Volume 301 — Illinois Reports

<p>1. Schools — the legislature has power to create school districts without an election. There is no constitutional provision requiring a petition or a vote of the people to establish a school district, and the legislature may therefore establish school districts without any petition and even without a vote on the question.</p> <p>2. Same — when validating act applies to establish community high school district. If an election has been called by the county superintendent of scho.ols for the purpose of voting on the organization of certain territory into a community high school district and a majority of the inhabitants voting vote for the proposition and choose a board of education at a subsequent election similarly called, the territory in which the elections are held constitutes a valid community high school district under the validating act of May 10, 1921, (Laws of 1921, p. 797,) and the irregularities and defects in the proceedings are immaterial.</p> <p>3. Constitutional law — high school validating act of 1921 is not a local or special law pertaining to conduct of elections. The act of May 10, 1921, (Laws of 1921, p. 797,) validating the organizatior. of certain community high school districts, is not a local or special law pertaining to the conduct of elections, as the effect of the act is merely to create the territory in which an election has been held into a valid school district.</p> <p>4. Same — constitution does not prohibit local or special laws for establishing school districts. Section 22 of article 4 of the constitution, relating to special legislation, does not prohibit the passage of local or special laws for the establishment of school districts.</p> <p>Cartwright, Carter and Dunn, JJ., dissenting.</p>

<p>1. Criminal law- — indictment for embezzling checks need not describe each check stolen. An indictment against an agent of a corporation for embezzling checks or other securities of the company is sufficient, under section 82 of the Criminal Code, if it alleges the embezzlement generally, without describing with particularity each of the checks or securities which it is charged the defendant stole.</p> <p>2. Same — People not required to elect, at outset, on which act of embezzlement a conviction will be asked. Where the offense charged in each count of an indictment for embezzlement grows out of the same transactions it is proper to join the offenses in the same indictment, and the People should not be required to elect, at the outset, for what particular act of embezzlement a conviction will be asked, as embezzlement often consists of many acts done in a series, which together constitute the crime.</p> <p>3. ' Same — when indictment for embezzlement sufficiently alleges ozmership of the property. In a prosecution for embezzlement it is sufficient that the indictment charges that the property belongs to persons who have a special ownership or interest in the property or who have possession of it.</p> <p>4. Same — when defendant is not a joint owner of checks he is charged with embezzling. The agent of a loan association who is charged with embezzling the company’s checks representing loans to borrowers is not proved to be a joint owner of the checks merely because the borrower usually permitted him to deduct his fees from the amount due the borrower, where said fee was a fixed amount and not based on a percentage of the amount loaned and where there was no understanding that the agent was to receive his fees out of said checks.</p> <p>5. Same — when mistake in verdict as to amount of money embezzled is not prejudicial. In a prosecution for embezzlement, the fact that the jury did not give the defendant credit for some of the money for which he properly accounted does not prejudice his rights, where the difference is not sufficient to make the-total sum embezzled less than $15; and a finding that the property was worth $15,700 is not prejudicial, even though it is $700 more than that stated in the bill of particulars.</p> <p>6. Same — when failure to require People to elect in embezzlement trial ivill not reverse. Where it develops on the trial for embezzlement of checks that the conversion of each check was a separate transaction, the court should, at the close of all the evidence, require an election as to which check a conviction will be asked; but the refusal to require an election will not require a reversal where the jury could have reached no other conclusion than one of guilt had the election been made as to any check, each of which was of greater value than $15.</p> <p>7. Same — when error on the trial is not ground for reversal. Where it can be said from the record that an error committed on the trial could not reasonably have affected the result or the substantial merits of the case the judgment of the trial court will not be reversed for such error.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William K. Wi-iiteield, Judge, presiding. . .</p>

<p>1. Quo warranto — motion to set aside order for filing information must be included in bill of exceptions. In a gtio warranto proceeding to attack the organization of a community high school district a motion to set aside the order allowing the information to be filed is, in effect, a motion to dismiss the proceedings and must be preserved by a bill of exceptions to enable a court of review to consider the lower court’s action, and it is not sufficient to include the motion in the common law record. (People v. Cowen, 283 Ill. 308, followed.)</p> <p>2. Appeals and errors — proceedings of circuit court are presumed to be regular until error is shown of record. As the circuit court is a court of general jurisdiction its proceedings will be presumed to be regular and free from error until error is shown from the record, and every reasonable intendment not negatived by the record is to be indulged in support of the judgment below.</p>

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

<p>1. Abatement — legislature cannot order a pending suit to abate. The legislature has power to change the law, and the court in deciding pending cases will dispose of them under the law in force at the time its judgment is rendered, hut the legislature has no authority to direct that a suit pending in court shall abate, as the entry of an order in a cause pending in court is a judicial function, which is not to be exercised at the direction of the legislature but in the judgment of the court.</p> <p>2. Schools — constitution does not prohibit local or special laws establishing school districts. There is no constitutional provision prohibiting the passage of local or special laws establishing school districts, but the legislature may provide for their organization, division or consolidation, fix their boundaries and afterward change them, as it deems best for the public interests, without any petition for that purpose and without any vote upon the question.</p>

<p>Appual from the County Court of Bureau county; the Hon. J. R. Prichard, Judge, presiding.</p>

<p>Farmer and Thompson, JJ., dissenting.</p>

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

<p>1. Schools — act for organization of community consolidated school districts is not invalid. The act of 1919 for the organization of community consolidated school districts does not violate section 13 of article 4 of the constitution. (People v. Exton, 298 Ill. 119, and People v. Moyer, id. 143, followed.)</p> <p>2. Same — commtmity consolidated school district may be organized in only one county. The organization of community consolidated school districts under the act of 1919 is not limited to territory lying in two or more counties but such district may be made up of territory lying entirely in one county. (People v. Shultz, 298 Ill. 125, followed.)</p> <p>3. Same — when the act of 1921 validates organization of community consolidated school district. The act of May 4, 1921, validates the organization of a community consolidated school district where the elections on the proposition and for the school board were not held according to the provisions of the Australian ballot system, and the validating act will be applied to obviate such objections although it was not passed until after the case was submitted to the Supreme Court.</p> <p>Cartwright and Dunn, JJ., dissenting.</p>

<p>Appeal from the Circuit Court of Fulton county; the Hon. Robert J. Grier, Judge, presiding.</p>

<p>1. Workmen’s compensation — employee may be under act of 1917 although not in hazardous employment when injured. An employee is under the provisions of the Compensation act of 1917 although he is not engaged in a hazardous occupation at the time of his injury, where his employer is engaged in a hazardous business within the meaning of the act. (McNaught v. Hines, 300 Ill. 167, followed.)</p> <p>2. Same — burden is on claimant to prove that injury arose out of employment — circumstantial evidence. The burden is upon the applicant to sustain the award lor compensation by competent evidence showing that the injury arose out of and in the course of the employment, and such proof may be established by circumstantial evidence.</p> <p>3. Same — whether injury sustained on way to work arises out of employment depends upon the facts. Whether one en route to I1Í5 place of employment is in the line of his employment, in the sense that an injury received while so en route arises out of and in the course of that employment, depends upon the circumstances of each case and is largely a question of fact.</p> <p>4. Same — general rule as to when injury is sustained in course of employment. An accident, to be suffered in the course of employment, must happen in the doing of something which the employee may reasonably do at any time during which he is employed and- at a place where he may reasonably be during that time to do that thing.</p> <p>5. Same — when injury to traveling man arises out of and in the course of employment. Where a traveling man is injured by an automobile while he is attempting to board a street car to go to his employer’s factory to report his sales and receive instructions after returning from a trip his injury arises out of and in the course of his employment; and the fact that he stopped at his home for lunch before attempting to board the street car is not sufficient, of itself, to take the accident out of the provisions of the Compensation act.</p>

