain clauses of a will to be invalid for misdescription and to partition the lands as intestate property, cannot, upon appeal by other parties from the decree, have the benefit of a construction upholding the one of such clauses devising land to him, where he has not only assigned no cross-error .but has contended throughout that such clause is invalid.</p> <p>6. Same—when construction giving effect to one clause which contains misdescription cannot apply to other clauses. Where a testator makes the same mistake in stating the township and range in all the several clauses of his will, a construction holding that one particular clause contains enough particular'words of description to identify the land therein devised after striking out the township and range does not apply to the devises in the other clauses, which contain no words of particular description.</p> <p>'7. Same—when parties will not be allowed to take a different position on second trial. Parties who have taken a position that the devises in a will are invalid for misdescription will not be allowed on a second trial, after obtaining a reversal of a decree upholding the will, to change their position entirely and file an amended answer asking the court to sustain the will as to them on the ground that the testator put them in possession of the land on the promise to devise it to them and that they have made lasting and valuable improvements thereon.</p> <p>Carter, Dunn and Thompson, JJ., dissenting.</p>

<p>Equity—decree entered without requiring further answer after sustaining exceptions is premature. Where exceptions are sustained to an answer section 24 of the Chancery act requires that the defendant shall answer further as to that part of the answer to which the exceptions are sustained, and a decree entered on allowing exceptions without ruling the defendant to further answer is premature.</p>

<p>Drainage—writ of error does not lie to review order dismissing drainage proceeding for loss of jurisdiction. A proceeding to organize a drainage district is purely statutory, and a writ of error does not lie to review a final order of the county court dismissing a drainage proceeding because it has lost jurisdiction for want of a continuance to a day certain for the report of the commissioners where there is no statute authorizing the writ.</p>

<p>1. Limitations—after title to minerals is severed, possession of surface, does not carry with it possession of minerals. After the title to minerals has been severed by deed, possession of the surface under a will purporting to devise the whole property does not carry with it the possession of the minerals in place under the surface, as separate estates are created by the severance which are held by separate and distinct titles, and each estate is incapable of possession by the mere occupancy of the other.</p> <p>2. Res judicata-—adversary parties, only, are concluded by decree. Parties on the same side of a litigation are not bound by a judgment or decree in subsequent controversies between each other respecting their rights unless they have formed or contested an issue respecting the same which the judgment or decree has determined, and if no issue between co-defendants in an adversary proceeding is presented or adjudicated the decree is not evidence in favor of either party against the other.</p> <p>3. Partition—all parties to partition suit are adversary parties and are bound by decree determining their interests. In a partition suit every person having an interest is to be made a defendant, and all parties to the record, whether complainants or defendants, are adversary parties in the sense that each is bound to make known his rights and to have his interests determined by the decree, and all are bound by such a decree when entered.</p> <p>4. Same—judgment of Stipreme Court directing dismissal of bill for partition is not res judicata of respective rights of defendants. A judgment of the Supreme Court reversing and setting aside a decree for partition and directing the circuit court to dis'miss the bill is an adjudication against the complainant’s right to maintain the bill but is not res judicata as to the respective rights of the defendants, as in such case there is no partition and no adjudication of their rights.</p>

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

<p>1. Injunction—a mandatory injunction will issue to prevent encroachment upon adjoining land. A mandatory injunction will ordinarily issue against the maintenance by a land owner of an encroachment on the land of an adjoining owner and to compel the removal of such encroachment.</p> <p>2. Same—vahen a party injured by encroachment of adjoining proprietor will be left to his legal remedy. A land owner who is injured by the encroachment of an adjoining owner will be 'left to his remedy at law where the encroachment is slight and unintentional, where the cost of removing it will be great and where compensation and damages can be had, but if the encroachment is intentional the absence of present damage to the owner of the land encroached- upon will not defeat his right to an injunction.</p> <p>3. Same—when injuries are "irreparable.” The term “irreparable,” as used in the rule that injuries suffered by a complainant must be irreparable before equity will grant relief by injunction, means incapable of being adequately compensated for in money, and an injury which tends to the destruction of an- estate, or which is of such a character as to work the destruction of the property as it has been held and enjoyed,'will be treated as irreparable.</p> <p>4. Same—when defendant, will be compelled to straighten wall of his building. Where a building is so erected that it leans over and against an adjoining building, thereby causing injury which cannot be safely measured and may reasonably result in the total destruction of the adjoining building, a court of equity, by mandatory injunction, will compel the defendants to remove the encroachment and to straighten the wall of their building.</p>

