Volume 298 — Illinois Reports

<p>1. Statutes—when statute purporting ■ to amend original act will be construed to amend the act as amended. Where an amendment of a statute takes the place of the original enactment and is considered as a continuance of so much of the law as is left unchanged in form or substance, a subsequent statute, although it purports to amend the original act, is to be construed, in accordance with the intent of the legislature, as operating on the prior amendment, and effect will be given to the subsequent amendment.</p> <p>2. Constitutional law—act of 1917 amending act relating to pandering is not void because it purports to amend the act of 1908. The act of 1917 amending the act relating to pandering is not void because it purports to amend the act of 1908 even though the provisions of that act were technically repealed by implication by the amendment of 1909, as said provisions were re-enacted by the act of 1909 and never ceased to be the law on the subject of pandering at any time after their enactment in 1908, and they may properly be referred to as the act of 1908 as well as the act of 1909.</p> <p>3. Criminal law—municipal court has jurisdiction of first offense of pandering. The municipal court of Chicago has jurisdiction of the first offense of pandering, and the mere possibility that the proof may show that the defendant has previously been convicted of pandering does not deprive it of jurisdiction, but if there has been a former conviction for such offense the prosecution must be by indictment and in a court of record having jurisdiction to impose a penitentiary sentence.</p> <p>4. Same—when an indictment must allege former conviction. Every fact necessary to sustain a sentence imposed by a court in a criminal case must be alleged in the information or in the indictment, and an indictment under which it is sought to impose a higher penalty by reason of a previous conviction must allege the fact of such conviction.</p> <p>5. Same—information may be positively verified by officer to whom confession is made. An information charging pandering, which is positively verified by the officer making the affidavit, is riot insufficient because the officer acquired his knowledge from the voluntary confession of the defendant and had no independent knowledge of the facts.</p> <p>6. Same—when motion for bill of particulars is made in proper time. Where trial is set for the day on which a motion to quash is considered, the defendant may move for a bill of particulars immediately after the motion to quash and before the case is called for trial.</p>

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

<p>1. Drainage—when release from original assessment is not sufficient objection to assessment for current expenses. Whether or not drainage commissioners have authority to compromise an assessment of the original benefits in the organization of a drainage district, a release executed by the commissioners in making such a settlement cannot be made the basis of an objection to a subsequent assessment for current expenses and for the construction of bridges, where the release specifically provides that it shall not affect or prohibit additional levies for repairs and current expenses.</p> <p>2. Same—defense of res j%idicata to application for judgment for delinquent assessment must be presented to trial court. Although the defense of res judicata to an application for judgment for a delinquent drainage assessment may be a meritorious defense, if the question is not presented to the trial court by the written objections there filed it cannot be urged for the first time in the Supreme Court.</p>

<p>1. Eminent domain—when petitioner must make prima facie showing of necessity to exercise power. Where the question of necessity for taking the property is raised the petitioner is ordinarily required to make a prima facie showing that it has not abused its power in determining it was necessary to acquire the property, and while the determination of the question is largely left to the petitioner it is subject to judicial review for an abuse of power, and if the property sought to be taken is much more than is necessary for the public use the right to take will be denied.</p> <p>2. Same—evidence of voluntary sales of similar land is admissible on question of value. In a condemnation proceeding evidence of voluntary sales of land in the locality of and similar in character to that described in the petition is admissible on the question of the value of the land condemned.</p> <p>3. Same—admissibility of evidence of sales rests largely in discretion of court. In a condemnation proceeding, whether the offered evidence of sales of other lands in the locality should be admitted is a question resting largely within the discretion of the trial court, and if the court can see that such evidence will not afford any just measure of value of the land taken it should not be admitted.</p> <p>4. Same—vahen proof of sale of other property is not harmful as being too remote. Evidence of a voluntary sale of other property in the locality of land sought to be condemned, made seven years before the trial, will not be regarded as harmful as being too remote in point of time, where it is clear from the verdict that the jury did not base their conclusions on the evidence of voluntary sales.</p> <p>5. Same—evidence of sale of other property need not include terms and conditions of the sale. Evidence of the sale of other property in the locality of land sought to be condemned cannot be objected to because the terms and conditions of the sale are not proved, as the only important question is when the land was sold and what it sold for.</p> <p>6. Same—extent to which adaptability to future uses may be considered. One whose land is to be condemned for public use is entitled to the value of the land for the most profitable use it is available for at the time the petition is filed, and in fixing values for uses to which it is adaptable but has never been applied its availability for future uses must be such as enter into and affect its market value, and regard must be had to the existing business or wants of the community or such as may be reasonably expected in the immediate future.</p>

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

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

<p>1. Mandamus—when right to assign error is not waived by pleading over after demurrer. The general rule that a party who pleads over after his demurrer is overruled waives the question raised by the demurrer will not be applied in a proceeding for mandamus where the petition fails to make the necessary allegation of a demand and refusal, as the peremptory writ of mandamus is not a writ of right and the petition must by averment and proof show a clear right to the writ, and the question will be preserved ■ for review where the answer avers that no demand was made.</p> <p>2. Same—what determines whether demand and refusal are necessary.' Demand and refusal are not necessary to entitle a petitioner to a writ of mandamus to compel the performance of a public duty which involves the public interest, but where the act sought to be coerced is a mere private right the. petitioner should make demand upon the defendant to perform the particular act or duty and the petition should allege the demand and a refusal.</p> <p>3. Same—when petition to compel city to collect special assessment should aver demand and refusal. Though the law imposes a duty upon municipal officers to take proper steps to provide means for paying the debts of the city, a petition for mandamus to compel the collection of a special assessment must aver a demand and refusal where the failure to perform the duty affects only the petitioner, who is the holder of bonds issued in anticipation of the assessment.</p> <p>4. Same—relator is considered the party in interest where private right is sought to be enforced. Where mandamus is resorted to to enforce a private right the person interested in enforcing the right is the real party in interest.and may file the petition in his ‘own name, and if he files his petition in the name of the People on his relation he is still considered the party in interest.</p> <p>5. Limitations—ten-year statute does not apply to proceeding for mandamus to compel city to collect special assessment. The ten-year Statute of Limitations applies only to actions on written evidences of indebtedness and does not apply to a proceeding by a bondholder for ,a writ of mandamus to compel a city to collect assessments levied for a local improvement and to levy and collect a tax to pay the city’s portion of the assessment as public 'benefits, but the only limitation applicable to such proceeding, if any, is the five-year statute.</p> <p>6. Same—plea of ten-year statute does not include the five-year limitation. Where the defendant sets up the Statute of Limitations as a defense he is required to plead the statute with certainty so that the court may know what statute is relied on, and a defendant cannot, by pleading the ten-year statute, take advantage of the five-year limitation in case the ten-year statute does not apply.</p>

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

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

<p>Appeal from the County Court of DeWitt county; the' Hon. John Bedinger, Judge, presiding.</p>