<p>1. Schools — high school validating act of May 10, 1921, does not validate taxes levied in de jure district. The act of May 10, 1921, (Laws of 1921, p. 797,) validating the organization of certain community high school districts, does not apply to de jure districts legally organized in the first instance, and section 4 of said act does not have the effect of validating a tax levy made in a de jure district after the time required by law for the making of such levy, as said section refers only to such districts as come within the act.</p> <p>2. Same — when the act of June 10,1921, validating tax levies in school districts, does not apply. The act of June 10, 1921, (Laws of 1921, p. 831,) validating school tax levies which are void because not made on or before the first Tuesday of August of any year, as required by law, does not apply to a district which made its levy after said date because it was not in existence prior thereto, as the act is intended to waive the failure of the directors to act at the proper time and not to confer authority retroactively on a school district which was not in existence at the time the taxes were required to be levied.</p> <p>Farmer and Thompson, JJ., dissenting.</p>

<p>1. Criminal law — the jury are judges of the credibility of witnesses. The jury are not warranted in disregarding testimony from mere caprice, and the fact that the witnesses in support of a defense of alibi are related to the defendant will not, alone, justify disregarding their testimony, but the jury are the judges of the credibility of the witnesses and of the weight that should be given their testimony.</p> <p>2. Same — when instruction as to alibi does not prejudice the defendant. The theory of an alibi is that the defendant was so far from the scene of the crime as to make it impossible for him to have committed it, and an instruction which makes proof of such a state of facts essential to authorize an acquittal does not place too great a burden on the defendant, where the jury arc further instructed that it is not necessary to prove the defense of alibi beyond a reasonable doubt, and that it is sufficient to entitle the defendant to an acquittal if from the evidence they have a reasonable doubt whether he was present at the time and place of the commission of the crime.</p> <p>3. Same — great latitude is permitted in cross-examination as to prejudice of witness. Cross-examination should generally be confined to what was brought out on direct examination, and while it is permissible in a proper case, on cross-examination, to ask an interested or hostile witness concerning acts or declarations showing bias and prejudice for the purpose of affecting the credibility of the witness, such matters rest largely in the discretion of the trial judge in controlling the cross-examination.</p>

<p>1. Building restrictions — what constitutes an “outbuilding.” An outbuilding' is a distinct building' which belongs to or is intended to be used with the dwelling house, and it must be appurtenant and appertain to the dwelling house or main building and must be subservient to it and contributory to the habitation.</p> <p>2. Same — an outbuilding may be adjacent to and connected with the main building. The fact that an outbuilding is separated from the main building only by the space of a common wall does not necessarily change its character as an outbuilding, and though it is,adjacent to the house and may be entered from the house through a passageway or through a door directly, it is still an outbuilding, if its use is not for the ordinary purpose of a dwelling but for some subsidiary purpose in connection with the dwelling.</p> <p>3. Same — what determines whether a building is an outbuilding. It is the character of the building and the use which is made of it which determine whether or not it is an outbuilding.</p> <p>4. Easements — when construction of greenhouses violates restriction against outbuildings and terminates easement. Where a grantee is given an easement for a private alley over an adjacent lot, subject to the condition stated in the grant that he is not to build on his own property any outbuilding within a certain distance from the boundary of his premises, the construction of ordinary greenhouses within the prohibited area, although they are used merely for the pleasure of raising flowers, is a violation of the restriction and terminates the easement, though one wall of the dwelling is used for a wall of the greenhouses.</p>

<p>1. Contracts — parties cannot establish contract different from that expressed in writing. The rule that in construing a contract it is proper for the court to take into consideration the surrounding circumstances does not give to either party the right to establish by oral evidence a different contract from that expressed in the written agreement.</p> <p>2. Same — when proof of conversations prior to contract is not admissible. All conversations and parol agreements between the parties prior to the making of their written agreement are merged in the writing and cannot be proved for the purpose of changing the contract or showing an intention different from that expressed.</p> <p>3. Same — when new term cannot be added to contract by parol evidence. If a written contract purports on its face to be a complete expression of the whole agreement it is to be presumed that the parties introduced into it every material item and term, and parol evidence is not admissible to add another term to the agreement about which the contract is silent.</p> <p>4. Same — use of words "required by them" may render sales contract ambiguous. Where a contract provides for the sale of “a minimum of $2000 worth of tin packages or more, as required” by the purchaser for actual use in its business between certain dates, evidence of proper facts showing the situation of the parties may be admitted to enable the court to determine the sense in which the word “required” was used by the parties.</p> <p>5. Same — when practical interpretation of contract by the parties may be proved. If the language of a written contract is ambiguous or indefinite; proof of the practical interpretation placed upon the contract by the parties themselves is admissible.</p> <p>6. Same — contract for sale of tin cans construed. A contract between a can company and a customer for the sale of “a minimum of $2000 worth of tin packages or more, as required by them, (as priced and described below,) which buyers will need for actual use in their business between the date hereof and April 1, 1917,” obligates the buyer to purchase $2000 worth of tin packages unconditionally and gives the buyer an option to purchase as many more as it chooses, provided, however, that they are needed for actual use in the buyer’s business between the dates specified..</p> <p>7. Same — zvhen the mutuality of an obligation is not essential. Where there is no other consideration for a contract the mutual promises of the parties constitute the consideration, and the promises must be binding upon both parties or the contract will fall for want of consideration; but where there is any other consideration for the contract, mutuality of obligation is not essential and there may be a valid unilateral or option contract.</p> <p>8. Practice — presumption where the Appellate Court reverses without remanding or finding facts. Where the Appellate Court reverses a judgment at law without remanding the cause or making a finding of facts it is to be presumed that the Appellate Court found the facts the same as they were found by the trial court, and that it did not reverse for errors occurring on the trial but because the facts found by it and the trial court did not sustain the cause of action.</p> <p>9. Same — when cause will be remanded to Appellate Court. If a judgment of reversal by the Appellate Court is based upon an erroneous view of the law with respect to one branch of the case which it holds disposes of the whole case, and it appears from its opinion that for such reason it has refused to consider and pass upon meritorious assignments of error which it should consider, the cause will be remanded to that court upon reversal of its judgment, with directions to consider and pass upon such questions.</p> <p>10. Same — when controverted questions of fact are involved. Whenever an issue is made by the pleadings and evidence must be introduced to maintain the issue controverted questions of fact are involved in the case, which include not only evidentiary facts but ultimate facts, even though there be no conflict in the testimony or the evidence be embodied in a stipulation of facts.</p>

<p>1. Criminal law — statutory division of crimes into felonies and misdemeanors is not the division of the common law. The statutory division of crimes into felonies and misdemeanors is in no sense the division known to the common law and is not based on the same distinction but is an arbitrary classification, which merely recognizes felonies as having existed at the common law.</p> <p>2. Same — burglary of a railroad car need not be described as having been feloniously committed. An indictment charging burglary of a freight car of a railroad company is sufficient if it charges the offense in the language of the statute, and as the act charged is made burglary by the statute only, the indictment need not charge the act to have been either feloniously or burglariously done.</p> <p>3. Same — the word “steal” means to commit larceny. It is not a good objection to a charge of burglary “with intent to steal” that such a charge,does not contain the element of asportation in the taking and carrying away of the property, which is essential in larceny, as that element is included in the word “steal,” which means to commit larceny.</p> <p>4. Same — what is sufficient proof of corporate existence of railroad company. In a prosecution for burglary of a freight car of a railroad company, proof that the company had been exercising the franchises of a railroad corporation for more than forty years, during which time it had been engaged in the business of transportation of freight and passengers and owned railroads extending into many States, as well as depots, freight houses and cars, is sufficient proof, under the statute, of corporate existence by user.</p>

Appear from the Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kickham Scanran, Judge, presiding.

