Volume 299 — Illinois Reports

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.</p>

<p>1. Jurisdiction—when right of Federal government to property may be determined by suit in ejectment. Except where Congress has so provided the United States cannot be sued, but the exemption does not apply to officers and agents of the Federal government who hold for public use the possession of property when sued by a person claiming to be the owner, and in such case the right of the government to the property may be determined by a suit in ejectment in a court of competent jurisdiction.</p> <p>2. Plats—city takes determinable fee in streets and alleys under section 3 of Plat act. Section 3 of the Plat act vests in the-municipality not a fee simple title absolute to the streets and alleys on a plat but only a qualified, base or determinable fee, which may continue forever if the land continues to be devoted to the public use, and such fee is determined by the vacation of the plat.</p> <p>3. Same—under section 2 of Vacation act the title to streets, upon vacation, passes to abutting owners. A plat made and recorded in statutory form since the enactment of the Plat act and the Vacation act is subject to the provisions of both acts, and in case any street or alley is vacated, the title thereto, in the absence of any reservation by the dedicator, passes by way of conditional limitation, under section 2 of the Vacation act, to the then owners of the lots abutting thereon.</p> <p>4. Same—section 2 of Vacation act is not unconstitutional. The provision of section 2 of the Vacation act that upon the vacation of a street or alley the fee shall go to the abutting owners is not unconstitutional as taking from the dedicator his unreserved interest in the reversion without due process of law, as the legislature has authority to control by statute the character of the estate created by a dedication and a subsequent vacation. (Gebhardt v. Reeves, 75 Ill. 301, distinguished and criticised.)</p> <p>5. Same—when dedicator who has made and recorded plat has no reversionary interest in the streets. After a dedicator has executed and recorded a plat in conformity with the statute and there has been an acceptance, he has, in the absence of an express reservation, no reversionary interest in the streets which entitles him to the protection of any constitutional limitation.</p> <p>6. Constitutional law—legislature has authority to control character and quality of estates conveyed. The methods of conveyancing and the character and quality of the estates thereby created are matters which are entirely within the control of the legislature, and the rules of the common law may be modified or abrogated without violating any constitutional limitations.</p> <p>7. Same—when rule of stare decisis will not preclude review of constitutional question. The rule of .stare decisis will not prevent the courts from reviewing a constitutional question where the facts under review are different from those in the former decisions.</p> <p>8. Stare decisis—when the rule of stare decisis should not be adhered to. The rule of stare decisis is founded upon sound principles of public policy necessary to the due administration of justice and should not be departed from merely because the court is of opinion that it would decide otherwise were the question a new one, but where the error of a previous decision is recognized the rule should not be followed if the principle established by the former decision is productive of greater mischief to the community than can possibly ensue from not following it.</p> <p>9. Same—a decision overruling former construction of statute does not amount to law impairing obligation of contracts. A judicial decision changing the settled construction of a statute is not equivalent to a law impairing the obligation of contracts, made in reliance on such previous construction.</p>

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

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

<p>1. Criminal law—when indictment for perjury in making false statement in bail bond is sufficient. An indictment for perjury in making a false statement in a bail bond in a prosecution for burglary and larceny need not allege that any bail was fixed by the court and need not set forth in detail the complete record or proceeding with reference to fixing the amount of the bond, as the statute requires the court, on the return of the indictment in the burglary and larceny proceeding, to fix the bail, but the indictment for perjury should state that the offer of bail was given in a judicial proceeding of which the court had jurisdiction and that the false testimony was material on the point in question. (Morrell v. People, 32 Ill. 499, distinguished.)</p> <p>2. Same—one assignment of perjury, if proved, is sufficient to sustain a conviction. Where there are several distinct assignments of perjury upon the same testimony in one indictment it is sufficient if any one of them is proved, and in a prosecution for making a false schedule in a bail bond in a criminal proceeding proof that the defendant swore that he was the owner of certain described real estate of the value of $6000, whereas he had merely a contract for sale of the property, on which he had paid $500, is sufficient to justify a conviction.</p> <p>3. Same—on a trial for perjury under the Bond act an instruction may refer to section 225 of Criminal Code. Where a defendant is indicted for perjury for making a false schedule as provided in the Bond act of 1917, it is not error to give an instruction referring to section 225 of the Criminal Code, relating to perjury, as being the statute under which the defendant is charged, as the Bond act refers to the general perjury statute as the one under which the defendant shall be punished.</p>

<p>1. Forcible detainer—-Municipal Court act gives jurisdiction to that court in forcible detainer suits. The municipal court of Chicago has jurisdiction of forcible detainer suits under the Municipal Court act as amended in 1917.</p> <p>2. Words and phrases—expression “service of summons, practice and proceedings” includes service of process. The words “service of summons, practice and proceedings,” used in a statute prescribing the form of proceeding in a certain class of cases, are broad enough in meaning to cover the entire process of issuing, executing and returning of summons, and, if necessary, the form of the summons.</p> <p>3. Pleading—when description of property is sufficient in statement of claim in municipal court. In a suit for forcible detainer in the municipal court a description of the property in the complaint by reference only to the street and number, city, county and State is a sufficient description, and includes the building and the lot on which the building is situated.</p>

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of DeKalb county; the Hon. Mazzini SlussER, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Marshall county; the Hon. Theodore N. GrEEn, Judge, presiding.</p>

<p>1. Plats—when deeds dated prior to recording, of plat do not create presumption that dedicator did not own subdivision. The admission in evidence of deeds dated prior to the recording of a plat will not create a presumption that the dedicator did not own all the land in the subdivision where the deeds were not filed for record until after the plat was recorded, as the plat becomes effective as a conveyance when it is recorded and the presumption of delivery which arises from the recording of a deed does not go back of the fact of possession or recording on which it is based.</p> <p>2. Same—zvhen plat is accepted although alleys are not named. A plat properly made, certified, acknowledged and recorded in substantial compliance with the statute is accepted by local improvement ordinances recognizing the existence of the subdivision and by subsequent ordinances of vacation, and it is immaterial who performed the manual labor of making the survey and plat or that the alleys in the subdivision were not marked with names.</p> <p>3. Same—fact that unsubdivided land is within corporate limits does not prevent subdivision by plat. The fact that unsubdivided land is already within the corporate limits of a town does not exclude it from the privilege of subdivision by plat merely because it will not be an addition to the town.</p> <p>4. Same—upon vacation of street or alley the fee goes to abutting owners under section 2 of Vacation act. A plat of a subdivision made since the enactment of section 2 of the Vacation act is subject to the provisions of said act, and, unless there is a reservation of the reversion in the fee to streets and alleys platted, upon a vacation of the streets and alleys the fee will go to the abutting owners according to the provisions of the statute. (Prall v. Burckhartt, ante, p. 19, followed.)</p>

<p>Writ or Error to the Circuit Court of Kankakee county; the Hon. Arthur W. DeSelm, Judge, presiding.</p>