<p>1. Statutes—one statute may be incorporated into another by reference. One statute may be incorporated into another by reference without violating any constitutional provisions, and the effect of such reference is the same as if the statute or the provisions adopted had been incorporated bodily into the adopting statute.'</p> <p>2. Corporations—provisions of existing statute must control distribution of assets of insolvent corporation. -Although it is a general rule that claims against an insolvent corporation which arc unascertainable and on which no right of action exists at the time the receiver is appointed cannot be proved against the assets in the receiver’s hands, yet where there is a statute governing the question of the appointment of a receiver and the liquidation of the corporation’s assets its provisions must control.</p> <p>3. Same—provisions of general Incorporation act and Insurance Dissolution act are incorporated into Surety act. All pertinent and non-inconsistent provisions of the general act for the incorporation of companies for pecuniary profit and of the act for the dissolution, of insurance companies are to be considered as incorporated into the Surety act of 1899 and are applicable to corporations organized thereunder.</p> <p>4. Same—receiver represents insolvent corporation until settlement is made. In equity an insolvent corporation continues in existence after the appoinment of a receiver, and the receiver represents the company and is the arm of the law and the agent of the court for the purpose of administering its assets and making distribution among its creditors and the holders of its obligations, but he does not represent the creditors.</p> <p>5. Same—appointment of receiver for surety company does not terminate existing contracts. The appointment of a receiver for an insolvent surety corporation does not terminate the corporation’s existing contracts of suretyship, guaranty and indemnity so as to excuse- its liability on a claim arising before the receiver was appointed, although the knowledge of the evidence to prove the extent of the obligation was not had until after such appointment, as the relation of debtor and creditor between principal and surety commences at the date of the obligation by which the surety is hound.</p> <p>6. Same—when claim against an insolvent surety company is provable. In a proceeding by stockholders for a receiver for an insolvent surety company a claim arising out of the breach of a bond entered into long prior to the appointment of the receiver is provable whether the breach occurred before or after such appointment, provided proof is made within the time limited for exhibiting claims.</p> <p>7. Same—authority of court to dissolve insolvent surety company at suit of stockholders. Under section 2 of the act for the dissolution of insurance companies a court of chancery has jurisdiction to dissolve a surety company organized under the act of 1899, at the suit of a majority of the stockholders; but neither the court nor the officers of the company can terminate existing contracts or in any manner affect the rights and remedies of the creditors and holders,of obligations against.the company or its property in the hands of the receiver, whether the demands are liquidated or unliquidated, absolute or contingent.</p> <p>8. Same—court cannot decree dissolution on appointing a receiver for surety company. A court of chancery upon appointing a receiver for an insolvent surety company at the suit of stockholders cannot decree dissolution at such time but only after due notice to all parties interested, including all the company’s creditors and the holders of its obligations and contracts of suretyship, guaranty and indemnity.</p> <p>9. Same—limitation for presenting claims against an insolvent surety company. In order to make possible the distribution of the assets of an insolvent corporation in the hands of a receiver a time must be fixed when contingent claims not due must necessarily be excluded, and the time fixed by statute in Illinois for the exclusion of claims against an insolvent surety company organized under the Surety act of 1899 is not less than two years from the date of dissolution of the corporation.</p> <p>10. Words and phrases—meaning of word "liable.” The word “liable” does not necessarily-signify a perfected or fixed legal liability, but rather a condition out of which a legal liability may arise.</p>

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

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

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

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

<p>1. Railroads—railroad company may construct railway across public highway without consent of highway commissioners. The authority of a railroad company, under paragraph 5 of section 20 of the Railroad and Warehouse áct, to construct a railway across a public highway without the consent of the highway commissioners where the highway is not located in an incorporated town or village has not been changed by statute, except that by section 58 of the Public Utilities act the Public Utilities Commission is given sole charge of such crossings.</p> <p>2. Public utilities—when railroad company’s petition to construct spur-track across highway to elevator is sufficient. As the right of a railroad company to construct a spur-track across a public highway to a grain elevator outside an' incorporated town or village is subject only to the limitations of section 58 of the Public Utilities act the petition therefor need set forth only the public reasons and necessities for the construction, and the track will be a part of the railway whether it is constructed by the company, by the owner of the elevator or at their joint expense. (Koelle v. Knecht, 99 Ill. 396, and Sholl Bros. v. Peoria and Pekin Union Railway Co. 276 id. 267, distinguished.)</p> <p>3. Same—both railroad company and public elevator connected by spur-track are subject to Public Utilities Commission. Where a spur-track connecting a railway with a public elevator is constructed at the joint expense of the railroad company and the owner of the elevator, both the railroad company and the elevator are subject to the control of the Public Utilities Commission.</p> <p>4. Same—authority of highway commissioners over railway crossings is given to the Public Utilities Commission. Whatever power highway commissioners may have had in regard to railway crossings over public highways is given to the Public Utilities Commission by the Public Utilities act.</p> <p>5. Same—when decree, enjoining obstruction of highway does not preclude building of spur-track. A decree enjoining the owner of an elevator from constructing a railway, track across a public highway without the consent of the highway commissioners does not estop the railroad company from petitioning for the construction of the side-track under the Public Utilities act, where the railroad company was not represented in the injunction suit and where the right to construct the track under the provisions of the Public Utilities act was not involved in that suit, the act having not then taken effect.</p> <p>6. Same—orders of Public Utilities Commission must be reasonable and lawful. The Public Utilities Commission is given no arbitrary powers by the statute and its orders and decisions must be reasonable and lawful.</p> <p>7. Same—order of commission will be sustained if there is evidence to support it. Reviewing courts will examine the facts upon which an order of the Public Utilities Commission is based, and an order within the scope of the authority of the commission will be sustained if there is substantial evidence tó support it.</p> <p>8. Res judicata—a former decree, to be binding in subsequent suit, must have been betzveen same parties and involved same subject matter. For a decree in a former suit to be binding in a subsequent proceeding it must be shown that the parties, as well as the subject matter, are the same in both proceedings.</p> <p>9. Injunction—when injunction is canceled for failure to file remanding order within two years—practice. Under section 114 of the Practice act the failure to file the remanding order of the Supreme Court within two years will operate as an abandonment of the suit and a cancellation of a decree granting an injunction against obstructing a certain street and alley, which decree was affirmed by the Supreme Court as to the street and reversed as to the alley.</p>

<p>1. Bonds—when warranty in application for bond is substantially complied with. A warranty in the application for the bond of a treasurer of a lodge, amounting to an agreement on the part of the lodge that the treasurer’s books and accounts will be audited and verified monthly with the funds on hand and in the bank, is substantially complied with where the banks in which the treasurer deposits the funds are in the habit of sending statements the first of each month, which are checked by the finance committee of the lodge with the treasurer’s monthly report.</p> <p>2. Same—when warranty in application for bond will not benefit surety. A warranty in an application for a treasurer’s bond amounting to an agreement that the treasurer’s books shall be audited monthly "will not benefit the surety where there is nothing in the bond making the application or the representations therein a part of its conditions.</p> <p>3. Same—when demand is not necessary before bringing suit on bond. Where a treasurer’s bond does not in terms provide for a demand before the liability of the surety is created, demand is not necessary before bringing suit on the bond after a breach of its conditions.</p> <p>4. Same—taking another surety after dissolution of a former surety company will not release security already held. Securing additional protection with another surety company after a dissolution of the company which is already bound will not operate as a release of the security already held, where it is not shown that there was any attempt to make the second company cancel the bond of the insolvent surety company and take over its liability.</p> <p>5. Other questions in this case are controlled by the decision in Evans v. Illinois Surety Co. {ante, p. 101.)</p>

<p>Writ oe Error to the Circuit Court of Pike county; the Hon. Harry ITigbeE, Judge, presiding.</p>

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

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

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

Writ oE Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Fulton county; the Hon. Robert J. GriER, Judge, presiding.