<p>1. Wills—when subsequent clause will not postpone distribution of portion of trust estate. Where a testator creates a trust fund for the benefit of his only son and the three children of said son, and provides that upon the death of any one of said three grandchildren, leaving no issue surviving, the decedent’s share of the capital and income of the trust shall go to the surviving grandchildren, a subsequent clause providing for a„distribution of the trust estate to the testator’s brothers and sisters in the event that the grandchildren or their issue do not live “until the time or times hereinbefore prescribed so as to become entitled to receive said trust estate,” docs not postpone the distribution of the share of a grandchild who has died without issue,, but is merely a residuary clause to prevent intestacy.</p> <p>2. Same—when costs and solicitors’ fees may be charged against entire trust estate and not against particular part distributed. Although a decree construing a will provides for distribution of only a portion of a trust estate provided in the will it is proper to charge costs and solicitors’ fees against the entire trust estate, where the decision of the issues raised by the pleadings affects the rights of all the parties to the trust and the construction of the will serves as a guide to the trustees in the future performance of their duties as provided in the will.</p>

<p>1. Workmen’s compensation—question of validity of Compensation act must be raised and passed upon in trial court. A constitutional question as to the validity of the Compensation act must first be raised and passed upon in the trial court, and the record must show that fact before the question can be passed upon by the Supreme Court.</p> <p>2. Appeals and errors—assignments of error must be based upon the record. Assignments of error must be based upon the record itself, and not merely upon the argument of counsel or on the fact that the question might have been raised in the pleadings or during the trial.</p>

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

<p>1. Criminal law—when indictment correctly names defendant. Where the defendant is first named in the indictment as “Lillian Hobbs, otherwise called Lillian Seymour,” it is sufficient afterward throughout the indictment to name the defendant as “the said Lillian Hobbs.”</p> <p>2. Same—when an indictment sufficiently describes method of abortion. In an indictment for murder caused by an abortion, a charge in the indictment that.the abortion was caused by a certain instrument, a particular description of which is to the grand jurors unknown, by forcing, thrusting and inserting the instrument into the uterus, is a sufficient description of the method by which the abortion was performed.</p> <p>3. Same—evidence of other offenses is not admissible where proof of intent is not required. Where the intent is not required to be specifically provéd, or from the nature of the offense under investigation proof of its commission as charged necessarily establishes the criminal intent, or the intent is a necessary conclusion from the act done, evidence of the perpetration of oth'er like offenses should not be admitted.</p> <p>4. Same—specific intent to kill is not necessary element of crime of murder. Specific intent to kill does not enter into the definition of murder, and on a trial for murder it is sufficient to prove that the unlawful killing was done with malice aforethought, either express op implied, which means that it is sufficient to prove general malice as distinguished from a specific intent to kill.</p> <p>5. Same—evidence of former murder is not admissible to show guilt in trial for murder. In a trial for murder it is not admissible, for the purpose of showing guilt, to prove a former conviction of the accused for murder or the commission of a! former murder by him, no matter by what means the former murder may have been committed.</p> <p>6. Same—in trial for murder by abortion, evidence of death resulting from another abortion is not admissible. In a prosecution under an indictment charging murder committed by a criminal abortion, in proving the commission of an abortion upon another woman as tending to show the defendant’s practice it is prejudicial error to admit evidence showing that the victim of the other offense died as a result of the abortion.</p> <p>7. Same—when evidence of another offense is admissible to show intent—instruction. Where the intent with which an alleged offense was committed is a material element of the crime charged and becomes an issue on the trial, proof of former similar offenses by the defendant, within certain reasonable limits, is admissible as tending to show such intent, but the court, when asked, should give instructions clearly pointing out the purpose of admitting the evidence and confine the argument to that purpose.</p> <p>8. Same—rule as to proof of other abortions to shove intent of accused. The specific intent or purpose to produce a criminal abortion must be proved before the guilt of the accused is established, and while evidence of former similar criminal abortions by the defendant on the same or another woman is admissible upon the question of such specific intent, evidence of a subsequent abortion, without proof of former ones, has no tendency to prove intent at the time of the offense charged and is not admissible. (People v. Hagenow, 236 Ill. 514, and Scott v. People, 141 id. 195, distinguished.)</p> <p>9. Same—prosecution must prove all elements of crime in first instance. In its case in chief the prosecution must in the first instance prove all the elements of the crime, including the intent, where that is material, and’need not wait tb learn the character of the defense to be made by the defendant, as the plea of not guilty puts in issue all material allegations and any proper defense may be shown thereunder.</p> <p>10. Same—what does not, of itself, show criminal intent. Under the Illinois statute defining abortion, which excepts from the penalties of the act any.person who produces an abortion for the necessary purpose of preserving the life of the mother, mere proof of the use of an instrument, drug or other thing for the purpose of producing an abortion does not necessarily prove the’ criminal intent required to make the user guilty of the crime of abortion.</p> <p>11. Same—theory upon which proof of other abortions is admitted. Proof of former criminal abortions committed by the defendant is admitted in a trial for criminal abortion upon the theory that they create a reasonable presumption of a practice and a business of performing such criminal acts, particularly'where it is shown such former acts were performed solely for a money consideration.</p> <p>12. Same—uterus is admissible in evidence to prove how abortion was committed. In a trial for murder as the result of an abortion by the insertion of an instrument into the uterus, although the jury have a full description of the injury by the testimony of physicians, the uterus itself is admissible in evidence to aid the jury in understanding the nature and extent of the injury and in determining how the offense was committed.</p> <p>13. Same—when verdict is sufficient in trial for murder by abortion. Where the charge in the indictment is murder by abortion it is not necessary that a verdict of guilty shall make the same recital, but it is sufficient if the verdict find the defendant guilty in manner and form as charged in the indictment.</p> <p>14. Same—it is not error to omit instruction as to manslaughter in trial for murder by abortion. In a trial for murder by abortion, where the defendant has not asked for an instruction as to manslaughter, it is not error for the court to fail to give such instruction of its own motion, as the statute makes the offense murder.</p>

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

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

Writ op Error to the Appellate Court for the Second District;—heard in that court on writ of error to the County Court of DuPage county; the Hon. Frank E. ShopEn, Judge, presiding.