<p>1. Criminal law—change of venue must be allowed if statute is complied zuith. In a criminal case the right to a change of venue from the trial judge on compliance with the statute is absolute, and it is prejudicial error for the court to deny the petition.</p> <p>2. Same—defendant charged with forgery cannot be permitted to demonstrate his handwriting to the jury. Handwriting can be compared by the jury in the trial of a civil or criminal case only in the mode pointed out by the statute, and a defendant who is being tried for forgery cannot be allowed to sign the forged name before the jury for the purpose of demonstrating that the forgery is not in his handwriting.</p> <p>3. Same—what testimony in a forgery case is a mere conclusion. In a prosecution for forgery, a witness who did not see the forged name indorsed on the instrument or see the forged instrument passed cannot be allowed to testify that the defendant did not forge the instrument and that he knew of his own knowledge who it was that passed it, as such testimony is a mere conclusion.</p> <p>4. Same—when defendant must make his offers of proof out of hearing of jury. Where the court has definitely ruled that a certain line of evidence offered by the defendant is incompetent, and states to counsel, in substance, that he will not allow it to go to the jury or be offered in the presence of the jury, the defendant is thereafter entitled to make further offers of such proof only out of the hearing of the jury and for the purpose of having the ruling fully understood by a reviewing court.</p>

<p>1. Criminal law—when plea of misnomer in an indictment is subject to demurrer. Great accuracy is required in pleas in abatement and if there is any failure to observe the strictest technicality they cannot be supported, and a plea of misnomer of the defendant in an indictment is subject to demurrer where it omits to state the term at which it is filed, admits that the person pleading is the person against whom the indictment was returned and is not verified by affidavit.</p> <p>2. Same—judge’s certificate in bill of exceptions is conclusive. The trial judge’s certificate in the bill of exceptions as to what takes place in his presence is conclusive, and where the judge, upon his own recollection that the defendant was arraigned and entered a plea of not guilty, causes such plea to be entered at the trial and denies a motion to. correct the record, the record as certified by the clerk must be accepted as true.</p> <p>3. Same—when statement of judge is improper as interpreting a witness’ testimony. It is a question for the jury whether certain language of a witness is capable of a particular interpretation, and where a statement of a witness speaking imperfect English is of doubtful meaning, it is not proper for the judge, in the presence Of the jury, to state his own construction of the language and by sustaining objection prevent counsel for the defendant from giving the witness an opportunity to explain.</p> <p>4. Same—when evidence of offer to dismiss a prosecution for stipulated sum is admissible. In a prosecution for taking indecent liberties with a child, where the father of the prosecuting witness has testified that the defendant endeavored to settle the prosecution, defendant’s counsel should be permitted to introduce evidence that said witness offered to dismiss the prosecution if the defendant would pay him $200, as such testimony tends to show the motive and interest of the witness and affects his credibility, especially where he has testified to admissions which he said were made by the defendant.</p>

<p>Appear from the Circuit Court of Cook county; the Hon. DonArd L. Morrirr, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.

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

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. Jesse Holdom, Judge, presiding.</p>

<p>1. Freehold—'when circuit court has no jurisdiction to decide question involving freehold. If a freehold is incidentally involved in a proceeding as to which the statute expressly confers jurisdiction upon justices of the peace, a justice of the peace has no jurisdiction to render any judgment which in any manner affects the right or claim of the parties to the freehold, and the circuit court, on appeal, has no greater jurisdiction in that respect.</p> <p>2. Same—when a direct appeal does not lie to Supreme Court from circuit court. On appeal to the circuit court in a statutory proceeding begun before a justice of the peace to recover a fine or penalty under section 155 of the Roads and Bridges act for the obstruction of a road which the defendant claims is not a public highway, the question of freehold is only incidentally involved and is not ground for a direct appeal from the circuit court to the Supreme Court.</p> <p>3. Jurisdiction—parties cannot confer jurisdiction of subject matter on Supreme Court by agreement. The Supreme Court will not decide a cause where it has no jurisdiction of the subject matter, even though the question of jurisdiction is not raised by the parties or though they assent to the Supreme Court taking jurisdiction.</p>

Appear 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. F. A. Smith, Judge, presiding.

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

<p>1. Schools—object of provisions of School law for changing boundaries of districts. The object of the provisions of the School law giving township trustees power to change the boundaries of districts and to form new districts out of territory of other districts when properly petitioned for, is to give effect to the wishes and convenience of a majority of the inhabitants of the township or townships, and the trustees, and the superintendent of schools on appeal, should exercise their discretion in accordance with the wishes and convenience of a majority of the inhabitants affected.</p> <p>2. Same—zvhen equity may set aside decision changing boundaries of districts. Where the action of the township trustees or of the county superintendent in changing the boundaries of school districts is clearly shown to be so unreasonable and unjust as to amount to oppression and a wanton disregard of the rights and interests of the complainants, a court of equity will set aside such action and grant such other relief as is necessary and proper.</p> <p>3. Same—county superintendent acts in ministerial capacity in deciding question of nezv school district. The county superintendent of schools, in deciding the question of the organization of a new school district on appeal from the decision of the township trustees, does not act in a judicial or legislative capacity but merely acts in his ministerial capacity.</p> <p>4. Injunction—invalidity of statute will not, alone, justify relief by injzmction. To justify relief by injunction it must appear that the complainants have no remedy at law or that the matters fall under some recognized head of equity jurisdiction, and the mere fact that a certain statute which purports to authorize the acts complained of may be unconstitutional does not entitle the complainants to relief by injunction.</p>

<p>Writ or Error to the Circuit Court of Franklin county; the Hon. Julius C. Kern, Judge, presiding.</p>

<p>Writ of Error to the Superior Court of Cook county ; the Hon. Jacob H. Hopkins, Judge, presiding.</p>

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

<p>1. Specific performance—finding of master, approved by chancellor, is as binding as a verdict. The credibility of witnesses is a question for the master and the court to consider, and the master’s findings, when approved by the court, have the same binding force upon the Supreme Court as the verdict of a jury in law cases and will not be disturbed unless against the weight of the evidence.</p> <p>2. Same—when evidence to defeat mining lease does not impeach acknowledgment. In a suit for the specific performance of a mining lease, evidence that the lessor signed and acknowledged the lease under a misapprehension as to its contents does not impeach the certificate of acknowledgment, which relates only to her signature and not to her understanding of the lease.</p> <p>3. Same—when a notary may testify to mistake in body of instrument. In a suit for specific performance of a mining lease containing an option clause, the notary who took the lessor’s acknowledgment of her signature may testify that the lessor refused to sign the lease until he agreed to strike out the option clause of the lease, and that he thought he had done so and so assured her before she signed.</p> <p>4. Same—specific performance will not be allowed if contract is entered into through misrepresentation. An application for specific performance is addressed to the sound legal discretion of the court, to be governed by the merits as disclosed by the facts, and performance will not be decreed unless the agreement has been entered into with perfect fairness and without misapprehension or misrepresentation.</p>

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

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

<p>Appeal from the County Court of Tazewell county; the Hon. Charles Schaefer, Judge, presiding.</p>

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

<p>1. Practice—section 114 of Practice act does not apply where judgment is affirmed. Section 114 of the Practice act, providing that if neither party shall file a transcript of the order of an appellate tribunal within two years after the order is made the cause shall be considered as abandoned, has no application where the judgment was affirmed.</p> <p>2. Same—when trial court is not without jurisdiction to enter final order. The fact that the motion for a final order is made before the transcript of the Supreme Court’s order of affirmance is filed does not affect the jurisdiction of the trial court, where such transcript is filed with the clerk of the court before the motion is acted upon and the order entered.</p>

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

<p>Writ op Error to the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding.</p>

<p>1. Negligence—Appellate Court’s finding on the facts is conclusive—instructions. While a finding by the Appellate Court as to the preponderance of the evidence is conclusive upon the Supreme Court, yet the jury must be accurately instructed, and where the evidence is conflicting an error in giving a bad instruction may be ground for reversal though the law is correctly stated in others.</p> <p>2. Same—an instruction directing verdict should limit recovery to negligence charged. An instruction in a personal injury case which directs a verdict for the plaintiff should not authorize a recovery for negligence generally, but only for that charged in the declaration.</p>

Writ op 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. Joseph H. Fitch, Judge, presiding.

