in error to dismiss the writ of error on the ground that the court has no jurisdiction because the judgment of the Appellate Court is not final and the sum of $1,000, exclusive of costs, is not involved. The only question in the case in the circuit court was whether the facts stated in the petition showed the petitioner entitled to the widow's award. The court decided that she was not, but the Appellate Court reversed the judgment, and remanded the cause to the circuit court for further proceedings not inconsistent with the views expressed in the opinion filed. In that opinion it was held that the petitioner had not released her right to the widow's award by executing the contract, and that she was entitled to have the appraisers appointed to set off such award. Upon the reinstatement of the case in the circuit court the only order that court could make, not inconsistent with the opinion of the Appellate Court, would be to appoint the appraisers and to have the award set off. In such a case this court has Jurisdiction to review the judgment on appeal or error, and the amount in controversy does not determine the question of jurisdiction. What the amount of the award made by the appraisers would be is, of course, unknown, but the proceeding is not in the nature of an action ex contractu. The motion to dismiss is denied.

By the contract each party released, conveyed, and quitclaimed to the other all interest in the property of the other, both real and personal, renouncing forever all claims, in law and equity, of courtesy, dower, home stead, supervisorship, or otherwise, and it is contended by counsel for defendant in error that these terms do not include the widow's award. That position cannot be sustained. The contract was evidently drawn by some person not familiar with legal terms, and "curtesy" was meant by the word "courtesy," and "survivorship” by "supervivorship." The right to a widow's award, under the statute, depends upon marriage, the continuance of the marriage relation until death, and the survivorship of the wife. The contract included all rights acquired by either one of the parties to it who should outlive the other, in the property or estate of the other, and clearly embraced the widow's award. The contract is sweeping in its terms, and includes every interest that the petitioner acquired in or to the property of her husband by virtue of the marriage, and every interest which she would become entitled to upon his death in case she survived him. The widow's award is of the same character, and belongs to the same legal classification as dower and homestead, which are specifically mentioned, and it would be a wholly forced and unnatural construction of the contract that would exclude the widow's award. It can make no difference whether the interest of the husband in the property or estate of his deceased wife is of the same kind and amount as the interest 76 N.E-5

of the wife in the estate of her deceased husband. Whatever interest either one ac quired in the property or estate of the other was released by the contract.

It is further contended that the contract does not rest upon a sufficient consideration, and that an intended marriage is not such a consideration. The parties were married, and marriage itself has always been regarded as a sufficient consideration to support a marriage settlement. Otis v. Spencer, 102 Ill. 622, 40 Am. Rep. 617; 19 Am. & Eng. Ency. of Law (2d Ed.) 1233. It was the only consideration in the antenuptial contract passed upon in the case of Dunlop v. Lamb, 182 Ill. 319, 55 N. E. 354. But in this case there was another consideration, which was the mutual covenants of the parties to waive their rights in the property of each other and the release of such rights. Each party conveyed and quitclaimed to the other all interest to be acquired, by virtue of the marriage, in the property, real and personal, of the other, and the mutual covenants were a good consideration. McGee v. McGee, 91 Ill. 548; Barth v. Lines, 118 Ill. 374, 7 N. E. 679, 59 Am. Rep. 374.

The remainder of the argument in support of the judgment of the Appellate Court is based upon grounds of supposed public policy, and it is insisted that upon such grounds the court ought to construe the contract in favor of the widow and against the heirs, and hold that a widow's award has not been relinquished. It is true that in the case of Phelps v. Phelps, 72 Ill. 545, 22 Am. Rep. 149, the justice delivering the opinion indulged in observations on the subject of public policy, but the grounds of the decision were that a child was born of the marriage and was living with the widow at the time of filing the petition; that a widow's award is for the joint benefit of the widow and the minor children of the decedent; that, the specific allowance being as much for the benefit of the children as the widow, she has no power to deprive the children of such benefit by an antenuptial contract; and that to effect the purpose of the statute it is necessary that the widow shall share in the benefit of the award. If the wife had no power to release the widow's award because it was for the benefit of herself and the minor child, and the benefit of the provision of the statute could only be secured to the child by setting off the award to the mother as the natural guardian, the question of public policy was of no impor tance. If there was a want of power, that fact was conclusive in the case, and the attempted release would have been ineffective, no matter what public policy was. It is clear that the public concern that widows shall not become charges upon the public charitable institutions of the state was not the ground of the decision, inasmuch as the court said that, if there had been no child or children of the decedent residing with the widow after his death, a very different ques