<p>1. Deeds' — acceptance of deed must be proved or presumed in order to pass title. Acceptance of a deed is essential to pass title, and in the absence of proof of acceptance by the grantee or circumstances sufficient to raise a legal presumption of acceptance the title does not pass.</p> <p>2. Same — when acceptance of a deed is not presumed. There may be a presumption of acceptance of a deed in case of a grantee not sui juris or where a voluntary conveyance is beneficial to the grantee, but such a presumption cannot exist where the deed imposes a duty or obligation on the grantee, such as a personal obligation for future support of the grantor.</p> <p>3. Same — when deed is not good as to an undivided one-half interest. A deed made by a mother to two of her sons as tenants in common, upon consideration of one dollar and the assumption by them of the obligation to support and care for the grantor during her life, is without effect as to an undivided one-half interest in the property, where one of the sons repudiates the transaction and does not accept the deed.</p> <p>4. Same — when deed from mother to her sons is obtained by fraud — fiduciary relation. The mere relationship of mother and son does not constitute a fiduciary relation which will raise a presumption of fraud in the case of a deed made by a mother to two of her sons, but fraud and undue influence will be inferred where the evidence shows that all of the children of the grantor had contributed to the purchase and improvement of the property conveyed, whereas she was led to believe that only the two grantees had paid the consideration.</p>

<p>1. Taxes — when certificate of special school tax levy is properly signed. Section 190 of the School law, as amended in 1909, does not require the certificate of a special school tax levy to he signed by the directors or a majority of them but by the president and clerk or secretary of the board.</p> <p>2. Same — what constitutes the levy of special school tax. The certificate of levy required by section 190 of the School law, as amended in 1909, is the evidence of the board’s action and the authority of the county clerk to extend the tax but is not itself the levy, as it is the action of the board in ascertaining how much money must be raised by special tax for educational or building purposes which constitutes the levy.</p> <p>3. Same — certification of levy of special school tax need not he made in presence of hoard. Under section 190 of the School law, as amended in 1909, the certification of a special school tax levy by the president and secretary or clerk of the board need not be made in the presence of the board, and where the amount of money required has been ascertained by resolution of the board, in accordance with the statute, the record of the board need not show that the president and secretary were authorized or directed to make and sign the required certificate.</p> <p>4. Same — when special school tax levy is valid although certificate is not filed in required time. Section 190 of the School law, as amended in 1909, expressly provides that a failure by the board of education to file the certificate of a special school tax levy or of the treasurer to return it to the county clerk in the required time shall not vitiate the assessment, and where the levy is made prior to the time limited for filing the certificate the tax is valid although the certificate is not filed within the required time.</p>

<p>Appeal from the County Court of Marion county; the Hon. W. G. Wilson, Judge, presiding.</p>

<p>1. Deeds — rule as to delivery of deed in escrow. In determining that a deed was delivered in escrow by a grantor prior to his death, it must clearly appear from what was said and done at the time of the transaction that the grantor’s intention then was that it should presently become operative and to divest himself of all control over the deed, but if the grantor retains the right to recall the deed, even though he may not exercise that right before his death, the deed is inoperative to convey title for want of delivery.</p> <p>2. Same — general rule as to presumption of delivery of deed. A stronger presumption of the delivery of a deed obtains where the conveyance is a voluntary settlement than where it is a deed of bargain and .sale, and the presumption is weaker where the grantee is an adult than where he is a minor, but the presumption of delivery arises out of the relationship of the parties.</p> <p>3. Same — when deeds must be held to have been effectually delivered in escrow. Deeds delivered to a third party with directions to deliver them “to the person who will call for them” after the grantor’s death must be held to have been effectually delivered by the grantor, where the circumstances show an intention on her part at that time to relinquish all control over the deeds, and no act of the grantor after such delivery can have the effect of rendering the deeds inoperative.</p>

<p>1. Special assessments — when new assessment is allowed under sections 57 and ¡8 of the Local Improvement act. Sections 57 and 58 of the Local Improvement act allow a proceeding for another assessment where any previous assessment has been declared void, whether the previous assessment was an original or supplemental assessment and whether it was void because of a void ordinance or because the proceedings have been held void.</p> <p>2. Same — the test of relation of assessment to benefits applies whether proceeding is original or supplemental. The theory of the Local Improvement act is to charge the cost of the assessment to the property that is benefited by the improvement, and, whether the proceeding is original or supplemental, the continuing test of the relation of the assessment to the benefits applies.</p> <p>3. Same — interest is proper on deferred payments of assessment levied under sections 57 and 58. Under sections 39 and 92 of the Local Improvement act it is proper to include with the cost of a new assessment under sections 37 and 58 of the act an amount for interest required to be paid in case of the failure to collect a part of the new assessment when the payments are due.</p>

<p>Appear from the Circuit Court of Christian county; the Hon. Wirriam B. Wright, Judge, presiding.</p>

<p>1. Deeds — whether deed is delivered depends on intention of grantor and on circumstances. No particular form or ceremony is necessary to constitute the delivery of a deed but the intention of the grantor and the circumstances of each case must control, and anything which clearly manifests an intention that the deed shall presently become operative and effectual and that the grantor loses all control over it constitutes a sufficient delivery.</p> <p>2. Same — what constitutes delivery of deed in escrow. Where a grantor executes deeds and places them in the hands of a third person, to be delivered to the grantees unconditionally after her death, with the full understanding that she loses all control and dominion over the deeds, such act constitutes a valid delivery and the deeds take effect not at the death of the grantor but immediately upon being delivered in escrow, and anything done or said by the grantor after such a delivery cannot divest the title.</p>

<p>Appeal from the First Branch Appellate Court for the First District; — heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding.</p>

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

<p>1. Equity- — equity looks through form to substance of transaction. Equity looks to the substance of a transaction and not to its form, and will not permit the rights of parties to be sacrificed to the mere letter but will look to the spirit of the transaction to discover the truth. -</p> <p>2. Specific performance — when equity will decree specific performance of a contract for sale of corporate stock. The right to specific performance of a contract for the sale of corporate stock depends upon the character of the stock, and if the shares are readily obtainable in the open market specific performance will not be decreed, but if the shares have no market rating and cannot easily be obtained elsewhere specific performance will be granted.</p> <p>3. Same — when assignees of the defendant may be compelled to perform his contract to transfer corporate stock. In a suit to compel specific performance of a written contract to transfer to the complainant certain shares of stock, members of the defendant’s family, who without consideration and with knowledge of, or chargeable with knowledge of, the contract, accept from the defendant an assignment of shares of stock covered by the contract, may be compelled, with the defendant, to carry out the contract.</p> <p>4. Same — what does not amount to surrender of rights under contract. Where the president of a corporation has a written contract by which the principal stockholder has agreed to cause a certain number of shares of stock held by him to be transferred to the president, the fact that the president, after a verbal repudiation of the contract by the other party, attends an annual meeting and participates, without formal protest, in declaring dividends, does not amount to a surrender by him of his right to the stock or the dividends thereon, as against the other-party and his wife and children, who without consideration and with knowledge of the contract became assignees of a portion of such stock.</p> <p>5. Same — acceptance of bonus voted by stockholders is not a waiver of contract rights. The fact that the president of a corporation accepts a bonus voted by the stockholders for his services does not amount to a waiver of his rights under a written contract with the principal stockholder for a transfer of certain shares of stock held by such stockholder.</p> <p>6. Same — want of mutuality is not necessarily a defense. Want of mutuality in a contract is not necessarily a defense to specific performance and cannot be urged as against a complainant who has fully carried out his part of the contract upon which the claim of lack of mutuality rests.</p> <p>Carter, J., dissenting.</p>

