Volume 303 — Illinois Reports

<p>1. Trusts—a resulting trust arises from a presumed intention. Where one person pays the purchase money for land and the conveyance of the legal title is made to another a resulting trust arises, not from an agreement but because the law presumes that if the deed is made to someone other than a member of the purchaser’s family the grantee was intended to hold the title in trust for the benefit of the one who paid the purchase price.</p> <p>2. Same—oral declarations at time of conveyance are admissible to prove resulting trust. Oral declarations made at and just before the execution of the deed are admissible to prove the intention of the purchaser in taking title in the name of another person so as to establish a resulting trust although the statements were made out of the presence of the grantee, who knew nothing about the conveyance at the time it was made, the transaction having taken place without any previous agreement.</p> <p>3. Same—when conveyance to daughter of grantor is not presumed to be a gift. Where a conveyance is made by a grantor to his wife or child the law will presume it was a gift, but such presumption is rebutted where the proof shows that the beneficial owner of land had the title conveyed to his daughter merely to substitute her for the trustee who formerly held the legal title to the land, which constituted a, large part of the father’s estate.</p> <p>4. Same—when resulting trust arises in partition of partnership estate. A resulting trust ordinarily arises at the time the purchase price is paid and the title passes, but where real property owned in common by partners, which has been held in trust for them, is partitioned in accordance with an agreement and the beneficial interests are set off to each of the partners but one of them causes his share to be conveyed to his daughter, intending her to be a trustee, a resulting trust may be established although the property was originally purchased by the partnership.</p>

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

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

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

Writ or Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Williamson county; the Hon. D. T. Hartwell, Judge, presiding.

<p>1. Contracts—construction of written contract is for the court. Where a contract is in writing and there is no question involving proof as to the construction put upon it by the parties its construction is a matter of law for the court and not a question of fact for the jury, and the court should construe the contract and advise the jury of its meaning.</p> <p>2. Same—court cannot construe contract contrary to its terms. Courts do not make contracts for parties who are fully capable of making their own agreements, and if there is no ambiguity about a contract it cannot be construed contrary to its terms.</p> <p>3. Benefit societies—question whether statements in application are warranties or representations is for the court. The question whether alleged false statements in an application for membership in a benefit society constitute warranties or representations should not be left to the jury where the application is made a part of the contract, but the court should instruct the jury whether the statements constitute warranties or representations.</p> <p>4. Same—what determines whether statements in an application are material—questions of fact. Whether statements of an application made as incidental and inducement to a contract of insurance are material is determined by the question whether reasonably careful and intelligent men would have regarded the fact stated as substantially increasing the chances of the event insured against, and such question may be the subject of evidence and raise issues of fact unless the statements are of such a nature that all persons would agree that they are or are not material.</p> <p>5. Same—when statement in application is a warranty. Any statement made by an applicant for insurance which relates to the risk, and is declared by the policy, or in another instrument incorporated with it, to be a condition of the insurance, is a warranty, as its truth is in the nature of a condition precedent and must be literally true to create any liability, and whether the word “warranty” is used or omitted is not conclusive of the nature of such a statement or its effect on the policy.</p> <p>6. Same—what is a misrepresentation in application for insurance. A misrepresentation in an application for insurance is a statement of something as a fact which is untrue and material to the risk, and which the insured, knowing it to be untrue, states in an attempt to deceive, or which he states positively is true without knowing it to be true and which has a tendency to mislead.</p> <p>7. Same—when statements in application will be deemed material whether they are so or not. Where an application for life insurance is expressly declared to be a part of the contract and the statements therein contained are warranted to be true, said statements will be deemed material whether they are so or not, and if shown to be false there can be no recovery on the contract, however innocently they were made.</p> <p>8. Same—what questions in application need not be answered positively. An applicant for insurance is not required to answer questions as to family history or any other matter which he can not answer truthfully, but may answer that he does not know or that the fact does or does not exist to his knowledge.</p>

<p>Appeal from the Circuit Court of Jasper county; the Hon. William B. Wright, Judge, presiding.</p>

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

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

<p>1. Special assessments—judgment holding first installment of assessment void is res judicata of subsequent installments. A judgment refusing sale for one installment of a special assessment on the ground that the assessment is void is res judicata and conclusive as to the collection of further installments of the same assessment.</p> <p>2. Tax deeds—section 224 of Revenue act does not require reimbursement for payment of void assessment. Section 224 of the Revenue act does not require, as a condition precedent to setting aside a tax deed, reimbursement for the payment of an uauthorized and illegal tax or of a special assessment which was held void before the sale was made.</p>

<p>1. Criminal law—allegation of special property in the person robbed is sufficient. In an indictment for robbery, an allegation that the money taken was in the care, custody and control of the person robbed and was taken from his person and against his will is sufficient, and when supported by proof will sustain a conviction regardless of a variance between the allegation and proof as to the corporate name of such person’s employer. (People v. Knox, 302 Ill. 471, followed.)</p> <p>2. Same—briefs should point out wherein refusal to give instructions constituted error. The mere statement in the briefs that the trial court erred in refusing to give certain instructions amounts to no more than an assignment of error, and, even though the instructions refused are set out in the briefs, the alleged error is waived if no reasons are urged to show why the instructions should have been given, particularly where the matters contained in the refused instructions are covered by the instructions given.</p>