<p>1. Municipal corporations—when a declaration against city does not state cause of action. Where an ordinance vacating a street requires the payment of a sum of money to the city by “The Allis-Chalmers Company” and two other corporations to cover claims for damages, a declaration averring that there were no claims, and alleging that said sum was paid by the plaintiff, the “Allis-Chalmers Manufacturing Company,” does not state a liability of the city to re-pay the sum to the plaintiff until it is amended to show payment by the Allis-Chalmers Company and the assignment of its claim to the plaintiff.</p> <p>• 2. Same—when Statute of Limitations begins to run against recovery of a sum advanced for damages from vacation of street. Where an ordinance requires payment to the city of a sum of money to cover claims for damages arising from the vacation of a street, the Statute of Limitations will begin to run against the right to recover the sum advanced, upon the expiration of the period allowed for the presentation of claims for damages. (Smyth Co. v. City of Chicago, 294 Ill. 136, followed.)</p> <p>■ 3. Limitations—statute continues to run until cause of action is stated—amendment. Where a cause of action is stated for the first time in an amended count of a declaration the suit is regarded ás having been commenced as to such cause of action at the time of filing the amended count, and if the Statute of Limitations has then run it will be a bar to the new cause of action stated in the amended count.</p> <p>4. Pleading—assignee of non-negotiable chose in action must allege facts required by section 18 of Practice act. A declaration in a suit by an assignee of a non-negotiable chose in action does not state a cause of action in favor of the plaintiff unless it contains the. allegations required by section 18 of the Practice act of 1907, showing the assignment of the chose in action, the actual ownership thereof by the plaintiff and setting forth how and when he acquired title.</p> <p>5. Same—when declaration does not state cause of action. ■ A declaration which fails to allege a fact which is necessary to the existence of the plaintiff’s right to recover does not state a cause of action.</p>

<p>Workmen’s compensation—Industrial Commission cannot set aside the former decision because it was erroneous. Proceedings before the Industrial Commission are wholly statutory and the authority of the commission is limited to that granted by the Compensation act, and the commission has no authority, after denying compensation, to review such decision upon the filing of another petition and substitute another decision in its stead on the ground that the former decision was erroneous.</p>

<p>1. Criminal law—when careless driver of automobile is guilty of manslaughter. One doing an act of gross carelessness, even in the performance of what is lawful, and a fortiori of what is not lawful, or in negligently omitting a legal duty, whereby death ensues, is indictable for murder or manslaughter, and a person who by careless or furious driving unintentionally runs over and kills another is guilty of manslaughter.</p> <p>2. Same—driver of automobile is presumed to know provisions of Motor Vehicle act. The driver of an automobile is presumed to know the provisions of section 22 of the Motor Vehicle act as to what is an unreasonable rate of speed, and a driver who drives at a prohibited rate of speed or in a manner expressly forbidden by statute and thereby causes the death of a pedestrian is criminally responsible, whether the decedent’s failure to use due care contributed to the injury or not.</p> <p>3. Same—a street in a city is a public highway—instruction. A street in a city is a public highway, and where the evidence in a prosecution for manslaughter, caused by the careless driving of an automobile, shows that the accident occurred in a much traveled street in a city, an instruction in the language of the statute as to unreasonable rates of speed in a public highway' is not misleading although the indictment refers to the place of the accident as a street and road.</p> <p>4. Same—whether road is a public highway may be proved by parol evidence. Whether a street or road is a public highway may be proved by parol evidence.</p> <p>5. Same—when withdrazval of count after evidence is in does not prejudice the defendant—verdict. In a prosecution for manslaughter, caused by the careless driving of an automobile, the withdrawal of a count based upon a violation of a city ordinance, without striking from the record the introduction of the ordinance in evidence, is not prejudicial to the defendant, where the reckless driving of the automobile is clearly proved to be in violation of the State Motor Vehicle act; and affidavits of jurors that they took said ordinance into consideration cannot be received to impeach their verdict.</p> <p>6. Same—errors which are not prejudicial will not justify reversal. Errors in the admission of evidence or rulings on the law «which are not of a prejudicial character will not justify a reversal of a judgment of conviction, if the jury, acting reasonably on the competent evidence and under proper instructions, copld have reached no other conclusion.</p>