<p>1. Partition- — burden is on defendant to prove his claim that parties agreed on certain division line. In a partition suit between two tenants in common of city lots, on which each has erected a building, one of which extends over the dividing line, the burden is on the defendant to prove his claim that he and the complainant had agreed on a division line midway between the two buildings in the event of a subsequent partition.</p> <p>2. Same — what is a proper division by commissioners where an easement is involved. In a suit between two tenants in common for partition of city property which has an easement for light and air on one side of the property, the commissioners, in making an equal division according to the statute, may take into consideration the relative values because of the easement, and in dividing the property may give more land to one side to equalize it with the greater value of the other.</p> <p>3. Same — what is necessary to decree for owelty. The court may award the payment of money as owelty in order to equalize the shares of the parties in a partition suit, but before it can do so it must appear that the requirement of owelty is equitably necessary.</p> <p>4. Same — when grantors of easement are not necessary parties. The owners of land adjoining city property involved in a partition suit and who have granted an easement for light and air to the tenants in common of the property being partitioned are not necessary parties to the suit.</p>

<p>1. Debtor and creditor — giving of a note does not extinguish debt in absence of agreement. A note given by a debtor for a precedent debt will not be held to extinguish the debt in the absence of an agreement to that effect, as a mere promise to pay can not, of itself, be regarded as an effective payment, but the note will be considered as conditional payment or as collateral security or as an acknowledgment or memorandum of the amount ascertained to be due.</p> <p>2. Insurance — when notes given for life insurance premiums are not accepted as payment. Where life insurance policies are in force only two years, and the insured, after failing to pay his third annual premiums, makes application to have the policies re-instated, the action of the company in re-instating the insurance upon payment of one-fourth of the premiums in cash and the giving of notes for the balance does not amount to an express agreement to receive the notes as absolute payment of the premiums, where the notes and the receipts both state that the notes are accepted with the understanding that “all benefits whatever which payment in cash of said premium would have secured shall become immediately void” if the notes are not paid at maturity.</p> <p>3. Same — when notes and receipts given for premiums must be construed with insurance contract. Paragraph 3 of section 1 of the act of 1907, (Daws of 1907, p. 367,) providing that a life insurance policy and the application therefor shall constitute the entire contract between the parties, does not prevent the making of an agreement for re-instatement extending the time for the payment of the premiums and setting forward the time of forfeiture, and in such case the notes given in part payment of. the lapsed premiums, and the receipts therefor, must be construed with the application for re-instatement and with the insurance contract.</p> <p>4. Same — when insured is not entitled to loan or extended insurance under paragraphs 6 and 7 of section 1 of act of 1907. An insured whose policies have been in force only two years and who has failed to pay the third annual premiums when due is not entitled to the loan value or stipulated insurance which paragraphs 6 and 7 of section 1 of the act of 1907 (Daws of 1907, p. 368,) compel life insurance policies to provide after the payment of three full years’ premiums in cash, where he secures re-instatement by paying only one-fourth of the third annual premiums in cash and by giving notes for the balance, which are not accepted by the company as absolute payment.</p> <p>5. Same — when payment of premiums is a condition precedent to liability of life insurance company. In the absence of special agreement the payment in cash of premiums which are due is a condition precedent to or at least concurrent with the assuming of any obligation by a life insurance company in re-instating lapsed policies.</p> <p>6. Same — retention of notes after maturity is not a waiver of condition to pay premiums on which they were given. Where a life insurance company, upon re-instating lapsed policies, accepts notes given in part payment of the lapsed premiums on express condition that all benefits under' the policies shall be forfeited if the notes are not paid at maturity, the retention of the notes after maturity is not a waiver of the condition on which they were given but is consistent with the assertion of forfeiture, as they may be held by the insurer merely as evidence of .their non-payment.</p> <p>7. Same — insurance statutes are enacted on principles of public policy. Statutes on insurance are enacted as a shield and not as a sword, and they declare principles of public policy in the protection of the interests of the general public by putting the insurance business on a sound financial basis as well as by guaranteeing the policyholder sound insurance.</p>

<p>1. Statutes — what determines whether statute delegates legislative power. A statute is unconstitutional as delegating legislative power when it attempts to delegate to an officer the power to say what the law shall be, but the legislature may authorize others to do those thing's which it might do but which it would be impracticable to do itself.</p> <p>2. Schools — changing boundaries of district under section po of School lazo is not exercise of legislative or judicial pozver. A decision of the county superintendent, county judge and county clerk, as an ex-officio board acting under section 90 of the School law on a petition to change the boundaries of a high school district, is not an exercise of legislative or judicial power by such board, as the board by said section was given power only to grant or deny the particular petition before it.</p> <p>3. Same — the act of June 24,1921, validating changes of school boundaries by ex-officio board, is valid. The act of June 24, 1921, validating changes in the boundaries of high school districts by ex-officio boards acting on petitions under section 90 of the School law, is not unconstitutional, as the legislature could'in the first instance have given said boards such authority independently of the invalid provision of said section giving legislative authority to the State Superintendent on appeal.</p>

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

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

<p>Wills — when verdict in favor of validity of a will will not be disturbed on appeal. A verdict sustaining a will contested on the grounds of mental incapacity of the testatrix and undue influence will not be disturbed on appeal, where there is no evidence in the record of undue influence and where the evidence on the question of mental incapacity, outside of testimony of the scrivener and the attesting witnesses, is fairly evenly balanced and the testimony of the scrivener and the attesting witnesses is in favor of the validity of the will.</p>

<p>Appeal from the County Court of Piatt county; the Pión. W. A. Doss, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of McHenry county; the Hon. E. D, ShurTlEPP, Judge, presiding.</p>

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

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

<p>Appear from the Superior Court of Cook county; the Hon. Theodore BrEntano, Judge, presiding.</p>

<p>Taxes — county tax levy for State aid roads must comply with provisions of section 121 of Revenue act. An additional county tax levy for State aid roads, made by authority of a vote of the people under section 27 of the Counties act, must comply with the provisions of section 121 of the Revenue act and the amounts for roads and bridges must be stated in separate items, as there is no reason for a distinction in this regard between an additional levy for State aid roads and the regular annual tax levy for building, improving and maintaining roads and bridges.</p> <p>Farmer, J., dissenting.</p>

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

<p>1. Schools' — when the curative act of 1917 does not validate high school district. The curative act of 1917 validating elections for the organization of high school districts applies only to cases “where a majority of the inhabitants of any contiguous and compact territory voting on the proposition” have voted in favor of the organization of a high school district, and it cannot have the effect of validating the organization of a district which is not compact but which consists of about twenty-six sections of land surrounding another school district.</p> <p>2. Appeals and errors — questions of law decided on former appeal will not be considered on second review. Questions of law which have been decided by an appellate court on the appeal of a cause will not be again considered on a second appeal, and the decision on the appeal is binding not only on the trial court in the further progress of the cause but also on the appellate tribunal in any subsequent appeal.</p> <p>3. Same — trial court, on remandment, must carry out r email d,ing order. A trial court to which a cause has been remanded can take only such proceedings as conform to th'e judgment of the appellate court, and if specific directions are given, the court can do nothing but carry out the specific directions.</p>