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

<p>1. Wills—when former will is admissible to sustain contested will. For a former will or declarations of a testatrix to be admissible to show that she was of sound mind and memory at the time of the execution of a contested will, such declarations and the provisions of such will must be in substantial conformity with the provisions of the contested will and be made when the testatrix is conceded to have been of sound mind and memory.</p> <p>2. Same—•evidence tending to blacken reputation of testatrix is not admissible on issue of mental capacity. Evidence tending to blacken the reputation of the testatrix for honesty and fair dealing and to prejudice the jury against her is not admissible on the issue of mental capacity in a will contest, and such evidence cannot be made the basis of hypothetical questions put to expert witnesses.</p> <p>3. Same—what instructions in will contest are improper. In a will contest, instructions that if the testatrix was incapable of knowing the natural objects of her bounty the jury should find that she was incompetent to make a will are improper, where there is no evidence that she did not know the natural objects of her bounty; nor should the court give a long and involved instruction to the effect that to have sufficient capacity to make a will the testatrix must have had the power to retain in her mind all the elements of the transaction for a sufficient time to form a rational judgment.</p> <p>4. Same—when hospital records are admissible on issue of patient’s mental capacity to make will. In a will contest case, the records of a hospital where the testatrix was a patient during her last illness, a few months after she had executed her will, and where she executed a codicil, are admissible on the issue of mental capacity only after proof of their correctness as books of account; but nurses who made the records may refresh their recollection from their own notes and testify as to the mental and physical condition of the testatrix.</p> <p>5. Same-—court must see that guardian ad litem makes proper defense. In a will contest case it is the duty of the guardian ad litem appointed to represent infant defendants to make only a proper defense and to incur no unnecessary expenses in making the same, and it is the duty of the court to see that no unnecessary or improper defense is interposed and that the interests of the infants are protected.</p> <p>6. Same—reasonable guardian ad litem’s fee may be taxed as costs in contest case. In a will contest case, a guardian ad litem appointed to represent infant defendants is entitled to a reasonable fee for making a reasonable and necessary defense, and it is proper to tax such fee as costs against the estate.</p> <p>7. Same—how fees of guardian ad litem should be determined. In a will contest case the fee of a guardian ad litem appointed to represent infant defendants should be fixed by the testimony of attorneys as to what is a customary fee for the same services in cases wherein the fee is the subject of contract between the solicitor and a client, but'the court is not bound by the testimony of the attorneys as to what is a proper fee if it appears to be unreasonable.</p>

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

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

<p>1. Pleading—when a bill is not multifarious. Where the causes set forth in a bill may more conveniently be tried in a single suit, so that a multiplicity of suits will be avoided, and where the relief sought in each cause is of the same general character and no unreasonable hardship will be caused the defendants, the bill is not multifarious.</p> <p>2. Corporations—when bill to set aside organization of corporation for fraud is not multifarious. A bill filed by subscribers to the capital stock of a corporation to set aside the organization on the ground of fraud is not multifarious because it prays for the setting aside of certain deeds conveying property to one of the defendants as trustee for the corporation, that the subscription of the complainants be considered null and void, and that the charter of the company be set aside, where all the instruments against which the relief is prayed are the result of a common scheme to defraud the complainants.</p> <p>3. Same—fraudulent issue of unpaid stock as fully paid up is cause for forfeiture. The issuing of stock by a corporation fraudulently as fully paid up, when, in fact, it is not actually paid, renders the charter of the corporation liable to forfeiture at the instance of the State.</p> <p>4. Same—court of equity has statutory power to dissolve corporation because of fraud in organization—receivers. Under section 54 of the general Corporation act of 1919 a corporation may be dissolved by a bill in chancery filed by stockholders or subscribers for stock on the ground of fraud in the organization of the corporation, and where there is no indebtedness to third parties which is not involved in the fraud connected with the company’s organization the decree for dissolution will not be reversed merely because it does not provide for a receiver.</p>

<p>1. Corporations—stockholders are liable if property taken for subscription for the capital slock is over-valued—burden of proof. Payment for capital stock with property is payment only to the extent of the true value of the property, and if the property of an old corporation is turned in for the capital stock of the new one at an over-valuation, the stockholders, if the corporation fails in business, are liable to make up the deficiency, and the burden is on them to show that such property equaled the value of the capital stock.</p> <p>2. Same—decisions of State court are controlling in construing Corporation act. The decisions of the State rather than Federal courts are controlling in the construction of the Corporation act as to the rights of creditors as against stockholders of a corporation.</p> <p>3. Same—liability of stockholders for over-valuation of property may be enforced directly by creditors—bankruptcy. Where a corporation is re-organized into a new company, the property of the old company being turned over to the new in full payment of the subscriptions to the capital stock in the new company, the liability of the stockholders because of the over-valuation of said property may be enforced directly by creditors after the failure of the corporation, and the right to enforce such liability is not an asset of the corporation to be turned over to'the trustee in bankruptcy. (Lane v. Nickerson, 99 Ill. 284, distinguished.)</p>

<p>1. Criminal law-—definition of robbery. The crime of robbery consists in the felonious and violent taking of money, goods or other valuable thing from the person of another by force or intimidation.</p> <p>2. Same—description and value of the property taken in robbery are not material if it has a value. The gist of the offense of robbery is the force or intimidation and taking from the person of another, against his will, a thing belonging to him or in his custody, and the property taken need not be accurately described, and its value is immaterial provided it is shown to have a value.</p> <p>3. Same—money taken in a robbery need not be described. Money taken in a robbery need not be described, as the term itself, without any description, imports value, and it is only in an indictment for larceny or where the degree of the offense depends upon the value that the money taken must be described.</p> <p>4. Same—when stock instruction on circumstantial evidence should not be given. The stock instruction that “circumstantial evidence is competent legal evidence” and is sufficient to authorize a conviction if the jury are convinced of the truth of the charge, “beyond a reasonable doubt, from facts and circumstances in proof,” should not be given where there is no circumstantial evidence ; but the error in giving the instruction is not ground for reversal if the direct evidence shows that the defendants are guilty beyond a reasonable doubt.</p>

<p>Appeal from the Circuit Court of Stephenson county; the Hon. Franklin J. Stransky, Judge, presiding.</p>

<p>1. Criminal law—when errors may be considered although not properly preserved for reviezv. Where the evidence in a criminal case is close and the prosecuting attorney, unhindered by the court, has taken improper advantage of the inexperience of counsel for the accused to his manifest prejudice, the Supreme Court will consider the errors so intervening notwithstanding they are not properly preserved for review.</p> <p>2. Same—instruction should not leave jury to decide what arc the essential elements of the crime charged. An instruction should not submit to the jury the legal question as to what are the material facts or final essential elements of the crime with which the accused is charged.</p> <p>3. Same—conviction secured in total disregard of the law can not be sustained. One charged with crime has the right to be tried in accordance with the law of the land, and a conviction secured in total disregard of such law cannot be sustained even though there may be enough competent evidence in the record to authorize a verdict of guilt.</p> <p>4. Same—when instruction as to criminal negligence is erroneous. An instruction is manifestly erroneous which states that criminal negligence is an unlawful act done carelessly or negligently or a lawful act done without due caution or circumspection; that carelessness is criminal and within the limits supplies the place of direct criminal intent; and that gross carelessness resulting in injury to others is criminal even though the act done is lawful.</p>

