Volume 300 — Illinois Reports

<p>1. Contracts—burden is on defendant to prove that stipulated damages in a building contract provide for a penalty. A building contract which provides for liquidated damages at so much per day for delay in the completion of the work is prima facie evidence that the parties have stipulated and agreed on the actual amount of damages that ought to be recovered for a breach, and the plaintiff need not allege actual damages from the delay but is entitled to rely on the contract to show that the stipulated damages have resulted, and the burden is on the defendant to show that the contract provides for a penalty and not for liquidated damages.</p> <p>2. Same—when parties may stipulate damages in building contract. Where damages arising from delay in the completion of a building contract cannot be calculated by market value nor by any precise pecuniary standard, or where, from the peculiar circumstances which the contract contemplates, there must be other uncertainties affecting the practical ascertainment of the amount of actual loss, the law favors any fair adjustment of damages by stipulation, and the parties may provide in the contract the amount of compensation to be paid as stipulated damages for the delay.</p> <p>3. Same—when amount stipulated for failure to complete contract will be regarded as liquidated damages. Where a certain sum per day is specified to be paid for delay in completion of a building contract and there is nothing in the contract that discloses that the sum fixed is grossly excessive when the actual loss is considered, the amount so fixed shall be held as liquidated damages rather than as a penalty, in the absence of extraneous facts proved, particularly where the damages cannot be calculated by market value and where the contract does not afford any data from which the actual damages can be calculated.</p> <p>4. Same—when stipulated damages will be regarded as a penalty. Although damages stipulated in a contract are referred to as liquidated damages, if the provision is inserted in terrorem to insure prompt performance and the amount stipulated is so excessive that it appears on the face of the contract that it could not have been intended as a correct or approximately correct estimate of the actual damages, the sum agreed upon will be regarded as a penalty and not as liquidated damages.</p>

<p>1. Municipal corporations—officers of village act as agents in signing municipal bonds. The statute authorizes a village to make public improvements and to issue bonds to be executed by such officers as are authorized by ordinance, and the officers executing such bonds act for and on behalf of the municipality in the same relation as a person authorized to act for another as an agent.</p> <p>2. Criminal law—zvhat constitutes forgery at common law. Forgery, at common law, is the false making or material altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability; and it is not necessary to allege that the writing would, if genuine, have created a legal liability, but the essential elements of the crime are the false making of a writing apparently capable of effecting a fraud and the fraudulent intent with which it is made.</p> <p>3. Same—indictment for forgery of municipal bond need not show authority of officers of a village to issue bond. An instrument that is void or without apparent legal efficacy on its face or is not shown by proper averment of extrinsic facts to be capable of affecting the rights of another cannot be the subject of forgery, but it is sufficient if it is apparently capable of defrauding, and an indictment charging the forgery of a municipal improvement bond is not defective in failing to show that the officers of the village had authority to sign such bond.</p> <p>4. Same—venue in forgery need not be proved beyond reasonable doubt. Venue is a jurisdictional fact but it is not an element of the crime of forgery to be proved beyond a reasonable doubt, and it is sufficient if there is evidence from which it can reasonably be inferred that the crime was committed in the county where the venue is laid in the indictment.</p> <p>5. Same—there is no presumption of law that forgery is committed where the forged instrument is disposed of. If there is no other evidence a jury may properly find that a forgery was committed in the county where the forged instrument was disposed of; but there is no such presumption of law, and where there is evidence tending to show that the false writing was prepared in one county and disposed of in another it may be left to the jury to determine where the crime was committed.</p> <p>6. Same—intent to defraud is not presumed until forged instrument is uttered. The intent to damage or defraud does not arise merely from the forgery of an instrument, and in such a case the intention is a question for the jury, to be determined from the circumstances, but when the forged instrument is uttered by a sale to another party the intent to defraud is presumed.</p>

<p>1. Workmen's compensation—when an employee is entitled <to compensation notwithstanding pre-existing disease. If an injury to an employee is the proximate cause of his permanent incapacity he may recover compensation for permanent incapacity even though he had a pre-existing disease, but he is not entitled to compensation for a condition resulting from a pre-existing disease and not from any injury suffered in the course of and arising out of the employment.</p> <p>2. Same—employee may be compensated for acceleration or aggravation of disease as a result of injury. If there is a pre-existing disease the employee is entitled to recover for the consequences attributable to the injury in the acceleration or aggravation of the disease, and such aggravation or acceleration, permanent and progressive in its nature, will entitle the employee to compensation to the extent and in the proportion in which the pre-existing disease is increased or aggravated.</p> <p>3. Same—predisposing physical condition does not affect right to compensation. If an accident to an employee results in a lesion ór new condition of which it is the proximate cause there may be a recovery of compensation for the same, regardless of predisposing physical conditions making the employee more susceptible to the injury.</p> <p>4. Same—when award for total permanent incapacity cannot be sustained. An award for total permanent incapacity cannot be sus-tained where the most that can be claimed under the evidence is that the injury might have aggravated and intensified the organic and progressive disease of the heart with which the employee was afflicted before the -injury, there being no evidence that his condition was wholly the result of the injury.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Walter Brewer, Judge, presiding.</p>

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

<p>1. Deeds—no particular act is necessary to constitute delivery. While delivery is necessary to render a deed operative as a conveyance, no particular act or ceremony is necessary to constitute delivery, and it may be by acts without words or by words without acts, provided it is the intention of the grantor that the deed shall at once vest an estate in the grantee.</p> <p>2. Same—deeds of voluntary settlement, although retained by grantor, may be effective to pass title. The presumption of delivery of a deed of voluntary settlemént is much stronger than in case of an ordinary deed of bargain and sale, and under certain circumstances such a deed may be effective to immediately pass title to the grantees although the deed is retained in the possession of the grantor until his death, particularly where the grantor has reserved a life estate.</p> <p>3. Same—when a deed of voluntary settlement is presumed to take effect at once. A deed of voluntary settlement made to a minor and placed on record by the grantor is presumed to have been intended to operate at once, particularly where the grantor reserves a life estate, and unless the presumption arising from such facts is overcome by proof the conveyance becomes immediately effective.</p> <p>4. Same—what is not sufficient to overcome presumption of delivery of deed of voluntary settlement. In a suit to set aside a deed on the ground that there was no delivery because the grantor retained possession of the deed until his death, the presumption of delivery arising from the facts that the deed was a voluntary settlement to a minor child, was recorded by the grantor and reserved to him a life estate, is not overcome by the testimony and the decrees in two other suits brought by the grantor in his lifetime to reform or set aside similar deeds to other children, in which suits he testified he had always kept possession of the deeds.</p>

<p>1. Corporations—what is meant by capital stock of corporation. The capital stock of a corporation, unless the context of the charter indicates a different meaning, is an invariable sum fixed by the charter as the amount to be paid in by the stockholders for the prosecution of the business of the corporation and for the benefit of the corporate creditors, and the term does not include the capital of the corporation or its actual property, the value of which may fluctuate from time to time.</p> <p>2. Same—a public utility corporation may be taxed on the full amount of authorized capital stock under section 105 of Corporation act. In assessing the franchise tax of a public utility corporation under section 105 of the general Corporation act, as amended in 1919, the tax may be assessed on the full amount of the capital stock authorized by its charter even though such stock can be issued only with the consent of the Public Utilities Commission, as the unissued part of the'stock of the corporation is a part of its authorized capital stock.</p> <p>3. Same—appointment of receiver of railroad company does not enlarge or restrict corporate powers. The appointment of a receiver for a railroad company creates no change in the corporate body but its existence continues with its legal functions unimpaired, its acts being performed by agents appointed by the court and not by the corporation, and the court and its agents are bound to manage the corporation in accordance with the charter and within the limits and duties imposed thereby.</p> <p>4. Same—corporation whose property is in hands of receiver is subject to franchise tax under section 105 of Corporation act. A corporation whose property is in the hands of a receiver is subject to the franchise tax under section 105 of the general Corporation act, as amended in 1919, as section 102 of the act indicates such an intention in requiring the report upon which the assessment is to be based to be signed by the assignee, receiver or trustee of such a corporation.</p> <p>5. Railroads—act of Congress for control of railroads did not deprive States of power to assess franchise tax. The act of Congress providing for the operation and control of railroads by the Federal government, known as the Federal Railway Control act, did not deprive the States of the power of taxation of railroads which they possessed and exercised prior to the passage of the act, and section x of said act, by providing that taxes assessed “either on the property used under such Federal control or on the right to operate as a carrier” shall be paid out of revenues derived from operation under Federal control, expressly provides for the payment of franchise taxes.</p> <p>6. Same—franchise tax of interstate railroad is not a burden on interstate commerce. The assessment of a franchise tax, under section 105 of the Corporation act, against a railroad company engaged in interstate commerce does not impose a burden upon interstate commerce. (American Can Co. v. Emmerson, 288 Ill. 289, and Hump Hairpin Manf. Co. v. Emmerson, 293 id. 387, followed.)</p>