<p>1. Taxes — vote for county'sanitarium tax does not authorise rate for county taxes in excess of fifty cents. Where a county board in its levy of taxes for county purposes has included an item for building a tuberculosis sanitarium, so that a rate of fifty cents is extended to meet the entire levy, a subsequent vote of the people in favor of a two-mill tax for the sanitarium does not authorize the clerk to extend the additional tax so as to add twenty cents to the total rate for county taxes, as the county tax rate cannot be exceeded except by vote as provided in section 27 of the Counties act.</p> <p>2. Same — levies for sewers and for bonds of sanitary district need not be itemised. In a county tax levy for sanitary district purposes in a district under the act of 1917, a lump sum levied “to apply on construction of intercepting sewers,” and another for “sinking fund, interest on bonds,” need not be itemized, as such levies are sufficiently described to show the purpose of the appropriations.</p> <p>3. Same — section 12 of Sanitary District act of 1917 authorises levy for corporate purposes in addition to bond tax. Section 12 of the act of 1917 for the creation of sanitary districts for sewage disposal authorizes the county board to levy a tax of one-third of one per cent for “other taxes for corporate purposes” in addition to the bond tax, and under the proviso to said section a like sum in addition to the levy of “other taxes for corporate purposes” when authorized by vote, making a total of siistty-six and two-thirds cents in addition to the bond tax, provided a vote is taken for the additional tax.</p> <p>4. Same — validity of school taxes may be determined by validating act in force at time the decision is rendered. The act of June io, 1921, validating taxes levied by boards of education where the certificates of levy were not filed and returned within the required time, may be applied by the court in deciding the validity of such taxes if the validating act is in force before the case is finally disposed of as to all objections.</p> <p>5. Same — act of 1921 validating levies of school taxes is not invalid. The act of June 10, 1921, validating levies of school taxes where the certificates of levy were not filed or returned in the required time, is not unconstitutional, as the legislature may have authorized boards of education to levy taxes in the manner validated by the curative act, but the legislature cannot by retrospective legislation cure a want of authority to levy a tax.</p>

<p>1. Criminal law — when indictment for bzirglary sufficiently alleges ownership of building. Ownership of a burglarized store is sufficiently alleged where the indictment states such ownership to be in James A. Hendricks and the estate of H. H. Morgan, deceased, operating under the firm name of Morgan & Hendricks; and it is not necessary to give the names of heirs and devisees in addition to naming the estate as a partner, as the'substantial test is whether ownership is so alleged that an acquittal or conviction under the indictment may be pleaded in bar of a subsequent prosecution for the same offense.</p> <p>2. Same — zuhen instruction is not erroneous in assuming facts. An instruction given for the People in a burglary case, to the effect that the defendant’s claim that he was forced to act by his companions should receive careful consideration, but that the jury should find him guilty if they believe from all the evidence, beyond a reasonable, doubt, that he did not act through fear but with the intent and purpose of committing a burglary, is not erroneous, where the defendant himself has admitted and testified to the burglary and his participation therein.</p> <p>Thompson, Dunn and Duncan, JJ., dissenting.</p>

<p>1. Criminal law — character evidence should be confined to the proof of reputation at or prior to the crime. Evidence of good character, or of bad character in rebuttal, should be confined to proof of general reputation at or prior to the commission of the offense, and it must not be allowed to cover reputation after the commission of the offense, or what was said after the offense with reference to the character of the accused either before or after the commission of the crime.</p> <p>2. Same — general rule as to remoteness of character evidence. While evidence of character should be confined to a time not very remote from the commission of the crime, 110 certain limit in point of duration can be laid down as to such evidence, but as a general rule it should relate to the time when the character of the person will tend to illustrate the act in question.</p> <p>3. Same — character is provable by general reputation and not by personal opinion of witness. The character of the accused is provable only by evidence of general reputation, and the personal opinion of the witness is not competent evidence.</p> <p>4. Same — evidence of specific acts of bad conduct is not admissible to prove bad character — cross-examination. It is error to permit a character witness to be cross-examined as to his own knowledge of particular acts of bad conduct by the accused, but a witness to good character may be asked, on cross-examination, if he has heard rumors or conversations concerning particular charges of the commission by the accused of acts inconsistent with the character which he is called upon to prove.</p> <p>5. Same — evidence of reputation more than ten years prior to the crime is too remote. Where it appears on cross-examination of character witnesses testifying in rebuttal that their testimony as to the bad character of the defendant is based merely on their own personal belief as to his bad character or upon their knowledge of bad reputation more than ten years before the commission of the offense charged, with no proof to show the continuation of such reputation, the evidence of such witnesses should be stricken on motion.</p> <p>6. Same — what statement of officer at time of arrest of defendant is not admissible. In a murder trial a statement by the officer who arrested the defendant at his home immediately after the homicide, to the effect that the defendant had better hurry, — that “there was quite a crowd gathering outside,” should not be admitted in evidence, as it suggests that there was danger of mob violence because of the homicide and has no bearing on the guilt or innocence of the defendant.</p> <p>7. Same — what statement by deceased is not a part of res gesta. In a trial for murder, where the homicide resulted from one of four shots fired during a fight between the defendant and the deceased, the wife of the deceased should not be permitted to testify that after two shots were fired her husband said, “He shot me twice,” as such statement is not part of the res gesta; but the admission of such evidence is not prejudicial error where the evidence shows that the defendant fired two shots before the statement was made, both of which wounded the deceased.</p> <p>8. Same — ivhat evidence is admissible as showing defendant’s fear of the deceased. Where the defendant is being tried for the murder of a neighbor with whom he had had a long-standing quarrel and who was physically his superior, a justice of the peace, who is testifying in regard to the defendant’s application at one time to have the deceased put under a peace bond, should be permitted, on cross-examination, to testify to any official information which the defendant was given at that time as to his right to protect himself by such prosecution and as to any statement made by the defendant showing his fear of the deceased, but proof of the terms of the complaint made by the defendant is not material.</p> <p>9. Same — counsel, during argument, should not be permitted, over objection, to read memorandum of testimony. It is error to permit counsel for the prosecution, during his argument, to read from his memorandum of the testimony over the objection of defendant’s counsel or to permit counsel to read from the transcript of the evidence taken by the reporter, as such practice tends to over-emphasize the testimony which is read and should not be allowed merely to settle disputes between counsel as to what was testified to, as that question is for the jury.</p> <p>10. Same — when instructions as to self-defense should not disregard theory of defense of habitation. Where the defendant in a murder trial rests his case upon the theory that the crime was committed in self-defense and to prevent the deceased from entering the defendant’s house, instructions which the jury may apply to either the defense of self or of habitation should not limit the justification of the act to the apparent necessity of saving the defendant’s life or to prevent his receiving great bodily harm. (Hayner v. People, 213 Ill. 142, followed.)</p> <p>11. Same — conflicting instructions should not be given. Although it is the rule that instructions should be taken as a series and one instruction is not required to state all the law in the case, instructions in a series should be harmonious and not conflicting.</p> <p>12. Same — when an instruction for acquittal on ground of self-defense is improperly modified. An instruction in a murder trial stating that the defendant’s act was justifiable if he in “defense of himself inflicted upon the deceased the said mortal wound while said deceased was endeavoring in a violent manner to enter the habitation” of the defendant and his sister to offer personal violence to either or both, should not be modified by the addition of the words “and not in a spirit of revenge” after the words “defense of himself,” as such modification requires affirmative proof by the defendant that the act was not done in a spirit of revenge, whereas a spirit of revenge, being one of the elements of malice, must be proved by the People.</p> <p>13. Same — when burden is not shifted to the defendant after proof of voluntary killing. While the burden of proving circumstances of mitigation or justification for the homicide rests upon the accused in a murder trial after the People have proved a voluntary killing, the ultimate burden of proof is not shifted to the defendant, where the proof for the People and the circumstances attending the homicide show an apparent excuse or justification for the crime; and where all the facts proved by the People show that the defendant claims to have acted in self-defense the burden rests upon the People to show, beyond a reasonable doubt, that the act was criminal.</p> <p>Farmer and Thompson, JJ., dissenting.</p>

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

<p>Writ op Error to the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding.</p>

