prove the descent of property as alleged in the declaration the plaintiff offered in evidence the letters of administration issued to Gustave A. Becker, in which the homestead in Belleville, in St. Clair county, was set down with a valuation of $6000 and one-eighth interest in Arsenal island at a valuation of $3125, and plaintiff also offered in evidence the application for letters showing that Charles Becker left a widow. The defendants proved that the property in Belleville was the homestead of Charles Becker and that he left a widow, who before the suit was brought conveyed her homestead right and dower to the heirs-at-law. The valuation put down in the inventory was not binding upon the defendant Bertha B. Orr, and as to both defendants the property was encumbered by homestead and dower, so that the value of the property which descended to the heirs was not shown. Inventories are competent evidence against the party making them, tending to show what property the deceased owned at his death, (Bailey v. Robison, 233 Ill. 614,) but they are not evidence against any other person. The administrator takes nothing in respect to the real estate except the naked right to sell the same when necessary to pay debts, and the law does not authorize him to put a valuation upon real estate which passes to the heirs, as against them. The homestead right and dower which the widow conveyed to the heirs did not descend to them from Charles Becker and was not subject in their hands to his debts. There was no legitimate evidence of the value of the property which descended, but the court directed the jury to find, from the evidence, the value of the lands, tenements, hereditaments, or rents and profits out of the same, that descended to each of the defendants Gustave A. Becker and Bertha B. Orr, and the jury found such value to be $2336.16 as to Gustave A. Becker and $2336.17 as to Bertha B. Orr.

The judgments against the defendants were personal, and it is argued by counsel for the defendant in error that personal judgments were authorized by the common law

rule that where an heir pleads riens per descent, which is false within his own knowledge, and the issue is found against him, the judgment is to be general. (Jefferson v. Morton, 2 Saund. 6; Bacon's Abr.-Heir and Ancestor— 626; 10 Ency. of Pl. & Pr. 35; Muldoon v. Moore, supra; Roosevelt v. Heirs of Fulton, supra.) The Appellate Court applied that rule and affirmed the personal judgments on the ground that the plea of the defendants was knowingly false. Whether the common law rule is applicable, under our practice, in any case we do not say, but it was not applicable in this one. At the common law the plaintiff did not allege the descent of assets, and the defendants might confess the action and show the certainty of assets by describing the lands descended so that the plaintiff could take out execution against them, but in this case the plaintiff alleged the descent of lands in this State of the value of over $100,000, and there was no traverse of that allegation. It was not in dispute at the trial, but the defendants insisted that if there was judgment it must go against the lands, and that there could be no judgment of that character because there was no evidence that the lands were within the jurisdiction of the court. That was the position insisted upon during the trial. In Branger v. Lucy, 82 Ill. 91, it was held that heirs-at-law who had not sold or aliened any part of the land nor received any rents or profits therefrom were not subject to a personal judgment, and in that case no other judgment could have been rendered against the defendants than one to be satisfied only out of the real estate which descended. That was an action against the heirs and an administrator and the judgment was against the heirs, only. That doctrine was indorsed in People v. Brooks, 123 Ill. 246, which was a suit against an heir-at-law. It does not appear that a false plea of riens per descent had been filed in either of those cases, but there was no plea in this case that the defendants took nothing by descent from the ancestor. There was no basis in the evidence for the direc

tion to the jury to find the value of the lands descended, and whether, under the pleadings, the action is to be regarded as at common law or under the statute, the judg

ment was erroneous.

The judgments of the Appellate Court and the circuit court are reversed and the cause is remanded to the circuit court.

Reversed and remanded.

(No. 11223.-Writ denied.)

THE PEOPLE ex rel. Bert Hamilton, Relator, vs. CLINTON F. IRWIN, Circuit Judge, Respondent.

Opinion filed February 20, 1918-Rehearing denied April 3, 1918.

