Volume 302 — Illinois Reports

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

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

<p>1. Wills — when a power of appointment is extinguished. A power of appointment may be extinguished by merger in the fee where the donee of the power subsequently acquires the fee, and in such case the character of the power is changed from a power in gross to a power appurtenant, and if it is a power to appoint by will, its exercise by the donee in devising the estate to which it is appurtenant will extinguish the power.</p> <p>2. Partition — when land may be partitioned although there is an uncertain reversionary interest. Where a will, after devising life estates with contingent remainders, gives a reversionary interest to the testator’s eight children, and by conveyances the life tenants and all but one of the reversioners effect a merger of their interests and the vesting of the fee, the land may be partitioned if the parties interested in the undestroyed contingent one-eighth reversionary interest are properly represented, and if the land can not be divided the court may decree a sale and appoint a trustee to take charge of the contingent interest in the proceeds pending the happening of the contingency.</p>

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

<p>1. Appeals and errors — assignments of error constitute plaintiff in error’s declaration in a reviewing court. Assignments of error in a reviewing court constitute the plaintiff in error’s declaration, to which pleas in release of errors may be filed.</p> <p>2. Same — plea of release of errors must state facts and not conclusions. A plea of release of errors should not state merely that the errors were released but it must state the facts 'relied upon, showing in what manner or by what act the errors were released, and whether by deed, by parol or by acts in pais.</p> <p>3. Same — dismissal of appeal without deciding merits does not bar writ of error. A dismissal of an appeal without a decision on the merits of the case does not amount to an affirmance of the judgment so as to bar a writ of error. (McConnel v. Swailes, 2 Scam. 571, and Garrick v. Chamberlain, 97 Ill. 620, explained.)</p> <p>4. Quo warranto — what act of relator does not operate as release of error. Where an information is prosecuted by the State’s attorney in the name of the People and for the benefit of the pub-lie, although on the relation of an individual, attacking the organization of a community high school district, the act of the relator in participating in proceedings to have his lands detached from the district after judgment is entered finding the organization valid does not operate as a release of error in the judgment sustaining the organization of the district.</p>

<p>Original petition for mandamus.</p>

<p>1. Special assessments — when notice of confirmation hearing is sufficient. The notice of the hearing for confirmation of assessments for a street improvement is sufficient where it contains an engineer’s itemized estimate of the cost of the improvement, advises the method of collecting the cost, describes the improvement as consisting of an asphalt pavement with curb and gutter and the construction of certain sewers whose location is described, and sets forth the time and place of the hearing.</p> <p>2. Same — evidence of fair cash value of street railway property before and after the improvement is not admissible. In a proceeding for confirmation of an assessment for a street improvement, evidence that the property, which is devoted exclusively to street railway purposes as a sub-station for the distribution of electric power, will sell for a certain sum per foot more after the improvement than before is not admissible, as such property has no market value in the ordinary sense, and the evidence as to benefits should be confined to the limited use to which the evidence shows the property has been and is being put.</p> <p>3. Same — opinion of a witness is not competent if based materially upon improper elements. If a witness testifying as to benefits has based his opinion in a material degree upon elements which cannot legally be considered, without separating such elements from those which may legally be considered, such opinion is not competent.</p> <p>4. Same — opinion of witness as to benefits must not be based upon hearsay. On a hearing as to benefits in a special assessment proceeding, a witness must have actual and not hearsay knowledge of the questions affecting the value of the property concerning which he testifies.</p>

<p>Writ of Error to the City Court of DuQuoin; the Hon. Benjamin W. Pope, Judge, presiding.</p>

<p>1. Construction — constitutions should not be construed as technically as statutes. Constitutions are frames of government or fundamental laws, and as they generally deal with larger topics and in more general terms than legislative acts the same technical construction applied to common law instruments or statutes is not necessary and the words used should be given their natural and ordinary meaning.</p> <p>2. Constitutional law — jurisdiction of probate court is limited by constitution. The legislature has no power to give probate courts any different jurisdiction from that defined in section 20 of article 6 of the constitution.</p> <p>3. Same — section 55, added in 1919 to statute on incompetents, is not unconstitutional. Section 55, added in 1919 to the statute on incompetents (Laws of 1919, p. 599,) and providing that claims against the estate of a person under conservatorship may be filed and settled in the probate court, does not exceed the jurisdiction allowed probate courts by section 20 of article 6 of the constitution, and the fact that the ward is insolvent is not material on that question.</p> <p>4. Conservators — probate court must see that a conservator properly discharges his duties. It is the duty of the probate court, having jurisdiction over a conservator, to see that he discharges all of his duties towards the ward’s property and that he accounts therefor fully, and also to see that he does not make unnecessary expense in defending against just claims against his ward.</p>

<p>1. Practice — when motion to have revolver restored to defendant’s possession is premature. In a prosecution for the violation of a city ordinance prohibiting the purchase of fire-arms without a license, a motion requesting the court to restore to the defendant a revolver which a police officer had taken from his residence without a search warrant is premature when made before any evidence is heard, and the court is justified in denying it.</p> <p>2. Same — any question as to legality of means of obtaining evidence shotdd be raised by objection to its introduction. In a prosecution for the violation of an ordinance prohibiting the purchase of fire-arms without a license, if no objection is made to the introduction in evidence of the revolver which the defendant is alleged to have purchased in violation of the ordinance the defendant can not question the legality of the means by which the police secured possession of the revolver.</p> <p>3. Judicial notice — Supreme Court will not take judicial notice of an ordinance. Although section 54 of the Municipal Court act requires that court to take judicial notice of all general ordinances of the city of Chicago the Supreme Court is not required to do so, and where, on appeal in a prosecution for violating an ordinance, it is certified that the bill of exceptions contains all the evidence but the ordinance involved is not contained therein, no question of the validity of the ordinance can be determined.</p> <p>4. Municipal corporations — when conviction for violation of fire-arms ordinance cannot stand. An ordinance prohibiting the purchase of fire-arms without first obtaining a license from the superintendent of police cannot be applied to a purchase by mail from a vendor residing outside the State, and a conviction for violation of the ordinance in such a case contravenes the constitutional provision in regard to the regulation of commerce between the States.</p> <p>5. Sales — sale of personal property is made where goods are delivered to carrier. Sales of personal property, whether the purchase is by 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 to the contrary.</p> <p>6. Appeals and errors — failure of appellant to serve appellee with copies of the brief and abstract is not ground for affirmance. Failure of an appellant to serve appellee with a. copy of his abstract and brief on or before twenty days before the first day of the term will prevent any default by appellee for not filing his brief on the first day of the term but is not ground for affirming the judgment after the appellee has filed his brief.</p>

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

<p>1. Workmen’s compensation — constitutional question must be raised at first opportunity. The Supreme Court cannot, on writ of error, consider an argument attacking the constitutionality of the Compensation act where that question was not raised in the circuit court, as the review on writ of error is confined to the judgment of the court to which the writ is directed.</p> <p>2. Same — mere reduction of ability to work does not justify an award for permanent total incapacity. An award for permanent total incapacity for work is not justified where the most that the competent evidence tends- to show is that the claimant’s ability to work has been much reduced.</p>