<p>Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding.</p>

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

<p>1. Specific performance-—when a witness cannot testify that there was an agreement which was put in writing. In a suit for the specific performance of an alleged parol contract for the conveyance of land by a person since deceased, a witness cannot be allowed to testify that an agreement was put in writing where he is unable to state substantially the language constituting the agreement, as the question whether or not there is an agreement must be determined from the language of the parties and not by the judgment of a witness.</p> <p>2. Same—evidence to support parol contract for conveyance of property of deceased person will be carefully scrutinized. Courts of equity scrutinize with the most scrupulous care the evidence offered in support of an alleged parol contract to make a disposition of the property of a deceased person different from that which the law prescribes.</p> <p>3. Same—parol contract for conveyance must be clearly proved before it will be enforced. The proof which will justify a court in decreeing specific performance of a parol contract must be clear and conclusive, and there must be no reasonable doubt that the contract was made and all of its terms must be clearly proved.</p> <p>4. Deeds—mere fact of alteration raises no presumption as to when it was made. The mere fact of an alteration of an instrument raises no presumption as to when it was made, but the question as to when, by whom and with what intent the change was made is one of fact, to be determined from the evidence.</p> <p>5. Same—suspicious alteration raises presumption against the instrument. Where an alteration is suspicious in appearance and not satisfactorily explained a conclusion of fact follows against the instrument, but the appearance of the instrument may furnish a satisfactory explanation without extrinsic evidence.</p> <p>6. Same—when grantee is not entitled to reformation of deed. Where an alteration of a deed is not suspicious in appearance, is in the same handwriting as the rest of the deed and written apparently at the same time by the scrivener who prepared the deed for the grantor, the grantee will not be entitled to a reformation by striking out the alteration where he has subsequently made admissions indicating that his title was consistent with the alteration, and where the only evidence in support óf a reformation is the testimony of a witness, more than twenty years after the deed was executed, that the alteration was not on the instrument when he witnessed its execution.</p>

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

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

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

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

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

<p>1. Bills and notes—construction of Negotiable Instruments act. In construing the Negotiable Instruments act the language should be interpreted so as to give effect to the beneficent design of the legislature in passing the act for the promotion of harmony in the law regarding negotiable paper, and the court should take the act as it is written and give the words their natural and common meaning and should not attempt to harmonize the provisions with earlier statutes or decisions which are in conflict with the language of the act.</p> <p>2. Same—effect of acceptance of draft by drawee. Under section 62 of the Negotiable Instruments act, a drawee, by a general acceptance of a draft, binds itself to pay the draft to the order of the payee named therein and the drawer is discharged from liability, and even though the name originally written in the draft as payee is .erased and another name substituted, by accepting the draft so altered the acceptor admits the existence of the payee whose name is substituted for the original payee and the capacity of said second payee to indorse the draft. (State Bank v. Mid-City Trust and Savings Bank, 295 Ill. 599, distinguished.)</p> <p>3. Same—when a bank takes draft as a holder in due course. Even though the name of the payee in a draft has been erased and another name substituted thereon, a bank which takes the draft in good faith and for value and without notice of any infirmity in the instrument or defect in the title of the person negotiating it becomes a holder in due course, where the draft is complete and regular on its face and has been duly accepted by the drawee bank.</p>

<p>1. Pleading—special replications in chancery are no longer used. Amendments to the bill have been substituted in the place of special replications in chancery, and if the circumstances of the case are changed by the answer an amendment of the bill becomes necessary in order to meet the situation.</p> <p>2. Same—when Statute of Frauds must be set up in bill. The Statute of Frauds must be specially pleaded, and if a complainant desires to avail himself of the statute he must set it up in his bill or by an amendment to his bill or he will be deemed to have waived and renounced the advantage to be derived from its provisions.</p> <p>3. Real property—when disposition of land must be in conformity with the Statute of Wills. A disposition of real property which is not to take effect in the grantor’s lifetime is not operative unless it be declared in writing in strict conformity with the statutory enactments regulating the making of wills.</p> <p>4. Deeds—delivery is a question of intent. The delivery of a deed is a question of intent, and the mere placing of the deed in the hands of the grantee does not necessarily constitute delivery.</p> <p>5. Same—deed must take effect upon delivery. A deed must take effect upon its execution and delivery or not at all, and the delivery must be unconditional unless in escrow.</p> <p>6. Same—deed delivered to grantee is not an escrow. There cannot be a delivery of a deed to the grantee as an -escrow.</p> <p>7. Same—when deed is void because not delivered with intention of giving title to the grantee. A deed delivered by a grantor to her attorney as grantee, with the understanding that he shall convey the property to whatever charitable institution he may select provided the executors of the grantor’s will do not, in his judgment, properly carry out its provisions in regard to certain devises to charity, is void and the grantee takes no title that he can convey.</p>

<p>1. Specific performance—complainant must prove the contract and that he is ready, able and willing to perform. In a proceeding for specific performance the burden is on the complainant to establish the execution of the contract and to show a full and complete performance on his part, or that he is ready, able and willing to perform and has offered to do so.</p> <p>2. Corporations—stockholders may defend suit against corporation if directors or trustees neglect to do so. Corporation stockholders or members, in behalf of themselves and other stockholders or members, are entitled to defend legal proceedings against a corporation if the directors or trustees of the corporation are willfully or fraudulently neglectful in looking after its interests.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>1. Divorce—section 8 of Divorce act does not apply where cause is heard on bill and cross-bill—collateral attack. Section 8 of the Divorce act, concerning the proof required when a bill is confessed or heard on default, does not apply where the issues are made up by answers to the original bill and a cross-bill, even though the complainant makes no defense to the cross-bill, and a decree which recites that the parties were present and evidence was heard, and which finds the facts and grants a divorce against the complainant, is binding until reversed and is not subject to collateral attack as being based on the evidence of only one witness.</p> <p>2. Contracts—when a contract may be avoided for duress by threats. Duress by threats constitutes good cause for avoiding a contract, and it is sufficient to constitute duress that the party seeking to avoid the contract has been prevented from exercising his free will by threats of bodily harm made by the other party of such a character as in view of the surrounding circumstances were sufficient to overcome his mind and that the contract was obtained by reason of such threats.</p> <p>3. Same—whether contract was obtained by threats is a question of fact—allegations. Whether or not a contract has been obtained by threats of bodily harm is a question of fact, and in a suit to avoid such a contract the allegations must be sufficiently positive and direct and the circumstances averred such as' to make it appear that the contract in question was the result of fear occasioned by the threats complained of.</p> <p>4. Fraud—allegation of conspiracy, collusion and fraud must show facts. An allegation of conspiracy, collusion and fraud must show the facts on which it is based, as the words themselves, unsupported by facts, are mere vituperation.</p> <p>5. Deeds—when complainant is not entitled to have a deed set aside for duress. A complainant is not entitled to have a deed to his wife set aside on the ground that the grantee, who had just obtained a decree for divorce against him, had threatened him with bodily harm, where the allegations of the bill show that the deed was executed on the advice of the complainant’s solicitor and fail to set out any facts in- support of the charge of conspiracy, collusion and fraud on the part of the solicitors for both parties.</p>