<p>1. Bonds for deeds—when forfeiture cannot he declared until after demand and notice. Where the obligor in a bond for deed receives payments of installments.from the obligee at different times and in different amounts than the contract calls for, the right to declare a forfeiture for failure to make the payments as specified is suspended and cannot be enforced until after a specific demand by the obligor that the contract be complied with and notice of an intention to declare a forfeiture if it is not.</p> <p>2. Same—zuhat constitutes a fraud upon rights of purchaser under contract to convey—accounting. An alleged creditor of the purchaser in a contract for a conveyance who secretly obtains from the vendor a quit-claim deed and the purchaser’s note and bond for a deed by paying the unpaid balance due thereon succeeds only to the rights of the vendor under the contract, and if he sells the property to a third party without notice to the original purchaser he is guilty of fraud and must account to the original purchaser for the difference between the value of the property when he sold it and the unpaid balance on the purchaser’s note, without credit for the amount he claims the purchaser owes him in another transaction.</p>

<p>1. Criminal law—•testimony of accomplice should be closely scrutinized. The' testimony of an accomplice is competent and a conviction may be sustained thereon, but such testimony should be submitted to the closest scrutiny.</p> <p>2.. Same—when a new trial should be granted on newly discovered evidence. While courts do not favor new trials on newly discovered evidence, yet where it is shown that the new evidence is not cumulative in regard to the particular point to which it relates and has a value which could not have been foreseen, strengthens the conviction of the court that justice has not been done and is likely to change the result upon a re-trial, courts will not hesitate to grant a new trial on account of new evidence.</p> <p>3. Same—what is cumulative evidence. As a general rule cumulative evidence is additional evidence of the same kind and to the same point, but this rule must not be understood as precluding a new trial in every case where the testimony relates to a point contested on the trial.</p> <p>4. Same—when new evidence to impeach testimony of an accomplice is not necessarily cumulative. Newly discovered evidence showing that the principal witness for the State, who was a co-defendant, testified falsely concerning certain material matters is not necessarily cumulative evidence, even though her testimony as to other material matters and her veracity may have been impeached by the evidence on the trial; and where the People’s case rests upon the truth of the testimony of such witness, newly discovered evidence that she testified falsely in material matters should be considered by a jury upon a new trial.</p>

<p>1. Criminal law—when it is a question for the jury whether circumstances show criminal negligence in driving an atitomobile. Where a driver of an automobile is charged with manslaughter, committed by running over a pedestrian, and the defendant admits that he was running at a greater rate of speed than is declared by the Motor Vehicle act to be prima facie evidence of negligence, it is a question for the jury whether such a rate of speed, together with a failure to keep such a lookout as would enable the driver to see persons crossing the street at the time and place where the accident occurred, constitutes such a wanton and willful disregard of the safety of the public as to amount to criminal negligence.</p> <p>2. Same—when jury may consider flight as evidence of guilt. In a prosecution of the driver of an automobile who ran over and killed a pedestrian and did not stop to ascertain the extent of the injury he had caused, the jury may consider the flight from the scene as evidence of guilt although the defendant testifies he did not stop because of race prejudice, as the jury have a right to con-’ sider whether the action was controlled by consciousness of guilt or fear of consequences on account of the alleged prejudice.</p> <p>3. Same—what jury must find before rendering a verdict of guilty of manslaughter in driving automobile—instruction. Before rendering a verdict of guilty of manslaughter against the driver of an automobile who ran over a pedestrian, the jury must believe from the evidence that the defendant knew of the danger of collision and recklessly and negligently or wantonly ran down and collided with the deceased without using such means as were reasonably at his command to prevent such running down or colliding; and an instruction stating such proposition is not subject to the objection that it gives the impression that the merely negligent killing of a person is manslaughter.</p> <p>4. Same—definition of motive. Motive is an influence which tends to move the will toward some action.</p> <p>5. Same—absence of motive is not a circumstance in favor of innocence in prosecution for involuntary manslaughter. Involuntary manslaughter occurs without intention or will or motive to commit the crime, and in a prosecution of the driver of an automobile for running over and causing the death of a pedestrian, an instruction stating that the absence of motive to commit the crime is a circumstance in favor of innocence has no application to the. case.</p>

<p>1. Appeals and errors—question of revenue must be directly involved. To give the Supreme Court jurisdiction of an appeal or writ of error because the revenue is involved the case must relate to the revenue directly, and not merely incidentally or remotely.</p> <p>2. Same—when question of revenue is involved. The question of revenue is directly involved when some recognized authority of the State is attempting, under the law, to assess and collect taxes and questions arise between it and the tax-payers, or where the controversy is whether the fund in dispute belongs to the revenue of the county or State or some division thereof, but not where the controversy is as to which municipality shall have money derived from revenue, there being no question as to whether the money is revenue.</p> <p>3. Same—question of revenue is not involved in suit for compensation out of revenue. A question of revenue is not involved in a suit between a municipality and an individual who claims he is entitled to be paid out of revenue, conceded to be such, for services rendered by him to the municipality, or that he is entitled to a lien upon any taxes collected; and this is true whether the claimant is an officer or attorney or any other individual rendering a like service.</p>

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

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

<p>1. Criminal law—question whether defendant has become insane after sentence must be tried by jury. The provision of section 13 of division 2 of the Criminal Code is mandatory that the court shall impanel a jury to determine whether a defendant has become insane after verdict, or after judgment, or after sentence and before execution of the sentence, and such question, when properly presented, cannot legally be tried .by the court, alone.</p> <p>2. Same—when question of insanity of defendant after sentence is properly presented. The question whether a defendant has become insane after judgment and sentence is properly presented by a petition which alleges that the defendant has so become insane and which is supported by affidavits detailing the facts relied upon to establish such insanity.</p> <p>3. Same—zvhat evidence is admissible to determine whether defendant has become insane after sentence. On a trial of the question whether a defendant under sentence of death has become insane after judgment and sentence, both the defendant and the State may introduce all competent evidence on the issue presented, and each side should be allowed the right of cross-examination and the use of expert witnesses, who should be examined in a proper way by hypothetical questions and who may detail any relevant facts in their knowledge, but they should not be allowed to usurp the function of the jury.</p> <p>4. Same—what questions are before the jury in determining whether defendant has become insane after sentence. In a proceeding under section 13 of division 2 of the Criminal Code to determine whether a defendant has become insane after he has been sentenced, the only questions for the jury are whether the defendant has become lunatic or insane since the entry of the original judgment and sentence, and whether he is lunatic or insane at the time of the impaneling of the jury, within the meaning of said section of the statute, and no question can be raised as to the insanity of the defendant at the time the crime was committed or as to his guilt or innocence.</p> <p>5. Same—when a defendant will not be regarded as insane. After sentence a defendant will not be regarded as insane if he has sufficient intelligence to understand the nature of the proceeding to determine his sanity, what he was tried for originally, what punishment awaits him and what is its purpose, and has sufficient mind to know any facts which might exist which would make his punishment unjust or unlawful and sufficient intelligence to convey such information to his attorney or the court, as the usual test of sanity to determine responsibility for crime does not apply.</p> <p>6. Same—question whether defendant has become insane after sentence must be tried as ordinary civil case. The trial of the question whether or not a defendant has become insane after sentence must be conducted as any ordinary trial before a jury in civil cases where any question of insanity or unsoundness of mind is to be inquired into, and each-side is entitled to the same number of peremptory challenges in selecting the jury as in civil cases; and the jury, after being properly instructed by written instructions and after considering all the competent evidence, should make up their verdict and return it into court in the ordinary way.</p> <p>7. Same—court should order stay of execution pending determination of defendant’s sanity. Pending the determination of the question whether a defendant under sentence of death has become insane after sentence, the court should, under section 1 of division 14 of the Criminal Code, enter an order staying the execution to a day certain, and has power to make any further prolongation of the time of execution which is necessary to enable it to complete the trial.</p> <p>8. Same—what judgment shall be entered where the jury finds that defendant is sane. If the jury, in a proceeding to determine whether a defendant under sentence of death has become insane after judgment and sentence, finds that the defendant is not insane or lunatic, the court shall at once enter the verdict and judgment thereon and definitely fix the date for the execution of the defendant on any week-day thereafter, sufficiently far ahead to give the sheriff time to prepare for the execution.</p> <p>9. Same—procedure where jury finds defendant has become insane after sentence. In a proceeding to determine whether a defendant under sentence of death has become insane after judgment and sentence, if the jury finds that the defendant has so become and is insane, the court shall enter an order staying the execution until defendant’s recovery, and shall enter a further order that the defendant be confined in some hospital for the insane until his recovery, when the date of his execution may then be definitely fixed.</p> <p>10. Same—no review can be had of a proceeding to determine whether defendant has become insane after sentence. The statute provides only for one trial to determine whether a defendant has -become insane after his conviction and sentence, and no review can be had, either by appeal or writ of error, from the final order and judgment of the court in such proceeding.</p>