<p>1. Deeds—parol evidence is admissible to show that deed was intended to be a mortgage—burden of proof. Parol evidence is admissible to show that a deed absolute in form was intended as a mortgage, not only as between the parties and their successors but also as against one who derived his title from the grantee without paying any valuable consideration therefor; but the burden rests upon the one asserting a deed absolute in form to be a mortgage to prove the fact by clear and satisfactory evidence.</p> <p>2. Same—what may be considered in determining whether deed was intended as a mortgage. As a conveyance- takes effect from its delivery the question whether it was a deed or a mortgage becomes fixed at that time, but to determine the purpose and intent of the parties the preliminary negotiations leading up to the transaction, as well as the statements of the parties at and after the execution of the instrument, may be admitted in evidence.</p> <p>3. Same—deed may be held to be a mortgage although the evidence is conflicting. Positive evidence of an intention that a deed absolute in form was, in fact, given as a mortgage is not required, and it is suEcient if the evidence is clear and convincing, even though conflicting.</p> <p>4. Pleading—when bill to have a deed declared a mortgage is prima facie sufficient—Statute of Frauds. A bill to have a deed absolute in form declared to be a mortgage is not subject to general demurrer where it contains suEcient averments which, if established by parol evidence of the circumstances attending the conveyance, would entitle complainant to the relief prayed, as the Statute of Frauds does not preclude parol proof of the agreement for redemption.</p>

<p>Appeal from the Circuit Court of Stark county; the Hon. T. N. Green, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Massac county; the Hon. D. T. Hartwell, Judge, presiding.</p>

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

<p>1. Criminal law—reasonable doubt is not raised merely because testimony is conflicting. While the evidence, in order to justify a conviction, must he sufficient to remove all reasonable doubt and create an abiding conviction of the defendant’s guilt, yet a well founded and reasonable doubt is not necessarily raised because the testimony is conflicting, and it is the province of the jury to weigh the evidence and determine the credibility of the witnesses.</p> <p>2. Same—proof of alibi must be sufficient to raise a reasonable doubt. The question of alibi is one of fact, and proof of that defense must be of such a character as, considered in connection with all the other evidence, is sufficient to create in the minds of the jury a reasonable doubt of the defendant’s guilt.</p> <p>3. Same—Parole act is valid. The Parole act, providing for indeterminate sentences, is not unconstitutional. (People v. Doras, 290 Ill. 188, and People v. O’Donnell, 291 id. 178, followed.)</p>

<p>1. Wills—when interests of after-born children cannot be destroyed by conveyhnce. Where a will creates a life estate with a remainder to the children of the life tenant, the life tenant and the living children cannot, by making a conveyance, destroy the interests of after-born children, as the remainder is vested in quality although contingent in quantity; and there is no provision in the law for the protection of such interests in the fund arising from such conveyance as there is in case of partition or a judicial sale.</p> <p>2. Deeds—covenant to convey by a good warranty deed means a good title—pleading. A covenant in a contract for conveyance to convey a fee simple title “by a good and sufficient warranty deed” requires conveyance of a good title in law, which means a good merchantable title, and a declaration for damages alleging a breach of the contract because the defendant could not convey a “good title” is in accordance with the terms of the contract and is sufficient.</p>

<p>Appeal from the County Court of Macoupin county; the Hon. Andrew J. Duggan, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of DeKalb county; the Hon. C. F. Irwin, Judge, presiding.</p>

<p>1. Statutes—re-enacted staiut will be given its former construction. Where the legislature h; 3 re-enacted in substantially the same words a law which has beei judicially construed it will be presumed that the provision was r -enacted in view of the meaning which has been given to it by :he court.</p> <p>2. Dower—surviving husband, mitted'from wife’s will, is entitled to share in personal property Since the enactment in 1872 of the statute giving a husband a d wife the same rights of inheritance, and the re-enactment, in 874, of section 10 of the Dower act, a surviving husband who has b en omitted from his wife’s will giving all her property, which con isted entirely of personalty, to her children, is entitled to one-th rd of the personal estate, the same as if the wife had died intes ate. (In re Taylor’s Will, 55 Ill. 252, followed.)</p>

<p>1. Constitutional law—meaning of constitutional provision requiring embodiment of entire act or section in an amendatory statute. The constitutional provision prohibiting the amending of an act by reference to its title, only, and requiring the amended sections or acts to be inserted at length in the amendatory act, does not mean that all prior acts in any way modified shall be published at length, nor does it apply to amendments which constitute merely an addition of a section to the act, where the original act does not have to be read with the new in order to give effect to the latter.</p> <p>2. Same—section 2 of act of 1873 amending Limitations act is not invalid. Section 2 of the act of 1873 amending the Limitations act and constituting paragraph 25 thereof does not amend the language of any section of the Limitations act and is not in violation of section 13 of article 4 of the constitution, forbidding the amendment of an act by reference to its title, only.</p> <p>3. Injuries—limitation of suit under Injuries act is condition of the liability and is not a statute of limitations. The limitation of one year in which to bring suit for wrongful death under the Injuries act is not a statute of limitations but is a condition of the liability itself, and there is no right to sue unless the plaintiff brings himself within the conditions of the act.</p> <p>4. Same—action for wrongful death is not an action for personal injuries. The right of personal representatives to sue for wrongful death under the Injuries act is not a right of action for personal injuries within the meaning of the Limitations act.</p> <p>5. Limitations—effect of section 2 of act of 1873 amending the Limitations act. Section 2 of the act of 1873 amending the Limitations act, and constituting paragraph 25 of said act, fixes an additional period of limitation arising under certain conditions therein set out, and applies only when such conditions are met.</p> <p>6. Same—section 2 of act of 1873 amending the Limitations act does not apply to actions for wrongful death. Section 2 of the act of 1873 amending the Limitations act and allowing the commencement of a new action within one year after a judgment is reversed or given against a plaintiff applies only to the actions specified in the Limitations act and does not apply to an action for wrongful death under the Injuries act.</p>