<p>Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>1. Criminal law — the court may refuse to require election of counts before taking proof. The matter of requiring the State to elect on which overt act the prosecution will stand and the time at which such election shall be made rests in the sound discretion of the trial court, and in a prosecution under counts charging the taking of indecent liberties and an attempt to commit statutory rape it is not error to refuse to require the election by the prosecution before the taking of proof.</p> <p>2. Same — proof of acts of lewdness is admissible in prosecution for attempt to commit’rape. In a prosecution for an attempt to commit rape on a child under the age of consent, proof of the defendant’s acts of lewdness with the prosecuting witness showing a course of conduct leading up to the assault is competent for that purpose whether the assault was with or without force.</p> <p>3. Same — statutory rape is not changed to common law crime merely because the act was with force. Statutory rape or the attempt to commit such offense on a child under the age of consent is not changed to the common law crime merely because the assault was with force and against the will of the child, so as to affect the admissibility of evidence of previous acts of lewdness or of taking indecent liberties.</p> <p>4. Same — when complaint of prosecuting witness is not too remote to be admissible in evidence. In a prosecution for an attempt to commit rape on a child under the age of consent, a complaint made by the prosecuting witness two months after the commission of the alleged offense is not too remote to be admissible in evidence, where the proof shows that the complaint was made within four days after the prosecutrix left the home of the defendant, where she had been living and where she was threatened with bodily injury by the defendant, who stood in loco parentis to her, in case she ever told anyone of his acts.</p> <p>5. Same — court may refuse to allow defendant’s counsel to interview prosecutrix alone. It is not error for the trial court, in a prosecution for an attempt to commit statutory rape, to refuse to allow the defendant’s counsel to interview the prosecuting witness out of the hearing of the sheriff and the State’s attorney.</p> <p>6. Same — conviction under count charging attempt to commit rape is not void because proof shows crime of rape. In a prosecution for an attempt to commit statutory rape, proof showing that the crime of rape was committed does not render void a conviction of the crime charged, as proof of the crime of rape involves proof of an assault with intent to commit rape, and the fact that the evidence proving the defendant.guilty of the attempt.also proves an offense of greater magnitude than the crime charged is not a variance between the proof and the indictment.</p> <p>7. Same — when failure to give instruction limiting proof under nollied counts is not error. In a prosecution for an attempt to commit statutory rape, failure of the court to give an instruction limiting and regulating the proof offered by the People under counts charging the taking of indecent liberties with the prosecutrix is not error, even though said counts were subsequently nollied, where no such instruction was presented to the court and no motion was made to limit said evidence.</p>

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

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

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

<p>Writ oe Error to the Circuit Court of Franklin county 5 the Hon. C. IT. Miller, Judge, presiding.</p>

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

<p>1. Taxes — certificate of school tax levy does not constitute the levy. It is the action of the board of education in ascertaining the amount necessary to be raised by special tax for educational and building purposes for the ensuing year in a high school district which constitutes the levy of the tax, and the certificate of the tax levy is merely evidence of such action, upon which the county clerk is authorized to act in the extension of the tax. (Contrary expression in People v. Noyes, 295 Ill. 333, overruled.)</p> <p>2. Same — when tax in high school district lying in two counties does not lack uniformity. Where a community high school district lies in two counties, the fact that the county clerk in one of the counties extends a tax properly levied by the board of education in both counties without first requiring a certificate of tax levy to be filed with him does not give the tax-payers in that part of the district lying in the other county the right to object to the tax upon the ground that it was not uniformly levied throughout the district, the tax as levied being actually extended by the clerks of both counties against all the property of the taxing district.</p>

<p>1. Evidence — when letter written by assignor is not admissible against assignee. Where a devisee has, by deed absolute in form, assigned all his interest under a will, a letter subsequently written by him to a third party is not admissible against the assignee as tending to show the deed was intended as a mortgage.</p> <p>2. Same — evidence must be clear to show that deed absolute in form is a mortgage. Where an instrument conveying an interest in land purports to be an absolute, unconditional conveyance, the burden of proof is on those claiming that it was intended only as a mortgage to prove that fact by clear and satisfactory evidence.</p> <p>3. Wills — the purchaser of distributive interests of all devisees may elect to take the land — conversion. Where a will provides that land shall be sold by the executor and the proceeds distributed among certain named legatees, one who acquires the distributive interests of all of the legatees, and thereby becomes the equitable owner of the land, may elect to take the land,, and may maintain a bill to dclare a re-conversion of the personal property into land and to enjoin the executor from making the sale.</p> <p>4. Pleading — bill to re-convert personal property into land need not allege possession. Where a will provides that land be sold and the proceeds distributed, a bill by a purchaser of the distributive interests to re-convert the prospective proceeds into land and vest the title in the complainant is not a bill to quiet title and need not allege that complainant is in possession of the land.</p> <p>5. Costs — circuit court cannot provide for costs in case of appeal. The matter of costs is one which is controlled by statute, and the circuit court has no authority, in a chancery proceeding, to provide in the decree for costs to be paid in the event of an appeal.</p>

<p>1. Special assessments — what necessary to support special assessment for water system. A special assessment for a system of water mains and fire-hydrants cannot be sustained where neither the ordinance nor the evidence shows any provision for service pipes to the property, connections with mains, location of hydrants, or any other feature to distinguish the improvement as local and as being of any special benefit to the property in addition to the common public benefit, even though the property is without' adequate fire protection.</p> <p>2. Same — extent to which portions of right of way leased to tenants may be specially assessed. Portions of a railroad right of way which are leased to tenants for private business purposes may be assessed in such amount as the evidence shows that the property will be specially benefited for the particular use to which such portions are devoted.</p>

<p>1. Workmen’s compensation — when pre-existing disease will not defeat award for permanent disability. The presence of a preexisting disease is not, of itself, sufficient to warrant a denial of compensation, where such disease does not disable the employee and where the injury is of such a character as to cause disability or such an aggravation of the disease as results in disability.</p> <p>2. Same — when award does not require payment of compensation for effects of existing disease. An award by the Industrial Commission for permanent incapacity is not subject to the objection that the employer is required to pay compensation for the effects of a disease as it existed prior to the injury, where the award is based on the previous earning capacity of the employee as depreciated by the pre-existing disease and not upon his earning capacity as a well man.</p> <p>3. Same — constitutional question must be raised at the earliest opportunity. As a constitutional question must be raised at the earliest opportunity, an objection that the Compensation act is unconstitutional cannot be raised for the first time in the circuit court and must be held to have been waived if the parties appear and without objection participate in the hearing before the Industrial Commission.</p>

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

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

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

<p>1. Constitutional law — constitutional provisions as to power of legislature are limitations. The State constitution is a limitation upon the power of the legislature, and where its provisions are not applicable no limitation exists upon the legislative body.</p> <p>2. Same — constitution should not be strictly construed. While the same general principles to be applied in construing statutes apply in the construction of constitutions, yet in construing a constitution courts should not indulge in speculation apart from the spirit of the document or apply so strict a construction as to exclude its real object and intent, as a constitution is an instrument framed by the people themselves as the basis of their government.</p> <p>3. Offices — application of section 23 of article 5 of constitution, prohibiting increase of salaries during term of office. Section 23 of article 5 of the constitution, prohibiting the increase or decrease of salaries of officers “named in this article,” includes all officers authorized by the article as well as those specifically enumerated in section 1.</p> <p>4. Same — amendment of 1921 to Civil Administrative Code increasing salaries of officers cannot be applied to incumbents. The increase in the salaries of certain officers as provided in section 9 of the Civil Administrative Code, as amended in 1921, (Laws of 1921, p. 337,) cannot be applied to incumbents in office when the amendment took effect, July 1, 1921, and whose terms of office began prior thereto.</p>