<p>1. Appeals and errors—when assignments of error cannot be considered by Supreme Court. Assignments of error as to matters occurring on the trial in a chancery case cannot be considered'by the Supreme Court where there is no certificate of evidence in the record.</p> <p>2. Practice—argument in brief should not contain intemperate language. The argument contained in a brief filed in the Supreme Court will be stricken if it contains disrespectful and intemperate language.</p>

<p>1. Schools—fact that discontinued district was organised under invalid law does not preclude distribution of assets. The fact that a community high school district was organized under the invalid law of 1917, to which the curative act did not apply because of the provisions of a special school charter, does not preclude the distribution of the discontinued district’s assets under section 92 of the School law as amended in 1917, as said statute in its application is not restricted to districts attempted to be -organized under a valid law but applies as well to districts which are organized under an invalid law and are neither de jure nor de facto.</p> <p>■ 2. Same—taxes voluntarily paid upon a levy by an illegal com'munity high school district cannot be recovered back. A tax voluntarily paid pursuant to a levy by a community high school district organized under the invalid act of 1917 cannot be recovered back even though the district is discontinued because it is one to which the curative act. did not apply, as the tax-payer is supposed to know the law and cannot recover a tax payment which he is not compelled to make even though the law under which the tax was levied is unconstitutional.</p> <p>o 3. Same—when costs of suit should be paid from discontinued ‘district’s funds—appeal. In a suit under section 92 of the School law by an underlying school district against the county treasurer and tax-payers to have the assets of a discontinued high school district applied in paying obligations which the discontinued district owed to the complainant the costs are properly paid out of the fund in the hands of the treasurer raised by collecting taxes levied by the discontinued district, and the costs of an appeal by the county treasurer- should be paid out of the same fund.</p>

<p>Appeals and errors—when question of freehold is not involved. A bill by a railroad company to enjoin the destruction of a fence which it erected when it ceased to maintain a crossing where the defendant’s private right of way crossed the tracks does not involve a freehold where the defendant’s title to the easement or the extent thereof is not questioned, the only question being whether or not the defendant is “the proprietor of land adjoining a railroad,” within the meaning of section 1 of the act relating to fencing and operating railroads.</p>

<p>1. Parties—when party not before the court will be bound by the decree. As a general rule the interest of parties not before the court in a proceeding in equity will not be bound by the decree, but there is an exception in cases where parties, though not before the court in person, are so far represented by others that their interests receive actual and efficient protection.</p> <p>2. Same—decree setting aside will is binding on contingent interests of persons not in esse when represented by other parties. Because of the inconvenience and injustice of requiring the rights of all parties in being to await thh possible birth of persons not in esse who have contingent interests, a decree setting aside a will is binding upon the contingent interests in reversion or remainder if persons are before the court who have the same interests and are equally certain to bring forward the entire merits of the question so as to give such interests effective protection.</p> <p>3. Same—doctrine of representation by parties having same interests is not limited to persons not in being. The doctrine of representation by parties having the same interests as those who are not made parties to a bill to contest a will is not limited to the interests of persons not in being, and a decree setting aside a will is binding on all the contingent interests created by the will, including the interests of living children and grandchildren of remainder-men, provided such interests are fully protected by those who are made parties to the bill.</p>

Writ OP Error to the Second Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county ;• the Hon. H. Sterling PomEroy, Judge, presiding.

<p>1. Attachment-—a judgment without jurisdiction may be attacked collaterally by any party interested in the subject matter. Where a court acquires no jurisdiction to render a judgment in attachment, the judgment and all proceedings under it are void, and their validity may be disputed collaterally as a basis of title by any person having an interest in the subject matter.</p> <p>2. Same—in order to confer jurisdiction, affidavit must conform to sialute. An attachment proceeding is wholly statutory and must strictly conform to the statute, and the affidavit, which is the foundation of the suit, must meet the requirements of the statute in order to confer jurisdiction if there is no personal service or appearance by the defendant.</p> <p>3. Same—when affidavit does not give court jurisdiction. If the affidavit for an attachment contains the substantial elements of the statute and is merely defective it is amendable and the court is not without jurisdiction, but if an essential element of the statute is entirely omitted the court is without jurisdiction and the proceeding is without authority of law.</p> <p>4. Same—lazo will not protect purchaser under void judgment. The law presumes that all men inspect public records through which a title is derived and will not protect a purchaser under a void judgment in attachment.</p> <p>5. Same—when notice of attachment is insufficient. A notice of an attachment is insufficient to confer jurisdiction of the persons of the defendants where it is served by mailing a single copy addressed to both defendants at a place where they do not reside and where there is no statement in the affidavit as to the place of residence of either of the defendants.</p> <p>6. Same—when judgment and sale in attachment may be set aside by bill of subsequent owner of property. A judgment and sale in attachment may be canceled and the deed to the purchaser set aside at the suit of a complainant who has succeeded to the title of the debtor in attachment where the court authorizing the attachment acquired no jurisdiction of the person of the debtor, as the entire proceedings culminating in the sale and deed are coram non judice and void.</p> <p>7. Freehold—when a freehold is involved. A freehold is involved in any case where it is the purpose of the suit to set aside a sale of real estate.</p> <p>8. Constitutional law—due process of law prevents 'a divestiture of title without notice and an opportunity to he heard. Jurisdiction over parties is only obtained by notice, actual or constructive, and a judgment pronounced without such jurisdiction is void, as due process of law prevents a divestiture of title without notice, and not only requires notice but also entitles the defendant to an opportunity to be heard.</p> <p>9. Jurisdiction—distinction between jurisdiction of person and of subject matter. The difference between jurisdiction of the person and of the subject matter is, that jurisdiction of the subject matter is given by law and cannot be conferred by consent, while jurisdiction of the person may be conferred by consent; but both kinds of jurisdiction must concur or the judgment is void.</p>