<p>Appeal from the Circuit Court of Mercer county; the Hon. William T. Church, Judge, presiding.</p>

<p>1. Negligence—there must be evidence that the party injured was in the exercise of due care. To justify a recovery in an action for damages for personal injury there must be evidence of due care by the injured person, and where the injury results in death and there are no eye-witnesses of the accident it is competent to prove that the deceased was a man of careful habits.</p> <p>2. Same—when evidence that deceased wa's a man of careful habits is not admissible. In an action for wrongful death, evidence of the habits of the deceased as to care and prudence is not admissible where there is an eye-witness of the injury, as the jury must determine from the testimony of this witness and from the facts and circumstances surrounding the injury whether the deceased was careful or negligent at the time he was killed. (Illinois Central Railroad Co. v. Ashline, 171 Ill. 313, explained.)</p> <p>3. Same—questions of negligence and of contributory negligence are ordinarily for the jury. Negligence and contributory negligence are ordinarily questions of fact for the jury, and so long as the questions whether either party has performed his legal duty or has observed that degree of care and caution imposed upon him by law involve the weighing and consideration of evidence they must be submitted as questions of fact.</p> <p>4. Same—what does not render proof of careful habits admissible. In a railroad accident case, where the locomotive fireman has testified at the coroner’s inquest and on a former trial of the case that he was an eye-witness to the accident, the plaintiff is not entitled to prove the reputation of the deceased for careful habits merely because the plaintiff challenges the veracity of the eye-witness.</p>

<p>1. Criminal law—when instruction as to reasonable doubt is not misleading. Where the jury are fully instructed as to the presumption of the defendant’s innocence, the fact that an instruction defining reasonable doubt speaks of it as a doubt which the jury are “permitted” to entertain does not tend to mislead the jury into believing that an acquittal is • not obligatory if they have a reasonable doubt, particularly where the sole purpose-of the instruction is to define the term reasonable doubt and to show that it must be as to the whole case and not as to any particular fact.</p> <p>2. Same—when instructions are properly refused. Instructions are properly refused where they are limited to particular facts and circumstances and not to the whole evidence or where they are fully covered by other instructions given.</p>

<p>Appear from the Circuit Court of Wabash county; the Hon. Jurius C. Kern, Judge, presiding.</p>

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

<p>1. Contracts—zvhen an importer. waives delay in shipment of goods. Although a contract for the importation of nuts provides that they are to be shipped “about the "middle of October,” an acceptance of a portion of the order which was shipped on October 26 is a waiver of the delay in shipping the balance on October 30, as the contract must be repudiated in toto or not at all and there cannot be a partial repudiation by only one of the parties to the contract.</p> <p>2. Same—when letter of credit must be construed with contract as to time of shipment. A contract for the importation of nuts which provides for a shipment “about the middle of October” must be construed with the provisions of a letter of credit sent to the shipper a few days after the contract was drawn up, and a provision that the letter of credit is “to be in force until October 31” must be held to modify the contract so as to permit shipment of the nuts any time until October 31. ,.</p> <p>3. Sales—zvhen loss of goods in transit falls upon the purchaser. By the common law and under the Uniform Sales act, when a contract covering the purchase of merchandise provides substantially for delivery by carrier and payment at the point of delivery and that all insurance is to be effected by the purchaser, the beneficial interest in the merchandise passes to the buyer upon delivery to the carrier and the risk of subsequent loss falls upon the buyer.</p> <p>4. Same—when correct notice of time of shipment is not required for purpose of effecting insurance. Paragraph 3 of section 46 of the Uniform Sales act, requiring notice to the purchaser of the time of shipment of goods purchased, does not require that a purchaser be notified of the exact time of shipment where war conditions render such notice impossible, and where the contract of purchase and the correspondence with reference to the shipment provide that the insurance, including the war risk, shall be effected by the purchaser.</p> <p>5. Appeals and errors—Appellate Court’s judgment on mixed question of law and fact is binding. The Appellate Court’s judgment on a mixed question of law and fact is binding on a review of an'action at law in the Supreme Court.</p>

<p>1. Wills—construction of devise to one individual and to the surviving children of another. A devise to a life tenant and his wife, with a provision that at their death the property shall be equally divided between the testatrix’s sister and the surviving children of her brother, will be construed as a devise to the children as a class who take equally with the sister, per stirpes and not per capita, and will not be construed as including the sister in the class with the surviving children or as requiring her to survive the life tenants. (Dollander v. Dhaemers, 297 Ill. 274, followed.)</p> <p>2. Same—construction of devise of remainder “after the death” of a life tenant. The words “at the death” or “after the death,” in a devise of a remainder after a life estate, ordinarily refer not to the period of the vesting of the estate but to the period of its coming into possession, and will be so construed in the absence of any contrary intention expressed in the will.</p>

<p>1. Wills—a testator may divide his property tmequally among his heirs. A testator may lawfully divide his property among his heirs as he may see fit, and where a testator gives two of his four sons a first option to purchase certain of his real estate at $60 per acre, the fact that, owing to the advance in the value of land, the price named is inadequate does not justify disregarding the option clause, even though there is a subsequent provision in the will for a 'division among the four sons of the proceeds of a sale of the land in case the option is not exercised.</p> <p>2. Same—effect of provision giving devisee option to purchase. A will may give an option to purchase property of the estate at a price named, and where such option is exercised by the beneficiary in accordance with the terms of the will he becomes invested with the title to the property, but the title does not vest until the option is exercised, and the devisee must take the land at the value fixed.</p> <p>3. Same—when a devisee is entitled to construction of will by cross-bill—costs. A devisee whose interest under a will is being attacked by a bill to construe it is entitled to have a construction of the will settling the question of his title by filing a cross-bill, and if successful he will be entitled to recover his costs in the case.</p> <p>4. Pleading—when a cross-bill is necessary. Where a defendant relies on his answer, alone, he can use the equity of his case only for the purposes of defense, but if he wishes affirmative relief with reference to the subject matter of the original bill he must file his cross-bill.</p>

<p>1. Deeds—when, only, zvill equity set aside conveyance for fraud and misrepresentations. It is only in cases where the parties have not equal knowledge or means of knowledge as to the value of property involved in an exchange of real estate that equity will afford relief on the ground of fraud and misrepresentations, and where no deceit has been practiced which ordinary prudence could not detect the law will not assist a man capable of taking care of his own interests because he makes a bad or losing bargain.</p> <p>2. Same—when inadequacy of price will not afford relief. Cases in which gross inadequacy of price has been held to justify equitable interference with a conveyance of real property are not applicable in a suit to set aside an exchange of properties where the complainant fails to prove his allegations of fraud and deceit and where he had an opportunity to and did inspect the land concerning the value of which he alleges he was misinformed.</p> <p>3. Contracts—exaggerated representations are not, ordinarily, ground for setting aside contract. Representations as to the value of property, though exaggerated, are not ordinarily ground for setting aside a contract, and are never made the basis for relief where the party claiming to have been deceived had ample opportunity to know of the truth or falsity of the representations.</p>

