find no warrant in the will to give paragraph 5 any other construction than its strict legal meaning.

The widow has assigned cross-errors on that part of the decree giving her a half interest in the fee. She claims. she is entitled to the undivided one-half and the undivided one-half of the other half, and, in addition to other cases cited, counsel places much reliance on Sutton v. Read, 176 Ill. 69. We do not regard that case as applicable. In that case the testator did not dispose of the fee of his real estate by will and there was no renunciation of the will by the widow.

We are of opinion the decree of the circuit court is correct, and it is affirmed.

Decree affirmed.

(No. 14033.-Reversed and remanded.)

THE PEOPLE ex rel. Edward J. Brundage, Attorney General, Defendant in Error, vs. THE HILL TOP METALS MINING COMPANY et al.—(A. C. JONES, Plaintiff in Error.)

Opinion filed December 22, 1921.

I. TRIAL-opening statement by the defendant's counsel may amount to an admission. Facts alleged in the opening statement of the defendant's counsel for the information of the court, when properly preserved in the record and repeated in the statement in the brief filed on review, are binding upon the defendant and his counsel, particularly in a civil suit or in a trial for a misdemeanor; and the court is warranted in acting upon such statement as an admission made by the defendant.

2. SALES-general rule as to where sales of personal property are completed. Sales of personal property, whether made to the vendee personally or by letter, are regarded as made at the place where the vendor shows his assent to the proposal by delivering the goods to a carrier for the vendee, in the absence of any agreement of the parties or any special circumstances showing the contrary.

3. SECURITIES-when conviction for selling stock in violation of Securities act cannot be sustained. One who receives at his office in Illinois an application for the purchase of promotion shares of

stock in a foreign mining corporation, and forwards the application, together with the purchaser's money, to his employer, who is a stockholder residing outside of Illinois, and who accepts the offer and mails the certificate of stock to the purchaser, is not guilty of selling securities in violation of the Illinois Securities act, as such a sale is made outside the State by the stockholder and not by the defendant.

WRIT OF ERROR to the Municipal Court of Chicago; the Hon. DANIEL P. TRUDE, Judge, presiding.

JAMES E. MCGRATH, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, and JAMES B. SEARCY, (ADA M. CARTWRIght, and Charles C. BartLETT, of counsel,) for defendant in error.

Mr. JUSTICE DUNCAN delivered the opinion of the court: On a trial in the municipal court of Chicago without a jury, plaintiff in error, A. C. Jones, was found guilty of unlawfully and willfully selling to Edward Ginsberg, for the sum of $300, 150 shares of the capital stock of the Hill Top Metals Mining Company, a corporation organized under the laws of the State of Arizona, and as the agent of that company, the stock and certificates of shares being then and there a security the inherent qualities of which did not then and there assure their sale and disposition without the perpetration of fraud, and the same not being securities then and there based on established but on prospective income, and which were known as securities in class "D" as defined in and under the provisions of an act of the General Assembly entitled "An act relating to the sale or other disposition of securities," etc., approved and in force June 10, 1919, (Laws of 1919, p. 351,) the corporation and Jones. not having then and there filed or caused to be filed in the office of the Secretary of State the statements and documents required to be filed by section 9 of said act. The trial

was on an information filed in that court. A jury was formally waived by plaintiff in error and he was fined in the sum of $100 and costs. He has prosecuted this writ of error for the review of the record. No service was had on the defendant corporation.

Plaintiff in error contended in the lower court, and contends here, that the Securities act is invalid and in contravention of the fourteenth amendment of the Federal constitution and the bill of rights of the constitution of Illinois. He further contended in the lower court, and contends in this court, that the evidence fails to show (1) that the stock alleged to have been sold is a class "D" security as defined in the Securities act; and (2) that the evidence fails to show that he sold the stock to Ginsberg.