<p>1. Limitations—limitation is controlled by law of State where the suit is brought—construction. Statutes of limitation affect the remedy, which is to be governed by the law of the State where the suit is brought, but the character and construction of a contract is determined by the law of the jurisdiction in which the cause of action arose.</p> <p>2. Banks—certificate of deposit is not due until payment is demanded. A certificate of deposit payable to the depositor upon return of the certificate is not due until the certificate is tendered and demand for payment is made, and a cause of action does not accrue to the holder of the certificate until such demand is made and payment is refused.</p> <p>3. Same—when reasonable time for demanding payment is not measured by period of limitation. The rule that a reasonable time for demanding payment of a certificate of deposit is measured by the statutory period of limitation for bringing suit and that a demand within such time will be presumed is not an inflexible one and will not be applied to a non-interest bearing certificate of deposit for safe keeping, particularly where there are circumstances proven affecting the question of what would be a reasonable time.</p>

<p>1. Eminent domain—-time allowed for paying compensation begins to run when rehearing is denied. Where a condemnation judgment is affirmed bjr the Supreme Court and a rehearing is applied for, the time allowed in the condemnation judgment for paying the compensation in the event of an appeal begins to run from the date the petition for a rehearing is denied by the Supreme Court, and not from the time the final order of said court is filed in the office of the clerk of the trial court.</p> <p>2. Same—right to possession is abandoned if petitioner fails to pay compensation in time—costs. The right to take property in a condemnation proceeding is conditioned on the payment of the compensation within the time limited by the judgment fixing the compensation, otherwise the petitioner abandons the proceeding and has no right afterward to take possession, and under the statute the property owner is entitled to costs reasonably incurred.</p> <p>3. Same—abandonment of proceeding does not entitle property owner to costs of appeal. Where a condemnation proceeding is abandoned because of the failure of the petitioner to pay compensation within the time required by the judgment, the property owner is entitled to recover all' costs, expenses and reasonable attorney’s fees paid or incurred in defense of the petition, but not-to the costs and expenses of his unsuccessful appeal to set aside the judgment fixing the compensation.</p>

<p>1. Pleading—when allegations as to ozvncrship are conclusions of the pleader. In a bill to enjoin a county clerk from extending a tax against the complainant’s interest in coal underlying certain tracts of land, allegations that the complainant has the mere right to mine the coal by virtue of certain leases set out in the bill and is not the owner in fee of the coal but that the fee is owned by persons residing on the land, are mere conclusions of the pleader, and neither the allegations' of ownership nor complainant’s construction of the leases is admitted by a demurrer to the bill.</p> <p>2. Mines—coal underlying the soil is real estate and may be conveyed as such. Coal under the soil is real estate and is capable of being conveyed and held in fee by one person while the right to the surface is in another, and such a conveyance, whether by deed or lease, creates two separate estates in the land, each of which is subject to taxation as real estate and may be conveyed or devised or pass by descent.</p> <p>3. Taxes—right to mine coal acquired by lease is subject to taxation. Under sections 6 and 7 of the Mines act (Hurd’s Stat. 1917, p. 1985,) the right to mine coal acquired by lease is subject to taxation separate from the surface of the land, even though the lessee does not pay for the coal until it is removed from the mine and settles with the land owners each month at a certain price per ton, and the assessment should be made separately as to each interest, the total assessment equaling the value of land increased by the value of the coal.</p> <p>4. Same—right to use underground passages for mining purposes is taxable. Although all the coal has been mined out and removed from a particular portion of a mine being operated on a lease, yet if the lease gives the lessee the exclusive and perpetual right to use the underground passages and entries in such unused portion for mining, purposes, either from the premises described in the lease or from adjacent premises, such right is properly assessed to the lessee for the purpose of taxation while the lessee is mining coal.</p>

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

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

<p>1. Workmen’s compensation—burden is on claimant to prove recurrence of disability. In a proceeding under paragraph (h) of section 19 of the Compensation act the burden is on the claimant to prove that his disability was due to the accidental injury and that since the original award was made his disability has increased and recurred as a result of the injury.</p> <p>2. Same—when an award for recurrence of disability cannot stand. An award for a recurrence of the claimant’s disability can not rest on conjecture or surmise, and if the evidence not only fails to sustain the award but tends to show that the employee’s condition is due to other causes having no connection with the injury the award cannot stand.</p>

<p>Writ of Error to the City Court of West Frankfort; the Hon. William G. Mitchell, Judge, presiding.</p>

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

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

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the County Court of Cook county; the Hon. Harry C. Moran, Judge, presiding.</p>

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

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

<p>1. Taxes—general rule as to when court of equity will enjoin collection of tax. A court of equity will exercise jurisdiction to enjoin the collection of a tax where the same is not authorized by law, where it is assessed upon property not subject to taxation and where property has been fraudulently assessed at too high a rate, but the bill must disclose facts showing fraudulent assessment.</p> <p>2. Same—when bill to enjoin collection of tax against railroad company is subject to demurrer. A bill to enjoin the collection of a tax against a railroad company for railroad track is subject to demurrer where it merely alleges that the tax was fraudulently assessed at too high a rate because the property was assessed by the Tax Commission as main track instead of second or side-track and does not allege facts showing why such an assessment is excessive or what the proper assessment should be, and in the absence of any allegations of fraud, the complainants who did not appeal from the decision of the Tax Commission cannot enjoin the collection of the tax.</p> <p>3. Same—property need not be assessed in name of owner—corporation. Under section 191 of the Revenue act the fact that property is assessed in the wrong name or in no name is not such an irregularity as will in any way invalidate the tax, and a railroad company cannot enjoin the collection of a tax because certain of its property is assessed in the name of a fictitious corporation.</p>

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

<p>Writ of Error to the Circuit Court of DuPage county; the Hon. Adam C. Cliffe, Judge, presiding.</p>

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

<p>1. Criminal law—what may be considered by jury in determining truth from conflicting testimony. Where the testimony is conflicting and the jury are required to decide as to the credibility of the witnesses in reaching a verdict, they may consider not only the actual words used by the witnesses but their appearance and conduct on the witness stand, their interest in the case, the candor with which they testify, the accuracy of their observation, their opportunities of knowledge and the circumstances surrounding the occurrence to which they testify.</p> <p>2. Same—when Sitpreme Court will not reverse judgment of conviction. The Supreme Court will not reverse a judgment of conviction on the ground that it is contrary to the evidence unless it clearly appears that theré is a reasonable doubt of the defendant’s guilt, and it cannot be said that there is a reasonable doubt merely because the evidence is contradictory or because more witnesses testify in favor of the defendant than in favor of the prosecution.</p>