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

<p>1. Negligence—what is willful negligence. Willful negligence implies an act intentionally done in disregard of another’s rights, or an omission to do something to protect the rights of another after having had such notice of those rights as would put a prudent man upon his guard to use ordinary care for the purpose of avoiding injury to such other person.</p> <p>2. Same—when interurban company is not guilty of willful negligence. A person standing so close to the track of an interurban line that a car struck his hand while he was signaling it to stop at a road crossing is guilty of contributory negligence, and he can not recover as for willful injury because the motorman failed to stop the car until it had run several hundred feet past the crossing, where there is no evidence that the motorman had notice that such person was too close to the track to allow the car to pass without striking his extended hand, as the duty of the motorman to stop the car to take on a passenger is not one which relates to his safety.</p>

<p>1. Wills—when devise creates alternative contingent remainders. A devise to a life tenant with remainder to the heirs of her body, if she has any, with a provision that if she has no heirs of her body at the time of her death the property shall go to her sister, must be construed as creating alternative contingent remainders.</p> <p>2. Same—there is no merger where life tenant takes life estate and reversion by the same will—conveyances. There is no merger where a devisee takes a life estate in one clause of a will and is given the reversion in fee by the residuary clause of the same instrument, but a merger will take place when the devisee by separate deeds conveys both the life estate and the reversion in fee to the same grantee, and any contingent remainders intervening will be cut off and destroyed.</p> <p>3. Same—when a residuary clause devises a reversion in fee. Where a life estate has been devised and contingent remainders have been limited thereon, a residuary clause which is broad enough to include every interest that the testator has in any real or personal property will pass the reversion in fee to the residuary devisees if there is no contrary intention discoverable in the will.</p>

<p>1. Drainage—owner of dominant estate has easement for flow of waters over servient estate. The owner of the dominant heritage has a natural easement over the land of the servient estate for the flow of both surface waters and of water-courses, and the owner of the servient estate cannot, by embankment or other artificial means, interfere with or divert such flow and throw the water back upon the dominant heritage.</p> <p>2. Same—as to rights of dominant and servient owners there is no distinction between surface waters and overflow waters of small streams. Water overflowing the banks of a small stream in times of flood because of the insufficiency of the natural channel to carry it off is surface water within the meaning of the law, and as to the relative rights of dominant and servient owners there is no distinction between surface waters and overflow waters in times of flood, and the owners of lands along such streams are bound to so use them as not to injure the lands of others.</p> <p>3. Same—construction of levee by servient owner cannot defeat dominant owner’s right of drainage in times of flood. The fact that the owner of the servient estate has constructed a levee does not defeat the right of the owner of the dominant estate to the benefit of the natural drainage over the servient estate in times of flood.</p> <p>4. Same—effect of construction of railroad embankment along a stream. If the construction of a railroad embankment along a stream causes the stream to overflow in times of flood upon lands across the stream, the owners of said lands may build a levee to prevent such overflow, but if the overflow is a result of the natural slope of the surface, they have no right to build such a levee as will throw more water back onto the right of way than would naturally have flowed there before any change was made.</p> <p>5. Same—when dominant and servient owners acquire reciprocal rights by prescription. Where the owner of a dominant heritage, with the acquiescence of the servient owner, has diverted water from its natural course and established an artificial channel, through which it has had an unvexed and uninterrupted flow for more than twenty years, mutual and reciprocal rights are acquired by prescription, exempting the dominant owner from restoring the water to its original course and releasing the servient estate from the burden of the easement which once existed.</p> <p>6. Same—when railroad company is required to re-build bridge. Where the construction of a levee in a levee drainage district will necessitate the reconstruction of a railroad bridge over certain low lands to take care of flood waters the cost must be borne by the district if the natural flow of the surface and overflow waters is in another direction than toward the bridge, but if the natural flow is toward the low lands under the bridge then such cost must be borne by the railroad company.</p> <p>7. Same—drainage district is not required to build steel railroad bridge in place of wooden one. Although the construction of a proposed levee necessitates the re-building of a railroad bridge because the surface and overflow waters will be diverted to a new channel under the bridge, the drainage district in reconstructing the bridge is not bound to build a new steel bridge in place of the company’s wooden pile bridge.</p> <p>8. Eminent domain—evidence of prices paid by petitioner for other property is not admissible. Evidence of prices paid or agreed to be paid by a levee drainage district to other property owners for the right of way of a proposed levee is not admissible in a suit for the condemnation of a portion of a railroad right of way.</p> <p>9. Same—zvitness must be shown to be competent to give opinion of value of property. There is no presump don that a witness in a condemnation proceeding is competent to give an opinion of the value of the property in question, and it must appear that he has some peculiar means of forming an intelligent and correct judgment as to its value or the effect upon it of a particular improvement beyond what is presumed to be possessed by men generally.</p> <p>10. Same—when opinions as to value of railroad right of way are not competent. In a proceeding by a drainage district to condemn a portion of a railroad right of way, the opinions of farmers owning land in the vicinity which are based solely on their knowledge of agricultural lands in the vicinity are not competent to show the value of the land condemned even on the theory that such opinions are the best evidence obtainable, where witnesses may be procured who are familiar with the values of railroad rights of way. (City of Chicago v. Farwell, 286 Ill. 415, distinguished.)</p> <p>11. Same—petitioner has burden of proving value of the property. The burden of introducing evidence as to the value of property sought to be taken by condemnation rests on the petitioner.</p> <p>12. Same—when motion to dismiss petition as to certain property should be allowed. In a proceeding to condemn lands for the construction of a levee in a levee drainage district, a motion of a defendant railroad company to dismiss the petition as to its right of way should be allowed where said defendant has been allowed a separate trial and where the petitioner has introduced no competent evidence as to the value of the right of way sought to be taken.</p> <p>13. Same—when instruction as to jury’s personal view of premises is misleading. In a condemnation proceeding, where the only evidence as to the damages to land not taken is given by the defendant’s witnesses, an instruction is misleading which, in effect, authorizes the jury to disregard such evidence and rely upon the jury’s personal view of the premises.</p>

<p>1. Mortgages—mortgage is not a lien unless a debt is secured by it. A mortgage is a security for a debt, and without a debt it has no effect as a lien. 1</p> <p>2. Same—mortgage for future advances takes effect as a lien only when advances are made. A mortgage may be taken to secure future advances, but it can take effect as a lien only when the money is advanced or the contemplated debt comes into existence in the course of dealings between the parties, the lien being measured by the extent of the advances and the amount of the debt.</p> <p>3. Same—when grantee of mortgagor is entitled to have trust deeds set aside. The grantee of a mortgagor or of the maker of trust deeds takes the place of his grantor only in so far as any lien is created by the instruments and assumes no personal indebtedness of the grantor not secured thereby, and if no debt is secured by the instruments and no money is ever advanced on account of them, the grantee is entitled to have them set aside or canceled as clouds upon his title.</p> <p>4. Same—what cannot be recovered by trustee when trust deeds are set aside. Upon the setting aside of trust deeds made to secure a building loan which was never advanced, the trustee, in the absence of any provision therefor in the- trust deeds, cannot recover interest for the time he alleges he had the money set apart ready to make the loan, nor a commission to himself which he claims the maker of the trust deeds agreed to pay him, nor the expense of registering the trust deeds for his own protection.</p> <p>5. Costs—examiner's fee cannot be allowed as costs in suit to cancel trust deeds. Costs are recoverable only where allowed by statute, and as the statute makes no provision for the allowance of an examiner’s fee as costs in a suit to cancel trust deeds as clouds upon a grantee’s title on the ground that no debt is secured by the trust deeds, such costs cannot be allowed.</p>