<p>1. Nuisances—one recovery is bar to piture actions for permanent nuisance. In an action brought for the deterioration in the value of real estate occasioned by a nuisance of a permanent char-, acter, or which is treated as permanent by the parties, all damages for the past and future injury of the property may.be recovered if not already compensated for, and one,recovery in such case is a bar to all future actions.</p> <p>2. Same—after construction of permanent nuisance a subsequent purchaser cannot maintain action for damages. A right of action for damages arising from the construction of á permanent nuisance, such as a railroad, vests only in the owner of the lot or land immediately upon the construction of the nuisance, and a subsequent grantee of the land cannot maintain an action for the proper use and operation of the railroad or other permanent structure after his purchase; but a different rule prevails when the subsequent owner seeks to recover for negligence and consequent damages in the operation.</p> <p>3. Same—when a coal chute gives private party an action for damages as a nuisance. A coal chute on a right of way pf a railroad company is such a structure as will give a private party an action for, damages when it becomes a nuisance to him, causing him special damages as distinguished from damages to the public generally, where the private owner or his predecessor in title has not been compensated for the injury.</p> <p>4. Same—one purchasing a lot adjacent to railroad is entitled to damages caused by coal chute constructed after his purchase. Where a person conveys a right of way for a railroad it will be conclusively presumed that all ordinary damages to the land, past, present and future, were included in the consideration paid for his conveyance or in the assessment of damages in case of condemnation ; but as damages for the subsequent construction of a coal chute on the right of way are not recoverable in condemnation proceedings, one who purchases from the grantor a lot adjacent to the right of way is entitled to damages caused by the necessary and proper operation -of a coal chute built on the right of way after he purchased the lot.</p> <p>5. Appeals and errors—when finding of fact by the Appellate Court does not preclude Supreme Court from settling case on question of law. A finding of fact by the Appellate Court, which the Supreme Court finds the plaintiff was not required to charge or prove but on which the Appellate Court bases its judgment for the defendant, does not preclude the Supreme Court from finding for the plaintiff on questions of law which are presented by instructions of the defendant asking for a directed verdict and for a holding that the declaration did not state a cause of action or that the plaintiff was not entitled to recover under the facts proved.</p>

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

<p>1. Ceiminal law—defendant may waive right to be present when sentence is entered. Every defendant in a criminal case has the right to be present at every stage of his trial, from his arraignment to his final sentence; but where the defendant absconds of runs away from the court after learning of the verdict and refuses to return for sentence he waives the right to be present when sentence is entered, whether he is on bail when he absconds or whether he escapes from the officers, and the judgment entered against him is valid, and after the expiration of the term the court has no power to enter any further judgment or sentence in the case.-</p> <p>2. Same—court cannot set aside judgment after expiration of term. In the absence of a statute providing otherwise, a court can not set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during the term or unless the judgment is void.</p> <p>3. Same—when court may enter further order of commitment on original judgment after expiration of term. Where a defendant absconds after learning of the verdict against him and is not again apprehended until nearly ten years after the expiration of the term at which judgment and sentence are rendered against him, the court, upon a proper showing, may enter a further order of commitment on said judgment when the defendant is again brought into court even though scire facias proceedings on the defendant’s bond have been dismissed, but the defendant should be allowed to show, if he can, why the sentence should not be carried out.</p> <p>4. Same—what is a proper method of obtaining mittimus for commitment of defendant zvlio has been a fugitive for ten years. Where a defendant, after learning of the verdict against him, absconds and is not apprehended until ten years later, a proper method of proceeding for a further order of commitment is for the State’s attorney to file a written motion for an order of the court for such final writ or mittimus to commit the defendant on his original sentence, setting forth the facts, and upon proof of the facts the court will have jurisdiction to enter the order unless the defendant makes some legal defense thereto.</p> <p>5. Same—court cannot enter order based on his personal recollections. As no amendment of the record can be made after the term unless based upon some note or memorandum or memorial paper remaining in the files or upon the records of the court, the court cannot, on his personal recollection that a defendant has not been in court, direct the entry of a finding that the defendant has been a fugitive from justice from the time he was sentenced until his apprehension, ten years later.</p>

<p>1. Workmen’s compensation-—claimant must prove that hi<; condition is result of an industrial accident. An award under the Compensation, act cannot rest upon speculation, conjecture or surmise, and the burden is on the claimant to prove that the condition for which he claims compensation is the result of an accident occurring in the course of and arising out of his employment.</p> <p>2. Same—claimant cannot express opinion as to per cent of loss of use of member. The opinion of the injured employee as to the per cent of loss of use of his leg because of the accident is incompetent as a basis for an award.</p> <p>3. Same—when evidence is not sufficient to sustain finding that injury was result of an industrial accident. Evidence that an en> ployee of a lead smelting company was overcome with smoke and gas from the furnace and had to be taken home is not sufficient to sustain an award for permanent injury to the left leg because of sciatica with which the employee was suffering, where the only evidence as to whether the accident was a contributory cause of the sciatica was the testimony of one phvsician that lead poisoning might produce the symptoms described by the claimant, which he was inclined to doubt because the sciatica did not respond to treatment for lead poisoning, while other physicians testified that the employee’s condition might have resulted from other infections, which were proved and not disputed, but not from lead poisoning.</p>

<p>1. Deeds—where father and son have the same name the law presumes deed to have been made to father. Where a father and son have the same name and a deed is made to one or the other the law will presume that the father was intended as grantee, but the prima facie case made by such presumption may be overcome by evidence that the son was intended, and in such case the arbitrary character of the presumption ceases and the conflicting evidence is to be weighed and the presumption considered only with whatever probative or evidential force it may have.</p> <p>2. Ejectment—burden is on plaintiff to prove deed was made to him and not to his father, who had the same name. In an action of ejectment brought by a son against the executors and beneficiaries under the will of his father on the theory that the deed to the land in suit was made to him and not to his father, who had the same name, the burden is on the plaintiff to establish his title.</p> <p>3. Instructions—instruction should not direct jury’s attention to single item of evidence. An instruction should not direct the jury’s attention to a single item of evidence which in itself is not conclusive, as the effect is to destroy the aggregate effect of all the evidence.</p>