<p>1. Wills—when verdict in will contest case will not be disturbed. Where the testimony on either side in a will contest case is such as, uncontroverted, will justify a finding either for or against the complainants, the Supreme Court will not disturb the verdict and decree setting aside the will.</p> <p>2. Same—when failure to withdraw issue of undue influence is not prejudicial. Where a will is contested on grounds of mental incapacity and undue influence, the denial of a motion to withdraw the issue of undue influence is not prejudicial error even if there is- no evidence to sustain that charge, where the finding that the will was not the last will and testament of the testator is supported by testimony that he was not of sound mind.</p> <p>3. Same—when person named as executor in former will is a competent witness in contest case. In a will contest case a witness is not rendered incompetent because he was named as executor in a prior will which he had written for the testator, where he testifies that he waives any right to qualify as executor should the prior will ever be presented for probate.</p> <p>4. Same—effect where a will is in testator’s handwriting—instruction. The fact that a will is in the testator’s own handwriting does not justify an instruction stating that if the will is rational on its face and disposes of the testator’s property in a rational way “such fact may of itself establish testamentary capacity,” as the fact that the will is in the testator’s handwriting is only a circumstance tending to show mental capacity and does not of itself establish such capacity if other evidence shows he was insane.</p> <p>5. Evidence—what interest is necessary to disqualify a witness. The interest which, under the Evidence act, will disqualify a witness in a proceeding to contest a will must be a legal interest in the result of the suit and must be certain, direct and immediate.</p> <p>6. Appeals and errors—objection to competency of witness can not be made for first time in Supreme Court—minors. A particular objection to the competency of a witness cannot be made in the Supreme Court if the objection was not made at the trial even though the competency of the same witness was objected to on other grounds, and the fact that a guardian ad litem made no objection in behalf of infant defendants does not authorize another party to complain of the alleged error, especially where the prayer of the guardian for an appeal was denied, presumably upon the ground that an appeal would not be in the interest of the infants.</p>

<p>1. Workmen’s compensation—when question of constitutionality of Compensation act is waived. Any question as to the constitutionality of the Compensation act is waived by participating in the hearings before the arbitrator and the commission without objection and by entering into a stipulation that the party is operating under the act, and such party cannot afterward raise the question in the circuit court.</p> <p>2. Same—when evidence is sufficient to sustain award for injury to a miner from had air. An award for an injury to a coal miner because of bad air in the mine is sustained by evidence that he became afflicted with the condition complained of while he was working in the mine and that the doctor who examined him found he was suffering with the symptoms which attend the condition resulting from bad air in a mine, notwithstanding there is also testimony that he had been treated by the doctor for intestinal trouble during the year prior to the alleged injury.</p>

<p>Writ of Error to the Circuit Court of Jasper county; the Hon. Franklin R. Dove, Judge, presiding.</p>

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

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

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

<p>Writ of Error to the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.</p>

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

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

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

<p>1. Criminal law—what is sufficient to prove corpus delicti. In a prosecution for the crime against children it is not necessary to establish the corpus delicti by direct evidence, but it may be established by proof of facts and circumstances which show, beyond a reasonable doubt, that the crime has been committed.</p> <p>2. Same—what testimony is competent without corroboration of expert witness. In a prosecution for the crime against children the mother of the girl may testify as to the character of stains found on the girl’s clothing and may state that they appeared to be of the character of a seminal discharge, even though there was no examination by an expert and no expert testimony taken, and it is for the jury to determine the weight to be given the mother’s testimony.</p> <p>3. Same—when letter written by defendant is admissible against him. In a prosecution for the crime against children, a letter written by the defendant to the father of the girl acknowledging his guilt in general terms but without naming the offense and asking for leniency and that the girl’s mother forgive him is admissible as an admission, and it is for the jury to determine whether the admission of guilt contained in the letter refers to the crime with which the defendant was charged.</p>

<p>1. Workmen’s compensation—when evidence is sufficient to sustain atvard for total loss of sight. Where an employee who has lost the sight of one eye suffers an injury to the other which causes him to be entirely blind except when he uses artificial means to keep the eye-lid open, and the evidence shows that with his eye open his sight is so imperfect that he cannot follow his employment and that the condition is morally certain to grow worse,' an award for total loss of sight is justified.</p> <p>2. Same—meaning of ‘‘permanent loss” of use of member, as used in Compensation act. “Permanent loss” of the use of a member, as the term is used in the Compensation act, means the taking away of the normal use of the member; and the ability to do some work by aid of a mechanical device is not inconsistent with complete loss of the use of an eye or a hand.</p> <p>3. Same—total permanent disability may include previous loss of member. Where an employee who previous to his employment has lost an eye suffers an injury which results in the loss of the other eye he is entitled to compensation for total permanent disability.</p>

<p>1. Certiorari—jurisdiction of an inferior tribunal must appear from record. It is the office of the common law writ of certiorari to cause the record of an inferior tribunal to be brought before the court for its determination, from an inspection of the record, alone, whether such tribunal had jurisdiction or had exceeded its jurisdiction or has failed to proceed according to the essential requirements of the law.</p> <p>2. Same-—what proceedings may be reviewed by certiorari. Proceedings which may be reviewed by the common law writ of certiorari must be judicial and not ministerial or legislative, but it is sufficient if the proceedings are qu,asi judicial, as where a body of officers are invested by the legislature with power to decide upon the property rights of others.</p> <p>3. Schools—ex-officio board, acting under section po of School law, was required to keep record. Under the invalid amendment of section 90 of the School law it was the duty of the ex-officio board created by said act to keep a record of its official acts even though the statute did not expressly require the board to keep a record.</p> <p>4. Same—what finding of the ex-officio board is not sufficient under validating act. The ex-officio board created by the invalid amendment of section 90 of the School law had no jurisdiction to act under the invalid law, and a finding by said board, on a petition to change the boundaries of a high school district, that the petition was signed by a majority of the legal voters is not sufficient to satisfy the requirement of the validating act of June 24, 1921, nor is the petition itself evidence of the fact.</p> <p>5. Same—the common law writ of certiorari is proper to review action of the ex-officio board. The common law writ of certiorari is proper to review the action of the ex-officio board changing the boundaries of a high school district under the invalid amendment of section 90 of the School law, the provision for an appeal to the Superintendent of Public Instruction having been held unconstitutional.</p>