<p>1. Schools — legislature has power to determine boundaries of school districts. The constitution has left to the General Assembly to declare what shall constitute a common school education and what system of free schools will be thorough and efficient, and the legislature has the power to act directly and create school districts by general or special acts, or it may prescribe agencies by which the boundaries of school districts shall be determined.</p> <p>2. Same — when courts may interfere with legislative discretion in establishing school system. It is not for the courts to say that the legislature has acted unwisely in selecting the agencies or methods which it deems best to carry out the mandate of the constitution for the establishment of a thorough and efficient system of free schools, and the courts cannot interfere unless the legislature, or the officers authorized by it, creates a system of free schools which is not an efficient and thorough system.</p> <p>3. Same — act for community consolidated school districts is not invalid. The act of June 24, 1919, for the organization of community consolidated school districts out of any compact and contiguous territory bounded by school district lines, does not violate the constitutional mandate for the establishment of a thorough and efficient system of free schools and does not deprive any children of the State of the opportunity to receive a good common school education.</p> <p>4. Same — meaning of the terms "contiguous” and “contiguous and compact.” The terms “contiguous” and “contiguous and compact,” when used with respect to a school district, mean territory so closely united and so nearly adjacent to the school building that all the children residing in the district, their ages considered, may conveniently travel ° from their homes to the school building and return in a reasonable length of time and with a reasonable degree of comfort.</p> <p>5. Same — validating act of May 4, 1921, is not a special law regulating conduct of elections. The validating act of May 4, 1921, validating community consolidated school districts established by authority of elections in which the provisions of the Australian Ballot law were not observed, does not violate the constitutional provision against the enactment of special laws for the conducting of elections, as the legislature may establish school districts</p> <p>without an election, and the reference in the act to the elections is merely descriptive of the territory to which the act applies.</p> <p>6. Constitutional law — when a law is general in the constitutional sense. To be general in the constitutional sense a law need not operate on every person or municipal corporation in the State, but it is sufficient if it is broad enough to operate uniformly in every portion of the State and to embrace within its provisions every person or thing distinguished by characteristics sufficiently important to make them clearly a class by themselves, even though there may be but one member of the class or one place in which the law presently operates.</p> <p>Cartwright and Dunn, JJ., dissenting.</p>

<p>X. Schools — object of notice of election to organize community consolidated school district. The object of the notice of election to organize a community consolidated school district under the act of 1919 is to inform the voters' of the territory affected, of the time, place and purpose of the election.</p> <p>2. Same — when misdescription in notice of election does not invalidate organization. An error in the notice of an election to organize a community consolidated school district under the act of 1919, in misdescribing a certain eighty-acre tract of land, will not invalidate the organization of the district where the notice also contains a correct enumeration of all the school districts to be consolidated, as such error is not one which is likely to mislead the voters.</p>

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

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

<p>1. Mechanics’ liens — when memorial of mechanic’s lien may be removed by petition under the Torrens act. If the claim for a mechanic’s lien is not filed within four months after the completion of the work or the last delivery of materials, as required by section 7 of the Mechanic’s Lien act, subsequent purchasers for value will be entitled to have the memorial of the lien removed from the register of titles under the Torrens act.</p> <p>2. Same — lien attaches as of date of contract if claim is filed in required time. Where a claim for a mechanic’s lien is filed within four months, as provided in section 7 of the Mechanic’s Lien act, the lien attaches, as against subsequent purchasers, as of the date of the contract with the contractor, but the lien ceases to exist if suit is not filed within two years, as required by section 9.</p> <p>3. Registration of title — object of the Torrens act. The general purpose of the Torrens system of registration of land titles is to provide a place where all instruments affecting the title to the registered land may be filed, so that an intending purchaser may ascertain by an inspection of the register who may convey to him the title.</p> <p>4. Same — section 84 of Torrens act is not invalid because it, in effect, amends Mechanic’s Lien act. Section 84 of the Torrens act, requiring a party who seeks to enforce a mechanic’s lien on registered land to file notice of his suit with the registrar of titles before the proceeding shall be deemed lis pendens or notice to any person dealing with the land, is complete in itself and is not invalid because it, in effect, amends the Mechanic’s Lien act.</p> <p>5. Same — when memorial of mechanic’s lien may be canceled because notice of suit to foreclose lien was not filed with registrar. One who seeks to foreclose a mechanic’s lien on registered land must file with the registrar of titles notice of his suit, as required by section 84 of the Torrens act, within the two-year period allowed for enforcing the lien, or subsequent purchasers for value may, by petition, have the memorial of the lien canceled and removed from the register although notice of the claim for the lien was filed in time.</p> <p>Duncan, J., dissenting.</p>

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

<p>1. Pleading — all persons must be made parties who will be affected. by the decree — injunction. All persons must be made parties to a suit in equity who have a substantial, legal or beneficial interest in the subject matter and who will be materially affected by the decree, and when it is brought to the attention of the court that there is a want of necessary parties, the court (trial or reviewing) should not proceed further in the matter until the omission is corrected even though no objection is made; and this rule applies to a bill for injunction.</p> <p>2. Same — when reviewing court will remand cause to enable complainants to bring in necessary party. Where a bill for a mandatory injunction to remove a tile drain from a public highway makes the commissioner of highways a party in his official capacity but no summons is issued or served upon him in such capacity and he dies pending the suit, if his successor is not brought into the case by amendment to the bill or otherwise, the Supreme Court, on reviewing the decree dismissing the bill, will not pass upon the merits of the controversy but will remand the cause, to enable complainants, upon paying costs, to make such successor a party.</p> <p>3. Highways — commissioner of highways should be a party to suit to remove tile drain from highway. As the commissioner of highways is the officer who by statute is given general charge of the. highways of his town he should be notified or summoned in his official capacity in any matter concerning the highways, and where a bill is filed for a mandatory injunction to require the removal of a tile drain from a public highway the court should not proceed to a final decree unless the commissioner is present in the case in his official capacity.</p>

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

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

<p>1. Contracts — when contract for support of child by divorced wife has a consideration. A contract entered into by a husband with his wife upon his securing a divorce for desertion, whereby he agrees to pay her a certain sum per month for her support and the support and education of their son in the particular manner desired by the husband and stipulated in the contract, is based upon sufficient consideration, and where the wife has carried out her part of the contract until the child is of age the husband must pay the sum stipulated therein to be paid while she remains unmarried.</p> <p>2. Divorce — when a wife is entitled to permanent alimony although divorce is secured by husband. Under the Divorce act a wife is entitled to permanent alimony from her husband in a suit brought by him for a divorce where the divorce is granted only upon the charge of desertion.</p> <p>3. Same — a contract for permanent alimony may be valid although entered into prior to divorce decree. Although a contract entered into for the purpose of inducing one party or the other to institute divorce or separation proceedings is invalid as being contrary to public policy, a contract entered into between husband and wife a few days prior to his obtaining a divorce decree for desertion, providing for his paying her a certain sum for her support and the support and education of their child in the particular manner desired by the husband, is not invalid, where there is no question of fraud or collusion or his right to a divorce.</p>

<p>1. Minors — when judgment or decree against interests of minor may be set aside. The rule that a judgment or decree against the interests of a minor without a guardian ad litem to represent him is voidable and may be set aside on proper motion is applicable to a case where the guardian ad litem appointed makes no effort to protect the minor’s rights against parties having adverse interests.</p> <p>2. Same — guardian ad litem must make some effort to protect minor’s rights. The appointment of a guardian ad litem is not a mere formally, and while such guardian is not warranted in interposing useless or vexatious defenses, it is his duty to understand the cause and make such defenses as are necessary to protect the apparently clear rights of the ward.</p> <p>3. Wills — when order denying probate will be set aside on petition of minors. Where the guardian ad litem appointed to represent minor devisees in a proceeding to probate a will giving two-thirds of the land to the minors does not appear at the hearing and makes no effort to sustain the will, an order refusing probate, the effect of which deprives the minors of all interest in the estate, will be set aside upon a petition of the minors, by their next friend, showing the facts and setting up an apparently meritorious case in their favor.</p>