tion would have been presented, and that ir such a case the award would have been for her sole use, and might be treated as a personal right which she could relinquish. It was distinctly held that the effect of the antenuptial contract was to bar her dower and prevent her taking any portion of the estate as heir under the statute, and, so far as considerations of public policy that widows shall not become public charges is concerned, the same rule would apply to dower and inheritance as to the award. The court afterward defined the exact scope of that decision in Weaver v. Weaver, 109 Ill. 225, where the court said: "The only thing actually decided by the Phelps Case is that the award of a widow having a family consisting in part of a minor child of the deceased is not barred by an unexecuted antenuptial contract." The court also said: "The result of the decisions of this court, as we understand them, go to this extent, but no further: A widow having a family consisting in part of the decedent's children is entitled to the widow's award, notwithstanding there is an outstanding antenuptial executory contract by which she has agreed to accept a certain sum of money or something else in lieu of it." The court in that case held that the children of the deceased who were members of the widow's family had no vested right to the award, and that, when the right to an award once accrued to a widow, she might exchange the specific articles of property awarded to her or release them altogether.

The law has no policy against the making of contracts, or the enforcement of them, when executed by competent parties without fraud and with full knowledge of all material facts. While the law prescribes the rights of husband and wife in the property of each other, they may, nevertheless, by antenuptial contract, determine for themselves what rights they may respectively have in their own and in each other's property during the marriage, and what shall become of such property afterward. Such contracts are not against public policy, but, on the contrary, are considered as being generally conducive to the welfare of the parties. 19 Am. & Eng. Ency. of Law (2d Ed.) 1225. In McGee v. McGee, supra, the court expressed the opinion that such contracts between persons advanced in life, especially where they had previously been married and where there were children of both marriages, among whom there might be dissension as to the property, might be entered into with propriety; and the court said: "Such agreements are forbidden by no considerations of public policy, and there can be no reason why equity will not lend its aid to compel the surviving party to abide the contract." The contract in that case is substantially the same as this one, and was evidently used as a model, to some extent, in drafting this one. In Barth v. Lines, supra, an antenuptial agreement was held to bar the dower of the widow, and it was enforced according to its

terms.

In Yarde v. Yarde, 187 Ill. 636, 58 N. E. 600, it was said that, although the statute would have given the widow more than the antenuptial contract, there was no reason why her contract for less than the amount given to her by the law, which she fairly entered into, should not bind her, and she must abide by it. In the case of Christy v. Marmon, 163 Ill. 225, 45 N. E. 150, it was held that the antenuptial agreement did not bar the inheritance of the wife, for the reason that it only provided for a certain annual payment as dower. There was no attempt in that case to eliminate anything from the contract or to restrict or limit it any way on account of the hostility of the law to such contracts, and it was enforced according to its terms. In the case of Zachmann v. Zachmann, 201 Ill. 380, 66 N. E. 256, 94 Am. St. Rep. 180, the decision rested upon the fact that there was a minor child of the decedent residing with the widow, and the rule that, if there were no children of the decedent living with the widow, an antenuptial agreement would be effective to bar her award, was distinctly recognized. The same rule was held to extend to the homestead right, and was applied in the same way on the same grounds, and the decision that the dower was not waived was upon the ground that the consideration could not be apportioned, which reason would not apply in a case where no question of apportionment is involved. If heirs should be willing that the entire consideration should be paid for that which was lawfully released, the widow would not be entitled to dower because there could not be an apportionment.

It was not decided in the case of Friederich v. Wombacher, 204 Ill. 72, 68 N. E. 459, that an antenuptial contract only becomes effective when accepted by the widow after the death of her husband. In that case the husband by his will gave to his wife all that she was entitled to under the antenuptial contract, and all his personal property in addition thereto, and it was held that she was concluded by the acceptance of the provisions of the will under the well-established rule that she could not claim under the will and at the same time set up any claim inconsistent with it. It was said that although a husband could not, against the consent of the wife. deprive her of her homestead and widow's award, he could by his will give her money or property in such a manner that she would be concluded by her election to accept it. She is not deprived of her statutory right to a widow's award without her consent, where she has released such right by a valid contract. In this case all rights which petitioner acquired under the statute by virtue of her marriage with John Kroell, Sr., and surviving him as his widow, were released by the antenuptial contract. The county and circuit courts correctly decided that question.

The judgment of the Appellate Court is reversed, and the judgment of the circuit court is affirmed.

Judgment reversed.

(219 III. 16)

MAGUIRE v. PEOPLE. (Supreme Court of Illinois. Dec. 20, 1905.) 1. WITNESSES EXAMINATION LEADING QUESTIONS.