<p>1. Wills—when reference to former devise does not cut down fee to a life estate. A devise in fee of an undivided one-half interest in a certain tract of land to the testator’s daughter is not cut down to a life estate by a provision that she is “to have and to hold the same upon the same térms and conditions as the other lands willed to my son and daughter,” where the only other devises in the will give a fee to the son and daughter in one tract and a life estate to the daughter in another tract. (Spate v. Paulus, 285 Ill. 82, followed.)</p> <p>2. Same—a remainder "after the death” of a life tenant is hot necessarily contingent. A remainder “after the death” of a life tenant is not contingent until the termination of the life estate unless the context of the will indicates such intention, as the expression “after the death” is ordinarily construed as referring to the time when the estate will vest in possession. (Bates v. Gillett, 132 Ill. 287, distinguished.)</p> <p>3. Same—-construction of a devise to daughter "and after her death to her children and their descendants forever.” A devise to the testator’s daughter for life “and after her death to her children and their descendants forever” gives a life estate to the daughter with a remainder in fee which will vest in the first child of the life tenant, subject to being opened up to let in the shares of after-born children.</p> <p>4. Same—an estate will vest at death of testator if contrary intention is not expressed. An estate granted under a will will be deemed to vest upon the death of the testator unless very clear words are found in the will showing an intention that the estate shall not vest except upon the happening of a future contingency.</p> <p>5. Same—the possibility of issue is extinguished only by death. The law recognizes the possibility of birth of issue in all adult women, and the single fact that terminates the possibility of issue is death.</p> <p>6. Same—interest which is subject to be cut down upon birth of issue cannot be set off by partition. Partition of an estate in remainder subject to a life estate cannot be had at the instance of one remainder-man, where the members of the class in which the remainder is vested cannot be ascertained until the death of the life tenant, so as to set off their shares in severalty.</p> <p>7. Equity—complainant who is charged with laches must show due diligence. Where a complainant in his bill seeks the enforcement of a stale claim without presenting facts to excuse the delay and the defendants in their answer charge laches, the complainant should amend his bill and allege the facts, if any, upon which he relies to excuse his delay.</p> <p>8. Same—when judgment creditors are not entitled to reformation of sheriff’s deed. Judgment creditors who take no action to correct a mistake in their sheriff’s deed for nearly twenty years are not entitled to have the deed reformed upon setting up the alleged mistake by cross-bill in a partition suit, where they make no offer to amend their cross-bill by alleging an excuse for the delay after an answer is filed charging laches, as they must be held to have had knowledge of the alleged mistake at the time the deed was made, in the absence of any allegation on the subject.</p> <p>9. Judgments and decrees—when an order reviving judgment against one co-defendant, alone, is binding. An order reviving a judgment against only one co-defendant, who enters his appearance in the scire facias proceeding and consents to immediate judgment of revival, is binding upon him and those in privity with him.</p>

<p>Writ op Error to the Circuit Court of Marion county; the Hon. Thomas E. Ford, Judge, presiding.</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. John J. Sullivan, Judge, presiding.

<p>£ Malicious prosecution—rule denying right of action for damages for malicious prosecution of civil suit should not be extended. The rule denying a right of action for damages for the malicious prosecution of a civil suit without probable cause where the process in the civil suit is by summons, only, and is not accompanied by the arrest of the person or seizure of the property or other special injury, should not be extended to embrace such suits as are in themselves unusual in their effect upon the defendant.</p> <p>2. Same—action for damages will lie for malicious .prosecution of bankruptcy proceeding. An action for damages will lie for the malicious prosecution of a bankruptcy proceeding even though no trustee was appointed and no property taken from the defendant’s custody, where the defendant was not insolvent and where the petitioner had no reason to believe the defendant, was insolvent but filed the petition because of bad feeling over a disputed account.</p> <p>3. Same—whether the petitioner acted on advice of counsel is a question of fact. Whether the petitioner in an involuntary bankruptcy proceeding acted upon the advice of counsel is a question of fact in a subsequent suit against him for damages for malicious prosecution of the proceeding, and the judgment of the Appellate. Court on such question is final.</p> <p>4. Same—when suit for damages for malicious prosecution is not barred by stipulation. Where an involuntary petition for bankruptcy is dismissed upon petitioner’s admission that he is unable to prove defendant’s insolvency as alleged, a stipulation that no exception shall be taken to the ruling of the court and that the testimony on the hearing shall not be written up does not bar a subsequent suit for damages for malicious prosecution of the proceeding.</p>