<p>1. Mandamus—when Supreme Court has no jurisdiction of direct appeal. A direct appeal from the circuit court cannot be taken to the Supreme Court in a mandamus proceeding to compel civil service commissioners of a city to promote the petitioners to certain offices in the fire department, where no question of franchise or as to the validity of a statute or ordinance is involved.</p> <p>2. Offices—right to an office is not a franchise. An office is not a franchise within the meaning of the Practice act giving the Supreme Court jurisdiction of a direct appeal where a franchise is involved.</p> <p>3. Appeals and errors—question involving merely the construction of a statute does not authorize direct appeal. A case involving merely the construction of a statute, and not its validity, does not give the right of a diiect appeal to the Supreme Court.</p>

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

<p>1. Insurance—face of insurance policy consists of the entire contract. The face of an insurance policy is the entire insurance contract contained in the policy, and where the policy is the usual four-page folder, with the contract, and certain riders attached, printed on the first three pages, the face of the policy is all of the matter printed on said pages, together with the riders attached and made a part of the policy by reference.</p> <p>2. Same—section 2 of the act of ipof, regulating provisions of life insurance policies, construed. The provision of section 2 of the act of 1907 regulating life insurance policies, that the policy shall not provide a “mode of settlement” which will reduce the amount of the policy, does not preclude provisions in the insurance contract by which the amount of the policy is determined, but is intended to prevent the inserting of optional modes of settlement professedly for the benefit of the insured but which, in fact, provide modes of settlement of less value than the amount fixed in the contract.</p> <p>3. Same—accident or health insurance is not, ordinarily, life insurance. In common parlance accident or health insurance is not considered life insurance, and even though an accident policy may provide for payment in the event of death by accident, the policy is not thereby rendered a life policy in the ordinary sense of the term, as the amount of an accident policy may or may not be payable at death.</p> <p>4. Same—ambiguous provision will be construed in favor of insured. If there is any ambiguity in an insurance policy it is the fault of the company which prepares the contract, and if the policy is susceptible of two interpretations, that interpretation will be adopted which is most favorable to the insured in order to indemnify him for the loss he has sustained.</p> <p>5. Same—when accident insurance is not deductible from the amount due on life insurance policy. A provision in a life insurance policy that the amount due on the policy at the death of the insured shall be reduced in case the insured has other life insurance policies in force at his death refers to ordinary life insurance and not to accident insurance.</p>

<p>1. Criminal law—when confession is admissible although it includes evidence of another offense—instruction. A confession of participation in a burglary is admissible even though it includes evidence of another similar offense by the same parties, where the confession is otherwise competent and as a whole tends to show the relations between the parties participating in both offenses; but the defendant will be entitled to a cautionary instruction if desired.</p> <p>2. Same—when admission of evidence of another offense is not prejudicial error. Evidence which tends to show that the accused has committed another crime wholly independent from that for which he is on trial is not admissible, but where he is charged with participation in a burglary and the confessed principal is testifying for the People it is not prejudicial error to permit re-direct examination concerning the relations between the witness and the defendant in various criminal enterprises, where such relations were brought out on cross-examination.</p> <p>3. Same—accessory is not exempt because principal is not criminally responsible. If one who commits an act constituting a crime is insane or otherwise not criminally responsible, another who aids or abets in the commission of the crime as an accessory is not thereby exempt.</p> <p>4. Same—when it is not error to refuse instruction to have jury consider corroboration of defendant’s testimony. In an instruction advising the jury concerning the credibility of the defendant’s testimony it is not error to strike out a clause telling the jury that it is their duty to take into consideration the fact, if such is the fact, that the defendant is corroborated by other credible evidence, where no instruction is given concerning contradiction of the defendant’s testimony and no evidence corroborating the defendant appears in the record.</p>

<p>Disbarment—when attorney will not be disbarred for imprudence in handling matters for two clients. Lack of foresight by an attorney in making an unauthorized agreement with one client to pay another client’s alleged obligation to a third party, so that the former may secure the release of a trust deed held by the third party, is not ground for disbarment though the other client refuses to recognize the debt to the third party, where there is no dishonesty of purpose by the attorney nor any unfaithfulness to the interests of either client and where the controversy over the situation is subsequently satisfactorily settled.</p>

<p>1. Deeds—what constitutes sufficient delivery of a deed. No particular form is necessary to constitute a valid delivery of a deed, but it may be by acts without words or by words without acts, or by both; and anything which clearly manifests the intention of the grantor, and of the person to whom it is delivered, that the deed shall presently become operative and effectual constitutes a sufficient delivery.</p> <p>2. Same—a deed signed, sealed and delivered is sufficient to pass title although not acknowledged. A deed, when signed, sealed, delivered and accepted, although it is not personally acknowledged by the grantor before the notary, is sufficient to convey all the title of the grantor except any homestead right.</p> <p>3. Same—a deed which is not acknowledged does not convey homestead—partition. A deed which is not acknowledged according to the provisions of the statute pertaining to the conveyance of homestead rights does not convey the homestead estate but it remains in the grantor and will pass by will to residuary devisees or to the heirs of the grantor, and they will be entitled to a partition of $1000 worth of the property included in the deed, either by actual division, or by a sale and a division of the proceeds if the property cannot be divided without manifest prejudice.</p> <p>4. Same—when deed creates joint tenancy. A deed which conveys and warrants to four grantees a house and lot, “not in tenancy in common but in joint tenancy,” will convey the property to the grantees as joint tenants and not as tenants in common, and upon the death of one or more the survivors will become seized of the entire title in joint tenancy.</p> <p>5. Homestead—householder is not required to be head of family. The statute does not require the householder to be the head of a family, but simply that such householder shall have a family in order to be entitled to an estate of homestead.</p> <p>6. Same—loss of one or more members of family does not affect homestead. A homestead right, once acquired, continues so long as the householder continues to occupy the premises, whether such householder loses one or all of the members of his or her family.'</p>

<p>1. Mortgages—party taking deed expressly subject to incumbrances is charged with knowledge thereof. Where a deed is made subject to incumbrances the grantee is charged with knowledge of the incumbrances and of his obligations with respect to the payment of the interest and principal of the indebtedness.</p> <p>2. Same—non-resident’s ignorance of practice in Illinois does not excuse failure to protect equitable interest in property. The fact that a non-resident is unfamiliar with legal process and proceedings in Illinois does not excuse his failure to protect his equity in property in Illinois.</p> <p>3. Pleading—when demurrer admits allegations of an affidavit of non-residence. Where a bill to redeem from a foreclosure sale alleges that an affidavit of non-residence upon which a default order was entered against the complainant contained misrepresentations as to his residence, a general demurrer to the bill admits the misrepresentations in the affidavit and amounts to an admission of fraud in obtaining jurisdiction in the foreclosure proceeding.</p> <p>4. Same—bill not subject to demurrer because cause of action is not perfectly stated. If sufficient ground is stated in a bill for equitable relief a general demurrer should be overuled, however imperfect the manner of the statement of the cause of action may be.</p> <p>5. Equity—when tender is good although conditional upon the granting of relief prayed for in bill. A tender may be coupled with such conditions as the party making it has the right to impose, and in a bill to set aside a quit-claim deed a tender of the sum received by the complainant for the deed is good where the only condition imposed is that the relief prayed for in the bill shall be granted.</p>