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

<p>Workmen’s compensation — when Supreme Court will not reverse judgment as contrary to weight of evidence. If the judgment of the circuit court confirming an award of the Industrial Commission was rendered prior to the amendment of the Compensation act in 1921 authorizing a review of the facts by the courts, the Supreme Court cannot reverse the judgment as being contrary to the weight of conflicting testimony but only in case there is no competent evidence to support the award.</p>

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

<p>1. Actions and defenses — an action in debt for statutory penalty is not based on a contract. A right of action to recover a penalty inflicted by statute cannot be considered as based either on an express of an implied contract.</p> <p>2. Same — action to recover statutory penalty is not a first-class action under Municipal Court act. An action to recover the statutory penalty allowed a stockholder who has been denied permission to examine the books of a corporation under section 38 of the Corporation act is not a first-class action under section 2 of the Municipal Court act, either as being based on a contract or as being an action to recover personal property or damages for injury thereto.</p> <p>3. Corporations — amount recoverable for denial of permission to examine corporate books is in nature of a penalty. The denial of a stockholder’s right to examine books of a corporation is not a damage to personal property of any kind but is a mere denial of a legal right given by the statute, and the amount of recovery allowed under section 38 of the Corporation act is not a recovery for damages but is in the nature of a penalty to deter subsequent violations of the same right.</p> <p>4. Jurisdiction — objection that municipal court had no jurisdiction of subject matter may be raised at any time. An objection that the municipal court had no jurisdiction of the subject matter can be taken advantage of at any time, whether raised in the lower court or not, and the Supreme Court will of its own motion dispose of a case on that ground without any objection whatever being raised, if the point is discovered before final judgment.</p>

<p>Appeal from the County Court of Vermilion county; the Hon. Thomas A. Graham, Judge, presiding.</p>

<p>1. Workmen’s compensation — finding of Industrial Commission must be according to preponderance of evidence. The Industrial Commission should weigh the evidence heard by it and make its finding for the party in whose favor the evidence preponderates; and the commission is not justified in finding for one party merely because by a strained construction some evidence can be found in the record which, standing undisputed, will justify its finding, nor is it justified in basing its finding upon testimony which all the facts and circumstances in the record show to be untrue.</p> <p>2. Same — when an award for permanent total disability cannot stand — practice. An award by the Industrial Commission for permanent total disability which has no support in the evidence can not stand, but if there is evidence in the record showing that the applicant has suffered some disability as a result of the accident, the cause, on reversal, will be remanded for a further consideration of the facts by the commission.</p>

<p>1. Criminal law — when conduct of trial judge is improper. In a prosecution for burglary, where the identification of one of the alleged stolen articles found in the possession of the accused is not conclusive but is a question of fact for the jury, it is improper for the trial court to interrupt the examination of a witness for the People on that subject with a remark which clearly indicates to the jury that he considers the evidence of identification already given as sufficient.</p> <p>2. Same— trial judge should not act as a prosecutor. The trial judge in a criminal case should not attempt to enact the dual role of prosecutor and judge as the two positions are inconsistent, and it is prejudicial error for him to so far interfere with the examination of witnesses as to clearly convey to the jury the impression that he believes the defendant to be guilty.</p> <p>3. Same — when instruction as to effect of possession of stolen property is improper. An instruction in a burglary trial that the possession of stolen property, if recent and unexplained, is of itself sufficient to convict the defendant unless the inference of guilt is overcome by other evidence is improper where the alleged stolen article was not found in defendant’s possession until three weeks after the crime, as in such case it is a question of fact for the jury whether such possession is sufficient to raise a presumption of guilt requiring evidence to overcome it.</p> <p>4. Same — each particular fact relied upon by the People need not be proved beyond a reasonable doubt. The rule that the jury must be satisfied of the defendant’s guilt beyond a reasonable doubt in order to Warrant a conviction does not require them to be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish guilt, nor does the rule that each and every material allegation of the indictment must be proved beyond a reasonable doubt make such a requirement.</p>

Writ or Error to the Appellate Court for the First District; — heard in that court on writ of error to the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding.

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Fulton county; the Hon. R. J. Grier, Judge, presiding.</p>

<p>1. Taxes — legislature may change rule as to situs of incorporeal personal property. The common law rule that incorporeal personal property has no locality but accompanies the person of the owner wherever he goes is adopted only for convenience, and for purposes of taxation the legislature has power to change the rule.</p> <p>2. Same — what is included in “capital stock” of corporation for the purpose of taxation. The “capital stock” of a corporation embraces all the property belonging to the corporation, including all its rights, contracts, privileges, good will and everything of value that appertains or belongs to the corporation, of any character or description, corporeal or incorporeal, but to avoid double taxation the amount of the “capital stock” to be taxed as such is ascertained by deducting the tangible property from all the other property properly included in the term.</p> <p>3. Same — intangible property of Illinois Central Railroad Company cannot be assessed by the board of assessors of Cook county. The incorporeal or intangible property of the Illinois Central Railroad Company, consisting of shares of stock, bonds, moneys and credits held by it, cannot be assessed by the board of assessors of Cook county, but if assessable, as “capital stock” or otherwise, must be assessed either by the State tax commission or by the Auditor of Public Accounts, depending upon the Revenue act and the provisions of the company’s charter.</p>

<p>1. Mortgages — when mortgagor’s after-acquired title does not inure to benefit of mortgagee. A mortgage given by a life tenant upon all the right, title and interest he has under his father’s will with respect to certain land, does not pass to the mortgagee an interest in fee in the same land subsequently acquired by the mortgagor under his brother’s will.</p> <p>2. Same — what covenant does not enlarge the interest conveyed. Where the interest owned by the mortgagor in a mortgage conveying all his right, title and interest in certain property is only a life estate, a covenant that he holds “the premises” in fee simple does not enlarge the life estate conveyed, as the word “premises” as so used means that which is conveyed.</p> <p>3. Partition — decree for partition may be in accordance with agreement. Where all parties interested in an estate under a will join in an agreement for partition the court may enter a decree in accordance therewith, which will he binding on a life tenant whose interest is held in trust, where both the life tenant and the trustee join in the agreement and the language of the will indicates that a sale of the land by the devisees was contemplated by the testator.</p>

<p>1. Drainage — decision holding organisation invalid applies only to land owners appealing. A decision of the Supreme Court holding the organization of a drainage district invalid and setting aside the judgment of the county court is limited to the land owners bringing up the case for review and cannot be relied upon by other land owners as being res judicata of the question when judgment against their land for a delinquent assessment is sought by the county collector. (People v. Bonham, 286 Ill. 286, explained.)</p> <p>2. Same — mere error in organisation of a district cannot be availed of in a proceeding to collect assessment. In a proceeding by the county collector to'collect a delinquent assessment in a levee drainage district, if there is nothing in the record to show that the county court did not have jurisdiction to enter the judgment organizing the district, error in the exercise of such jurisdiction cannot be taken advantage of but can only be availed of by a direct proceeding to reverse the judgment of organization.</p>