<p>Appeals and errors—bill to enjoin collection of alleged void judgment does not involve constitutional question of due process of law. A bill to enjoin the collection of a judgment on the alleged ground that the judgment is void for want of jurisdiction of the person does not involve a constitutional question upon the theory that the taking of property under the judgment will be without due process of law, where the only question involved is whether the judgment is, in fact, void.</p>

Writ or 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. Cloud on title—what proof necessary to sustain grant of swamp lands. The determination by the Secretary of the Interior that certain land is swamp and overflowed land is conclusive, but in the absence of such determination one obtaining a deed from a county for alleged swamp and overflowed land must, in order to sustain his title, prove by witnesses having personal knowledge of the facts that the greater part of the legal subdivision containing the tract conveyed is swamp and overflowed land and unfit for cultivation.</p> <p>2. Same—when running of seven year limitation is arrested. Color of title, possession and payment of taxes must concur before the seven years Statute of Limitations begins to run, and in a suit by the claimant to quiet title the filing of a cross-bill for partition by the holder of the paramount title will arrest the running of the statute unless thc= full seven years has intervened between the first payment of taxes and the filing of the cross-bill.</p> <p>3. Same—title of heirs is not affected by administrator’s personal contract to convey. The title of heirs is not affected by an administrator’s personal contract to convey estate property to a person to whom the deceased had agreed to convey it by a contract which was never carried out by either party, even though the land was taken possession of and improved pursuant to said contract and although the party taking possession performed his part of the agreement with the administrator, where there is no evidence that the heirs authorized or ratified the administrator’s contract or received any benefit therefrom.</p> <p>4. Estoppel—before equitable estoppel arises there must be reliance upon conduct of persons sought to be estopped. It is an essential element of an equitable estoppel that the person asserting it shall have done or omitted some act or changed his position in rebanee upon the representations or conduct of the persons sought to be estopped.</p> <p>5. Laches—when laches will bar action within period of limitation. Mere delay for any period short of the Statute of Limitations will not bar an action to assert title to land, and it is only when the delay is accompanied by some act done or permitted, some change of relations or conditions, or some other element rendering it inequitable to permit the owner to assert title, that laches will bar his right within the statutory period.</p>

<p>1. Judgments and decrees—when assignee of a decree has no cause of action thereon. One who takes an assignment of a decree against several defendants, and subsequently, for sufficient consideration, enters into a contract to pay and cancel all debts and obligations of a particular one of the defendants, has no cause of action upon the decree against another defendant regardless of whether the decree is a lien on the property of the particular defendant or whether the latter is primarily liable upon the decree.</p> <p>2. Appeals and errors—proper judgment will be affirmed even though reasons to sustain it are urged for first time in Supreme Court. An'appellee is not bound by any position he may have taken in the Appellate Court in support of the judgment of the trial court nor by the omission of any reasons which might have been advanced in the trial court for a judgment in his favor, and if the judgment is right it will be affirmed regardless of the reasons advanced.</p>

<p>1. Banks—when order of court authorizes receiver to bring action against directors of bank. Where an order of court appointing a receiver of an insolvent bank authorizes him to institute and prosecute, in the name of the bank or in his own name as such receiver, any and all suits at law and in equity which he deems necessary or advisable for the collection of moneys due or to become due the bank or for the recovery of property belonging to the bank, the receiver has authority to file a bill against the directors of the bank charging them with losses in allowing mismanagement and misapplication of the funds.</p> <p>2. Same—when director is liable for non-observance of duties. One who takes a position as director of a bank becomes trustee for the depositors as well as for the stockholders and is bound to the observance of ordinary care and diligence with reference to the management of the bank, and is liable for losses resulting from his own negligence in performing his duties as a director.</p> <p>.3. Same—what must be proved to render director responsible for negligence of officers or co-directors. Before a director can be made responsible for losses which occur through the mismanagement or dishonesty of an officer of a bank it must appear that such losses resulted as a consequence of the omission of some duty on the part of the director, and a director is not responsible for the negligent omissions of those who are his co-directors unless he shall have participated in the negligent omission.</p> <p>4. Same—-zvhen directors cannot be classified as active and nonactive. In the absence of a showing that some directors of a bank are non-residents or that the by-laws of the bank provide for “nonactive” directors, or that the creditors and depositors have notice that but a portion of the board have charge of the affairs of the bank, there-is no 'ground for classifying the directors as active and non-active in determining their liability for losses due to their own negligence or that of the officers.</p> <p>5. Same—when bill of receiver against directors of bank sufficiently charges liability. A bill filed by a receiver of an insolvent bank against its directors sufficiently charges liability in law where it alleges that the bank’s losses were due to the negligence of the directors in failing to give supervision to the business, and in permitting, with knowledge of the facts, incompetent and dishonest officers to fraudulently misapply the funds of the bank for their own purposes.</p>