In the absence of a palpable abuse of discretion resulting in substantial injury to accused, the allowance of leading questions is not of itself ground of reversal.

2. ABDUCTION-PROSTITUTION-INFANTS.

Under the statute making it an offense for the keeper of a house of prostitution to suffer or permit any unmarried female under the age of 18 years to live in such house, it is immaterial whether the female suffered to live in the house practices prostitution or is wanting in virtue, or not, and whether the keeper of the house knows the age of such female. 3. CRIMINAL LAW-INSTRUCTIONS-CREDIBILITY OF TESTIMONY.

A charge in a criminal case, directing the jury that, in determining the degree of credibility to be accorded to the defendant, they could take into consideration, among other things, the fact, if it was a fact, that she had been contradicted by other and credible witnesses, was proper.

appears that there has been an abuse of the discretion resulting in substantial injury, it is ground for reversing a judgment (Coon v. People, 99 Ill. 368, 39 Am. Rep. 28); but, unless there has been a palpable abuse of discretion, the allowance of leading questions will not alone be a sufficient reason for a reversal (Weber Wagon Co. v. Kehl, 139 Ill. 644, 29 N. E. 714; Funk v. Babbitt, 156 Ill. 408, 41 N. E. 166). In this case, although the court was quite indulgent with the state's attorney in ruling on the questions, we do not think there was a clear abuse of discretion. The next complaint is that the second instruction given at the request of the prosecution permitted the jury to find the defendant guilty, irrespective of the question whether Anna Liebke practiced prostitution while living or stopping in defendant's house, and regardless of knowledge on the part of defendant of the age or virtue or want of virtue of said girl. The statute makes it a crime for the keeper of a house of prostitution or

Lizzie Maguire was convicted of being the keeper of a house of prostitution and permitting an unmarried female under the age of 18 years to live in such house, and brings error. Affirmed.

Burres & McKinley, for plaintiff in error. William H. Stead, Atty. Gen., and John J. Healy, State's Atty. (Robert N. Holt, of counsel), for the People.

CARTWRIGHT, C. J. Lizzie Maguire, plaintiff in error, was convicted in the criminal court of Cook county under an indictment charging her with being the keeper of a house of prostitution and assignation, and suffering and permitting Anna Liebke, an unmarried female under the age of 18 years, to live, board, stop, and room in said house. The evidence established the guilt of the defendant. She and her husband occupied the second and third floors of a building, and her testimony was intended to prove that the business of prostitution and assignation was confined to the third floor and was under the sole charge of her husband. Her testimony, however, as well as all the evidence in the case, proved that she participated in the business, and in the absence of her husband had charge and control of it and received the proceeds.

It is assigned for error that the court permitted the state's attorney, over the objection of defendant, to ask leading questions on the examination of two girls who testified on the part of the prosecution. Many questions were asked which embodied the fact sought to be proved by the witness and suggested the answer desired, and as a general rule such questions should not be permitted. There are conditions under which such questions are not improper, and the propriety of permitting them is a matter within the sound discretion of the court. The exercise of such discretion is subject to review, and, where it

or concubinage is allowed or practiced, to suf fer or permit any unmarried female under the age of 18 years to live, board, stop, or room in such house, building, or premises. It is not an element of the crime that the female shall practice prostitution or shall be lacking in virtue, but it is unlawful to permit her to live, board, stop, or room in a house of the character mentioned, for any purpose. The instruction contained every element of the crime as defined by the statute, and was not incorrect. The statute was designed for the protection of girls, and if defendant permitted one of the prohibited class to stay in her house of prostitution she did it at her peril. The prosecution was not bound to prove knowledge, on her part, of the age of Anna Liebke. McCutcheon v. People, 69 Ill. 601; Farmer v. People, 77 Ill. 322.

It is urged that the eighth instruction given at the instance of the prosecution was fatally defective in authorizing the jury to discredit the defendant as a witness, if she was contradicted by other credible witnesses. The instruction is the same in substance as the one given in the cases of Hirschman v. People, 101 Ill. 568, and Rider v. People, 110 Ill. 11, relating to the tests to be applied to a defendant charged with crime for the purpose of judging of his credibility, except that it omits the element of the demeanor and conduct of the defendant during the trial when not on the witness stand. It directed the jury that in determining the degree of credibility to be accorded to the defendant they had a right to take into consideration, among other things, the fact, if it was a fact, that she had been contradicted by other and credible witnesses. In the opinion by Mr. Justice Scholfield, in Hirschman v. People, it was held that the instruction was proper, and did not assume that the defendant was contradicted or give undue prominence to an isolated fact, and in the opinion by Mr. Justice

Mulkey, in Rider v. People, it was held to be correct on the identical question now raised by counsel. The rules given for the purpose of weighing defendant's testimony were correct, and the jury were only authorized to disregard it entirely if she had willfully and corruptly testified falsely to some fact material to the issue.