<p>1. Workmen’s compensation—definition of the word "casual.” The word “casual” ordinarily means that which comes without regularity and is occasional, as distinguished from its antonyms, which are “regular,” “systematic,” “periodic” and “certain.”</p> <p>2. Same—when an employment is casual. An employment for one job is casual, under the Compensation act of 1913, when it cannot be characterized as permanent or periodically regular but occurs by chance, or with the intention and understanding on the part of both employer and employee that it shall not be continuous.</p> <p>3. Same—when workman is casually employed to unload lumber. A workman who is injured while unloading a car of lumber for a person who is not his regular employer is but casually employed, within the meaning of the Compensation act of 1913, although he had done such work for the employer at various times when he had nothing else to do but without any arrangement that he should help to unload cars whenever they came in.</p>

<p>1. Evidence—testimony of adverse party called as witness must be taken as true in absence of countervailing evidence. While a complainant is not bound by the testimony of the defendant, whom he calls as his witness, and may show the truth by any competent testimony even in direct contradiction of the defendant’s testimony, yet he cannot call in question such witness’ credibility, and that part of the testimony which makes in favor of the witness must be considered as well as that against him and must be taken as true if there is no countervailing testimony.</p> <p>2. Creditors’ bills—no fraud is presumed where a husband makes deeds in settlement of indebtedness to wife. While a husband who makes a voluntary conveyance to his wife and afterward becomes insolvent must disprove the implication of fraud as to creditors, yet he may deal with his wife or relatives in business matters and protect them by conveyances in satisfaction of existing indebtedness if done in good faith, as relationship does not, of itself, presuppose fraud or show the absence of a bona fide debt.</p> <p>3. Same—rule where defendant’s deeds to his wife purport to be for a consideration. In a creditor’s bill proceeding to set aside the defendant’s deeds to his wife, which purport to be for a valuable consideration, the complainant must introduce evidence that there was no consideration for the deeds before the defendant can be required to introduce evidence to disprove fraud, as the burden is upon the complainant to show that the transaction was fraudulent and that the conveyances were void.</p> <p>4. Same—what testimony is hearsay as against the defendant. In a creditor’s bill proceeding to set aside the defendant’s deeds to his wife, testimony of an attorney that the notary public told him one of the deeds was sent away to be recorded immediately after it was acknowledged is hearsay as against the defendant and is incompetent.</p> <p>5. Same—rule where void sale of personal property to wife is set aside—execution. Where personal property, the subject of a void sale from husband to wife, is by their act placed beyond reach of legal process, a prior judgment creditor is entitled to recover its value from the wife if the husband is insolvent; but it is error to authorize an execution against her property for more than the evidence shows such value to be.</p> <p>6. Same—ivlien sale of personal property must comply with section p of Husband and Wife act. A sale of personal property by a debtor to his wife, with whom he is living, is void as to creditors unless the transaction complies with section 9 of the Husband and Wife act, which requires the transfer to be acknowledged and recorded the same as a chattel mortgage.</p> <p>7. Same—when sale must comply with Bulk Sales act. A sale of personal property from husband to wife which is intended to be a transfer of the merchandise and good will of the husband’s business is void as to creditors of the husband where, no attempt is made to comply with section 1 of the Bulk Sales act.</p>

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

<p>Writ op Error to the Circuit Court of Woodford county; the Hon. CpORGp W. Patton, Judge, presiding.</p>

<p>Wills—equity will not order conveyances for purpose of destroying contingent remainders so as to vest fee in minor. A court of equity will not take jurisdiction of a bill filed by a minor devisee for the purpose of having the court order certain conveyances to be made so that contingent remainders created by the will may be destroyed and the fee be vested in the minor, as the law authorizing the destruction of contingent remainders is not regarded as being founded on natural justice, and equity will not take the initiative in applying the rule, even for the benefit of a minor.</p>

<p>Writ oe Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Lake county; the Hon. Crairr C. Edwards, Judge, presiding.</p>

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

<p>1. Taxes—cemetery property must be exclusively used for that purpose to be exempt from taxation. Under the provisions of section 3 of article 9 of the constitution and of paragraph 3 of section 2 of the Revenue act the exemption of cemetery property from taxation does not extend to such lands unless they are used exclusively for cemetery purposes.</p> <p>2. Same—one claiming tax exemption must make clear showing that his property is exempt. One claiming the benefit of a tax exemption statute must show clearly that his property is within the contemplation of the law, and a statement in a return to the tax commission by a cemetery corporation that its land is exempt is a mere conclusion of the affiant.</p> <p>3. Same—capital stock and franchise of cemetery corporation are subject to taxation. Under paragraph 4 of section 3 of the Revenue act and paragraph 6 of section 2 of the Tax Commission act the tax commission is required to assess and value the capital stock and franchise of a cemetery corporation for purposes of taxation, and there is no theory upon which such a corporation can escape taxation on such property.</p> <p>4. Same-—legislature cannot exempt property from taxation except as provided in section 3 of article p of the constitution. No property can be exempted from taxation by any law passed by the legislature except such as is mentioned in section 3 of article 9 of the constitution.</p> <p>5. Same—rule 11 of the tax commission is proper for assessing capital stock and franchise of cemetery corporation. Rule 11 of the tax commission, for ascertaining the fair cash value of the capital stock and franchises of corporations for purposes of taxation, is a proper rule for making an assessment of the capital stock and franchise of a cemetery corporation.</p> <p>6. Same—valuation must be so excessive as to amount to fraud before the court will interfere. The Supreme Court will not interfere on account of alleged excessive valuation of property by the tax commission unless the valuation is so excessive as to amount to fraud.</p> <p>7. Same—circuit court can review order of tax commission only on the record. Under section 10 of the Tax Commission act the circuit court can review the order and decision of the tax commission only on the record made before the commission, and said court has no authority to make a new assessment or to hear any further evidence for the purposes of such review.</p>