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

<p>1. Specific performance—vendor seeking to enforce contract for conveyance must prove he has a good title. A vendor who files a bill for specific performance of a contract for a conveyance must show that the title which he offers to convey is not a doubtful title or one which will expose the vendee to litigation with parties not before the court and not bound by its decree, and where there is a reasonable doubt as to the validity of the title the court will not enforce the contract.</p> <p>2. Wills—effect of devise to life tenant with remainder to her living children or their descendants. By a devise to a life tenant with remainder in fee to her children living at her death, and with a provision that the children of any deceased child of the life tenant shall take the parent’s share, the children of the life tenant living at the time of the testator’s death will take the fee subject to the life estate and subject to having their interest diminished by the birth of another child or children to the life tenant, and upon the death of any such remainder-man leaving a child or children who survive the life tenant, such child or children will take the remainder-man’s share by way of executory devise, and the interest so taken is not subject to any charges created by the remainder-man in his lifetime.</p> <p>3. Same—decree construing will, although erroneous, is binding on the parties unless reversed or annulled in direct proceeding. If the court has jurisdiction, a decree construing a will is binding on the parties and on every other court unless it is reversed or annulled in a direct proceeding, no matter how grossly irregular and manifestly erroneous the proceedings may have been, and the owner of the property involved is protected against any subsequent litigation concerning the title by anyone who was a party to the suit or would be bound by the decree under the doctrine of representation.</p> <p>4. Same—statement of the doctrine of representation. The general rule that in proceedings in equity the interests of parties not before the court will not be bound by the decree is subject to the exception known as the doctrine of representation, and where it appears that a particular party, though not before the court in person, is so far represented by others that his interests receive actual and efficient protection, the decree may be held binding on him.</p> <p>5. Same—what is necessary to application of doctrine of representation. To apply the doctrine of representation the party represented must stand in the same situation as parties before the court, and it must appear that he has a common right or interest with them, the operation and protection of which will be for the common benefit of all and cannot be to the injury of any, and said parties present must be equally certain to bring forward the entire merits of any question with reference to the interests claimed to be represented.</p> <p>6: Same—when interests of parties not in esse are represented. As parties not in esse cannot be brought before the court in person the doctrine of representation is especially applicable to them, particularly where the interests of all parties require a decree which will completely and finally dispose of the subject matter of the litigation; and if persons in being are before the court who have the same interests and' are equally certain to bring forward the merits of the interests of parties not in esse, so as to give such interests effective protection, justice requires that there should be a complete decree.</p> <p>7. Same—when doctrine of representation does not apply. A decree construing a devise of a life estate with remainder in fee to the children of the life tenant living at her death, or to the children of any deceased child of the life tenant, is not binding on the children who may yet be born to the life tenant, where the pleadings in such suit show that the living children of the life tenant claimed the fee and denied that children who might yet be born to her had any interest, as the doctrine of representation can not be applied where a part of a class seek to destroy the interests of another part of the same class who are not made parties to the suit.</p> <p>8. Same—both bill and decree should designate interests of parties not in esse. Where tenants in common and life tenants seek by proceedings in equity to have defined and set off their interests in lands in which persons not in esse may have some interest the bill should clearly set out. the interests of all the parties, including those of remainder-men not in esse, and the decree must designate the interests of such remainder-men before they will be bound thereby.</p> <p>9. Same—the possibility of issue is not extinct until death. As nature has fixed no certain age, by years, at which child-bearing capacity shall begin or end, the law recognizes the possibility of issue in all adult women until death.</p> <p>10. Same—when grandchildren of life tenant, both those in being and those not in esse, are represented by guardian ad litem. In a proceeding to construe a devise of a life estate with remainder to the children of the life tenant who survive her or to the children of any deceased child, where the bill sets forth the interests of the grandchildren of the life tenant and makes the living grandchildren parties to the suit, a guardian ad litem appointed to represent the minor grandchildren will by the doctrine of representation represent any grandchildren yet to be born, and their interests will be bound by the decree, notwithstanding the general rule that the interests of parties not before the court will not be bound.</p> <p>11. Same—when heirs of testator are not necessary parties to suit to construe devise. The heirs of the testator are not necessary parties to a suit to construe a devise of a life estate with a remainder in fee to a class of persons who take a vested interest at the testator’s death even though there be an executory devise over to the child or children of any remainder-man who dies before the life tenant, as in such case the fee will pass to his children by the executory devise, while if he leaves no child or children his interest descends, in any event, to his heirs and not to the heirs of the testator.</p> <p>12. Parties—section 7 of the Chancery act applies only to “unknown heirs or devisees” in being. Section 7 of the Chancery act, providing that in suits to obtain title to lands, if there be persons interested whose names are unknown, it shall be lawful to make such persons parties by the name and description of “unknown owners” or “unknown heirs or devisees” of any deceased person, applies only to persons in being and does not refer to persons- who may never be born.</p>

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

<p>Appeals and errors'—Appellate Court cannot decline to review merits because no propositions of law were submitted. The Appellate Court cannot decline to consider the merits of a suit at law tried without a jury merely because no propositions of law were submitted to the trial court, as the decision of the trial court as to the sufficiency of the evidence is not final and binding on the Appellate Court in such case even though no question of law was raised in any manner. (Babbitt v. Grand Trunk Western Railway Co. 285 Ill. 267, and Bradish v. Yocum, 130 id. 386, explained,)</p>

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

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

<p>1. Specific performance—extent of chancellor’s discretion in decreeing specific performance. Specific performance is not a matter of absolute right but rests in the discretion of the court in view of all the circumstances; but where there is a fair and valid contract, and the person seeking performance has performed or offered to perform all the terms and conditions required of him, the chancellor has no arbitrary discretion to deny relief.</p> <p>2. Same—party seeking performance must show performance 011 his part. The party seeking specific performance of a contract for a conveyance must show that he has performed all the terms and conditions of his part of the contract, or that he was able, ready and willing to perform and was prevented from doing so by the act of the other party; and the bill should allege that the party filing it has in good faith done all the contract required of him.</p> <p>3. Same—when acts in performance of contract for conveyance are mutual. Where a contract for a conveyance requires money to be paid by the vendee and the deed delivered by the vendor at a certain time, the covenants are mutual and dependent, and neither party can compel the other to perform without first making tender of the money or of the deed.</p> <p>4. Same—when complainant does not show performance on his part. Where a contract for the purchase of real property requires the vendee to return the vendors’ abstract with his objections to “the material defects” in the title, and gives him the option to waive such defects if the vendors fail to have them remedied within sixty days, provided he notifies them of his intention to accept the title as shown, the vendors cannot be put in default for not conveying the title shown by the abstract until they are notified that the vendee has elected to accept it; and such election is not shown by merely filing a bill to compel a conveyance after a written demand calling attention to the alleged defects and insisting that the vendors carry out their part of the contract.</p>

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

<p>Appeal from the Probate Court of Cook county; the Hon. Henry Horner, Judge, presiding.</p>

<p>1. Deeds—what mental capacity is required to make a voluntary settlement. The test of mental capacity necessary to make a valid deed of voluntary settlement is that the grantor be capable of understanding in a reasonable manner the nature and effect of the act in which he is engaged.</p> <p>2. Same—when deed is not testamentary. If the intended disposition of property in a deed is not to take effect in the lifetime of the grantor but is ambulatory until his death the deed is void as a testamentary disposition not in conformity with the Statute of Wills, but a deed which has been delivered becomes at once binding and effective and is valid even though it conveys a future estate.</p> <p>3. Same—deed of voluntary settlement is presumed to have been delivered. A deed of voluntary settlement without consideration is presumed to have been delivered and the burden is on complainants who seek to set the deed aside to show clearly that there was no delivery, and where there is evidence of delivery an acceptance of the deed is presumed.</p> <p>4. Same—when deed to religious corporation is void. A deed conveying to a religious corporation more than twenty acres of land for other than church purposes violates section 42 of the Corporations act and is void.</p> <p>5. Same—when deed conveying land to unincorporated religious society is void for want of grantee. A deed which conveys land directly to an unincorporated religious society by name is void for the want of a grantee capable of taking by deed.</p>