There was an error in the form of the judgment, but the verdict was in proper form, and the judgment has been corrected in the criminal court. The judgment is affirmed. Judgment affirmed.

(219 Ill. 116)

PEOPLE ex rel. YOUNG et al. v. PRUST et al.

(Supreme Court of Illinois. Dec. 20, 1905.) 1. DRAINS-ASSESSMENTS-RETURN of Delin

QUENT LANDS.

Hurd's Rev. St. 1903, p. 1541, c. 120, § 191, provides that any error in proceedings for assessment, levy, or collection of taxes, not affecting the justice of the tax, shall not affect the tax, but any error on the assessment or levy may be corrected. Hurd's Rev. St. 1903, p. 747, c. 42, § 106, makes it the duty of the treasurer of a drainage district to certify a list of all delinquent lands upon which taxes remain unpaid, and to file the same with the county collector on or before March 10th of each year. It further provides that the county collector shall transfer the amount specified in the list to tax books, and authorizes proceedings similar to those for the collection of state and county taxes. Chapter 120, p. 1539, § 182, provides that after the 1st day of April, the county collector shall give notice by publication of the delinquent lands returned to him, together with notice of application for sale. Section 188 (page 1540) provides that the county collector shall transcribe into a proper book the list of delinquent lands and lots. Held that, although the county collector's return of delinquent lands recites that it is a list of lands reported for the year 1904, its failure to specifically state that certain drainage assessments included therein were due in March of 1905 was not fatal, but could be corrected on application for sale, where the drainage treasurer's report, on which the collector's return was based, stated that the assessments were due in March, 1905. 2. SAME.

to

Nor need the county collector's return show what the assessments are for, nor whom they are payable when collected, where the treasurer's report identifies them as a special drainage tax for a certain district. 3. SAME.

The drainage district treasurer's return, describing delinquent lands by section, township, and range, was not insufficient for failure to name the state and county, or, if defective, could be cured by amendment.

4. SAME-TREASURER'S REPORT-NECESSITY OF VERIFICATION.

The fact that the report of the treasurer of the drainage district is not sworn to is not a jurisdictional defect, and on the application for judgment of sale an amended affidavit may be filed curing the defect.

5. SAME.

Lands taken into a drainage district in January are subject to assessment for taxes falling due in the following March.

Appeal from Clark County Court; Everett Connelly, Judge.

Application by the people, on the relation of Wallace Young, for judgment and order of sale, against the lands of Daniel Prust and others, for delinquent drainage assessments. From a judgment sustaining objections to the application, relator appeals. Reversed.

James W. Craig, Jr. (Edward C. Craig, of counsel), for appellant. H. R. Snavely and Golden, Scholfield & Scholfield, for appellees.

WILKIN, J. At the June term, 1905, of the county court of Clark county, the county collector made application for judgment and order of sale against certain lands of appellees for delinquent drainage district assessments due drainage district No. 1 of the town of York, in that county. Appellees filed objections to the application, and upon a hearing the court sustained each and all of them, and entered judgment in favor of appellees and against appellant. From this judgment appellant has perfected his appeal to this court, and assigns as error the sustaining of each and every one of said objections.

Section 106 of chapter 42 (Hurd's Rev. St. 1903, p. 747) provides that it shall be the duty of the treasurer of each and every drainage district to make out a certified list of all delinquent lands upon which taxes remain unpaid, and on or before March 10th of each year he shall file said list with the county collector of the county in which such lands shall lie. The return above provided for was made by the treasurer of district No. 1 of the town of York, the material parts of which are as follows: "To Wallace Young, County Collector: I, Harry B. Dulaney, treasurer of drainage district No. 1 of York township, of the county of Clark and state of Illinois, do hereby certify that the following is a correct list of the delinquent lands upon which the assessment due March 1, 1905, with interest at 6 per cent. from that date, remains unpaid, to wit." Then followed a list of owners, together with the description of each piece of land and the amount due upon each. Section 106 of chapter 42, supra, also provides that after this list is filed with the county collector it shall be his duty to transfer the amounts therein specified to the tax books in his hands, setting down therein opposite the respective tracts of land, in proper columns prepared for that pupose, the amount due upon each tract or lot, and there shall be like proceedings for the collection of said tax as in case of state and county tax. Section 182 of chapter 120 (Hurd's Rev. St. 1903, p. 1539) provides that after the 1st day of April the county collector shall give notice, by publication in the newspaper, of the delinquent lands returned to him, together with notice of application for sale, and the date upon which the sale will begin. Section 188 of the same chapter (page 1540) provides that the county collector shall transcribe into a book prepared for that purpose, and known as the