<p>1. Divorce—when court continues to have jurisdiction over custody of child. A court which acquires jurisdiction of a proceeding for a divorce has jurisdiction to settle the question of the custody of a child of the complainant and after the decree is entered- will continue to have the right to reconsider the question upon proper application and to make changes in its order when warranted by the evidence, and the original jurisdiction acquired in the divorce proceeding will not be lost where the defendant moves to open up the decree at the same term it was entered and such motion is continued from time to time.</p> <p>2. Same—court may appoint a guardian for the property of a child and yet award custody of the child to its father. The circuit court in a proceeding for a divorce may appoint a guardian for the property of the child of the complainant, who has died after the entry of the decree, and at the same time give to the father the care, custody, control and education of the child, provided the evidence justifies such order.</p> <p>3. Same—circuit court may consolidate appeal from appointment of guardian by county court with proceeding to modify divorce decree. On appeal from an order of the county court appointing a guardian for a minor child of a complainant, who has died since the entry of a decree granting her a divorce, the circuit court may of its own motion consolidate the appeal with a pending motion to open up the divorce decree and modify the order therein as to the custody of the child, where the principal question in each case is the same and involves the same evidence.</p> <p>4. Same—verdict of jury involving question of custody of child is merely advisory. In a proceeding for a divorce the parties are entitled to a jury, and upon all issues affecting the right of divorce the verdict of the jury is binding to the extent that it cannot be set aside unless it is manifestly against the weight of the evidence, but upon the question of the custody of the child the verdict is merely advisory.</p> <p>5. Same—when father does not forfeit right to custody of child. A father is not disqualified from having the care, control and education of his child because of the fact that he has occasionally taken a drink of intoxicating liquor, and where the complainant in a proceeding for divorce has died after the entry of the decree, the defendant, upon a proper showing, is entitled to a modification of the decree so as to give the custody of the child to him instead of the wife’s sister, even though the sister may be more able, financially, to care for the child.</p> <p>6. Same—father will not be denied the right to custody of child merely because he is a non-resident. Where a wife dies after obtaining a decree for divorce and there is a controversy between the defendant and his wife’s sister as to the custody of his child, the father will not be denied his right to such custody merely because he is a non-resident and the child has property in Illinois, but the court may appoint said sister the guardian of the child’s property and give the father the care and custody of the child. (Miner v. Miner, 11 Ill. 43, distinguished.)</p> <p>7. Same—domicile of the parent is the domicile of the child. Where the mother is dead, the domicile of a child, who has been living with her apart from the father, changes to the domicile of the father, as the father is the natural guardian of the child; and a guardian by nature, or a testamentary guardian, may in good faith change his ward’s domicile from one State to another or from one county to another.</p> <p>8. Same—after mother’s death father may have custody of child although divorce was for his fault. Although a divorce is granted for the husband’s fault and the custody of the child is given to the wife, the husband, after the wife’s death, is entitled to preference over another person who has no natural right to the child, provided the evidence shows that he is a competent person to have the custody of his child.</p> <p>9. Same—when divorce decree prevents testamentary disposition of custody of child. Where a wife dies after obtaining a decree for divorce and the husband by a proper motion continues the jurisdiction of the court so as to modify the decree as to the custody of the child, the final decree awarding such custody to the father divests all right which the complainant may have had to make a testamentary provision as to the disposition of the child.</p>

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

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

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

<p>1. Eminent domain—admission of evidence of sales of other property rests largely in discretion of court. There is no fixed rule governing the admissibility, in a condemnation proceeding, of evidence of sales of other property which is alleged to be similar to the property being condemned, and whether such sales are of lands in the locality so similar in character to the land condemned as to make evidence thereof competent is a question largely within the discretion of the trial court.</p> <p>2. Same—when evidence of sale of lots is not admissible. In a condemnation proceeding, even though it is admitted that the best use to which the land can be put is to subdivide it into lots, the price received for lots in a tract already subdivided is not admissible upon the question of the value of the unsubdivided tract.</p> <p>3. Same—sale price of lots in future subdivision of land is not a test of its value. In a proceeding to condemn unsubdivided land, the sale price of lots in a future subdivision of the land is not a proper test of its value even though the best use of the land is for subdivision purposes.</p> <p>4. Same—when plat of a subdivision of property is not admissible. In a suit to condemn unsubdivided property, although it is conceded that subdividing into lots is the best use to which the land can be put, a plat made by a witness, showing a possible subdivision, is not admissible where there is no proof that the plat was recorded, that the property had been surveyed into lots, that the plat was contemplated or made before the suit was brought, or that it is to be an actual plat of the land.</p> <p>5. Same—jury may be instructed to disregard fanciful or speculative estimates. Where there is a great difference in the values placed upon the land by the testimony of the two sets of witnesses, the questions whether or not the values given by the defendant’s witnesses are extravagantly high or those by petitioner’s witnesses are ridiculously low are for the jury, and in such case it is not prejudical error to give an instruction for the petitioner that the jury should disregard any mere fanciful or speculative estimate of the value of the land made by any of the witnesses.</p>

<p>Writ op Error to the Circuit Court of DuPage county; the Hon. Mazzini SlussER, Judge, presiding.</p>

<p>1. Specific performance—’when alleged oral contract to execute a will cannot be enforced. An alleged oral promise to devise to complainants all the promisor’s estate in consideration for services to be rendered by both of them in taking care of the promisor’s farm will not be enforced where it is proved that after the making of the alleged promise the promisor entered into a written lease of said farm to one of the complainants.</p> <p>2. Same—when unattested will is not a sufficient memorandum of oral promise to devise estate to complainants. In a suit against the heirs of a deceased person to compel the specific performance of an alleged oral promise by the deceased to devise- all his estate to the complainants, as tenants in common, if they would take care of his farm and render personal services, an unattested will by which the deceased gave one of the complainants $5000 in money and gave all the rest of his estate to the other, but which makes no reference to any contract, is not such a memorandum of the oral contract as will take it out of the Statute of Frauds.</p> <p>3. Same—what performance is required to take contract out of Statute of Frauds. To take an oral contract for a conveyance out of the Statute of Frauds on account of performance, all acts of the alleged performance must be clear and definite and referable exclusively to the contract.</p>

<p>Appear from the Circuit Court of Brown county; the Hon. Harry HigbEE, Judge, presiding.</p>

<p>1. Wills—effect of devise to life tenants with remainder in fee to heirs of their bodies. A devise of a certain tract of land to the testatrix’s two daughters for the term of their natural lives with remainder in fee simple to the heirs of their bodies will give life estates to the daughters as tenants in common, and the remainder after each life estate will be vested in the children of the life tenant, subject to open up to let in after-born children, diminishing the interest of each.</p> <p>2. Partition—when land may be partitioned although minors have interest in remainder. Partition cannot be had as an absolute right where the property itself cannot be divided nor where there is a life estate with remainder and the class of remainder-men cannot be definitely ascertained until the death of the life tenant; but a partition of land held in common by life tenants can be had where the land is capable of division so that each life tenant will have a separate estate, even though the remainder in each share is vested in the minor children of the life tenants and is subject to be opened up to let in after-born children.</p> <p>3. Equity—jurisdiction of equity is freely exercised to protect persons under disability. The jurisdiction of equity over the property of persons under legal disability is freely exercised for the protection of such persons whenever their rights are involved, and the court will not only appoint a guardian ad litem for the protection of such rights, but will exercise a constant supervision over such guardian and will see that no interest of a minor or other person under disability is prejudiced.</p> <p>4. Minors—equity will not enter decree which will result in a sale against the interests of minors. The jurisdiction of equity to protect the property of persons under disability extends to the conversion of the estates of minors, but equity will not enter a decree which must result in a sale against their interests.</p> <p>5. Same—when court decreeing partition will not authorize an exchange of property in which minors have an interest in remainder. A court of equity in decreeing a partition of land held in common by life tenants and in which minors have an interest in the remainder by the terms of a devise will not authorize one tenant to exchange her share of said land for other property alleged to be more valuable, where the exchange is not necessary in order to protect or preserve the property from loss or destruction or to preserve the interests of the parties in the estate or the estate itself.</p>