<p>1. Municipal corporations—when ordinance requiring license for distribution of advertisements is void. An ordinance which requires the payment of a license fee for the privilege of distributing advertisements within the city is void as discriminating against non-residents where it contains a provision that no license for distributing advertisements of sales shall be required of “citizens of the city” who obtain a permit from the mayor.</p> <p>2. Constitutional law—an ordinance which discriminates in favor of residents of city is void. An ordinance which, in imposing a license tax, discriminates in favor of the residents of the city and against non-residents of the same class is unconstitutional.</p>

<p>1. Statutes—when provisions of a special act are repealed or amended by general act. The provisions of a special act may be amended or repealed by a general act either expressly or by implication from the inconsistency between the two acts, where the legislative intention to repeal or modify the provisions of the special act clearly appears.</p> <p>2. Taxes-—amendment of 1891 to the School law of 1889 makes limitation of taxation under general law applicable to special districts. The amendment of 1891 to section 7 of article 16 of the general School law, as revised in 1889, (Laws of 1891, p. 197,) brings within the terms of the general law, so far as the power of taxation is concerned, all school districts in the State, whether organized under special charters or the general law, and since the adoption of the act of 1891 all districts, whether general or special, have been subject to the same limitation.</p> <p>3. Same—amendment of 1919 to limitation of taxation in the School law of 1909 applies to special districts. The amendment of 1919 (Laws of 1919, p. 856,) reducing the limit of taxation for school purposes from three per cent, as provided in section 189 of the School law of 1909, to two per cent, applies to districts organized under special charters, as the act of 1909 revised the entire School law, and any amendment to the act of 1909 applies to all districts in the State.</p>

<p>1. Specific performance—holder of title to property to be conveyed must be made a party. Where the vendor in a contract to convey has sold the premises to a third party, who is not made a party to a suit against the vendor for specific performance, the court will not perform the useless act of entering a decree which it could not enforce against the defendant.</p> <p>2. Same—token third party to whom vendor has sold property may be compelled to perform vendor’s contract. Where a contract has been entered into for a conveyance of land and the vendor sells the premises to a third party who has knowledge of the contract, the vendee may compel the grantee to perform the vendor’s contract, and the suit for specific performance should be against the grantee and not against the vendor.</p> <p>3. Same—when vendor can be sued only in an action at law. Where the vendor in a contract for the conveyance of land has sold to a third party, and the vendee, at the time of bringing his suit against the vendor for specific performance, has knowledge of the vendor’s incapacity to perform, equity will not retain jurisdiction of the bill in order to assess damages but will leave the complainant to his action at law.</p>

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

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

<p>Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding.,</p>

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

<p>1. Equity—complainant may dismiss his suit at any time prior to decree. The complainant retains the absolute control of a suit in equity and may dismiss it, at his discretion, at any time before decree actually rendered.</p> <p>2. Mortgages—effect in a foreclosure proceeding where purchaser at a tax sale has been made a defendant. Where the purchaser at a tax sale is made a party defendant to a bill to foreclose trust deeds, the only decree which the court may render in his favor is to order that the complainants pay the amount legally due him within a definite period and in default of payment that the bill be dismissed as to said purchaser, and hence the complainants may dismiss their bill as to him either before or after the decree without affecting his rights.</p> <p>3. Same—pttrchaser at tax sale is not a proper party to bill to foreclose mortgage. The purchaser at a tax sale is not a proper party to a bill to foreclose a mortgage on the property, as the only proper parties to such a bill are the mortgagor and the mortgagee and those who have acquired rights under them subsequent to the mortgage.</p> <p>4. Same—when party should be dismissed from foreclosure suit. A claim of title adverse and superior to that of the mortgagor is not a proper subject for consideration in a foreclosure suit, and when the answer and proofs disclose that a defendant to the proceeding has such a claim he should be dismissed from the suit.</p>

<p>1. Taxes'—how bonded indebtedness in school district must be paid. School directors have authority to levy taxes in a school district only for building purposes or for educational purposes, and a bonded indebtedness incurred for building purposes must be paid out of the tax levied for building purposes and one incurred for educational purposes must be paid out of the levy for educational purposes.</p> <p>2. Same—school directors cannot levy full amount authorized, by statute in addition to a levy by Auditor for bonded indebtedness. School directors have no authority to levy the full amount of taxes authorized for building and educational purposes under section 189 of the School law, as amended in 1919, (Laws of 1919, p. 856,) in addition to a levy by the Auditor to pay registered bonds of the district, but it is the duty of the directors in such case to reduce, their appropriation to such a rate as, added to the rate required for the payment of the bonds, will not exceed the statutory limit.</p>

<p>Appeal from the Circuit Court of Union county; the Hon. William N. ButlER, Judge, presiding.</p>

<p>1. Criminal law-—what is the essential element of larceny. The essential element of larceny is a felonious taking by which the owner is deprived of possession and the thief acquires possession for an appreciable period of time, although it may be only for a moment, and any change of location whereby complete control of the article is transferred from the owner to the thief is sufficient evidence of the taking away.</p> <p>2. Same—what are the essential elements of attempt to commit larceny. The essential elements of the attempt to commit larceny are the intent to commit the crime, the performance of some overt act towards its commission and a failure to consummate the crime, and the failure to accomplish or complete the crime is as essential as the intent or the overt act.</p> <p>3. Same—evidence of complete offense will not sustain conviction for an attempt to commit larceny. The rule that a defendant may be convicted of a lesser offense which is included in an indictment for a greater crime cannot be applied to sustain a conviction for an attempt to commit larceny with which the defendant was charged where the evidence shows that the offense was complete, as the statute defines what constitutes an attempt and includes as an essential element the failure to consummate the crime.</p> <p>4. Same—when crime of larceny is complete. If one feloniously takes the goods of another from their accustomed place, although he is detected before they are actually carried away, the crime of larceny is complete, and where a shoplifter, after taking goods from a show-case and putting them in his overcoat pocket, runs away, leaving his overcoat lying on another show-case, the crime is larceny though his possession was brief and the goods were not removed from the store.</p>

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

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

<p>1. Criminal law—court cannot extend period of probation before termination of first period. Under the Probation act a defendant can upon no charge be placed on probation for a longer period than one year in the first instance, and the statute authorizes but one extension, which must be made at the termination of the first period and should be accompanied with an order for continuance; and the court has no authority to continue the cause and extend the probation for one year from a date prior to the termination of the first opie-year period.</p> <p>2. Same—failure to enter formal order to show cause for violation of probation does not render other orders void. Where a defendant is brought before the court during the period of his probation and is charged with a violation of the terms of the probation, failure of the court to enter a formal order to show cause why the probation should not be terminated and judgment entered will not render void other orders of the court, where the record shows that there was a hearing on the question, during which the defendant undertook to show cause why he should not be sentenced.</p> <p>3. Same—effect of a void order extending period of probation. A void order of the court extending a period of probation for one year before the expiration of the one-year period for which the defendant had been placed on probation in the first instance does not invalidate other proceedings and orders of the court, including the setting aside of an order for revocation of probation entered upon the complaint of the probation officer.</p> <p>4. Same—defendant is entitled to disposition of his case at end of probation period. At the expiration of the period for which a defendant has been placed on probation he is entitled to a correct judgment of the court based upon a report of the probation officer and any evidence that may be offered as to his conduct during or before the probation period, and if he is neither discharged nor sentenced, and no order is entered extending his probation or continuing the cause for satisfactory reason, the court has no authority to sentence the defendant after the term of court during which the probation expired.</p> <p>5. Same—court loses jurisdiction if sentence is indefinitely suspended. It is the duty of the trial court to pronounce judgment promptly at the term at which the conviction is had or at a term to which the cause is properly continued for final consideration, and if sentence is indefinitely suspended the court loses jurisdiction and a judgment subsequently entered is void.</p>

<p>Appeal from the County Court of Hancock county; the Hon. Warren H. Orr, Judge, presiding.</p>

<p>Appeal from the County Court of Shelby county; the Hon. A. J. Steidley, Judge, presiding.</p>