<p>Appeal from the County Court of Monroe county; the Hon. Henry Schneider, Judge, presiding.</p>

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

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

<p>1. Special assessments — valid ordinance is the basis of every assessment. A valid ordinance must be tlie basis of every special assessment, and if the ordinance is void the county court has no jurisdiction to confirm the assessment, but it is only where the ordinance exceeds the power of the city council or the conditions necessary for its enactment have not been observed that the ordinance will be void.</p> <p>2. Same — when question of insufficiency of ordinance cannot be raised. On application for judgment against land for a delinquent special assessment, an objection based upon the alleged insufficiency of the ordinance is a collateral attack on the judgment of confirmation, which cannot be made except for want of jurisdiction, which must appear on the face of the record.</p> <p>3. Same — zvhen misdescription in ordinance does not render it void. A slight vagueness in the description of one terminus of the improvement, which is not of a character to mislead the property owner or persons desiring to bid for the construction of the work, does not render the ordinance void so as to deprive the county court of jurisdiction to confirm the assessment.</p> <p>4. Same — municipality may improve public highway acquired by use. Where the public has acquired an easement by fifteen years’ use of a road as a public highway within a municipality, the city or village may improve the roadway as a public street by special assessment proceedings.</p> <p>5. Same — objection that improvement is partly on private property must be made on application to confirm assessment. An objection that the improvement was constructed partly on private property, to which the municipality had not acquired title, must be made on the application to confirm the assessment and cannot be made on the application for judgment for the delinquent assessment.</p> <p>6. Same — identity of improvement is settled upon hearing on certificate of completion of work. Any question as to whether the improvement as actually constructed is the same as described in the ordinance is adjudicated by the county court when it approves the certificate of completion of the work upon the petition of the board of local improvements, and such question cannot afterwards be raised in the proceeding to collect a delinquent assessment.</p> <p>7. Same — filing of delinquent list five days before term is not essential to jurisdiction. The filing of the delinquent list five days before the term of court to which application is made for judgment and sale is directory, only, and compliance with that requirement is not essential to the jurisdiction of the court.</p> <p>8. Same — return need not be made to county collector on or before first day of April. The return of the delinquent list by the collector of special assessments need not be made to the county collector on or before the first day of April, as such date refers to the delinquency and not to the return.</p> <p>9. Same — when objection to notice of application for judgment for delinquent assessment is waived. A property owner who files objections to the merits of the county collector’s application for judgment for delinquent assessments waives any objection that the notice of the application is insufficient because not properly certified.</p> <p>10. Same — organization of municipality cannot be questioned in proceeding to collect delinquent assessments. A municipality which has claimed and exercised for many years the corporate franchise authorized by the Cities and Villages act of 1872 is a de facto corporation, and the question of the legality of its organization can not be raised on an application.for judgment for taxes but only by quo warranto proceedings.</p> <p>11. Same — judgment for delinquent assessment will be reversed if not in proper form. The statute does not authorize the entry of a personal judgment against an objector, and where a judgment against property for a delinquent special assessment is vague and uncertain and includes a personal judgment for costs, it will be reversed and the cause will be remanded for the purpose of entering a proper judgment.</p>

<p>1. Municipal corporations — an ordinance in exercise of police power may be valid although it applies to interstate carrier. An ordinance adopted in the exercise of the police power, for the protection of the community, may extend, incidentally, to the operation of a carrier in its interstate business, provided it does not subject that business to unreasonable demands and is not opposed to Federal legislation.</p> <p>2. Same — when reasonableness of ordinance is a question of law for the court. Where power is given by the legislature to a municipal corporation to legislate on a particular subject but the particular manner of its exercise is not prescribed, the question whether an ordinance is a reasonable exercise of the power is a question of law for the determination of the court.</p> <p>3. Same — presumption is in favor of validity of an ordinance passed in exercise of power. The presumption is in favor of the validity of an ordinance passed in pursuance of statutory authority, and the burden is on the party questioning it to show clearly that it is unreasonable.</p> <p>4. Same — when an ordinance purporting to regulate business of moving is unreasonable. An ordinance of the city of Chicago purporting to regulate the business of moving, by requiring carriers who move household goods to keep a record of the character of the goods, the places of residence from which and to which the goods are moved, and the names of the parties, and providing that such information shall be filed with the proper city authorities and shall be accessible to any person upon the payment of a small fee, is an unreasonable regulation of the business of moving or hauling for hire and is void.</p>

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

<p>Appears from the County Court of Cook county; the Hon. John H. Wirriams, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Knox county; the Hon. Willis F. Graham, Judge, presiding.</p>

Writ oe Error to the Appellate Court for the First District; — heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Anton T. Zeman, Judge, presiding.

<p>1. Pleading — a defense in abatement of suit must be relied on in affidavit of defense. A defendant sued in trover in the municipal court of Chicago cannot introduce evidence that the suit should have been brought against the members of a limited partnership to which he belonged, where he makes no such claim in his affidavit of defense but enters his appearance and defends the suit in the same capacity in which he was sued.</p> <p>2. Appeals and errors — zvhen question of sufficiency of evidence is not saved for reviezv. The question of the sufficiency of the evidence to make out the plaintiff’s case in a suit at law tried by a jury is not preserved for review by the Supreme Court where no motion was made in the trial court to direct a verdict for the defendant.</p> <p>3. Trover — a vendor’s declaration that he stole the property is not admissible in trover against vendee. In an action of trover to recover the value of a diamond alleged to have been sold to the defendant, who was a pawnbroker, a statement by the vendor to a third person that he stole the diamond and sold it to the defendant, although made in the defendant’s presence, is hearsay and is not admissible.</p> <p>4. Same — when value of stolen diamond is not established by expert testimony. In an action of trover, where the defendant is alleged to have purchased and converted to his own use a diamond stolen from the plaintiff, expert testimony as to the value of other diamonds which the plaintiff introduces in evidence and claims to be similar to the one stolen cannot be made the basis of a finding as to the value of the latter; nor can such finding be based on expert testimony as to the value of a diamond produced by the defendant as being the diamond which he purchased but which is riot proven to be the one stolen.</p> <p>5. Same — evidence of offer to compromise with defendant is not admissible against him. In an action of trover against a pawnbroker to recover the value of a stolen diamond ring which he is alleged to have purchased, evidence that the plaintiff’s husband offered to pay the defendant a certain sum which had been recovered from the thief if the defendant would return the ring, and that he refused to accept the money, is not admissible, whether the offer was made before or after the suit was begun.</p>

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

<p>Appeal from the Circuit Court of Mason county; the Hon. Guy R. Williams, Judge, presiding.</p>

<p>1. Negligence — general rule as to liability of agent who manages real estate. As a general rule, the liability of an agent for negligence, who manages and rents real estate, is governed by the common law requirement that one must so act with reference to that which he controls as not to injure another.</p> <p>2. Workmen’s compensation — ivhat does not prove that agent is an independent contractor. An agent having charge of a building is not proved to be an independent contractor in its management by the mere fact that the principal does not exercise direct supervision over him.</p> <p>3. Same — whether party is an independent contractor depends on the facts in the case. There is no rule by which the status of men working and contracting together can be definitely defined in all cases as employees or independent contractors but each case must depend on its own facts.</p> <p>4. Same — when agent managing building is not liable for compensation for fatal injury to janitor. An agent selected' by the mortgagee to manage an apartment building for the owner on a commission basis and who is subject to discharge at any time by the mortgagee is not liable as an employer or as an independent contractor, under the Compensation act, for the accidental death of a janitor whom he hired, with the owner’s approval, to take care of the building. (Storrs v. Industrial Com. 285 Ill. 595, distinguished.)</p>