<p>1. Judgments and decrees—transcript of record may be filed within required time after rendition of decree in vacation. Notwithstanding a decree may be entered in vacation as of the preceding term, a transcript of record is regarded as filed in apt time if filed within the required time after the actual rendition of the decree in vacation.</p> <p>2. Workmen’s compensation—when petition for writ of error is properly filed at second term of Supreme Court following rendition of judgment. A petition for a writ of error is properly filed for review at the second term of the Supreme Court following the rendition of the judgment of the circuit court where said judgment is rendered in vacation as of a date during the previous term of the circuit court, even though there are more than thirty days from said date until the ensuing term of the Supreme Court, provided there are less than thirty days from the actual entry of the judgment in vacation until such ensuing term.</p> <p>3. Same—whether employee is totally and permanently incapacitated is a question of fact. There is no rule-by which to distinguish between disability which renders one wholly and permanently incapable of work and such disability which does not render one wholly and permanently unable to work, and the extent of the injury does not present a question of law for the court but it is a matter for the sound judgment and discretion of the arbitrator and the Industrial Commission, provided that in enforcing the statute they substantially comply with its provisions.</p> <p>4. Same—fact that employee has worked after being injured is not conclusive on question of permanent total disability. Where an employee, whose education is limited, has never done anything but manual labor, the fact that he was employed for a short time after recovering from a severe injury may be evidence of partial ability to work but is not conclusive of the question whether his injury-left him totally and permanently unable to work, as the statute does not require an applicant to continue working if it will cause him to continuously suffer serious discomfort and pain while so engaged.</p> <p>5. Same—previous payments should not be deducted from the amount taken as a basis for estimating pension for permanent total incapacity. Paragraph (/) of section 8 of the Compensation act of 1919, read in connection with paragraph (a) of section 7, does not require that previous payments of compensation be deducted from the amount to be taken as a basis for estimating a pension for an injury resulting in a permanent total incapacity, but the pension should be figured from the total sum which would have been paid as a death benefit under said provision of section 7 if the employee had died as a result of the injury.</p>

<p>1. Administration—probate courts do not have general chancery jurisdiction. The jurisdiction of probate courts is fixed by section 6 of the constitution and the acts of the legislature passed in pursuance thereof, and while such courts may, within the limits of the jurisdiction so conferred, exercise chancery powers and adopt the forms of equitable proceedings, they are not courts of general equity jurisdiction.</p> <p>2. Same—section 101 of Administration act does not give probate courts general chancery jurisdiction. Section 101 of the Administration act, as amended in 1887, does not, by reason of giving power to probate courts to settle disputes as to title in proceedings to sell real estate, give to that court general chancery jurisdiction so that all remedies open in a chancery court may be had there.</p> <p>3. Same—probate court has no power to compel a purchaser to complete his bid in proceeding to sell real estate. The power to compel specific performance by contempt proceedings is the highest power given an equity court, and as a probate court does not have general chancery jurisdiction it is without power to compel a purchaser at an administrator’s sale of real estate to complete his bid and pay the same to the estate but it should proceed to a re-sale of the premises, leaving the estate to other remedies against the purchaser.</p>

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

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

<p>Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Part-low, Judge, presiding.</p>

<p>1. Wills—every will must be construed according to its own language. In the construction of every will its meaning and intent must depend on its language, with such aid as may be afforded by the circumstances surrounding the testator at the time of making his will.</p> <p>2. Same—devise of life estate may give power to convey the fee. If it clearly appears from the language of the will and the circumstances surrounding the testator when the will was made that he intended to confer on a life tenant power to convey the fee that intention must be given effect.</p> <p>3. Same—when zvill gives life tenant power to convey fee. A will which gives to the testator’s wife a life estate in property which produces but little income, and provides that it shall “be her absolute property during her natural life, and what shall be left of said property at her death” shall go to the children of the testator’s half-brother, gives to the life tenant the power to convey the fee.</p>

<p>Writ or Error to the Appellate Court for the First District;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Oscar Hebel, Judge, presiding.</p>

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

<p>1. Negligence—an instruction should not assume negligence of the defendant.. In an action against a street railway company for personal injuries received in a collision of a street car with an automobile in which the plaintiff was riding, the burden is on the plaintiff throughout the trial to show that she was in the exercise of ordinary care at the time of the accident and that the injury was the result of the negligence of the defendant as charged in the declaration, and it is prejudicial error to give an instruction which assumes that these facts have been proved and places on the defendant the burden of establishing that the negligence of a third party, who was driving the automobile, was the proximate cause of the accident.</p> <p>2. Same—when passenger in automobile should warn driver of danger. Where a passenger in an automobile has an opportunity to learn of danger and to avoid it, it is his duty, in the exercise of ordinary care for his own safety, to warn the driver of the automobile of such danger, as the passenger has no right, because someone else is driving the car, to omit reasonable arid prudent efforts on his part to avoid danger.</p> <p>3. Same—when negligence of driver of automobile cannot be imputed to passenger. If a passenger in an automobile exercises ordinary care for his own safety the negligence of the driver can not be imputed to the passenger.</p>

<p>1. Negligence—when negligence of railroad company is a question for jury—review. In an action against a railroad company for an injury to an employee it is a question for the jury whether the defendant was guilty of the negligence charged, where the evidence tends to support the material allegations of the declaration both as to due care by the plaintiff and as to the negligence of the defendant’s agent, and all questions of fact are conclusively settled by the verdict of the jury, the judgment of the trial court and its affirmance by the Appellate Court.</p> <p>2. Same—when railroad company is liable for injury to freight conductor from explosion. Where the conductor of a freight train is injured by an explosion of dynamite caps which another employee had found upon the tracks and placed on the platform of the caboose, the facts that such employee knew that the substance was dynamite, and that it was his duty as patrolman of the company’s yards to look for dangerous substances and take them to the headquarters of the chief detective of the company, are sufficient to charge the company with liability for the injury to the conductor.</p> <p>3. Same—zuhcn the master is liable for negligence of servant in handling dangerous agency. The duty of a servant entrusted with a dangerous agency is to carefully guard and control it, and a failure in this respect, with resultant injury to another person, is not a departure from his master’s service but is a negligent discharge of that service for which the master is liable.</p> <p>4. Same—when employee does not cease to be engaged in interstate commerce. In determining whether or not an employee is engaged in interstate commerce at a particular time the character of the work he is employed to do is to be considered, and from the mere fact that there is a lull in this employment or a temporary cessation of the actual work it cannot be said that the employee is not engaged in interstate commerce during such rest or interruption of actual work.</p> <p>5. Same—burden is on defendant railroad company to prove assumed risk—instruction. In an action under the Federal Employers’ Liability act the burden of proof as to the question of assumed risk is on the defendant railroad company, and if the defendant considers it necessary to have an instruction given to the jury defining assumed risk it should present one to the court, and it can not complain because the court does not prepare and give one of its own motion.</p> <p>6. Appeals and errors—ivhen it is not material that Appellate Court’s judgment of affirmance is based on wrong theory. If the action of the Appellate Court in affirming a judgment of the trial court in an action for negligence is right, the fact that it has based its affirmance upon a wrong theory is not ground for reversal in the Supreme Court.</p>

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

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

<p>Writ op Error to the Criminal Court of Coolc county; the Hon. Joseph H. Fitch, Judge, presiding.</p>