<p>1. Schools — when closing of school docs not suspend salary of teacher. A school district is relieved of its liability under a contract with a teacher where performance is rendered impossible by act of God or the public enemy, but where the school is closed for some time on account of a contagious disease and the teacher is ready and willing to teach, the district, in the absence of anything to the contrary in the contract, is liable for her salary for such period, whether school was closed by the school authorities or by order of the State Board of Health.</p> <p>2. Contracts — when party is not excused from performance of contract because of impossibility. If performance of a contract is legally impossible it is unenforceable, but where a party enters into a lawful contract without qualification, performance is not excused because by inevitable accident or other contingency not an act of God or the public enemy it becomes impossible for him to do that which he agreed to do.</p>

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

<p>Writ of Error to the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.</p>

<p>Drainage — when judgment of confirmation is not void because reversed as to certain land owners. Where a judgment of confirmation in the organization of a drainage district is reversed as to certain land owners on a writ of error prosecuted by them because the petition had not been amended to conform to an opinion of the Supreme Court reversing a former judgment of organization, the decisions of the Supreme Court do not render the organization of the district void as to all land owners where the first judgment was reversed merely because the petition was not sufficiently specific in the description of the proposed work. (People v. Shannon, ante, p. 186, followed.)</p>

<p>1. Schools — section 90 of the School law is invalid. Section 90 of the School law, empowering the Superintendent of Public Instruction to order a change of boundaries of an abnormal high school district to make the district compact, is unconstitutional as a delegation of legislative power. (Jackson v. Blair, 298 Ill. 605, followed.)</p> <p>2. Taxes — high school tax is not void in entirety though some territory was omitted. Where the tax in a community high school district is properly levied by the board of education on all the lands in the district but is not extended against lands in a portion of the district, which was erroneously supposed to be detached by an unauthorized order of the Superintendent of Public Instruction, the tax is void only as to the excess rate caused by excluding the assessed valuation of the excluded territory in determining the rate, and the county court, on application for judgment, may reduce the amount of the tax by deducting the excess. (People v. Missouri Pacific Railroad Co. 301 Ill. 541, followed.)</p>

<p>1. Appeals and errors — acceptance of benefits of judgment or decree operates as release of errors. If a party to a decree accepts benefits conferred upon him by it such acceptance operates as a release of errors, but the act which will operate as a release of errors must be one authorized or directed by the decree.</p> <p>2. Taxes — when act of county collector is not a release of errors in injunction suit. Where a bill is filed to enjoin the collection of 32.6 per cent of taxes levied and the decree makes the temporary injunction perpetual as to 30 per cent but dissolves it as to 2.6 per cent, the act of the county collector in collecting the 2.6 per cent and receipting therefor as in full for taxes due does not amount to a release of errors in the injunction suit, as his duty to collect the taxes is imposed by law and not by the decree.</p>

<p>1. Criminal law — when identification of defendant is entitled to little weight. Where one under arrest is brought alone before a prosecuting witness for the purpose of identification and the witness knows that the party arrested is to be presented for that purpose, an identification under such circumstances cannot be given the same weight and credibility as where the witness picks out the accused from a number of unknown persons.</p> <p>2. Same — civilian zoho takes active part in arrest and prosecution may be cross-examined as to his authority. A civilian whom the accused at the time of his arrest was led to believe was a police lieutenant, and who took an active part in the arrest and prosecution and who posed as an officer in obtaining an alleged confession concerning which he was permitted to testify, may be cross-examined as to his occupation and as to his authority to act as an officer.</p> <p>3. Same — statute concerning crime of taking indecent liberties defines two separate offenses. The commission of a crime and the attempt to commit the same are distinct offenses, and the statute providing for punishment of anyone “who shall take, or attempt to take,” indecent liberties with a child defines not only the crime of taking indecent liberties but also the attempt to commit the crime, which is a separate offense.</p> <p>4. Same — when instruction in language of statute defining two crimes is erroneous. An instruction in the language of the statute defining the crime of taking indecent liberties with a child and also the attempt to commit said crime is erroneous, where it closes with the statement that the offense so defined in the statute is the offense with which defendant is charged in a certain count of the indictment, which charges only the crime itself and not the attempt.</p>

<p>1. Medicine and surgery — chiropractice is not nuisance per se. The treating of human ailments by chiropractice is not a nuisance per se and cannot be enjoined as a menace to the public health, morals, safety or welfare.</p> <p>2. Same — when a bill to enjoin chiropractors from practicing without a license cannot be maintained. A bill to enjoin chiropractors from treating human ailments without a license cannot be maintained on the ground that the defendants, after being prosecuted and fined for misdemeanor, persist in practicing their calling without a license, as equity will not take jurisdiction merely because many individual suits will be required to enforce the law.</p>

<p>1. Public utilities — when action of commission authorizing issue of preferred stock is not premature. An order of the Public Utilities Commission authorizing a consolidated railroad company to issue preferred stock to cover indebtedness is not premature because entered before the stockholders’ meetings were held authorizing the issue, where the committee petitioning the commission for the issue held ninety-nine per cent of the stock of the corporation, and where the commission, after the stockholders’ meetings were held, denied a petition for a rehearing and entered a supplemental order amending the original order.</p> <p>2. Same — when the question of the irregularity of stockholders’ meetings cannot be raised. On a review of a proceeding before the Public Utilities Commission to authorize a consolidated railroad company to issue preferred stock to cover indebtedness, no question can be raised whether stockholders’ meetings were properly called or whether two-thirds of the outstanding stock was present and voted on the issue but such questions should be taken to the appropriate court for determination.</p> <p>3. Same — when order does not violate law prohibiting corporation from purchasing its own stock. An order of the Public Utilities Commission authorizing a consolidated railroad company to issue preferred stock to cover existing indebtedness and to redeem said stock at a certain price per share does not violate the law prohibiting a corporation from purchasing its own stock, as the apparent purpose of such order is to retire the stock redeemed, which practice is permitted by statute.</p>

<p>Appear from the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding.</p>

<p>1. Bankruptcy — when trustee in bankruptcy may maintain bill for partition — conflict of laws. The trustee of a bankrupt who was a tenant in common when the trustee was appointed may maintain a bill for partition, accounting and other incidental relief, where the bill shows the necessity for the proceeding, that the Federal district court has waived its right to order sale of the trustee’s interest, and has, in substance, requested the circuit court to take jurisdiction to enable the trustee to realize the full value of the bankrupt’s estate for the creditors.</p> <p>2. Same — trustee takes complete ownership of all property not exempt. Under section 70a of the Bankruptcy act of 1898 the trustee of an estate in bankruptcy, on his appointment and qualification, is vested by operation of law with the title to the bankrupt’s property as of the date he was adjudicated a bankrupt, with actual or constructive possession, as a purchaser, for the purpose of distribution to creditors, except as to any property that is exempt.</p> <p>3. Words and phrases — meaning of the word “purchase.” The word “purchase” means every mode of acquisition of estate known to the law, except that by which an heir, on his ancestor’s death, becomes substituted to his place as owner by operation of law.</p> <p>4. Partition- — complainant need not be entitled to possession to maintain suit. To maintain a suit for partition it is not necessary that the complainant claiming an interest in the premises as tenant in common shall be entitled to possession.</p>