MANDAMUS-judge cannot be compelled to sign bill of exceptions after time fixed for filing. Where a bill of exceptions is not presented within the time fixed for presenting and filing the same and no application is made before the expiration of such time for a further extension, the judge cannot be compelled, by mandamus, to sign the bill of exceptions and order it filed nunc pro tunc as of a date previous to the expiration of the time fixed for presenting and filing, although such time expired during a recess in the term.

ORIGINAL petition for mandamus.

A. G. KENNEDY, for relator.

LOWELL B. SMITH, and EDWARD M. BURST, for respondent.

Mr. JUSTICE FARMER delivered the opinion of the court: This is an original proceeding in mandamus by relator, Bert Hamilton, against respondent, Clinton F. Irwin, judge of the circuit court of DeKalb county, to compel the respondent, as such judge, to sign a certain bill of exceptions taken of the evidence in the cause tried before him in the circuit court of that county wherein the relator was convicted of the crime of rape and sentenced to the peniten

tiary at Joliet for the term of fifteen years. By stipulation entered into between the parties a reference of the cause to a jury or commissioner to try the issues of fact was waived and the cause submitted to the court upon the pleadings and bill of exceptions attached to the petition as an exhibit, by which it is agreed that all matters and things shown and contained in the statement of facts shall be given the same force and effect as if established by the sworn testimony of witnesses or other competent evidence on a trial before a jury or a commissioner upon proper reference by this court.

The facts disclosed by the record are, that relator, Bert Hamilton, had been previously convicted of the crime of rape in the circuit court of DeKalb county and a judgment rendered on the verdict of the jury sentencing him to the penitentiary at Joliet for the term of eighteen years. A writ of error was sued out to review the judgment of conviction, and at the June, 1915, term of this court said judgment was reversed and the cause remanded for a new trial. (People v. Hamilton, 268 Ill. 390.) Relator was again tried at the October, 1915, term of the circuit court of DeKalb county, found guilty, and by the judgment of the court rendered December 21, 1915, he was sentenced to the penitentiary for a term of fifteen years. At the time this judgment was rendered an order was entered by the court (respondent here) giving the relator ninety days in which to prepare and present a bill of exceptions. The October term adjourned February 5, 1916, and the February term of the circuit court of DeKalb county convened February 28. The ninety days allowed for preparing and filing the bill of exceptions expired March 20, 1916. The February term of the DeKalb county circuit court continued until after May 20, 1916, but court was not continuously in session. There were sessions on eight days of the term prior to March 11, but they were not consecutive days. On March II an adjournment was taken until March 25. Respondent was the presiding judge throughout the term. Between

March 11 and March 25 respondent was presiding and holding court in the circuit court of Cook county, sitting in the city of Chicago. On March 23, which was three days after the ninety days allowed for presenting and filing the bill of exceptions had expired, counsel for relator presented to respondent at the court house in Chicago a motion entitled. in the circuit court of DeKalb county, setting out that the bill of exceptions had not been fully prepared by the official reporter, that the time for filing the same would expire before the next coming in of the court, and asking that the time for presenting and filing the bill of exceptions be extended for a period of thirty days. Respondent indorsed on said motion that the time for filing the bill of exceptions was extended thirty days and signed his name as presiding judge of said court. On the night of March 23 counsel for relator telephoned respondent at his home in Elgin asking permission to change the date of the motion and order from March 23 to March 11, and respondent consented that might be done. Presumably this change was desired for the reason that it had been ascertained the circuit court of DeKalb county had adjourned on March 11 to March 25, and for the further reason that the ninety days' time for the filing of the bill of exceptions had expired on March 20. The motion and order were not filed until April 19.

We deem it unnecessary to set out the further proceedings had in an attempt to procure the signing of the bill of exceptions by the respondent after March 23 and up to May 20, when the motion and order of March 23, bearing date of March II, were stricken from the files and the respondent refused to sign the bill of exceptions. The time fixed (ninety days) for filing the bill of exceptions had expired March 21, and that time had not been extended by any order of the court, nor had any application been made to the court for any extension of time. Independent of the fact that the circuit court of DeKalb county was not in session when the application for an extension of time was made,