<p>1. Criminal law—defendant must, make specific objection to parol evidence of former conviction. To preserve for review in the Supreme Court the question whether a former conviction of an infamous crime can be proved by parol evidence the defendant must make a specific objection on the ground that the record should be produced to prove the facts, and a general objection is not sufficient!</p> <p>2. Same—defendant, by failure to object, waives right to have only competent evidence admitted against him. While the accused has the right to insist that only competent evidence shall be introduced against him he may waive such right, and does so by failing to interpose proper objections in apt time.</p> <p>3. Same—purpose of naming the injured party in a criminal prosecution. The object in naming the injured party in a criminal prosecution is for the purpose of identification, so that the accused cannot be twice tried for the same offense..</p> <p>4. Same—when indictment and proof do not show variance in name of prosecuting witness. Where no question is raised on the trial as to the identity of the prosecuting witness and there is no doubt of his identity, it will be presumed that th.e person named by initials in the indictment as the injured party and the person testifying under his Christian name as complaining witness are one and the same person.</p> <p>5. Same—:what is not a material variance as to kind of building burglarised. The fact that an indictment charges the burglary of a storehouse while some of the witnesses testify that the building was a butcher shop or meat market does not constitute a material variance, where the record shows that other witnesses described the building as a storehouse or store building.</p> <p>6. Same—what is a material variance. A variance, to vitiate a trial, must be material, and it must be such as may mislead the defendant in making his defense or expose him to second jeopardy.</p> <p>7. Same—when knife found on defendant is admissible to prove burglary. Where an indictment consists of two counts, one charging burglary and another burglary'and larceny, a paper knife found on the defendant is admissible to prove the charge of burglary where it is proved that the same knife was in the building just before it was burglarized, even though the indictment charges that a pocket knife was stolen.</p> <p>8. Same—mistake in indorsing name of juror will not vitiate verdict. The mistake of the clerk in indorsing the name “Frank Winter” on the back of the verdict instead of “Frank Newton,” whom the record shows to have been a member of the jury which tried the cause and returned the verdict, is not ground for an objection that the jury returning the verdict was not the jury empaneled to try the cause.</p>

<p>1. Wills—when the testator’s insurance policy is payable to his representative and is to be distributed by provisions of will. A policy of insurance on the life of the testator, payable to his wife or her children, is' properly paid to the testator’s representative where the wife dies before the testator without children or descendants of a child or children, as the Statute of Descent makes the surviving husband heir of all the wife’s personal property; and the proceeds of the policy will be distributed according to the provision made in the will for the distribution of the personal property.</p> <p>2. Same—when rule in Shelley’s case applies to-devise in residuary clause. A residuary clause by which the testator devises to his wife “all the rest and remainder of my estate, both real and personal, * * * and after her death one-half of my said estate to the heirs of my said wife, or to her devisees in case she leaves a will, in fee simple,” is subject to the rule in Shelley’s case as to the real estate devised, and the wife, in_ case-sfa_e survives the testator, will take the fee simple title to one-half of all the residue of the real estate not otherwise devised.</p> <p>3. Same—real estate descends as intestate property ’when devise lapses. Where a devise of a fee lapses because of the death of the devisee before the death of the testator, the real property so devised will .descend to the testator’s heirs as intestate property even though there is a residuary clause disposing of all “the rest and remainder” of the testator’s property, “both real and personal,” as the residuary clause refers only to real estate not otherwise disposed of by the will, and the rule relating to the devolution of lapsed legacies does not apply to a devise in the absence of special provisions in the will.</p> <p>4. Same—when power to bequeath does not pass absolute title to personal property. A residuary clause giving to the testator’s wife for her life all the rest of the testator’s real and personal property and after her death to her heirs, “or to her devisees in case she leaves a will, in fee simple,” is not sufficient to pass an absolute title to the personal property, where the power is not executed because~the wife dies before the~3eath~~of thej£StatQ.r.</p> <p>5. Same—rule in Shelley’s case does not apply to disposition of personal property. The rule in Shelley’s case does not apply to a disposition of personal property in a will even though both real estate and personal property are disposed of in the same clause and in the same language, but the intent of the testator in the disposition of his personal property will be ascertained and followed.</p> <p>6. Same—when legacy is gift of a life estate with remainder— distribution. A testator may bequeath a life estate in personal property and limit a remainder after it, and where a residuary clause gives the testator’s wife a life estate in the residue of his personal property, with one-half of the remainder to her heirs and the other one-half to certain other legatees in equal shares, the property will be distributed according to the intention of the testator although the wife died before the testator.</p> <p>7. Same—when a legacy will lapse. A legacy is said to lapse either by the death of the legatee before the death of the testator or by the death of the legatee before the estate vests.</p> <p>8. Same—rule where lapsed legacy is a portion of the residuary estate. Where a lapsed legacy is a portion of the residuary estate itself and the residuary bequest is to several legatees in common or in distinct parcels, the lapsed legacy does not inure to the benefit of the remaining legatees but becomes intestate estate and as such passes to the next of kin or heirs-at-law of the testator.</p> <p>9. Same—when husband will not be regarded as "heir" of his wife. Where it is apparent that the testator, in disposing of the residue of his estate by devising a life estate to his wife with remainder one-half to her heirs and one-half to his heirs, intended to divide the estate equally as between his wife’s blood relatives and his own, the testator will not be regarded as the sole heir of the wife to the exclusion of her blood relatives where she dies in the testator’s lifetime, leaving no children or descendants of children.</p> <p>10. Same—rule where beneficiary of lapsed legacy is also legatee in residuary clause. The general rule th ,trspecific lapsed legacies fall into the general residuary clause and are to be distributed among the residuary legatees meets with an exception where legacies are given to several beneficiaries and the residue is bequeathed to the same legatees, and in such case the residue will not include a lapsed legacy to one of them but the lapsed legacy will descend as intestate estate, as the testator cannot be held to have intended to bequeath a portion of the residue to one who died.</p>

<p>Writ op Error to the County Court of Vermilion county; the Hon. Thomas A. Graham, Judge, presiding.</p>

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

Writ oe Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Clark county; the Hon. Walter Brewer, Judge, presiding.

<p>1. Trusts—fraud must be present to give rise to constructive trust. To establish a constructive trust there must be some element of fraud, either positive or constructive, which existed at the time of the transaction, or a confidential relation and influence, by virtue of which one has obtained the legal right to property which he ought not by the rules of equity and good conscience to hold and enjoy.</p> <p>2. Same—evidence to establish constructive trust must be clear and convincing. Where it is sought by parol evidence to disturb long-standing titles and establish a constructive trust the courts require such convincing proof as leaves no reasonable doubt of the existence of the facts; and there is added force to the rule where the delay has been so long that the death of witnesses and the loss of evidence render it practically impossible to make a defense.</p> <p>3. Same—when cross-complainant, because of long delay, is not entitled to set up constructive trust. In a suit by executors asking the court to appoint them as trustees under a will which provides for the creation of a trust estate and the payment of the income therefrom to the testator’s son during his life, the son cannot maintain a cross-bill setting up a constructive trust by allegations that he had conveyed the property to his father upon the father’s promise to re-convey to him when the son’s financial difficulties were settled, where more than fifteen years has elapsed since said settlement was made, during eleven years of which period the father was living.</p>