<p>1. Appeals and errors — when questions of mental capacity and undue influence need not be considered. Whether one who has assigned all of his personal property to another was mentally competent and whether there was fraud and undue influence by the assignee are questions which need not be considered where the assignor died intestate, leaving as his only heir a bachelor brother, who, being of sound mind, at once executed to the assignee conveyances transferring to her all of the property, real and personal, ■which he inherited from the assignor, including the property covered by the assignment.</p> <p>2. Banks — when bank is not liable for delivery of property according to owner's written order. A bank is not liable for delivering the contents of a safety deposit box in accordance with a written order by the owner, signed when he was of unsound mind, where there is no evidence that the bank knew of the mental incompctcncy of the owner at the time he signed the order.</p> <p>3. Judgments and decrees — when decree may create lien to secure return of personal property. A decree setting aside certain deeds and instruments and sustaining others conveying real and personal property to the defendant may create a lien upon the property conveyed to the defendant by the instruments held valid, in order to secure the return by the defendant to the complainants of personal property of which she had already taken possession under the invalid assignment.</p>

<p>1. Tax deeds — amendment of 1919 to section 224 of Revenue act is not invalid. The amendment of 1919 to section 224 of the Revenue act, providing that no final judgment shall be entered in a condemnation proceeding until the holders of any tax deeds which are set aside are reimbursed out of the compensation to be paid, applies only to void tax deeds and is not subject to the objection that in effect it limits the right to resort to the courts, as the statute does not require reimbursement to be made until the claim thereto is established.</p> <p>2? Same — holder of void tax deed has no property right in the land. The lien of the State for taxes is paramount and superior to any other lien or any property right and continues even where the property has been forfeited for want of bidders, but the lien is discharged by a sale, and the purchaser who obtains a void tax deed has no property right in the land, either legal or equitable.</p> <p>3. Same — amendment of 1919 to section 224 of the Revenue act does not apply to a pending proceeding for condemnation. The amendment of 1919 to section 224 of the Revenue act, providing that no final judgment shall be entered in a condemnation proceeding until the holders of tax deeds which are set aside are reimbursed out of the compensation for the land, does not apply to a proceeding in which the petition was filed before the amendment was passed, as the right of the owner to compensation becomes vested when the petition is filed and cannot be impaired by subsequent legislation.</p> <p>4. Statutes — retrospective operation cannot be given to statute if vested rights are affected. Statutes are not to be given retrospective operation except where it is manifest the legislature intended they should have such operation, and it is not within the power of the legislature to give such operation to an act where it will affect existing or vested rights.</p> <p>5. Eminent domain — owner’s right to compensation becomes vested when petition is filed. In a condemnation proceeding the land is regarded as taken for public use at the time of filing the petition, the compensation is measured by the value of the land at that time, and the owner of the land then has an immediate, fixed and determinate right to any compensation that may be allowed.</p> <p>6. Same — liens against land taken for public use are transferred to the compensation fund. A petitioner for condemnation may dismiss the petition, and in such case or in case of failure to pay compensation lie must pay costs, expenses and attorney’s fees; but if payment of compensation is made the money represents the value of the land when the petition was filed, and liens or claims are transferred-to that fund.</p>

<p>1. Practice — section 55 of Practice c.ct does not repeal statute in regard to tender. Section 55 of the Practice act, allowing a plaintiff to continue suit for the balance of his claim after judgment for the amount admitted to be due by the defendant in his affidavit of defense, does not repeal the statute in relation to tender nor abolish the law of tender nor deprive any party of its benefit.</p> <p>2. Same — when acceptance of judgment for part of claim is not an accord and satisfaction. Where judgment is given 'for a part of the plaintiff’s claim, which the defendant admits to be due by his affidavit of defense under section 55 of the Practice act, the mere acceptance of the judgment by the plaintiff a.nd the taking ot the money out of court does not amount to an accord and satisfaction, there being no question of a conditional tender.</p> <p>3. Tender — when acceptance of tender of sum admitted to be due is a bar to right of action. Under the statute, when an action is brought upon any contract, the defendant may make a tender of the sum admitted to be due, with costs of suit incurred up to the time of the tender, and if the plaintiff accepts the tender upon the terms offered he cannot afterwards maintain his suit, as the tender operates as a satisfaction of his claim.</p> <p>4. Same — a tender contemplates that the money be brought into court. In any case of tender where there is a suit the money must be brought into court, to enable the plaintiff, if he secs proper, to accept the amount tendered and put an end to the litigation.</p> <p>5. Appeals and errors — when damages will not be assessed as for delay. By granting a writ of certiorari to review the judgment of the Appellate Court the Supreme Court determines that the case is one proper to be reviewed, and though the judgment is affirmed the defendant in error is not entitled to damages as in case of an appeal prosecuted merely for delay.</p>

<p>1. Workmen’s compensation — what agreement cannot be regarded as a demand for payment of compensation. An agreement whereby an injured employee accepts a certain sum in settlement of all claims and causes of action against his employer cannot be construed as a demand for payment of compensation, which section 24 of the Compensation act requires must be made within six months after the accident.</p> <p>2. Same — payments for medical sendees are payments of compensation within meaning of section 24 of Compensation act. Payments for medical services rendered to the injured employee are payments of compensation within the meaning of the provision of section 24 of .the Compensation act requiring claim for compensation to be made within six months after payments have ceased.</p> <p>3. Same — when recovery is barred for failure to make claim for compensation within required time. If no written claim for compensation was made within six months after the accident nor within six months after payments of compensation had ceased, and where the notice of claim for compensation was not filed with the Industrial Commission until twenty months after the employee returned to work, further recovery of compensation for the injury is barred.</p> <p>4. Same — when paragraph (h) of section 19 of Compensation act does not apply. Paragraph (h) of section 19 of the Compensation act, providing for the review of an agreement or award on the ground that the disability has subsequently recurred, increased, diminished or ended, does not apply to an original application for compensation.</p> <p>5. Same — when objection to jurisdiction of the Industrial Commission is waived. Objection to the jurisdiction of the Industrial Commission on the ground that the stenographic report of the evidence before the arbitrator was not filed within the time required by law is waived by appearance of the parties before the commission and participation in the proceedings; and an objection that claim for compensation was not made within the required time will be likewise waived if not made before the Industrial Commission.</p>

<p>1. Criminal law — meaning of statutory phrase, "in the peace of the people,” in defining murder. Where the question arises in the prosecution of a charge of murder, one is “in the peace of the people,” within the meaning of that phrase as used in the statute, when he has done nothing to forfeit the right to live.</p> <p>2. Same — when improper argument of State’s attorney in murder trial is not ground for reversal. Improper argument by the State’s attorney in appealing to the jury for sympathy for the victim of the homicide, in a murder trial is not ground for reversal of a judgment of conviction where the argument was evidently used in answer to a similar appeal by defendant’s counsel for sympathy for the defendant, and where the court, on objection of defendant’s counsel, stopped the argument along that line and disapproved of the remarks.</p> <p>3. Same — when instruction does not assume facts. Facts" are not assumed in an instruction which requires them to be proved beyond a reasonable doubt before being considered as established.</p> <p>4. Same — when giving instructions on subject of circumstantial evidence is not error. Although the accused in a murder trial admits the killing and pleads self-defense it is not error to give instructions on the subject of circumstantial evidence, where there are facts in evidence concerning the conduct of the accused prior to the shooting which might be considered by the jury as furnishing the accused with an opportunity to arm himself and prepare for the assault as a matter of revenge.</p>