The facts are, in substance, the following: John O. Fife, of Kansas City, Kansas, and Peter J. Kasper, of Evanston, Illinois, purchased a group of twenty-nine or thirty mining claims in Cochise county, Arizona, and on September 11, 1916, incorporated the Hill Top Metals Mining Company under the laws of Arizona to develop those properties and fixed the capital stock at 10,000,000 shares, of the par value of one dollar per share. They transferred to the corporation all the properties in consideration for all of the capital stock. A mining engineer whom they had previously employed to make a search throughout the western country and Mexico and who had located these properties was to receive under a contract he had with them. one-fifth of the stock of the company. They placed in the treasury of the company 2,000,000 shares of the capital stock with the understanding that no part of the treasury stock should be sold until the mine had been developed to a producing point, the same to be later sold for improvement purposes. About 1,000,000 shares were to be paid to the party from whom Fife and Kasper purchased the properties, as a part of the purchase price. Out of the remaining stock they were to sell so much as was necessary

to obtain money for development purposes, and the money obtained by the sales of their joint interests was to be used in developing the mine. After the mine had been developed to a point of producing they were to obtain so much of the stock as had not been sold for development purposes. In the several agreements made between Fife and Kasper, their vendors, the engineer and the corporation, it was agreed that none of the stock which the engineer, Fife and Kasper and their vendors were to receive should be issued until the mine had been developed to a producing point, the purpose of the promoters being to sell their own stock for the development of the property and to prevent large amounts of the stock which the other parties were eventually to receive being sold in competition with the sales of the promotion stock. Fife and Kasper undertook to finance this enterprise in Chicago and vicinity, and sold a large amount of their interests under special agreement that the corporation should issue stock sold by them and charge the same to their joint interests. The stock so sold was the only stock issued by the company, no stock having been sold directly by the corporation.

On January 1, 1918, the first of the acts known as "Blue Sky laws" went into effect in this State, and a license was secured by the company and also licenses for several of its agents were procured to continue the sale of the shares under the plan previously followed. When the Securities act of June 10, 1919, became effective it was impossible for the promoters of the company to continue their financing under the plan they had adopted, as the stock they were selling was in reality promotion stock, and under the provisions of the latter act and the rulings of the Secretary of State promotion stock was required to be placed in escrow and could not be legally sold. The claim of plaintiff in error is that the promoters entirely withdrew from this State and ceased the further sale of stock therein; that he had been the secretary of the company but resigned and no longer acted as

secretary or agent of the company; that the company withdrew wholly from Illinois and established its office in Kansas City, Kansas, at the home of John O. Fife, the president of the company, and that all further sales were made at the office in Kansas City. At the time of such withdrawal there were 1500 or 2000 stockholders residing in Chicago and vicinity, and it is claimed that for the purpose of furnishing these stockholders information as to the properties of the company and the progress of the development work, and such other information as they might desire, Fife at his own expense rented office room 908 in the Otis building, in Chicago, and employed plaintiff in error to represent him in the furnishing of such information to the stockholders of Chicago and vicinity.

In July, 1920, Joseph E. Temple, a resident of Chicago and a stockholder in said company, went to Arizona and spent about nine days at the mine. Upon his return he met the complaining witness, Edward Ginsberg, with whom he had been acquainted for several years, and informed him of his visit to the mining properties, and said he thought the stock would prove a very profitable investment and advised Ginsberg to purchase shares of it. After several conversations with Temple, Ginsberg decided to invest $300 in the stock of the corporation and went with Temple to the Otis building to see plaintiff in error in regard to the purchase of the stock. According to the contention of plaintiff in error he informed Ginsberg that he had no stock for sale; that no stock was for sale in Chicago; that the company had not taken steps necessary to authorize the sale of its securities in Illinois under the Blue Sky law; that Ginsberg could purchase shares of such stock only by forwarding to John O. Fife, at Kansas City, a written application for stock, with the purchase price at which Fife was then selling his individual stock, and that Fife, on such application, would mail to Ginsberg his stock on acceptance of his offer or application. Ginsberg testified that when he