<p>1. Workmen’s compensation—accidental injury must be the proximate cause of disability or death to authorise award. Where the injury sustained is the proximate cause of the incapacity or death, compensation is to be allowed although there was a preexisting disease if the disease was aggravated or accelerated by the accidental injury; but there must be a direct relation between the accident and the consequent disability or death.</p> <p>2. Same—token evidence does not support award for death from disease. Where an employee dies of acute lobar pneumonia, an award of compensation for the death as a result of a sprained back, which injury the employee received a few days before he contracted the pneumonia," is not justified, where the only evidence for the applicant is that of the attending physician, who testified that there was a possibility that the sprain may have been a predisposing cause to pneumonia but that in his opinion the injury had no connection whatever with the disease.</p>

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

<p>Appear from order of the board of review of Scott county.</p>

<p>1. Criminal law—indictment for embezzlement need not conclude with charge of larceny. Although section 75 of the Criminal Code provides that when a person shall be found guilty of the acts therein described as embezzlement he shall be deemed guilty of larceny, the statute does not require that the indictment conclude with the statement or charge that the defendant is guilty of larceny.</p> <p>2. Same—what is gist of crime of embezzlement—indictment. The gist of the crime of embezzlement consists in the conversion to his own use of funds of another which the defendant has in his possession by reason of a fiduciary relation between the owner and the defendant, and when this relation is stated under the charge of conversion so that it may be readily understood the indictment is sufficient and will support a general verdict of guilty.</p> <p>3. Same—new trial will be allowed where one juror zvas a member of grand jury returning indictment—waiver. Where a juror during his examination states that he has not heard of the case aside from newspaper articles and that he has formed no opinion, but the defendant discovers, after the verdict, that said juror was clerk of the grand jury which returned the indictment and as clerk took minutes during the hearing of the charge against the defendant, a new trial should be awarded, as the defendant’s failure to challenge the juror under such circumstances is not a waiver of the objection to the juror’s competency.</p> <p>4. Same—State must prove all essential elements of the crime beyond a reasonable doubt—instruction. While it is not necessary to prove beyond a reasonable doubt every link in the chain of circumstances surrounding the commission of the crime charged, the State must prove, beyond a reasonable doubt, all the essential elements of the crime or the facts necessary to constitute the crime; and it is error to instruct the jury that it is not necessary “for the People to establish each fact necessary to show guilt beyond a reasonable doubt.”</p>

<p>1. Workmen’s compensation—award cannot be reviewed upon application for judgment. The method of review provided by section 19 of the Compensation act is exclusive, and on application to the circuit court for judgment on an award the court has no jurisdiction to review the award, to construe the statute or to determine whether or not the decision of the board is correct.</p> <p>2. Same—filing of petition for review must be proved by certified copy. On application for judgment on an award by an arbitrator the filing of a petition for review with the Industrial Commission cannot be shown by the certificate of the secretary of the commission that the petition was filed but such proof can be made only by the officer’s certificate to a copy of the petition.</p> <p>3. Evidence—when certificate of officer is not evidence of record. If an officer is bound to record a fact the proper proof of the record is a copy duly authenticated, but as to matters which the officer is not bound to record, his certificate, being extra-official, is merely the statement of a private person and will be rejected.</p>

Writ or Error to the First Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.

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

<p>Appeals and errors—when appeal from decree in partition suit does not involve freehold. An appeal from a decree in a partition suit does not involve a freehold where the only errors assigned are that the court erred in denying an allowance of solicitor’s fees to the complainant and in subjecting his interest to the lien of a judgment against his grantor.</p>

<p>1. Contracts—relinquishment of right to contest will is a sufficient consideration for an agreement. Where a son is dissatisfied' with the provisions of his mother’s will, a relinquishment of his right to contest the will is a sufficient consideration for an agreement with his sister, who was the principal devisee, that the will be set aside and that the property be disposed of as provided in the agreement, where the son in good faith was proposing to file a bill to contest the will, had employed counsel and booked up evidence for the purpose.</p> <p>2. Same—compromise of disputed claim is a sufficient consideration to support an agreement. A compromise of a disputed claim made in good faith, whereby the claim is extinguished, is a sufficient consideration to support an agreement, and the courts will not inquire into the merits of the claim to determine whether it could have been successfully maintained in a suit brought to enforce it.</p> <p>3. Deeds—mere relationship of brother and sister does not establish fiduciary relation. The mere relationship of brother and sister does not necessarily establish a fiduciary relation even though the sister gives the brother a power of attorney authorizing him to do all things necessary to settle their mother’s estate, where the evidence shows that she did not rely on him to advise and protect her but handled her own interests.</p> <p>4. Same—what is necessary to establish a fiduciary relation. To establish a fiduciary relation the evidence must disclose a state of facts showing confidence reposed on one side and resulting superiority and influence on the other, so that the one in whom the confidence is reposed is in equity and good conscience bound to act in good faith with regard to the interests of the one reposing the confidence.</p> <p>5. Same—effect of existence of fiduciary relation between parties to deed. While a deed between parties where a fiduciary relation exists is not necessarily void, a court of equity will not permit the dominant party to use his position to secure an undue advantage over the other and will require him to prove that the transaction was fair, and wherever influence has been acquired and abused, confidence reposed and betrayed, relief will be granted the wronged party.</p>

<p>1. Criminal law—indictment for larceny need not use word “personal” in describing the property taken. The word “personal” is not a technical or necessary word of description that is required in describing the property in an indictment for larceny, but the words “goods and chattels,” when used to qualify or describe the character of the stolen property, are sufficient to designate the property as personal property and subject to larceny.</p> <p>2. Sam:e—summoning grand jurors by mail, if not prejudicial, is not fatal to indictment. The fact that the members of the grand jury were notified by mail to appear before the court as grand jurors and not by service of summons, as required by law, is not fatal to the indictment, where there is no showing that the substantial rights of the defendants were thereby prejudiced.</p> <p>3. Same—corpus delicti in larceny must be proved beyond reasonable doubt. In a prosecution for larceny it is incumbent upon the People to prove the corpus delicti beyond a reasonable doubt, and such proof, under an indictment for the larceny of hogs, includes the establishment of the facts that the property alleged to have been stolen was lost to the owner by a felonious stealing, taking or driving away.</p>

<p>Writ or Error to the County Court of Pulaski county; the Hon. A. L. Spiller, Judge, presiding.</p>

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

<p>Writ of Error to the Second Branch Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.</p>