<p>Original petition for mandamus.</p>

<p>Trusts — evidence to establish a restilting trust must be clear, strong and unequivocal. A complainant who seeks to establish a resulting trust on the ground that his money paid for land the title to which was taken in the name of another has the burden of proof, and such proof, whether circumstantial or direct, must be clear, strong, unequivocal and beyond reasonable doubt; and force is added to the rule when a long time has elapsed, and persons, including the purchaser, who were in a position to know the facts, are dead.</p>

<p>1. Statutes — what is the purpose of a proviso. The purpose of a proviso to a statute is to except something from the enacting clause or to qualify or restrain the generality of what is affirmed in the body of the act, section or paragraph which precedes it, and it should be so construed.</p> <p>2. Municipal corporations — when an ordinance prohibiting carrying on of particular business in certain locality is void. An ordinance is void which prohibits one citizen from conducting a particular kind of business in a certain locality and permits another to engage in the same character of business in the same locality merely because the latter had established his business before the ordinance was passed; and it is immaterial that the ordinance does not expressly purport to limit its application to enterprises established after its passage, where it must be given such effect under the statute authorizing the ordinance.</p> <p>3. Same — under commission form of government improvement ordinance must originate with the council. In cities or villages under the commission form of government an improvement ordinance and all preliminary steps for a local improvement must originate with the council, and if the ordinance is passed by the board of local improvements all proceedings based upon it are void for want of jurisdiction, even though the village council is composed of the same persons who acted as a board of local improvements.</p> <p>4. Constitutional law- — paragraph 82 of section 1 of article 5 of Cities and Villages act is void. Paragraph 82 of section 1 of article 5 of the Cities and Villages act, empowering municipalities to control the location of certain businesses within their corporate limits, is void because it is not uniform in its operation but through its proviso requires that any ordinance limiting the right to locate a particular business in a certain locality shall not be applied to enterprises established prior to the passage of the ordinance.</p> <p>5. Same — when invalidity of proviso renders entire section void. The invalidity of a proviso renders invalid the 'entire section or paragraph to which it is attached, where it cannot be assumed the legislature would have passed the section or paragraph without the proviso.</p>

<p>Appeal from the County Court of Vermilion county; the Hon. Thomas A. Graham, Judge, presiding.</p>

<p>1. Criminal law — effect of rule of idem sonans. Under the rule of idem sonans, which applies to both civil and criminal proceedings, a mere variance between the spelling of a name in the pleadings and the correct spelling as shown by the proof is not fatal if the two spellings have substantially the same pronunciation, so that the defendant cannot be misled in preparing his defense.</p> <p>2. Same — when rule of idem sonans may be applied. The requirement that the name of the party injured by the commission of the crime must be alleged in the indictment is for the protection of the defendant in preparing and making his defense, and where an indictment for murder spells the name of the party killed as “Weinstraub” whereas the proof shows that the correct name is “Weintraub,” the rule of idem sonans may be applied and the variance held not to be fatal.</p> <p>3. Same — defendant has burden of proving an alibi. The burden of establishing the defense of an alibi is on the defendant, and to maintain the same it is incumbent upon him to prove facts which, when considered in connection with all the evidence relied upon to establish his guilt, is sufficient to create in the minds of the jury a reasonable doubt of the truth of the charge.</p> <p>4. Same — jury are judges of credibility of alibi witnesses. It is the province of the jury before whom the witnesses appear and testify, to decide, in cases where the evidence is conflicting, as to what testimony shall be believed, and while the jury cannot disregard the testimony of alibi witnesses, they are the judges of the credibility of such witnesses and of the weight of their testimony.</p> <p>5. Same — when reviewing court will not reverse a conviction. A reviewing court should not reverse a criminal case on the facts, which have been passed upon by a jury, unless the court can say that there is a reasonable doubt of guilt and that the verdict must have been the result of misapprehension or passion and prejudice.</p> <p>6. Same — when admission of evidence as to whereabouts of defendants on other occasions is not error. Where several persons are being tried for murder, the admission of evidence as to their whereabouts on two occasions a few days before and after the murder is not error, where such evidence does not tend to prove them guilty of other crimes but merely tends to show that they were acquaintances and associates.</p> <p>7. Same — when admission of evidence as to widow’s family can not be complained of in murder trial. In a trial for murder the widow of the victim should not be asked if she has any children, as such question is not material and tends to prejudice the defendant, but if no objection is made to the question and the court sustains a motion to strike out the answer of the witness that she has four, the judgment should not be reversed merely because such proof was improper.</p> <p>8. Same — the practice of giving a lengthy instruction defining reasonable doubt is not approved. The practice of giving a long instruction or a large number of instructions defining the term “reasonable doubt” is not approved, as it tends to confuse rather than enlighten the jury; but the giving of two instructions on such subject, even though one of them is long, is not ground for reversal if they contain no incorrect statements.</p>

<p>1. Criminal law — when evidence is sufficient to sustain charge of robbery. On a review of a conviction for robbery, an assignment of error that the evidence fails to show that anything of value was taken from the person alleged to have been robbed is not sustained, where the evidence shows that the defendants took from him two one-dollar bills and some change in silver.</p> <p>2. Same — when instruction as to reasonable doubt does not disregard defense of alibi. Where an alibi is set up as a defense in a prosecution for robbery, an instruction stating that a reasonable doubt, to authorize an acquittal, must be as to the guilt of the accused on the whole evidence and not as to any particular fact is not subject to the criticism that the jury might regard the evidence of an alibi or of the defendants’ identity as a particular fact and find the defendants guilty notwithstanding a reasonable doubt as to either of such facts, as the requirement of the instruction necessarily includes proof concerning the defendants’ identity and their presence at the commission of the crime.</p>

<p>Taxes — the levy for State aid roads, though authorized by vote, must state the separate amounts for roads and bridges. Although authorized by vote under section 27 of the County act, a tax for the construction of State aid roads must be levied in accordance with section 121 of the Revenue act, and the amounts to be expended for roads and for bridges must be stated separately.</p>

<p>1. Taxes — when burden is on sanitary district to prove its property exempt. On application for judgment for delinquent taxes against lots owned by the Sanitary District of Chicago, if the county collector has made out a prima facie case the burden is on the district to prove its claim that the lots were exempt because they were within the district, were in its exclusive possession and were used exclusively for the purposes of the district as a municipal corporation.</p> <p>2. Same — when sanitary district is estopped to claim exemption. Where the Sanitary District of Chicago has furnished to the taxing authorities, for assessment purposes, a list of its lands not used exclusively for public purposes but leased for farming purposes, it is estopped in a proceeding by the county collector to collect the taxes assessed against the leased lands to claim exemption of said la-nds on the ground that the tenants did not take possession of the property and paid no rent.</p>