<p>1. Notice—actual occupancy of premises is notice of occupant’s ■rights. Actual occupancy of premises is equal to recorded instruments under which an occupant claims in charging notice of the occupant’s rights and claims, and a purchaser is bound to inquire by what right or title the occupant holds and takes subject to that right or title.</p> <p>2. Same—effect where person occupying as a tenant makes a contract for purchase which he does not record. Where a person occupying part of a building under a lease enters into an unrecorded written contract for the purchase of the premises and thereafter extends his occupancy to such an extent that it may be said to be under the contract, such occupancy is notice of his rights under the contract, and he is entitled to enforce the contract,, if he is not in default, as against the owner and a person who subsequently made a contract of purchase with the owner with knowledge that the other party was occupying the premises as a tenant but without inquiring whether he had any other rights. (Coari v. Olsen, 91 Ill. 273, followed.)</p> <p>3. Specific performance—when specific performance cannot he denied. To entitle a party to specific performance the contract must be clear and certain in its terms and be admitted or proved with a reasonable degree of certainty, and the court.is not warranted in denying such performance where all the necessary elements and conditions are present and it is the only remedy that will do complete justice to the complainant.</p>

<p>1. Injunction—complainant must show he will be injured in " case relief is not granted. Equity will not entertain jurisdiction and issue an injunction unless the complainant shows that he will be injured if relief is not granted; and the allegations must be clear and distinct that substantial injury will be sustained, as an injunction will not be granted to allay the fears of complainants which</p> <p>are not based upon facts showing a reasonably probable cause for apprehension.</p> <p>2. Same—when equity will not restrain threatened violation of ordinance. A court of equity will not, at the suit of an individual, restrain the threatened violation of an ordinance regulating the erection of buildings where the injunction is sought merely for the enforcement of the ordinance and not because of special damage to the individual, but where it is shown that in addition to the violation of the ordinance the erection will work special and irreparable injury to the property of the individual he may obtain relief by injunction.</p> <p>3. Nuisances—an individual cannot maintain action for public nuisance unless he. shows special injury. A private citizen cannot call upon a court of equity to enjoin an injury threatened to purely public rights, and he cannot maintain an action, at law for a public nuisance unless he has been personally injured in a manner different from the injury to the public, and unless the special injury is alleged and proved there can be no recovery.</p> <p>4. Same—livery stable is not a nuisance as a matter of law. A stable in which horses are kept, even in a residence district of a large city, is not necessarily a nuisance as a matter of law.</p> <p>5. Same—when individuals cannot enjoin erection of a stable. Equity will not, at the suit of individual property owners, enjoin the erection of a stable for the dairy business where there is no allegation of any fact from which it can be inferred that the stable, when completed and in use, will be conducted in such a way as to be a nuisance or that complainants’ property will be depreciated in value or their comfort in any way interfered with, the only complaint being the alleged violation of an ordinance.</p>

<p>1. Criminal -law—a judge’s certificate of proceedings in his presence must be accepted as correct. On appeal from a judgment and sentence after denial of a motion to withdraw a plea of guilty, the recitals in the certificate of the judge as to what was said and done by him and what occurred in his presence must be accepted as true and correct.</p> <p>2. Same—parties cannot agree to stibmit issue of guilt or innocence to the court by pleading guilty. The question of guilt or innocence -is not an issue under a plea of guilty, and under such plea the parties cannot agree to waive a jury and let the court hear the evidence and determine whether the proof is sufficient to find the defendants guilty, but the court must sentence the defendants after fully instructing them as to the effect of their plea.</p> <p>3. Same—allowance of motion to withdraw plea of guilty rests in discretion of court. Whether a plea of guilty will be permitted to be withdrawn and a plea of not guilty entered rests within the sound discretion of the court, and if it appears the court has abused its discretion in that respect the judgment will be reversed, but if the plea is understandingly made, the court may, in the exercise of a sound discretion, refuse permission to withdraw it.</p> <p>4. Same—when motion to withdraw plea of guilty is properly denied. A motion to withdraw a plea of guilty should be granted when it will best serve the ends of justice, and particularly if the consequences of the plea have not been fully explained or understood; but where the defendant persists in his plea after being fully advised of its consequences it is not an abuse of discretion to deny the motion, which is not made until after the court has heard evidence and has announced that the defendant will be sentenced to the penitentiary.</p>