<p>1. Wills—statement of the rule in Shelley’s case. If an estate of freehold is granted by an instrument and a remainder is limited by the same instrument, either mediately or immediately, to the heirs or heirs of the body of the person taking the freehold, by the name of “heirs” as a class, without explanation, the person taking the freehold estate takes also the remainder.</p> <p>2. Same—meaning of the word "heirs.” The word “heirs” indicates all those persons who upon the death of the immediate ancestor succeed to the estate from generation to generation.</p> <p>3. Same—rule in Shelley’s case does not apply if word "heirs” is used as a word of purchase. If the word “heirs” is so limited in a devise as not to include the whole line of inheritable succession of the life tenant but only to designate the individuals who are upon his death to succeed to the estate and who are themselves to constitute the source of future descent the rule in Shelley’s case does not apply, and the estate subsequent to the life estate takes effect as a contingent remainder to the heirs of the life tenant, as purchasers.</p> <p>4. Same—vahen devise to "surviving heirs” is not subject to rule in Shelley’s case. Where a testator gives his wife the income from his estate for her life and provides that at her death the same shall go to his children until the last child shall have died, when the executor is to sell all the property and distribute the proceeds to “the surviving heirs” of his children, the rule in Shelley’s case will not apply to give the children the fee, as the word “heirs” is not used to designate the whole line of inheritable succession in each child but only to designate the remainder-men who are to take at the death of the last surviving life tenant.</p> <p>5. Same—rule in Shelley’s case does not apply where life tenant has interest only in income of estate. Where a testator gives his wife and children the income of his estate for their lives, with directions to the executors to collect rents and profits after the death of any child until the death of the last surviving child, when they are to sell the property and distribute the proceeds to the surviving heirs of the children, the children take no interest as life tenants in the land itself and the rule in Shelley’s case has no application, as they have only a contingent equitable interest in the proceeds of the land as personal property.</p> <p>6. Same—when executors take an estate in fee. As trustees must take such estate as is necessary to enable them to perform the trust, executors who are required to manage and control the land of the testator and eventually to sell and convey it and distribute the proceeds take an estate in fee simple.</p> <p>7. Equity—when a court of equity will appoint a trustee. A court of equity will not permit a trust properly created to fail for want of a trustee, and where for any reason a vacancy exists in the office the court will appoint a trustee where no other provision for the appointment exists.</p> <p>8. Same—when court will appoint trustee under prayer for general relief although special relief must he denied. Where a bill prays for construction of a will and partition accordingly and asks for general relief a demurrer should not be sustained although the prayer for special relief cannot be granted, where the bill shows that the complainant is entitled to the appointment of a trustee to take the place of executors who have died prior to the expiration of the period provided in the will for the distribution of the estate.</p>

<p>Appeal from the County Court of Hamilton county; the Hon. James M. Lee, Judge, presiding.</p>

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

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

<p>1. Taxes—tax on net receipts of foreign insurance company is a tax on the business of insurance. The tax imposed on the net receipts of foreign insurance companies doing business in Illinois, under section 30 of the act of 1869, (Hurd’s Stat. 1917, p. 1701,) is a tax on the business of insurance as shown by the amount of net receipts for the entire year and is not a personal property tax under the Revenue law on the amount of net receipts on hand on the first day of April. (People v. Cosmopolitan Fire Ins. Co. 246 Ill. 442, explained.)</p> <p>2. Same—legislature may determine method of taxing foreign insurance companies. The legislature has power to tax foreign insurance companies either by requiring the payment of a fixed annual sum into the State treasury, or by assessing property actually held or owned, or by taxing the business transacted as shown by the net receipts during the year.</p> <p>3. Corporations—legislature may restrict or prevent the transaction of business by foreign corporations in Illinois. Foreign corporations are permitted to do business in Illinois only upon the terms and conditions and under the restrictions imposed by the legislature, and the legislature has the power to prohibit them from doing any business in the State.</p> <p>4. Mandamus—performance of legal duty imposed upon corporation may be compelled by mandamus—taxation. Mandamus is the ordinary method of compelling the performance of a specific legal duty imposed by statute upon a corporation and is a proper remedy to compel the performance of a legal duty imposed in connection with the assessment and collection of taxes.</p> <p>5. Same—mandamus may be allowed although another remedy is available. The writ of mandamus will be allowed where it will afford a proper and sufficient remedy, even though the petitioner may have another specific legal remedy.</p> <p>6. Insurance—agent of foreign corporation may be compelled by mandamus to make return of net receipts for taxation. Mandamus will lie to compel the agent of a-foreign insurance company doing business in Illinois to make return of the net receipts of the agency to the proper officers for taxation, as required by section 30 of the act of 1869; (Hurd’s Stat. 1917, p. 1701;) and where the agent has failed to make the return to the assessors in the time required by the statute he may be compelled to make the return subsequently to the board of review, as the duty is a continuing one and is not abrogated by the failure to perform it at the proper time.</p>

<p>1. Wills—when remainder vests at death of life tenant and is not cut down to base fee. Under a will providing that upon the death of the life tenant the “children then surviving, and the descendant or descendants of any deceased child,” shall take the remainder per stirpes, the remainder will vest in fee at the death of the life tenant and is not cut down to a base fee by a subsequent provision that if any children die without issue surviving, the share of such deceased child shall go to the testator’s heirs-at-law.</p> <p>2. Same—law favors vested estates. In doubtful cases the law favors that construction of a will which will give the first taker a fee simple.</p>

<p>1. Municipal corporations—an ordinance regulating speed of motor vehicles violates section 12 of Motor Vehicle law of ipi5An ordinance of the West Chicago Park Commissioners requiring motor vehicles to stop at all intersections of boulevards with the public streets and to then proceed across the boulevard at a speed of not more than six miles an hour is not strictly a traffic ordinance but is an ordinance for the regulation of speed of motor vehicles and violates section 12 of the Motor Vehicle law, as amended in 1915. (Laws of 1915, p. 592.)</p> <p>2. Same—State may regulate right to use streets and highways for travel. . The right to use highways and streets for travel is not absolute but it may be controlled by the State or by a municipality under a proper exercise of its police power, and is subject to such reasonable and impartial police regulations as are calculated to secure to the general public the largest practical benefit from the easement and to provide for their safety while using it.</p> <p>3. Same—ordinance which limits natural rights must be reasonable as well as constitutional. A municipal ordinance of a regulatory nature in contravention of the natural rights of individuals, enacted under general charter powers, is not only required to be constitutional but must be reasonable as well, and the court before which it is brought must be able to see that it will tend to promote the public health, morals, safety or welfare and that the means adopted are adapted to that end and that it is impartial in operation and not unduly oppressive.</p> <p>4. Same—what may be considered in determining reasonableness of an ordinance. In determining whether an ordinance is reasonable much must depend upon the requirements of different localities, the density of population of the town in which the ordinance has been enacted and the dangers and evils prevalent therein, and what would be reasonable in one place might, be unreasonable in another.</p> <p>5. Same—what necessary to render a motor vehicle ordinance valid as a regulation of traffic. To hold a motor vehicle ordinance valid as a regulation of traffic and not a regulation of the rate of speed of motor vehicles, in violation of the provision of the Motor Vehicle law against the regulation of speed of motor vehicles by municipalities, the ordinance must show on its face that it is passed for the purpose of regulating traffic and that the traffic conditions are the basis of the regulations imposed.</p> <p>6. Negligence—when jury should not be permitted to take the declaration. It is never good practice to permit the jury to take the pleadings in civil cases to the jury room on their retirement, and in an action for injuries resulting from a collision of motor vehicles, where the declaration sets out the provisions of a void regulatory ordinance, it is error to permit the jury to take the declaration with them to their room.</p>

<p>Writ oE Error to the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding.</p>

<p>Writ or Error to the County Court of Cass county; the Hon. C. A. E. Martin, Judge, presiding.</p>