<p>1. Malicious prosecution — action for malicious prosecution defined. An action for malicious prosecution, which is an action not favored in law, is a suit for damages by one against whom a criminal prosecution or civil suit has been instituted maliciously and without probable cause after the termination of such prosecution or suit in favor of the defendant therein.</p> <p>2. Same — what is not within the rule limiting actions for malicious prosecution. While the action for malicious prosecution should be limited because the courts of law are open to every citizen, except as to the penalty for lawful costs, and a litigant should be entitled to have his rights determined without the risk of being sued and having to respond in damages for seeking to enforce his rights, yet this immunity should not be extended to sanction the repeated bringing of groundless suits on the same cause of action after the plaintiff’s claim has been conclusively determined against him.</p> <p>3. Same — when action for malicious prosecution may be maintained. Where a defendant has been sued several times by the same person, both in equity and at law, in regard to the same property, with final judgments against the complainant or plaintiff by courts of review in every suit, the defendant, upon being sued again on the same cause of action, may maintain an action for malicious prosecution although the suits against him were by summons, only, and not by his arrest or a seizure of his property.</p>

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

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

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

<p>1. Wills — intention of testator must be ascertained from entire will. The intention of a testator is to be ascertained not by the construction of a single sentence in his will but upon a consideration of all its language, and the intention so ascertained must be given effect unless in violation of some rule of law.</p> <p>2. Same — devisees do not take fee where executor is directed to sell proceeds. Although a will gives a vested remainder, at the death of the life tenant, to certain named children of the testator, they will not take the legal title in fee where in a subsequent clause the testator limits such fee by directing the executor to sell the land and distribute the proceeds to the devisees, as such a devise, under the doctrine of equitable conversion, must be treated as a gift of money.</p> <p>3. Same — active trust is created where executor is directed to sell land and distribute proceeds. An active trust is created where an executor is directed to sell land given in a devise and distribute the proceeds to the devisees, even though the executor is not given the legal title but is merely given the power to sell.</p> <p>4. Same — when giving executor power to sell does not violate rule against perpetuities. Where an executor is directed to sell a remainder after the death of a life tenant, the rule against perpetuities is not violated merely because no time is limited within which the power of sale must be exercised, where all the interests in the will are vested and the executor is directed to make a distribution of the proceeds.</p> <p>5. Partition — distributees of proceeds after sale by executor cannot maintain bill for partition. Where a testator gives his children the remainder of his estate after a life estate in his wife but directs his executor to sell all the real property and distribute the proceeds to said devisees, the real property is converted into personalty at the testator’s death and the devisees of the remainder have no title or interest in the land upon which they can maintain a bill for partition.</p> <p>6. Same — when devisees cannot maintain bill for partition as heirs. Devisees of a remainder which is directed to be sold by the executor and the proceeds distributed at the death of a life tenant are not entitled to partition because they happen to be heirs of the testator and hold the legal title in trust, as the title is so held in trust only for the purposes of the will and the right of partition is inconsistent with the equitable conversion directed by the testator.</p> <p>7. Same — delay of two months in selling land will not deprive executor of his power to sell. Where a testator directs a remainder to be sold at the death of a life tenant and the proceeds distributed among his children, a delay of two months in selling the land after the death of the life tenant is not so unreasonable as to authorize a court of equity to take the execution of the power out of the executor’s hands and allow the children to partition the land either as devisees or as heirs of the testator.</p> <p>8. Equity — when section 50 of the Chancery act does not give jurisdiction to construe will. Section 50 of the Chancery act, as amended in 1911, authorizing courts of equity to entertain bills to construe wills where no trust is involved, does not, where no equitable rights are to be protected or enforced, give jurisdiction to construe a will which is not ambiguous, and where no question of construction exists an allegation in the bill that there is such a question does not confer jurisdiction.</p>

<p>Writ of Error to the Circuit Court of Madison county; the Hon. J. E. Gillham, Judge, presiding.</p>

<p>1. Liens — when equitable lien arises. Where parties enter into an express executory agreement in writing, indicating an intention to make some particular property, real or personal, or a fund, security for a debt or other obligation, an equitable lien is created on the property described in the contract, which is enforcible in the hands of the original contractor and his heirs, administrators, executors, voluntary assignees, purchasers and incumbrancers with notice.</p> <p>2. Same- — equitable lien is a remedy for debt and not a right of property. An equitable lien is the right to have property subjected in a court of equity to the payment of a claim, and it is neither a debt nor a right of property but is a remedy for a debt.</p> <p>3. Eminent domain — owners of fee have no property right in compensation paid to lessee. Owners of the fee to land in which a leasehold estate has been created, the building on the land being owned by the lessee, have no property right in the fund awarded to the'lessee for taking part of the building in a condemnation proceeding, and they are not entitled to have the fund sequestered to secure payment of rent where the lien for rent may be otherwise protected.</p> <p>4. Same — when court should retain enough of lessee’s fund to cover cost of re-building. Where a portion of a building on land leased for a long term has been taken in condemnation proceedings, the building being owned by the lessee, and the owners of the fee have filed a bill seeking to have the compensation awarded the lessee sequestered to secure their lien for the payment of rent but there is not a sufficient showing to justify granting such special relief on account of an averment by the lessee in its answer that it intends to re-build, the court should, under a prayer for general relief, retain control of enough of the fund to cover the cost of re-building.</p> <p>5. Same — award of compensation to lessee is not res judicata of right of owner of fee to preserve lien for rent. Where condemnation proceedings authorize the taking of a portion of a building which is on land under a long-term lease, an award of compensation to the lessee, who owns the building, is not res judicata of a subsequent proceeding in equity by the owners of the land to have the fund awarded the lessee set aside to protect their equitable lien for rent, as the county court in the condemnation proceedings has no jurisdiction to so protect an equitable lien.</p>

<p>Writ op Error to the Circuit Court of Rock Island county; the Hon. F. D. Ramsay, Judge, presiding.</p>

<p>1. Criminal law — when charge of robbery while armed with a revolver is sustained. An indictment charging several persons, as principals,"with robbery while armed with a revolver is sustained by proof that one of the defendants was so armed, as possession by one of the accomplices is the possession of all.</p> <p>2. Same — whether alibi is proved is a question for the jury. It is for the jury to decide whether or not the 'defendants have established their defense of alibi or whether they were at the scene of the crime at the time it was committed.</p> <p>3. Same — court may allow People to call a witness after case is closed. Whether the People may be allowed to introduce another witness after the defendants have introduced their evidence is a matter resting largely in the sound discretion of the trial court, and in the absence of an abuse of such discretion prejudicial to the defendants there is no ground for complaint.</p>

<p>1. Minors — when doctrine of estoppel is applicable to infants. As a general rule the doctrine of estoppel has no application to infants, but there is an exception to the rule in case the conduct of the infant on which the estoppel is sought to be based has been intentional and fraudulent and the infant at the time was of years of discretion.</p> <p>2. Deeds — when a grantor is estopped to disaffirm deed made when he was a minor. Where a mother, intending to defraud creditors, conveys her property, without consideration, to her minor son, who a few months later, but while he is still under age, conveys the property back to his mother and after attaining his majority actively assists her in selling the property and receives a part of the consideration, he is estopped, in equity, to repudiate his deed and assert title as against subsequent" purchasers and mortgagees.</p>