<p>Specific performance—when it is error to dismiss the hill— injunction. A prayer for an injunction until the cause is heard is merely collateral to the relief prayed in a bill for specific performance, and it is error, on dissolving the temporary injunction, to dismiss the bill if the bill, though insufficient in some of its averments, is capable of amendment.</p>

<p>1. Workmen’s compensation—when employee having a preexisting disease is not entitled to compensation for injury. Although an employee suffers from a pre-existing disease, an injury may be said to arise out of the employment if the pre-existing condition is accelerated in a material degree by the accident or injury, and the employee will be entitled to an award notwithstanding the disease, but he is not entitled to compensation for a condition resulting from a pre-existing disease and not from the injury.</p> <p>2. Same—the Supreme Court is governed by lava in force vahen judgment is entered below. The Supreme Court, in reviewing a compensation case, is governed by the law in force, at the time of the entry of judgment in the circuit court.</p> <p>3. Same—decision of Industrial Commission must be based upon facts. The decision of the Industrial Commission must be based upon facts in evidence and cannot rest upon conjecture and surmise.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. S. R. Baker, Judge, presiding.</p>

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

<p>1. Workmen’s compensation—dependency is a question of fact for the Industrial Commission. Dependency, and the extent thereof, are questions of fact for the Industrial Commission, and the courts will not interfere when such facts are controverted, unless it can be said that the finding of the commission is against the manifest weight of the evidence.</p> <p>2. Same—what is test for determining dependency. The test for determining dependency is whether the contributions of the deceased were relied upon by the dependent for his means of living as determined by his position in life, or whether the dependent was to a substantial degree supported by the employee at the time of the employee’s death.</p> <p>3. Same—when a child contributes to support of parents. A child contributes to the support of its parents, within the meaning of the Compensation act, when it contributes a substantial sum to the support of the family although the child is a minor and the sum contributed is less than the actual cost of his support.</p> <p>4. Same—when father is a dependent of minor son. A father may be regarded as a dependent of his deceased son, who was eighteen years old, where the father was unable to work because of ill-health and the son contributed a substantial portion of his earnings to the support of the father as well as the entire family.</p> <p>5. Same—when injury arises out of and in course of employment. An injury which can be seen to have been a natural incident of the work or a natural result from the nature of the employment may be said to arise out of the employment, and an injury happens in the course of the employment if it occurs while the employee is doing what he may reasonably be expected to do during the time he is employed and at a place where he may reasonably be during such employment.</p> <p>6. Same—whether employee was violating rule is a question of fact. Whether the act of the employee at the time of the injury was contrary to his employer’s rules or in accordance with a custom acquiesced in by the employer or at the direction of the employer is a question of fact for the Industrial Commission, and its finding will not be set aside by the courts, where the facts are controverted, unless against the manifest weight of the evidence.</p> <p>7. Same—when violation of rules will not bar compensation. Where it is proved to have been the custom in a mine to recruit its drivers from the trappers, compensation for an injury to a trapper while driving one of the cars during the noon hour at the request of one of the drivers is not barred by violation of a rule prohibiting trappers from driving cars, where it is also shown that the trapper had about completed his apprenticeship as a driver and was next in line for promotion to that position.</p>

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

<p>1. Wills'—order denying probate and which is set aside as to insane defendant need not be set aside as to others. The fact that an order denying probate of a will is set aside on the petition of an insane party because no guardian ad litem was appointed to defend her is not sufficient ground for setting aside the order for fraud as to other parties.</p> <p>2. Same—failure of an executrix to appeal from an order denying probate is not ground for setting aside the order. Failure of an executrix to appeal from an order of the county court denying probate of the will is not of itself sufficient ground for setting aside the order at the petition of parties who were interested in the will, notwithstanding the fact that the trial, on appeal to the circuit court, is a trial de novo, in which the proponent is allowed to introduce any testimony competent to establish the will in chancery.</p> <p>3. Same—parties interested in will should appeal from order denying probate—laches. Where the county court has jurisdiction of the parties and subject matter of a proceeding to probate a will it is the duty of parties interested in the will to ascertain the result of the court’s holding, and if they fail to do so and do not appeal from the order denying probate, they cannot, several years afterward, petition the court to set aside the order, as their laches is a complete bar to such petition.</p> <p>4. Judgments and decrees—when judgment or decree cannot be set aside-—appeal. Where the court has jurisdiction of the subject matter and of the parties in a proceeding and hears testimony and renders its order and judgment the same is binding on all parties to the suit and can only be set aside for fraud, and where both parties have a right to appeal neither side can complain because no appeal was taken by the other side.</p>

<p>1. Drainage—judgment confirming assessment is res judicata of every question except that of jurisdiction. On application for judgment for a delinquent farm drainage assessment the jurisdiction of the court is the only open question, as the judgment of the county court confirming the classification of the lands is res judicata not only as to the matters actually determined but as to every other matter within the knowledge of the objector which might have been set up as a ground for relief or defense.</p> <p>2. Same—objection that assessment exceeds benefits cannot be raised in proceeding to collect delinquent assessment. Since the re-enactment in 1915 of section 27 of the Farm Drainage act, allowing the land owner an opportunity, on application to confirm the assessment, to be heard on the question whether the assessment against his lands exceeds the benefits, that question cannot be reconsidered on application for judgment and order of sale for the assessment.</p> <p>3. Same—failure to classify lands in 40-acre tracts does not render classification void. A classification which classifies the lands in tracts ranging from 10 to 160 acres instead of in “40-acre tracts, more or less,” is irregular and subject to being set aside if a proper objection is made, but the classification is not void and the objection comes too late on application for judgment and order of sale.</p>

<p>1. Jurisdiction—when entry of appearance is sufficient. The presumption is in favor of the regularity of an entry of appearance, and an entry of appearance filed in a divorce proceeding on the day on which the bill was filed is not invalid because it was signed the day before, as it becomes an entry of appearance from the day of filing.</p> <p>2. Divorce—what statement in entry of appearance is not collusive. A statement in the defendant’s entry of appearance that the court, if it “shall deem the proof sufficient, may enter a decree on the bill therein in favor of the complainant,” does not amount to collusion or an agreement not to defend the proceeding, where there is no evidence in the case tending to show that the defendant in any way agreed that a divorce decree should be entered but the record shows that the defendant sought to avoid such a decree and afterward filed a motion to set it aside for want of notice.</p>