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

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

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

<p>1. Criminal law—when indictment for homicide is sufficient. An indictment for homicide is sufficient if it states the offense in the terms and language of the statute or so plainly that the nature of the offense may be easily understood by the jury.</p> <p>2. Same—what allegations are not inconsistent. In an indictment for murder, allegations that the deceased from October 5, 1917, until afterwards, October 5, 1917, languished and languishing did live, and that on October 5, 1917, he died of the mortal wound, are not inconsistent.</p> <p>3. Same—one good count will sustain a general verdict. One good count in an indictment will sustain a general verdict.</p> <p>4. Same—when statement in defendant’s conversation with a third party three days before homicide is admissible. On the trial of a discharged employee for the murder of his former employer during an altercation over such discharge, a fellow-employee of the defendant who talked with him three days before the homicide may testify that the defendant .asked why he was discharged and that the witness answered that it was because he drank.</p> <p>5. Same—when statement as to what zvitness thought deceased had in his hand zoheti he was shot is not improper. In a trial for murder, where the defendant is shown to have shot and killed his former employer while the employer was on his way home, a statement of a witness of the shooting, in answer to a question whether he saw the deceased have anything in his hand, that he “thought it was a bunch of flowers or something,” is not improper.</p> <p>6. Same—when witness may testify as to distance of city limits from scene of shooting. Where it is proved in a trial for murder that the defendant shot his victim while on a certain street of the city and that he immediately started north at a rapid walk or “dog-trot” for about a half block, when he' gave himself up to his pursuers, it is not error, as bearing upon the question of attempted flight, to permit a witness to testify how far north the city limits were, from the scene of the shooting.</p> <p>7. Same—witness may give opinion of age of defendant. In a trial for murder it is not error to permit a witness who has an opportunity for observation to give his opinion as to the defendant’s age. .</p> <p>8. Same—when sheriff may identify revolver and cartridges introduced in evidence in murder trial. The sheriff may identify the revolver, cartridges and bullets introduced in evidence in a murder trial, where it is proved that a witness picked up said exhibits immediately after the shooting and gave them to a policeman, who gave them to the sheriff, and where there is nothing to show that the articles, when introduced in evidence, were not in the same condition as when handed to the sheriff.</p> <p>9. Same—zuhen court may call child as a witness. The court may call as a witness the eleven-year-old son of the defendant in a murder trial and may examine him as to circumstances occurring when he was with his father at a meeting with the deceased on the day before the homicide and at the time the crime was committed, and the witness may be cross-examined by counsel for the defendant and for the State as to such circumstances.</p> <p>10. Same—what is not a good objection to preliminary examination of a non-expert witness. The competency of a non-expert witness on the question of insanity is a question to be passed upon by the court before the witness can give an opinion before the jury, and it is not a good objection to the preliminary examination of such a witness for the defendant in a murder trial that counsel for the State will he given an unfair advantage in learning beforehand what the witness will testify before the jury.</p> <p>11. Same—when court may caution counsel to examine witnesses before calling them to the stand. Attorneys should not, as a rule, put witnesses on the stand without having talked with them and found out what they can testify to, and where a witness volunteers an improper answer to an important question it is not error for the court to tell counsel not to examine witnesses on important questions without first learning the probable nature of their testimony.</p> <p>12. Same—when court may voluntarily take part in conduct of trial. A considerable latitude must be allowed the trial court, in' the progress of a criminal case, in asking questions of witnesses for the purpose of bringing out the truth in an impartial manner or in calling upon counsel for statements of what has preceded and in acquiring such knowledge as will enable the court to give proper rulings.</p> <p>13. Same—when an instruction that jury may consider drunkenness as affecting the mind of defendant is properly refused. In a trial for murder, where the defense is insanity, an instruction that drunkenness may be considered by thé jury as a fact affecting the control of the mind of the defendant, and that it is competent to prove that the defendant was wholly incapable of forming the intent to commit the offense, whether from intoxication or otherwise, is properly refused, where the evidence shows that the defendant was not so intoxicated as to be wholly incapable of forming an intent.</p> <p>14. Same—when instructions as to form of verdict cannot be objected to. In a trial for murder, where the defense is insanity, instructions as to the form of the verdict cannot be objected to by the defendant in the Supreme Court where there is no showing that counsel for the defendant presented any form of the verdict for the court to give which was refused.</p> <p>15. Same—when it is not error to refuse to allow accused to take the witness stand. In a trial for murder, where the defense is insanity, it is not error to refuse the request of defendant’s counsel that defendant be allowed to go upon the witness stand, where the defendant, both put of and in the presence of the j.ury, has refused to be sworn or to answer questions by the judge touching such refusal, the evident purpose of counsel’s request being to make an exhibition to the jury of the defendant’s mental and physical condition.</p>

<p>1. Ejectment—re-entry on breach of condition subsequent may be made by suit in ejectment. Where a conveyance contains a condition subsequent, úpon the breach of which the estate will revert to the grantor, a breach of the condition does not, of itself, determine the estate, but an entry, or some act equivalent thereto, is necessary to re-vest the estate, and the bringing of a suit in ejectment is equivalent to such re-entry.</p> <p>2. Deeds—condition subsequent will be strictly construed. A condition subsequent which destroys an estate is not favored in the law and will be strictly construed, and if from the language employed there is doubt as to what was intended by the condition, the condition will never be enlarged by construction but the doubt will be resolved in favor of the grantee.</p> <p>3. Same—when maintenance of building on tract conveyed “for mill purposes” is not a compliance with condition. Where a tract of land is conveyed “for mill purposes, and if not used for mill purposes the title reverts back to the former owner,” the condition requires the carrying on of the business of a mill, and the mere erection of a building that can be used for a mill, or its continuance on the premises for other purposes after milling operations have ceased, is not a compliance with the condition.</p>

<p>1. Appeals and errors—circuit court must enter decree when directed to do so on remandment of cause—mandamus. Where a cause is remanded .by an appellate court with directions to the cir-cuit court to enter a particular decree the court has no discretion but must enter the decree in accordance with the direction, and the duty to do so may be enforced by mandamus.</p> <p>2. Same—rule where trial court is directed to enter decree according to views expressed in opinion. Where ,the mandate of an appellate court directs the entry' of a decree in accordance with the views expressed in the opinion the trial court must look to the opinion to ascertain the views expressed, but it must conform its action to directions given in the mandate and must enter a decree in accordance with the views expressed in the opinion.</p> <p>3. Same—rule where catise is remanded for further proceedings in conformity with opinion. Where an appellate court remands a cause for further proceedings in conformity with its opinion the trial court must examine the opinion and determine from the nature of the case what further proceedings may conform to the opinion, and if the merits have not been determined on the appeal an amendment of the pleadings and the introduction of additional evidence may be permitted, but if the merits have been determined, the only proceeding in conformity with the opinion is the entry of a decree in accordance with it.</p> <p>4. Same—what amounts to a direction to enter a decree as prayed in the bill: On appeal from a decree dismissing a bill for want of equity after the trial court has sustained a motion to strike the complainant’s evidence, a finding by the Appellate Court that the bill states a cause of action and that the complainant’s evidence was sufficient to establish the same is a determination of the case upon its merits, and a remandment for further proceedings in accordance with the views expressed in the Appellate Court’s opinion amounts to a direction to enter a decree as prayed for in the bill, even though the defendant introduced no evidence. ■ ></p> <p>5. Mandamus—resignation of trial judge does not abate suit to compel carrying out of remanding order. The duty of a trial judge to carry out the remanding order of an appellate court is a continuing duty, which rests upon his successor in the event of his resignation; and the resignation of a trial judge after the filing of a petition for mandamus to compel the entry of a decree in accordance with a remanding order does not abate the suit, but under section 8 of the Mandamus act the performance of the duty may be required of the succeeding judge.</p> <p>6. Same—assignment of a case to another judge cannot affect writ to compel carrying out of remanding order. Obedience to a writ of mandamus to compel the trial judge to carry out a remanding order of an appellate court cannot be avoided or the proceeding suspended by the assignment of the case to another judge of the same court, as the duty to be performed is the duty of the court, and when the proceeding is begun to compel the action of said court, the judgment which may be rendered will be binding on the court and all of its judges.</p> <p>7. Liens—bill to enforce lien given by section 10 of Dram-shop act is not a suit to enforce general lien of judgment. A bill filed under section 10 of the Dram-shop act to charge as a lien upon De premises of the defendant a judgment recovered under section 9 of the act is a chancery proceeding in which the execution of the decree is provided for by section 47 of the Chancery act, and the suit is not a proceeding to enforce the general lien of the judgment, which is limited to seven years by section 1 of the statute on judgments, decrees and executions.</p>