<p>Original petition for habeas corpus.</p>

<p>Writ of Error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding.</p>

<p>1. Pleading — answer waives objections urged on demurrer. A defendant, by answering a bill after the overruling of a demurrer, waives the grounds of demurrer except as to such substantial defects as may be taken advantage of on the final hearing.</p> <p>2. Equity — when decree is void and not merely erroneous. A decree which deprives a living person of his interest in land on the theory that he is presumed to be dead is void as to such person and not merely erroneous, whether the court was without jurisdiction or whether the decree was obtained by fraud of the other parties, and he may maintain a bill to impeach the decree.</p> <p>3. Same — when court of equity does not acquire jurisdiction of a non-resident. Jurisdiction of a non-resident by publication and mailing of notice is not shown on a bill by him to impeach a decree where there is no certificate in the files showing a mailing of notice to his last place of residence and no finding in the decree that notice was mailed, and the mere general finding that the court has jurisdiction is not sufficient to establish the fact.</p> <p>4. Presumptions — presumption of death after seven years’ absence is not conclusive. The continuous absence of a person from his home or place of residence for a period of seven years, during which time nothing is heard from or concerning him, raises a presumption of his death for all legal purposes; but this presumption is not conclusive, and the law cannot deprive an absentee of his estate if he is alive.</p> <p>5. Same — a decree disposing of absentee’s interest in an estate must safeguard his interests if he shall be alive. A decree disposing of an absent person’s interest in land upon proof of facts raising the presumption of his death must contain provisions to safeguard his interest in case he shall prove to be alive, otherwise the decree is void as to him in the event of his return.</p> <p>6. Partition — when purchasers are chargeable with notice of rights of party. Purchasers at a sale of land in a partition suit who are parties to the record do not occupy the position of innocent third parties, and they are chargeable with notice of defects in the decree disposing of the interests of an absent defendant on the presumption that he is dead.</p> <p>7. Notice — parties having actual notice of adverse claim are not innocent purchasers. Persons who purchase land after actual notice that one of the parties to a partition suit through which their vendors, as parties to the suit and purchasers at the sale, claim title, and whose interest was disposed of in the partition suit on the presumption that he was dead, has turned out to be alive and is claiming his rights, are not as to such person bona fide purchasers without notice.</p>

<p>Appear from the County Court of Cook county; the Hon. Frank S. Righeimer, Judge, presiding.</p>

<p>1. Constitutional law — statute may be valid as to future contracts although invalid as to existing contracts. A statute claimed to impair the obligation of contracts, in violation of the constitution, may be invalid as to contracts existing at the time of its passage but valid as to future contracts, as the law existing when a contract is made becomes a part of it, and contracts entered into after a statute is in force are not protected by the constitutional provision against impairment.</p> <p>2. Drainage — section 44 of Levee act, as amended in 1919, is valid as applied to district subsequently organized. Section 44 of the Levee act, as amended in 1919, providing a method for dissolving a levee drainage district before any contract has been let for the construction of the work, is not invalid as applied to a district organized after the amendment was in force, even though no method is provided for paying the preliminary expenses incurred by the commissioners. (Deneen v. Deneen, 293 Ill. 454, distinguished.)</p>

<p>1. Public utilities — when direct appeal to Supreme 'Court can not be taken from decree enjoining enforcement of Public Utilities act. A direct appeal will not lie from a decree of the circuit court of Sangamon county in an ordinary chancery proceeding enjoining the Illinois Commerce Commission from enforcing the penalties of the Public Utilities act for charging a certain schedule of rates which the complainant telephone company claims to have a right to collect, as such appeal is not from a final order of such court reviewing an order of the commission, nor is the State so interested as a party as to authorize a direct appeal.</p> <p>2. Appeals and errors — interest of State must be direct and substantial. To authorize a direct appeal to the Supreme Court on the ground that the State is interested as a party the interest of the State must be direct and substantial and not merely remote.</p>

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

<p>Writ of Error to the Circuit Court of DeWitt county; the Hon. George A. Sentel, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding.</p>

<p>1. Wills — rule in Shelley’s case applies to remainder to heirs generally. The rule in Shelley’s case is in full force in Illinois in its application to a limitation of a remainder to heirs generally.</p> <p>2. Same — ^meaning of "limitation” to heirs-at-law. In law the word “limitation” defines the extent or quality of an estate conveyed or devised, and where a limitation is to heirs-at-law they take by descent, and the statute is resorted to to determine the persons upon whom the law casts the estate at the death of the ancestor.</p> <p>3. Same — what heirs are contemplated in rule in Shelley’s case. The heirs contemplated in the rule in Shelley’s case are those of the whole line of inheritable blood who are to take from generation to generation as heirs of the one taking the particular estate.</p> <p>4. Same — when rule in Shelley’s case does not apply. Where the word “heirs” is used as a designation of a person or class of persons who take an estate different from what the law casts upon them as heirs, the rule in Shelley’s case does not apply.</p> <p>5. Same — word “heirs,” used in technical sense, must he given its legal effect. The word “heirs” being a technical word of known legal import, will be given its legal effect when used in a will even though the testator uses inconsistent words, unless such inconsistent words are of such a nature as to make it perfectly clear that the word was not used in its proper legal sense or that it was used to describe a different class of heirs from those who would take a remainder by virtue of the Statute of Descent.</p> <p>6. Same — when word "heirs” is used in technical sense. The word “heirs” must be held to have been used in its technical sense by a testator where it includes the whole line of inheritable blood, so that but for the devise the persons intended would take by descent; and to change the rule, words of qualification must be sufficient to show that said persons were to take an estate different from that which the law would give them as heirs.</p> <p>7. Same — when rule in Shelley’s case applies. Where a testator gives one-half of the income of his estate to his wife for life and the other half to his daughter, with a provision that if the daughter survives the mother “she is to use it all while she lives and her heirs may divide it equal among them after her death,” the rule in Shelley’s case applies, as the remainder-men take on account of their relation as heirs general, and the provision for equal division means only that the heirs are to have equal rights as heirs.</p>

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

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

Appear from the Appellate Court for the Second District ; — heard in that court on appeal from the Circuit Court of Kane county; the Hon. A. C. Cliffe, Judge, presiding.

<p>Appeal from the Circuit Court of Franklin county; the Hon. Julius C. Kern, Judge, presiding.</p>

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

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

<p>1. Specific performance — written contract must be delivered to become binding — evidence. A written contract, although signed, may fail to become presently binding for want of delivery, and testimony as to the circumstances and as to what was said and done at the time of the transaction is competent on the question whether the contract was completed and delivered with the intention that it should become presently binding.</p> <p>2. Same — possession of contract by complainant is not conclusive evidence of its delivery — fraud. Possession of a contract by the party seeking to enforce it is presumptive evidence of its delivery but is not conclusive, and evidence may be admitted to prove fraud in obtaining possession or that the contract was, in fact, never delivered.</p> <p>3. Same — rule against admission of oral evidence to vary contract presupposes valid execution and delivery. The rule that contemporaneous oral statements cannot be heard to alter or vary the terms of a written instrument presupposes execution and delivery of the writing with intent to bind the parties by its terms.</p> <p>4. Same — delivery of contract on condition is not complete delivery. A delivery of a contract on condition is not a complete delivery until the condition is fulfilled.</p> <p>5. Same — when equity will permit liberal inquiry as to circumstances of execution of contract. Unless the parties have fairly and understanding^ entered into a valid contract specific performance is not a matter of right but rests in the sound discretion of the court, and much liberality is permitted in inquiring into the circumstances to determine whether there has been fraud, unfairness or advantage taken in securing the contract.</p>