"Tax Judgment Sale, Redemption, and Forfeiture Record," the list of delinquent lands and lots, which shall be made out in numerical order and contain all of the information necessary to be recorded, at least five days before the commencement of the term at which application for judgment is to be made, which book shall set forth the name of the owner, the proper description of the land, the year or years for which the tax is due, the valuation on which the tax is extended, the amount of tax, costs, charges, etc. In compliance with the three above sections the county collector, Wallace Young, on May 29, 1905, filed with the county clerk a list of delinquent lands and lots, including the lands of appellees. The caption of that list is as follows: "A List of Lands and Town Lots Reported by Wallace Young, County Collector of Revenue, for the Year A. D. 1904, in the County of Clark and State of Illinois," etc. Then followed a list of names of owners, including appellees, together with descriptions of land, and over the columns containing the amounts were the words "Special Drainage Tax." In the Ioath of the collector attached to the list he made affidavit that the foregoing was a true and correct list of the delinquent lands and lots within the county of Clark upon which he was unable to collect the tax and special assessments. Upon the hearing the appellant asked leave to amend the delinquent list of the treasurer of the drainage district by attaching an affidavit of said treasurer reciting that the foregoing list was the delinquent list of the lands in Clark county in said drainage district; that said list contained the lands upon which assessments were made by the drainage commissioners of said drainage district for drainage purposes and which the affiant could not collect; that said assessments were due on March 1, 1905, and drew interest at the rate of 6 per cent. per annum from date, and that the respective amounts set opposite the respective tracts of land and charged thereto were the amounts assessed against the said tracts of land and remain due and unpaid at the time of the returning of the delinquent list, and the same had been filed with the county collector of Clark county. The court refused to allow the amendment to be made. The above recitals are those necessary to be considered in determining the validity of objections filed by objectors.

The first objection is that the delinquent list recites that the tax is due for the year 1904, when in fact the lands of objectors were not taken into the district until 1905, and no assessment was due and payable for the year 1904. If any objection could be made to the petition it would be that it did not comply with the statute, for the reason that the collector had failed to mention in his return any specific year for which the delinquent taxes were due. In the caption he reeites that it is a list of lands and town lots

reported for the year 1904, while the affidavit attached to it states that the list is for the year or years therein set forth. It does not state that the taxes are due for the year 1904, but does state that the report is made for the year 1904. This report, under the provisions of the statute, does not necessarily include only taxes for the year 1904, but may include special assessments which fell due in prior years, and also those which were due and remained unpaid on March 10 of the next year. The lands of appellees were not taken into the district until January, 1905, and the report of the treasurer expressly stated that the assessments were due March 1, 1905. The statute made it the duty of the treasurer to report these delinquent taxes to the county collector. The specific objection made by appellees is not sustained by the record, and even if it was, it was a mere informality or omission on the part of the county collector, which could have been corrected if the point had been specifically raised. Peoria, Decatur & Evansville Railway Co. v. People, 141 Ill. 483, 31 N. E. 113; Mix v. People, 106 Ill. 425.

The second and third objections are that the return of the county collector does not show to whom the assessment is due or what the special assessment is for, so that the county collector could know in what column to place it and so the taxpayer can know what assessment he has paid. We deem it sufficient to say that no section of the statute has been called to our attention requiring this to be done. Section 106 of chapter 42 and sections 182 and 188 of chapter 120 contain nothing with reference to the omission complained of. The report of the treasurer specified that the amounts due were for special drainage tax of district No. 1, and the lands of appellees were situated in that district and in no other. This information sufficiently informed appellees what assessment they were paying and also enabled the county collector to turn over to the proper parties the amounts derived from the same, which was all that was necessary, and appellees had no valid ground for complaint in that respect.

The fourth objection is that the delinquent list returned to the county collector by the drainage treasurer does not show in what county or state the land is situated, so that the county collector can know what land to extend the taxes against and so the taxpayer can know what land he is paying for. An examination of the return of the treasurer will show that there is sufficient information in his report so that the lands may be definitely located. They are described in particular sections, townships, and ranges. Even if the description was not proper, appellant made application to the court to amend his return so as to specifically cover the alleged omission, which the court refused to allow.