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

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

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

<p>1. Criminal law—when malice is express and when implied in commission of murder. Express malice is the deliberate intention to take the life of another, which is manifested by circumstances capable of proof, and malice is implied where no considerable provocation appears or where all the circumstances show an abandoned and malignant heart.</p> <p>2. Same—definition of manslaughter. Manslaughter is the killing of a human being without malice, express or implied, and without deliberation, and it must be either voluntary or involuntary.</p> <p>3. Same-—definitions of voluntary and involuntary manslaughter. Voluntary manslaughter is the killing of a human being without malice but with a provocation apparently sufficient to make the passion irresistible, while involuntary manslaughter is the killing of a human being without intent to do so, in the commission of an unlawful act or a lawful act which might produce such consequences in an unlawful manner, where the unlawful act naturally tends to destroy life or where the involuntary killing is committed in the prosecution of a felonious intent.</p> <p>4. Same—to constitute murder, death or great bodily harm must be the probable consequence of the unlawful act. Malice necessary to constitute murder is presumed where the act resulting in the killing of another is deliberate and is likely to be attended with dangerous or fatal consequences, and to constitute murder, death or great bodily harm must be the reasonable or probable consequence of the act.</p> <p>5. Same—when killing another by blow with the bare fist is not murder. The striking of a blow with the bare fist on the side of the face or head is not likely to be attended with dangerous or fatal consequences where the assailant is not much larger or more powerful than his victim, and the fact that death results from such an assault will not warrant a conviction for murder, as the assailant is not presumed to have intended that death would be the natural consequence of his act, even though there is evidence that he threatened to kill his victim at the time he made the assault.</p>

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

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

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

<p>Appeal from the Circuit Court of Perry county; the Hon. J. F. Gillham, Judge, presiding.</p>

<p>1. Workmen’s compensation—definition of term "accidental injury.” The term “accidental injury” means a bodily injury by accident.</p> <p>2. Same—when proof does not show that injury is result of accident arising out of employment. Evidence that a foreman had a quarrel with a teamster in regard to his work and that a few minutes after the quarrel, during which there was no bodily contact, the foreman started to fall but was caught by another employee standing near by, is not sufficient proof that a cerebral hemorrhage and paralytic stroke, from which the foreman sustained a permanent disability,"was the result of an accident arising out of the employment.</p> <p>3. Same—liability of employer must be based on facts proved. The liability of an employer under the Compensation act cannot be based on a choice between two views equally compatible with the evidence but must be based on facts established by evidence, and where the cause of injury or death is equally consistent with an accident and with no accident, compensation will be denied.</p> <p>4. Same—statutory provision for making claim for compensation is mandatory. The provision of section 24 of the Compensation act that claim for compensation must be made within six months after the accident is mandatory and must be complied with to give the Industrial Commission jurisdiction.</p> <p>5. Same—what is not a sufficient claim for compensation. „ No special form for claim of compensation is required by the statute and the claim need not be in writing, but it must apprise the employer that the employee has sustained injuries of such a character as to entitle him to compensation, and a letter written by the injured employee’s wife merely appealing to the kindness and generosity of the employer is not a sufficient claim, where it does not inform the employer that the employee claims his right to compensation under the statute.</p>

<p>1. Appeals and errors—when chancellors finding of fact will not be disturbed. A chancellor’s finding of fact from conflicting oral testimony will not be disturbed on review unless it is clearly against the preponderance of the evidence.</p> <p>2. Deeds—wife cannot benefit from fiduciary relation between her husband and his mother. Where a son occupies a confidential relationship towards his mother, the son’s wife, who gets the benefit of a deed procured by means of such relationship and who pays no valuable consideration therefor, stands upon no better footing than would her husband had the deed been made to him direct.</p> <p>3. Same—burden is on party obtaining advantage of fiduciary relation to prove that transaction was fair. Where a fiduciary relation-exists the burden is upon the person obtaining the advantage of the transaction to vindicate the bargain or gift from any shadow of suspicion and to show that it was perfectly fair and reasonable in every respect, and courts will scrutinize such transactions with great care.</p> <p>4. Trusts—when a constructive trust arises. Where a son obtains a deed for his wife upon a consideration paid by his mother, towards whom he stands in a fiduciary relation, a constructive trust will'arise in favor of the mother, where the evidence shows that she was misled into thinking that the deed was to be made to her.</p>

<p>Writ of Error to the Circuit Court of Ogle county; the Hon. James S. Baume, Judge, presiding.</p>

<p>Writ of Error to the County Court of Carroll county; the Hon. Arthur J. Gray, Judge, presiding.</p>

<p>1. Registration of title—the Torrens law construed as to memorials of charges and liens. It is the intention of the Torrens law that no memorial of any charge, lien or claim shall be entered by the registrar without due proof before him that the instrument is a proper charge, lien or claim against the land, and that the person presenting the instrument shall make such proof and also that he is the owner of the instrument.</p> <p>2. Same—ivhat necessary before party can charge registered land as an attorney in fact. While section 67 of the Torrens law authorizes a person having a claim against registered land to charge the land by an attorney in fact, yet such attorney in fact must have a deed or other instrument authorizing him to act, which must be filed with the registrar.</p> <p>3. Same—registrar not authorised to search records for liens and note them on certificate of title. The Torrens law does not authorize the registrar of titles, after issuing a certificate of title to the person entitled thereto, to make an independent and voluntary search of the records of the county clerk and of the courts of the county to discover subsequent tax or special assessment liens and note a memorial thereof on the certificate of title and the owner’s duplicate thereof.</p> <p>4. Same—owner of certificate of title may have unauthorised memorials of registrar canceled. Under sections 93 and 94 of the Torrens law the owner of a certificate of title is entitled to have canceled certain memorials of tax and special assessment liens entered by the registrar upon the certificate of title and the owner’s duplicate thereof without any authority of law and as a result of his own independent search of records other than those of his office, and such right is not abridged by the provisions of section 101 providing for reimbursement to the owner for mistakes of the registrar.</p> <p>5. Same—registrar of titles has no authority not given by the Torrens law. The registrar of titles has no authority not given him by the provisions of the Torrens law, and section 45 of said law, authorizing him to note memorials on certificates of title when issued, only authorizes him to carry forward from all former certificates such memorials or notations as were entered on such certificates and have not been canceled in some manner authorized by law.</p> <p>6. Same—when a village is not a necessary party to petition to cancel memorials of liens on certificate of title. The village or other municipal corporation levying the special assessments upon which the registrar of title has, without authority of law, based his memorials of liens and charges upon a certificate of title is not a necessary party to a petition by the owner of the certificate to require the registrar to cancel such memorials.</p>

<p>1. Special assessments—council in cities under the commission form must originate a scheme for local improvements. Since the amendment of 1917 to section 23 of article 13 of the Cities and .Villages act, providing for the commission form of government, the board of local improvements is eliminated and the powers and duties previously exercised by said board are conferred upon the city council, and under the commission form the council must originate the scheme for local improvements.</p> <p>• 2. Same—certificate and estimate must be signed by same officer under section 10 of Local Improvement act. Under section 10 of the Local Improvement act the certificate that the estimate of the cost of the improvement does not exceed the probable cost must be signed by the same officer or officers who sign the estimate, and the statute is not complied with when the estimate is signed by the .public engineer or the civil engineer and is certified by the mayor and the members of the city council in cities under the commission form or by the president of the board of local improvements in other cities.</p> <p>3. Same—statutory requirement as to making and certifying estimate of cost is mandatory and jurisdictional. The requirement of section 10 of the Local Improvement act as to making and certifying the estimate of the cost of an improvement is mandatory and jurisdictional, and unless the statute is complied with the improvement ordinance and other preliminary steps are void.</p>