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

<p>Writ or Error to the Circuit Court of Warren county; the Hon. Willis E. Graham, Judge, presiding.</p>

<p>1. Criminal law — what is gist of offense of robbery. Robbery is the felonious and violent taking of money, goods or other valuable thing from the person of another by force or intimidation, and if neither force nor intimidation is present the crime is not proved.</p> <p>2. Same — robbery is against the will of the owner if consent is given by unauthorized party. There is no robbery if the taking of the property is with the consent or at the direction of the person whom the accused is charged to have robbed, but the consent must be given by the victim or someone duly authorized to represent him; and the accused cannot maintain the defense that he staged the hold-up by request of a party, who had no right to consent thereto.</p> <p>3. Same — purpose of secrecy of grand jury proceedings. The law requires secrecy in grand jury proceedings for the purpose of preventing the escape of the accused, to secure freedom of deliberation and opinion among the grand jurors, and to prevent the testimony produced before them from being contradicted at the trial by subornation of perjury; and such secrecy is not for the protection of the witnesses but in furtherance of public justice.</p> <p>4. Same — testimony of witness before grand jury may be used to impeach his testimony at trial. The testimony of a witness before the grand jury is not a privileged communication, and for the purpose of impeaching the witness at the trial a grand juror or other proper person knowing the facts may be called to testify; and the same rule applies to the testimony of the accused given before a grand jury when it was investigating a charge against his alleged accomplice.</p> <p>5. Same — abstract must show that it includes all instructions given — waiver. Before the refusal to give certain instructions will be considered by the Supreme Court as a matter affecting the validity of the judgment the abstract must show that the instructions set out therein are all the instructions that were given on the trial, and the brief or argument should point out what refused instructions should have been given and wherein the court erred in refusing them.</p>

<p>1. Criminal law — an information for petit larceny need not charge the larceny was committed feloniously. Since the amendment of the Criminal Code in 1911, larceny of property of the value of $15 or less is not an infamous crime, and an information charging petit larceny is not faulty in failing to charge that the larceny was committed feloniously.</p> <p>2. Same — when a conviction will not be reversed although the complaining witness is contradicted by accused. A conviction of the crime of larceny will not be reversed although the complaining witness, alone, testifies to the commission of the crime and he is contradicted by the accused, unless from a careful consideration of the whole testimony there is clearly a well-founded doubt of the guilt of the accused.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, 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. F. R. DeYoung, Judge, presiding.</p>

<p>1. Deeds — what necessary to take oral promise to convey out of Statute of Frauds. To take a case of an oral promise to convey land out of the Statute of Frauds it is necessary that the contract be established by competent proof in a definite manner and that the promisee shall have taken such possession under the contract as its terms and the situation of the parties require, and if such is the case the contract will be enforced without proof of exclusive possession.</p> <p>2. Same — what proof necessary to establish an oral contract to convey. While an oral contract to convey land must be established by clear and satisfactory proof it is not necessary that the contract shall be proved by a third party who heard it made but it may be proved by declarations and conduct of the parties not in the presence of each other, and where the facts, including the acts of the parties, raise a convincing implication that the contract was made, and its terms are sufficient to justify enforcement, it will be upheld.</p> <p>3. Fraud — Statute of Frauds is designed to prevent fraud — oral promise to convey. The Statute of Frauds is designed to prevent fraud, and it cannot be invoked to prevent the enforcement of an oral promise to convey land in return for services rendered where failure to enforce the contract will amount to a fraud upon the promisee.</p> <p>4. Evidence — promisee is not competent, as against promisor’s heirs, do testify to oral agreement to convey — reversal. A party who seeks to have a conveyance made to her in accordance with a promise made in the promisor’s lifetime in consideration for services rendered is not a competent witness to prove the contract in a partition suit by the heirs of the promisor, but where there is sufficient competent evidence in the record to sustain the decree for a conveyance it will not be reversed because of the admission of incompetent testimony.</p>

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

<p>Disbarment — fraudulent and dishonest motives must be proved to warrant disbarment. The power of the Supreme Court to disbar an attorney is to be used in moderation and only on clear proof, and not only must the acts of misconduct charged be proved, but fraudulent or dishonest motives also must be satisfactorily established.</p>

<p>1. Benefit societies — beneficiaries included in benefit certificate are limited to those designated in charter of company. Where the charter of a benefit society designates certain persons who may be named as beneficiaries in the certificates issued the society has no authority to name any others as beneficiaries, and a person not belonging to any of the classes named is not entitled to take the fund; but this rule does not mean that one ineligible when the certificate is issued may not thereafter become eligible.</p> <p>2. Same — beneficiaries are to be determined at death of insured. To enable a person to take as beneficiary under a certificate he must fall within one of the designated classes of beneficiaries at the time of the death of the insured, as the certificate speaks at the death of the insured and not as of the date of its issue.</p> <p>3. Same — a named beneficiary has no vested interest in a certificate — fraud. A benefit certificate is a contract between the member and the society, and as the beneficiary named in the certificate has no vested interest, the naming of one beneficiary cannot be said to be a fraud upon the rights of others who were eligible,but were not named.</p> <p>4. Same — when question of invalidity of certificate because of fraud does not arise. Whether or not a benefit certificate is void as a fraud upon the society does not arise where the society has paid the fund into court and by a bill of interpleader asks the court to determine who is entitled to the fund as beneficiary, as any question of fraud upon the society is waived.</p> <p>5. Same — when second wife is entitled to fund of benefit certificate. Although a benefit certificate names as beneficiary and as wife of the insured a woman who was not then his wife but whom he married after the death of his wife, the second wife is entitled to the benefit fund as against the member’s children, particularly where the by-laws of the society give the surviving wife first consideration in case of a failure of beneficiary; and the fact that illicit relations existed between the insured and the designated beneficiary does not defeat her right.</p>

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

<p>Appear from the Circuit Court of Logan county; the Hon. Frank Lindrey, Judge, presiding.</p>

<p>1. Criminal law — when a confession is not voluntary. A confession obtained under any promise or hope of immunity, not being voluntary, is not admissible in evidence; and such a confession is not voluntary where any degree of influence is used to obtain it by a person having authority over the crime charged or over the person of the prisoner.</p> <p>2. Same — when confession is not admissible because obtained by promise of leniency. General advice to the prisoner to speak the truth if he says anything at all cannot be construed as being an offer of leniency or evidence of duress, but where the person who is lawfully in charge of prisoners arrested for robbery tells them that it will be better for them to speak the truth and that one who does so will be permitted to go to the State’s attorney with his statement, a statement thereby obtained from them is not admissible as a confession although no direct promise of leniency was made.</p> <p>3. Same — competency or incomp,etency of confession is not affected by subsequent denial. Whether or not defendants charged with robbery denied having made statements, amounting to confessions, at the time of their arrest is not material on the question whether the statements or confessions are admissible, and if the evidence shows that the statements were obtained by duress or promises of leniency they are not admissible, notwithstanding the denial that any such statements were made.</p>