<p>1. Insurance—when a provision will not be construed more favorably to the insured. In construing a provision in a life insurance policy which is in substantially the language of the statute requiring its insertion in the policy, it cannot be presumed the legislature intended the provision to be construed more favorably to the insured than to the insurer.</p> <p>2. Same—effect of incontestable provision in a life policy. A provision in a life policy that the policy shall be incontestable after one year from its date provided the premiums are paid is valid and bars the insurer from contesting the policy on any ground except for non-payment of premiums, provided the insurer has had the full year in which to take action to avoid the policy by proceedings in court.</p> <p>3. Same—effect where insured dies within one year of date of policy. Death of the insured within one year from the date of a life insurance policy payable to his estate and containing a provision that the policy shall be incontestable after one year from its date suspends the running of the one-year period for contesting the policy until the appointment of an administrator, at which time the unexpired portion of the limitation period will begin to run against the insurer.</p> <p>4. Same—an incontestable clause continues in force though insured dies within the year. The effect of a clause in a life policy making the policy incontestable after one year from its date is not to prevent the insurer from canceling the policy for fraud but to fix a short statute of limitation in which to take such action, and the fact that the insured dies within one year from the date of the policy does not fix the rights of the parties to the extent of giving the insurer an unlimited time to make its defense of fraud. (Monahan v. Metropolitan Life Ins. Co. 283 Ill. 136, adhered to.)</p> <p>5. Same—when insurance company may maintain bill to cancel policy for fraud. In Illinois, where the statute prohibits a life insurance company from limiting the time for suing on the policy to a period less than three years from the death of the insured, a bill by an insurance company to cancel a life policy for fraud may be maintained where the insured has died within the one-year incontestable period fixed by the policy, provided such suit is brought within one year from the date of the policy, excluding the time elapsing between the death of the insured and the "appointment of liis administrator.-</p> <p>6. Same—when life insurance company is barred from contesting policy for fraud. Where the insured dies within one year from the date of a life insurance policy payable to his estate and containing a clause making the policy incontestable one year after its date, the insurer is barred from contesting the policy for fraud if it fails to assert its claim by bill in equity to cancel the policy within one year from its date, excluding the period between the death of the insured and the appointment of his administrator, or by plea within such period to a suit on the policy.</p> <p>Cartwright, C. J., dissenting.</p>

<p>1. Appeals .-and errors—Supreme Court has no jurisdiction of direct appeal in a contest over appointment of guardian of minor heir. The Supreme Court has no jurisdiction of a direct appeal in a contest over the appointment of a guardian of the person and property of a minor heir, as a guardian has no freehold interest in the real property of his ward and has no power to bring suits in relation to real estate; and no freehold interest will be divested or invested by a decree appointing one party rather than another as guardian of the minor.</p> <p>2. Same—Supreme Court cannot assume jurisdiction where it is not conferred although no question is raised. Although the question of jurisdiction of a direct appeal is not raised, the Supreme Court cannot assume jurisdiction of the subject matter where no such jurisdiction is conferred.</p>

<p>1. Criminal law—when physician who does not testify as an expert may give opinion as to sanity of defendant. Where expert witnesses for the defendant in a murder trial have given their opinions that he was insane, a physician who is not an expert on mental diseases but who has known and treated the defendant many years and who examined him and talked' with him the day he was arrested, may, after testifying to the facts and the conduct of the defendant, give his opinion that the defendant was sane.</p> <p>2. Same—when revolvers found in possession of defendant are admissible in evidence. Where insanity is the defense to a charge of murder, loaded revolvers found in a stove in the room where the defendant was secreting himself at the time of his arrest, although they are not of the same caliber as the one with which the homicide was committed, are admissible in evidence as tending to show an understanding by the defendant that his act in shooting the deceased was criminal.</p> <p>3'. Same—hypothetical question need not include controverted facts which questioner does not admit. A hypothetical question need not assume the existence of a fact concerning which testimony has been given if the fact is controverted and is to be submitted to the jury for determination, but the questioner may select such facts as he claims to exist, concerning which the evidence is conflicting, and the jury are to determine whether the facts have been proved.</p> <p>4. Same—hypothetical question must include all essential facts as claimed and proved by the party proposing the question. Where the evidence is conflicting a hypothetical question should embrace only the facts tending to support the claim of the party proposing the question, but the question should include all the essential facts as claimed and proved by said party, as a question omitting facts which would necessarily enter" into the opinion of the witness tends to mislead the jury by causing them to adopt an opinion without regard to the facts on which it is based.</p> <p>5. Same—when instruction relating to circumstantial evidence is proper. Although the commission of a homicide is proved by the direct and positive testimony of eye-witnesses, yet if the defense is insanity it is proper to give an instruction relating to circumstantial evidence, where evidence as to the conduct of the defendant before and after the homicide is in the record on the question whether he was sane or insane or was capable of forming an intent.</p> <p>6. Same—defendant is presumed to be sane until insanity is made to appear by the evidence. As sanity is the normal condition of man and insanity an abnormal state, the presumption in a criminal case is that the defendant is sane and personally responsible for his acts; and this presumption inheres at every stage of the trial until insanity is made to appear by the evidence.</p> <p>7. Same—when proof of hallucinations is no defense to charge of murder. Evidence that the defendant had certain hallucinations and delusions caused by his physical condition is not a defense to the charge of murder where there is no evidence connecting the victim of the homicide with the hallucinations, where the conduct of the defendant after the crime tends to prove that he knew his act was wrong and that he did not act on an irresistible impulse, and where the expert testimony for the People tends strongly to show that he was sane.</p>

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