<p>1. Limitations—when cause of action accrues to recover ftmd deposited with, city to cover damages for vacation of street. The cause of action.to recover a fund deposited with a city treasurer to cover damages arising from the vacation of a street does not accrue until five years after the vacation ordinance becomes effective.</p> <p>2. Contracts—when illegal contract will not bar recovery in appropriate action. Courts will not lend their sanction and aid to illegal contracts by allowing a party to recover thereon, but where a party can show a right of recovery without relying on the illegal contract and without having the court sanction the same he may recover in any appropriate action.</p> <p>3. Municipal corporations—city is estopped to set up illegality of vacation ordinance in action to recover fund deposited for damages. In an action of assumpsit to recover a fund deposited with a city to cover damages arising from the vacation of a street the city is estopped to set up the illegality of the vacation ordinance and to deny the truth of the facts set up in the ordinance, and where demurrers have been sustained to special pleas setting up the illegality and the city stands by its pleas, the court may direct a verdict for the plaintiff and refuse to admit testimony of the defendant to prove the facts alleged in the special pleas.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. WindEs, Judge, presiding.</p>

<p>1. Criminal law—burden is on People to prove commission of crime by defendant beyond reasonable doubt—evidence. The burden rests upon the People to prove that the defendant committed the crime set forth in the indictment, by proof, beyond a reasonable doubt, of all the material and essential facts constituting the crime, and for the purpose of making such proof evidence of all facts which afford any reasonable inference as to the existence of the ultimate material facts is admissible.</p> <p>2. Same-—materiality of evidence is for the court. Any fact which, by itself or taken in connection with other evidence in the case, tends to prove the guilt of the defendant is admissible, but the question of relevancy and materiality of the evidence is for the court and not for the jury.</p> <p>3. Same—when instruction as to reasonable doubt is improper. The reasonable doubt which the jury may entertain must be as to the whole evidence and not as to any particular fact, -but an instruction stating said proposition should not conclude with the expression, “and not as to any particular fact in the case not material to the issue,” without informing the jury what are the essential material facts, as it is not proper to submit to the jury the question of what facts are material.</p>

<p>1. Taxes—when a mandamus proceeding to compel issuing of bonds does not estop tax-payer from objecting to collection of tax. A proceeding for a writ of mandamus to compel the issuing of bonds and to declare valid the election authorizing the tax to pay the bonds to be issued for constructing gravel roads, begun as a friendly suit by certain citizens and public officials, will not estop a tax-payer who was not a party thereto from filing objections to the collection of the tax, especially where the judgment for mandamus was entered subsequent to the filing of the certificates in the county clerk’s office, on which the tax in controversy was extended.</p> <p>2. Elections—ballots in election authorising hard roads tax must be indorsed as required by section 14 of Ballot law. Ballots used in an election authorizing a direct annual tax for the purpose of constructing gravel roads must be indorsed as required by section 14 of the Ballot law, and where none of the ballots in such election contain the required indorsement designating the particular polling place for which the ballots are prepared the tax is not legally authorized, as section 26 of the statute provides that no ballot without the official indorsement shall be counted.</p>

<p>1. Criminal law—venue, as well as any other fact, must be proved beyond reasonable doubt—instruction. In a trial for burglary and larceny the venue must be proved beyond a reasonable doubt equally with any other fact in the case, and where it' is not proved that the crime was committed in the county where the venue is laid it is error to give an instruction which assumes that the venue was'proved.</p> <p>2. Same—what must be contained in instruction which directs a verdict. An instruction which authorizes the jury to find the defendant guilty if they believe from the evidence that the facts stated in the instruction have been proved is erroneous if it omits a fact the proof of which is essential to the establishment of guilt.</p> <p>3. Same—possession of stolen property must be recent to be evidence of theft. Where the possession of stolen property by the defendant is so remote after the theft as to have given fair opportunity for the thief to dispose of the goods and for the defendant •to acquire them honestly, such possession is slight, if any, evidence of guilt, but its weight is a question of fact for the consideration of the jury and is not to be determined as a question of law by an instruction that evidence of such possession is sufficient to convict.</p> <p>4. Same—possession of stolen property to be evidence of guilt must be exclusive in the defendant. In order that an inference of guilt may be drawn from the unexplained possession of goods recently stolen it must be an exclusive personal possession on the part of the accused, and proof of the mere finding of stolen goods in the house of the defendant, when there are other inmates of the house capable of stealing the property, is not sufficient.</p> <p>5. Samp—explanation of possession of stolen property not required to be “satisfactory.” The law does not impose upon one accused of larceny the burden of “satisfactorily” explaining the possession of stolen property, as it is sufficient to require an acquittal if from all the evidence there is reasonable doubt of his guilt.</p>

<p>1. Workmen’s compensation—notice of accident is essential to jurisdiction of Industrial Commission. Under section 24 of the Compensation act notice of the accident must be given to the employer within thirty days, and this notice is essential to the jurisdiction of the Industrial Commission.</p> <p>2. Same—when finding that notice was not given cannot be regarded as a clerical error. A finding by the arbitrator that notice was not given to the employer, as required by section 24 of the Compensation act, cannot be regarded by the Supreme Court as a clerical error, although there was an award of compensation, where the evidence is conflicting as to notice, as the record is presumed to speak the truth in such case and the Supreme Court is not authorized to disregard the finding as to the fact.</p> <p>3. Same—when an objection that notice was not given is not waived. Where the record in the Supreme Court in a compensation case recites that notice of the accident was not given to the employer, the objection that notice was not given is not waived where the employer, in the certiorari proceeding in the circuit court, assigned no reasons for quashing the record and the employee assigned no reasons in support of his motion to quash the writ of certiorari, as in such case either party has the right to rely upon anything shown by the record in support of his position, and in the absence of any showing in the record no waiver of the objection can be presumed. (Bushnell v. Industrial Board, 276 Ill. 262, followed.)</p>

<p>Writ of Error to the Circuit Court of DeKalb county; the Hon. Mazzini Slusser, Judge, presiding.</p>

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

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

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

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

<p>Writ oe Error to the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boc-gs, Judge, presiding.</p>

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

<p>Benefit societies—when assured cannot change beneficiary. Equitable rights may be acquired in a beneficiary certificate which a court of equity will recognize and enforce, and if the assured delivers his certificate to the beneficiary upon an agreement that she pay the premiums, the assured, after the beneficiary has substantially complied with the agreement, has no right to change the beneficiary without her consent.</p>

<p>1. Schools—when doctrine of laches will not preclude review of decision of State superintendent. The doctrine of laches does not preclude a review of the decision of the Superintendent of Public Instruction on a petition for a writ of certiorari in a proceeding for the detachment of territory from a township high school district, even though the petition for review is not filed for more than two years after the proceeding was instituted, provided there is nothing in the record to indicate that great public inconvenience or detriment will be caused in case the proceeding is quashed on the review. (People v. Burdette, 285 Ill. 48, distinguished.)</p> <p>2. Constitutional law—when invalid provision renders entire act void. A law, may be held void as to certain parts and valid as to others, but in such case it must be clear that it was the purpose of the law to accomplish two or more objects which can be separated from each other; and if the purpose is to accomplish a single object and the provisions are so dependent on each other as to warrant the conclusion that the legislature would not have passed a portion of the statute independently, all the provisions must be held invalid if a part of the statute is unconstitutional.</p> <p>3. Same—section 90 of the School law, providing for change in boundaries of community or township high school districts, is invalid. Section 90 of the School law, as amended in 1917, providing for a change in boundaries of community or township high school districts, is invalid, as the provision delegating authority to the Superintendent of Public Instruction to change boundaries on appeal in such a proceeding is a delegation of legislative power, and the invalid provision is so connected with the other provisions of the section that the section must be held invalid.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. E. R. DeYoung, Judge, presiding.</p>

<p>Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.</p>