<p>1. Criminal law—when new trial should be granted to include testimony of another witness. In a murder trial, where the only witnesses to the fight which resulted in the homicide give unsatisfactory evidence on which to sustain the conviction, a new trial should be allowed to obtain the testimony of a newly discovered witness who asserts that he saw the fight but did not suppose that either party was hurt, and did not know that the defendant was indicted until after he heard of his conviction for manslaughter.</p> <p>2. Same—repetition of instructions should be avoided. Counsel in a criminal case should not burden the court with a large number of instructions but should request only enough instructions to cover the law in the case, as the repetition of the same propositions of law in different language in numerous instructions merely tends to confuse the jury and should be avoided.</p> <p>3. Same-—instruction as to presumption of malice from deliberate act should not ignore defense of self-defense. Where self-defense is set up in a murder trial, an instruction as to presumption of malice or intent arising from a deliberate assault likely to be attended with dangerous consequences should not ignore such defense, as self-defense is usually a deliberate act and is quite often attended with dangerous consequences, yet the law does not presume from these circumstances the malice or intent necessary to make out a case of murder.</p> <p>4. Same—what instruction as to self-defense tends to confuse the jury. Where self-defense is set up in a murder trial, an instruction given for the People stating “that the law affords ample protection to every citizen, and under no circumstances can he take the law into his own hands except in necessary self-defense,” etc., tends to confuse the jury, as the expression “take the law into his own hands” is commonly regarded by laymen as meaning an unlawful act, whereas a person who properly acts in self-defense is not taking the law in his own hands but is exercising a natural right which the law recognizes and protects.</p>

<p>Criminal law-—writ of error will be dismissed for failure to file assignment of errors. Where a plaintiff in error in a criminal case has failed to assign errors at the time of filing his record in the Supreme Court according to rule 11 and has made no request for leave to file an assignment of errors, the judgment against him will not be affirmed but his writ of error will be dismissed.</p>

<p>Appeal from the County Court of Crawford county; the Hon. John C. Maxwell, Judge, presiding.</p>

<p>Appeal from the County Court of Livingston county; the Hon. Ray Sesler, Judge, presiding.</p>

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

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

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

<p>1. Criminal law—what questions are improper in examination of jurors. A defendant in a criminal case, in examining jurors upon their voir dire, has a right to advise them of the presumption of law in favor of his innocence and to ascertain whether they will act upon that presumption and give him the benefit of it in considering the evidence but has no right to demand jurors who have a present belief that he is innocent, and it is proper to sustain objections to questions asking a juror if he believes, before hearing the evidence, that the defendant is innocent.</p> <p>2. Same—what statement volunteered in testimony of police officer is prejudicial to defendant. In a prosecution for the larceny of an automobile, where the defendant claims he was merely driving the car for another person, whom he was to meet at a certain hour at a certain hotel, a statement volunteered in the testimony of a police officer that the police called the hotel every fifteen minutes and had such person paged is merely hearsay, where the witness has no personal knowledge of what was done at the hotel, and the statement is prejudicial to the defendant in leaving the impression with the jury that there was no such person at the hotel, without having that fact testified to directly by a witness under oath who knew the fact!</p> <p>3. Same—evidence of the defendant’s reputation as a peaceable citizen is not relevant in trial for larceny. The theory upon which proof of the defendant’s reputation is admitted in evidence in his favor in a criminal case is that the reputation proved is at variance with the nature of the crime charged, and on a trial for the larceny of an automobile the defendant is not entitled to prove his reputation as a peaceable citizen.</p> <p>4. Same—argument of State’s attorney must be based on the evidence. It is the right and duty of a State’s attorney to present the evidence to the jury and make all legitimate argument in behalf of the People based upon it, but he has no right to indulge in assertions not based on the evidence for the purpose of inflaming the minds of the jury against the defendant or his witnesses.</p>

<p>1. Taxes'—arbitrary violation of principle of uniformity is an invasion of constitutional right. While an error in the exercise of an honest judgment in fixing the value of property will not invalidate the tax, an arbitrary violation of the rule of uniformity, so that one person is compelled to pay a greater proportion of taxes, according to the value of his property, than another property owner, is an invasion of a constitutional right and will not be tolerated.</p> <p>2. Same—the circumstances may be considered to determine whether property has been properly valued. The circumstances under which a valuation has been made may be considered in connection with the amount, and may be sufficient to show that the valuation was not the result of the honest judgment of the assessing officer.</p> <p>3. Same—witness may testify as to examination of records to determine whether property has been fairly valued. In a proceeding by the county collector for judgment for delinquent taxes, to which objections are filed, a witness who has made examination of the records of sales of various properties in the county and who has examined the tax books of the county may testify as to the result of his examination for the purpose of showing that the property of the objector has not been fairly and proportionately valued.</p> <p>4. Same-—reports of tax commission are admissible in evidence as public documents. The official records and reports of the tax commission, whose official duty it is to make them, are public documents and admissible in evidence in a proceeding by the county collector for delinquent taxes.</p> <p>5. Same—counsel need not submit propositions of law in county collector’s proceeding for delinquent taxes. On application in the county court by the collector for judgment and order of sale for delinquent taxes, counsel are not required to submit and the court is not compelled to pass upon propositions of law, and the fact that no propositions are filed on the hearing does not preclude the raising of questions of law on appeal.</p> <p>6. Same—when property of objector is not proportionately valued. On application by the county collector for judgment for delinquent taxes the claim of an objector that its property was not proportionately valued is established by evidence that such property was valued for taxation at its full cash value, whereas other property, according to the custom prevailing in the county,- was valued for taxation at from thirty to sixty per cent of its value or at an average of fifty per cent.</p> <p>7. Evidence—official returns are generally received in evidence. Where it is the duty of officials, under their oath of office, to certify certain official facts, such returns are generally received as evidence.</p> <p>8. Practice—when propositions of law are required to be sitbmitted. Under section 61 of the Practice act, counsel are required to submit propositions of law to be passed on by the court only where the right to a trial by jury exists and has been waived, and the propositions are for the purpose of making the record show the principles of law which were applied to the decision of the case.</p>

<p>1. Taxes—county court may determine question of tax exemption. Although property owners have the right to make application to the board of review for the purpose of having the board determine whether or not their property is exempt from taxation, this remedy is not exclusive, and the county court, upon the application of the collector for judgment for delinquent taxes, has jurisdiction to determine the question of exemption.</p> <p>2. Same—constitution limits right of legislature to legislate on question of exemption. The provision of section 3 of article 9 of the constitution for the exemption of certain property from taxation is a limitation upon the right of the legislature to legislate upon the question of exemption.</p> <p>3. Same—a municipality mtist have legal or complete equitable title for property to be exempt. Within the contemplation of the constitution municipal corporations must be the owners of the property before the same can be exempted from taxation, and the corporation must have such legal or complete equitable title to the property that it can be said to be the property of the municipality.</p> <p>4. Same—when proposed park is not exempt. The facts that citizens have organized a civic league, whose officers have taken title to certain property in their own names for the purpose of creating a public park, and that said owners are willing to deed the property to the city when they have collected unpaid subscriptions and finished improving the property, do not sustain the claim that the city is the owner of the equitable title to the property so as to exempt it from taxation, even though the present city authorities are willing to accept a deed and the city has spent some money in improving the property and joined in the suit to have it declared exempt, there being no written evidence of the alleged trust.</p> <p>5. Trusts—resulting trust arises only in favor of parties contributing to purchase of the property. A resulting trust can arise only in favor of parties who have contributed to the purchase of or paid for the property in question.</p>

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

<p>Appeal from the Probate Court of LaSalle county; the Hon. Richard D. Miles, Judge, presiding.</p>

<p>1. Criminal law—extent of rule prohibiting evidence of another crime. The rule that on a trial of a charge of crime evidence of a distinct and substantive offense cannot be admitted excludes all evidence of collateral facts which do not sustain or impeach a reasonable presumption as to the fact in issue.</p> <p>2. Same—when part of confession referring to other crimes cannot be admitted. On a trial for murder it is not admissible, in order to prove the defendant’s guilt, to show that he has at another time and place committed another murder, and where no question of motive, intent or guilty knowledge is involved it is error to admit part of a confession which refers to the commission of other offenses.</p> <p>3. Same—verdict cannot be sustained if incompetent evidence may have affected the degree of punishment. A verdict finding the defendant guilty of murder and fixing his punishment at death can not be sustained even though there is competent evidence in the record to support it, where incompetent evidence has been admitted which shows the commission of other crimes by the defendant and has a tendency to influence the jury in fixing the degree of punishment.</p>