<p>1. Partition—equity may determine legal titles involved in partition suit. The jurisdiction conferred by a bill in chancery for partition is concurrent with that exercised by petition under the Partition act, and by section 39 of the act courts of equity may investigate and determine all questions of conflicting or controverted titles.</p> <p>2. Abatement—when death of defendant abates suit in ejectment. Although by statute a suit does not abate upon the death of the sole defendant if it might be originally prosecuted against the heir, devisee or representative, the statute contemplates that the suit be revived against the representative within a reasonable time, and where the plaintiffs in ejectment wait five or six years before having summons issued against the heir of the defendant, the right to revive the suit is lost and the court should of its own motion enter an order abating the suit.</p> <p>3. Same—when a suit is pending. The pendency of a suit begins with the service of process or appearance, at which time the court acquires jurisdiction, power or control of the subject matter and parties until final judgment.</p> <p>4. Limitations—when beginning of ejectment suit does not stop running of seven-year statute. The seven-year Statute of Limitations cannot be arrested merely by the commencement of an ejectment suit which is not prosecuted to judgment in the lifetime of the sole defendant nor revived against his heirs within a reasonable time after his dearth.</p> <p>5. Same—color of title under seven-year statute is presumed to have been acquired in good faith. Color of title under the seven-year Statute of Limitations is presumed to have been acquired in good faith, and to overcome the presumption the evidence must show an intent to deceive, mislead or defraud, which would constitute bad faith.</p> <p>6. Same—bad faith in acquiring color of title is not shown by proof of defects in the title nor actual knowledge thereof. A party claiming title under the Statute of Limitations through color of title acquired in good faith and payment of taxes need not show that the title, if traced back to its source, is apparently legal and valid; and where the color of title is originally acquired by a tax deed issued to the claimants’ remote grantor, the fact that there were defects in the proceedings for obtaining the tax deed does not tend to show bad faith in acquiring color of title, nor is actual knowledge of such defects material on the question of good faith.</p> <p>7. Tax deeds—seal of county court is proper for a tax deed. Under section 221 of the Revenue act, providing that a tax deed made by the county clerk “under1 the official seal of his office shall be recorded,” the proper seal to be used is the seal of the county court, as being the official seal of the office of clerk of the court, rather than the seal of the county clerk, as keeper of the county records.</p>

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

<p>1. Inheritance tax—when amount of exemption is determined by prior conveyance and not by will. An inheritance tax is a tax on the right of succession to the beneficial interest in property, and where a husband purchases a farm and causes the title to be taken in the name of his second wife, who agrees verbally that she will devise the property equally among his children and her own, the amount of the exemption as to.the step-children of the testatrix under a will carrying out the trust is determined by virtue of the conveyance of the beneficial interest from their father and not by virtue of the will.</p> <p>2. Trusts—when Statute of Frauds cannot be set up to avoid express trust resting in parol. An express trust resting in parol is not absolutely void even though it may not be enforcible should the Statute of Frauds be relied on as a defense, and when the trust has been executed it is as good and valid as if it had been in writing; nor can strangers set up the statute to defeat a parol trust agreement.</p>

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

<p>1. Workmen’s compensation—contributory negligence is not a bar to recovery. Contributory negligence is not a bar to recovery of an award under the Compensation act, but the sole question is whether the injury arose out of and in the course of the performance of some duty of the employment, and not how the particular duty was performed.</p> <p>2. Same—when injury arises out of employment in construction work. Where an employee was required to work upon a scaffold between the seventh and eighth stories of an eleven-story building in the process of construction and did not know how to operate the scaffold so as to let himself down, an injury sustained by attempting to slide down a rope at the close of the day’s work arises out of his employment, where he was attempting to follow the example of an experienced fellow-employee who had safely descended in that manner before him.</p>

<p>1. Criminal law—when irregularity in filling panel of jurors does not amount to prejudicial error. The statute in regard to the drawing and serving of jurors must be substantially complied with, but an irregularity in filling a panel of twenty-four jurors by selecting seven jurors from a list of one hundred names appearing in a special venire already drawn instead of issuing another venire to fill the panel will not cause a reversal, where the defendant makes no claim that he was prejudiced by the court’s action in that regard.</p> <p>2. Same—failure to draw jurors twenty days before term is not error. The statutory requirement that petit jurors shall be drawn twenty days before the first day of any trial term is directory, merely, and the failure to draw them within that time is not error.</p> <p>3. Same—when making up a panel from jurors in attendance more than two weeks is not prejudicial error. The fact that the jurors constituting the panel for the defendant’s case were in attendance at the term as jurors more than two weeks before the defendant’s trial was begun is not sufficient ground for a challenge to the array in the absence of a showing that the defendant was prejudiced thereby, as the statutory provision that no panel of jurors shall be required to render at a term of court more than two weeks’ jury service is merely for the protection of the citizen against excessive jury service.</p> <p>4. Same—when indictment is sufficiently indorsed with name of foreman of grand jury. The middle initial of a man’s name and the abbreviations “Sr.” and “Jr.” are no part of the Christian name, and the fact that Charles R. Carlyle, Sr., was sworn as foreman. of the grand jury while Charles Robert Carlyle indorsed the indictment as foreman is not sufficient ground for quashing the indictment.</p> <p>5. Same—when charge of an assault to commit murder is sufficiently proved. Where a defendant is charged with an assault to commit murder and the evidence shows that the assault was made upon an officer who attempted to arrest the defendant while he was concealing a stolen automobile in an out-of-the-way shed, the facts that it was dark, that the officer, in attempting the arrest, turned a flash-light on the defendant and ordered him to put up his hands, and that it was not shown that the defendant knew that the party whom he assaulted was an officer, do not disprove the intent charged.</p> <p>6. Same—what evidence is not ground for new trial. Evidence which is not conclusive or decisive of any issues in the case and which only tends to impeach one of the witnesses as to his ability to identify the defendant is not ground for a new trial.</p>

<p>Principal and agent-—when attorneys cannot retain proceeds of checks for services rendered an agent. Attorneys who for services rendered an agent in his private affairs receive checks drawn by the agent on his principal’s funds and signed in his principal’s name by himself, as agent, to cover the retainer fee and a portion of the amount deposited to indemnify the agent’s bondsmen, can not, as against the principal, retain the proceeds of the checks for their fees.</p>

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