<p>Appeal from the County Court of Rock Island county; the Hon. Nels A. Larson, Judge, presiding.</p>

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

<p>- Writ op Error to the City Court of Mattoon; the Hon. Harry C. StuttlE, Judge, presiding.</p>

<p>1. Taxes—the legislature may change assessed valuation at any time. The fixing of any portion of the full valuation of property to be used as the assessed valuation is a statutory matter and is subject to change by the legislature at any time.</p> <p>2. Same—a municipality must pay principal and interest on bonds as they become due. Where a municipality issues bonds under legislative authority it must pay the principal and interest on the bonds as they become due, and the legislature cannot lawfully reduce the tax rate to a point where it will not produce enough to meet such obligations, as the municipality is under a contractual relation with the bondholder to maintain a tax rate, within the rate fixed by law at the time the bonds were authorized, sufficient to pay the principal and interest as they fall due.</p> <p>3. Same—when tax rate needed to pay municipal bonds is not affected by a subsequent legislative reduction of rate. Where a .municipality has established the tax rate necessary to pay the principal and interest on bonds issued pursuant to an election under section 112 of the Roads and Bridges act, and the legislature subsequently raises the assessed valuation of property from one-third to one-half and reduces the tax rate accordingly, the bond tax may be levied at the rate originally authorized although it is in excess of the reduced rate. (People v. Illinois Central Railroad Co. 295 Ill. 408, explained.)</p>

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

<p>1. Construction—when tax exemption provision in a special charter must be construed with constitution of 1848. A provision for exemption from taxation in a special charter granted in 1865 to a charitable home for girls must be construed in connection with the provisions of the constitution of 1848.</p> <p>2. Same—a contract must be construed as a whole. A contract must be construed as a whole and the intention of the parties is to be collected from the entire instrument and not from detached portions, and words used in one sense in one part of the contract are, as a general rule, deemed to have been used in the same sense in another part of the instrument, where there is nothing in the context to indicate otherwise.</p> <p>3. Statutes—laws exempting property from taxation are to be strictly construed—application of rule. All laws exempting property from taxation are to be strictly construed and the intention to exempt property from taxation must appear affirmatively and can not be presumed, but the rule as to strict construction does not relieve the courts of the duty of interpreting the exemption by the ordinary rules of construction and carrying out the intention of the legislature if it can be ascertained.</p> <p>4. Same—a law which is unambiguous cannot be construed. A law which is plain and unambiguous, whether it be expressed in general or limited terms, is not open for construction, as the legislature should be considered to have intended to mean what it has plainly expressed, and when the words used have a definite and precise meaning it is not allowable to go beyond the statute in order to restrict or extend their meaning.</p> <p>5. Words and phrases—meaning of words “having” or “hold ” when applied to property. The word “having” or “hold,” when applied to property, imports ownership and time of ownership.</p> <p>6. Same—meaning of the word “held” and of term “held by.” The term “held by” may be used in a statute or contract as equivalent to ownership, but the word “held” has .no primary or legal technical meaning, its meaning being determined largely by the connection in which it is used.</p> <p>7. Corporations—when tax exemption provision may include property leased for revenue. A provision in a special charter exempting property of the corporation from taxation and authorizing it to hold real estate “for the use of or for the purposes of said corporation” may include both property acquired for the use of the corporation and which it uses, and property acquired for its purposes and which it holds and leases to produce revenue to be used in carrying out its purposes.</p> <p>8. Taxes—what property of the Chicago Home for Girls is exempt under special charter. The provision of section 9 of the special charter of the Chicago Home for Girls, granted in 1865, exempting property of the institution from taxation, includes all real property owned and held by or for the use of the corporation, whether or not it is actually occupied by said corporation, as the provision of the charter authorizing the institution to hold real property provides for investment and does not limit the corporation to the ownership of property occupied by the institution.</p>

<p>1. Insurance—when insurance company is bound by award of compensation for death of employee. An insurance company which has contracted to insure an employer against loss by reason of the liability imposed by the Workmen’s Compensation act for damages on account of the injury or accidental death of an employee and has agreed to defend any proceeding against the employer under the act, is bound equally with the employer by an award of compensation for the accidental death of an employee.</p> <p>2. Same—when liability is not limited to employees carried on pay-roll. The fact that an indemnity policy issued to an employer provides that it shall apply to injuries to persons legally employed whose entire remuneration shall be included in the total remuneration earned during the policy period upon which premium for the policy shall be computed, does not limit the liability to injuries sustained by personal employees carried upon the employer’s time-books and pay-rolls.</p> <p>3. Same—when payment of premium in advance is not a condition precedent to the liability for compensation insurance. The premium to be paid for the insurance of an employer against loss by reason of liability under the Workmen’s Compensation act, and which is to be based upon the remuneration paid by the employer to his employees, need not be paid in advance as a condition precedent to the liability of the insurance company, as the remuneration earned by all the employees cannot be ascertained until the. expiration of the. policy year.</p> <p>4. Same—when an insurance company is estopped to deny that injured employee was an employee of the insured. An insurance company which insures an employer against loss by reason of any liability under the Workmen’s Compensation act and agrees to defend any proceeding against the employer under the act is estopped to deny that an employee who was killed while working for a contractor whom the insured had employed was an emploj'ee of the insured, where the Industrial Commission has made an award against the insured on a claim for the injury to the deceased as an employee of the insured and the award has not been reviewed.</p> <p>5. Workmen’s compensation—what determines whether party is an employee or an independent contractor. The principal consideration in determining whether a workman is an employee or an independent contractor is the right to control the manner of doing the work rather than the actual interference with the work, and the fact that payment is to be made by the piece or the job or the day or hour is not necessarily material, where the workman is subject to the control of the employer as an employee and not as a contractor.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. William E. Dever, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Fayette county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>1. Municipal corporations—when building ordinance does not give arbitrary power to mayor. A building ordinance which prescribes certain specifications before a permit will be issued for the erection of any building does not give arbitrary power to the mayor merely because it provides that he “shall institute measures and prescribe such rules and regulations as shall secure the careful erection and inspection of all buildings while in process of construction, alteration, repair or removal and the strict enforcement of the ordinances of the city.in reference thereto,” as no power is thereby given the mayor to prescribe rules beyond the scope of the ordinance.</p> <p>2. Mandamus—mandamus is proper Remedy to secure building permit if the ordinance is complied with—injunction. Compliance with the requirements of a building ordinance entitles the proposed builder to a writ of mandamus to compel the issuance of the permit provided for in the ordinance but will not entitle him to go on with the work without the permit and then seek an injunction to prevent the city’s interference with the building, even though the building will be damaged if the work is stopped and though the denial of the permit was wholly unwarranted.</p>

<p>Taxes—detention home tax may be levied in the year in which the act is adopted by election. Section 6 of the act of 1907 for the establishment and maintenance of detention homes, providing that where the act is adopted by election in any county and the county judge has entered an order declaring the act in force a tax “shall thereafter be annually levied and collected,” means that the tax may be levied annually after the act is in force in said county, and not that the first levy cannot be made until the year following the adoption of the act.</p>

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

<p>1. Bonds—contract of surety must be strictly construed. Sureties are favored in law, and the contract of a surety must be strictly construed and cannot be extended by implication beyond the precise terms of the undertaking.</p> <p>2. Same—when joint obligees cannot sue separately on injunction bond. Where a complainant applies for an injunction to stop suits against him by different parties having separate interests and makes said parties joint obligees in the bond given to cover damages in case the injunction is dissolved, one of the obligees cannot maintain a separate action against the surety on the bond even though the injunction has been dissolved as to him alone, and even though the condition of the bond provides for its discharge upon the payment of damages awarded to any one or more of the obligees, “jointly or severally.”</p>

<p>1. Criminal law—when a special grand jury is legally impaneled. Section 19 of the Jury act authorizes the judge of any court of record to order a special venire for a grand jury whenever he shall be of opinion that public justice requires it, and where such grand jury is ordered at the first day of the term there is no defect in the special venire because it is made returnable the next day, as the statute does not state when the venire shall be returnable but only that it shall state the day on which the persons summoned shall appear.</p> <p>2. Same—motion for continuance must be included in bill of exceptions. Error assigned on the overruling of a motion by the defendant for a continuance cannot be considered on review, where neither the motion, nor the affidavits in support of it, are made a part of the bill of exceptions.</p> <p>3. Same—when conduct of State’s attorney on cross-examination is prejudicial. Conduct of the State’s attorney in repeatedly asking such questions of the defendant on cross-examination as he must have known were incompetent, and which could have been asked with no other purpose than to take an unfair advantage of the defendant by insinuating facts which could not legally be proved, is prejudicial error even though objections to the questions are sustained.</p> <p>4. Same—surety should not be required to testify that he had signed other bonds for defendant. A witness who is surety on the defendant’s recognizance should not be required to testify on cross-examination, and over objection by the defendant’s counsel, that he had signed four other bonds for the defendant, as such testimony is indirect proof of other criminal charges pending against the defendant.</p> <p>5. Same—what testimony as to conversation with defendant is improper in prosecution for rape. In a prosecution for statutory rape, testimony by the defendant’s business associate as to a conversation he had with the defendant concerning the latter’s conduct in spending his time with “young girls” is incompetent as an implied admission of guilt, where it refers only to the general course of conduct of the defendant and not to his relations with the prosecuting witness.</p> <p>6. Same—rape—what testimony as to physical condition of the prosecuting witness is incompetent. In a prosecution for statutory rape, where the defendant has testified to facts tending to show that the prosecuting witness had syphilis, testimony by a social worker in rebuttal is incompetent, where she has no personal knowledge of the girl’s condition but bases her testimony on the fact that the girl was admitted to a public institution where the Wasserman test was given to every girl admitted and that the prosecuting witness was classified as free from venereal disease.</p>

<p>1. Contracts—reliance upon fraudulent representations is not negligence. Although the parties are dealing at arm’s length the law does not require that either shall believe the statements of the other, and the rule is that no person who. by his fraudulent act has induced another to act to his prejudice can impute negligence to the latter merely because of his reliance upon the former’s fraud.</p> <p>2. Deeds—when deed given as part consideration for purchase of farm property may be set aside for misrepresentations. In a suit to set aside a deed to city property given as part consideration for the purchase of farm land on the ground of the fraudulent acts and representations of a real estate agent, who negotiated the transaction in his own interest, the question whether the sale was fraudulent is one of fact; and where the representations as to the character of the land were material, were falsely and knowingly made by the agent and were relied upon by the complainants to their loss the deed may be set aside, even though the complainants, who knew nothing of the value of farm land, made a partial examination of the land before executing the deed, which was never acknowledged by the grantors but was fraudulently acknowledged for them by the agent.</p> <p>3. Same—acknowledgment of deed may be impeached by clear and convincing evidence. The acknowledgment of a deed cannot be impeached for anything but fraud and can be overcome only by evidence clear and convincing beyond a reasonable doubt, but where the evidence clearly establishes that the acknowledgment is a fraud it will not be allowed to stand.</p> <p>4. Masters in chancery—when court should hear evidence on question of master’s fees. As the statute provides that masters in chancery shall receive such compensation as the court may deem just for examining questions referred to them and reporting conclusions thereon, the amount to be allowed a master for his per diem work cannot be based upon what masters usually charge but rather should be fixed upon evidence heard before the chancellor with reference to the amount of time consumed and the proper charges for the various items.</p>

<p>Writ of Error to the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>Appeal from the County Court of White county; the Hon. Ulys Pyle, Judge, presiding.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>1. Trial—opening statement by the defendant’s counsel may amount to an admission. Facts alleged in the opening statement of the defendant’s counsel for the information of the court, when properly preserved in the record and repeated in the statement in the brief filed on review, are binding upon the defendant and his counsel, particularly in a civil suit or in a trial for a misdemeanor; and the court is warranted in acting upon such statement as an admission made by the defendant.</p> <p>2. Sales—general rule as to where sales of personal property are completed. Sales of personal property, whether made to the vendee personally or by letter, are regarded as made at the place where the vendor shows his assent to the proposal by delivering the goods to a carrier for the vendee, in the absence of any agreement of the parties or any special circumstances showing the contrary.</p> <p>3. Securities—when conviction for selling stock in violation of Securities act cannot be sustained. One who receives at his office in Illinois an application for the purchase of promotion shares of stock in a foreign mining corporation, and forwards the application, together with the purchaser’s money, to his employer, who is a stockholder residing outside of Illinois, and who accepts the offer and mails the certificate of stock to the purchaser, is not guilty of selling securities in violation of the Illinois Securities act, as such a sale is made outside the State by the stockholder and not by the defendant.</p>

<p>Appear from the County Court of DeKalb county; the Hon. William L. Pond, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>1. Criminal law—definition of embezzlement—distinguished from larceny. Embezzlement is the fraudulent appropriation to one’s own use of the money or goods entrusted to his care by another, and it is distinguished from larceny by the fact that in embezzlement the original taking of the property is lawful or with the consent of the owner.</p> <p>2. Same—intent to embezzle must be proved beyond reasonable doubt. Under section 75 of the Criminal Code the intent to embezzle or fraudulently convert to one’s own use, or to secrete with intent to embezzle or fraudulently convert, must be established against the defendant beyond a reasonable doubt before he can be convicted of the crime of embezzlement.</p> <p>3. Same—when a conviction of embezzlement cannot be sustained. A judgment convicting a defendant of embezzling the proceeds of an auction sale at which he was employed as clerk is not sustained by evidence that he deposited the money in his father’s bank in his own name as agent of his employer and that when the bank failed shortly thereafter he was unable to pay back the money, where it is further proved that the employer by his conduct assented to the defendant’s acts in so depositing the money, which the books of the bank show was on deposit, and there is no proof that the defendant knew or had reason to believe that the bank was insolvent or that he ever drew any of the money out for his own use, although his employer did draw some, pending settlement, before the bank failed.</p> <p>4. Same—an instruction should not single out facts to establish guilt in disregard of other evidence. Although an instruction in a prosecution for embezzlement does not direct a verdict, it should not single out and call the jury’s attention to facts tending to establish the defendant’s guilty intent without making mention of other facts or circumstances proved which have a different bearing as to such intent, particularly where the crime of embezzlement is not defined by any of the instructions and the jury are not informed what essential elements or facts must be proved to establish guilt.</p>

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

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

<p>Writ of Error to the Circuit Court of Perry county; the Hon. Louis Bernreuter, Judge, presiding.</p>

<p>1. Taxes—when school tax levy may be made for building purposes although no building has been erected. Although a board of education cannot levy a tax for building purposes to accumulate a fund to build a school house they have not yet determined to build, yet the building need not be under construction when the levy is made, and a levy is valid where the school house site has been selected by vote and the board authorized to purchase it and erect a building which the board has decided to erect; and the fact that litigation has held up the issuance of bonds does not render the levy void, especially where the board is obliged to provide rooms for the school until the new building is completed.</p> <p>2. Same—taxing authorities have power to make levies to meet obligations when they become due. It is not necessary for taxing authorities to wait until the money is actually needed for paying outstanding obligations before taxes may be levied, but they have the right to, and should, anticipate as nearly as they can the amount of money necessary to be raised to meet obligations when they become due.</p> <p>3. Same—when school board may make levy for building purposes in addition to amount of bond issue. Where the board of education in a community consolidated school district is not limited in its expenditure for the erection of a school house by the wording of the resolution or by the proposition voted upon to authorize a bond issue, and where in its judgment the amount of the bonds authorized will not meet the cost of the building required, a levy for building purposes, within legal limitations, to make up the difference is valid, as the board is not required to submit to the voters the question of the actual cost of the building.</p> <p>4. Schools—school board may exercise its discretion if no limitation is placed on character and cost of proposed bttilding. Where no limitation is placed on a school board in the matter of erecting a new school building, the character of the building proper to answer the demands of the district, and also the amount to be devoted to that purpose, are committed to the discretion of the board, subject only to the limitation in the statute as to the power of the board to obtain the means wherewith to construct the building.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. Walter E. Brewer, Judge, presiding.</p>