Volume 279 — Illinois Reports

<p>1. Workmen’s compensation—injury must arise out of and in the course of the employment. It is not sufficient, under the Workmen’s Compensation act, that the injury occurs “in the course of” the employment but it must also arise “out of” the employment, as these words are used conjunctively in the statute and the circumstances of the accident must come within both requirements.</p> <p>2. Same—when injury arises out of the employment. An injury arises “out of” the employment, within the meaning of the Workmen’s Compensation act, when the accident results from a risk reasonably incidental to the employment.</p> <p>3. Same—master is not liable for injury resulting from a duty undertaken by a servant as a volunteer. Where a servant, voluntarily and without direction from the master and without his acquiescence, goes into hazardous work outside of his contract of hiring he puts himself beyond the protection 'of the master’s implied undertaking and is not within the terms of the Workmen’s Compensation act. .</p> <p>4. Same—word “volunteer” defined. A volunteer is one who introduces himself into matters which do not concern him, and does or undertakes to do something which he is not bound to do, which he has not been in the habit of doing with his employer’s knowledge and consent, or which is not in pursuance or protection of any interest of the master, and which is undertaken in the absence of any peril requiring him to act as on an emergency.</p> <p>5. Same—when an injury occurs in the course of the employment. An injury occurs in the course of the employment, within the meaning of the Workmen’s Compensation act, when it occurs within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of the employment or is engaged in doing something incidental to it.</p> <p>6. Same—Workmen’s Compensation act does not make the Industrial Board’s legal conclusions binding upon the Supreme Court. While the Industrial Board’s findings of fact, under the Workmen’s Compensation act, are conclusive on the Supreme Court, the legal conclusions of that board, based upon such findings, are subject to review, and if it is clear, upon the facts, that as a legal conclusion an injury was not accidental or that it did not arise in the course of the employment, a contrary conclusion awarding compensation will not be upheld.</p>

<p>Appeals and Errors—when Supreme Court cannot take jurisdiction by direct appeal. The Supreme Court cannot take jurisdiction by direct appeal from the trial court in a proceeding in equity to ascertain the amount due on certain appeal bonds and to relieve the complainants from the hardship and loss imposed by a judgment of the Appellate Court holding that there was no right of recovery on such bonds, even though such judgment was erroneous.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. J. C. McBride, Judge, presiding.</p>

<p>1. Evidence—what interest in suit by administrator will disqualify witness to testify. The interest which disqualifies a witness to testify in a suit by an administrator must be some legal, certain and immediate interest, however minute, either in the result of the cause itself or in the record as an instrument of evidence in some subsequent action to which he is a party, either against him or in support of his claims, and a mere interest in the question to be decided is not sufficient.</p> <p>2. Sa'mE—effect of the record as evidence in an action between strangers to it. Where it is material and competent to prove the existence of a judgment the record of the cause is legitimate evidence between strangers, and its effect is to prove the fact of the judgment.</p> <p>3. Same—when party is a competent witness in suit by administratrix. The person to whom a defendant claims he paid, and was authorized to pay, a promissory note of a deceased person is a competent witness in a suit on the note by the administratrix, where he is not a party to the suit, as the judgment would not be an adjudication of his liability in a subsequent action against him, nor could the record be introduced to prove or disprove that the deceased gave him authority to receive payment or that the defense set up in the administratrix’s suit was well founded.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.

<p>1. Partnerships—an agreement for partnership in real estate business is not zmthin the Statute of Frauds. An agreement for a partnership for the purpose of dealing and trading in lands for profit is not within the Statute of Frauds, and the existence of the partnership and the extent of each party’s interest in it may be shown by parol.</p> <p>2. Same—whether a partnership has been established is a question of fact. Whether a partnership has been established by an oral agreement or the conduct of the parties is a question of fact depending entirely upon the testimony, • and the Supreme Court will not be justified in reversing a decree finding that a partnership is established unless it is clearly against the weight of the evidence.</p>

<p>1. Highways—zvhen award of damages for land taken for highway will not be disturbed on appeal. Where the damages awarded for land taken for a highway are clearly within the range of the conflicting testimony of the various witnesses and the jury has viewed the premises, the amount of damages awarded will not be disturbed on appeal.</p> <p>2. Same—cost of necessary fencing occasioned by laying out a new road is a proper element of damages. The cost of necessary fencing occasioned by the laying out of a new road is a proper element of damages to be considered and the land owner is entitled to recover therefor, as the measure of damages in such a proceeding is not the difference in the value of the land before and after the road is laid out.</p> <p>3. Same—land owner cannot be taxed zvith costs on appeal in proceeding to award damages for laying out road. Where private property is taken or damaged for public use just compensation can not be made to the property owner if he is compelled, at his own cost, to prosecute in the courts for his just rights, and where a land owner appeals from a judgment of a justice of the peace in a proceeding for damages for laying out a road on his land he cannot be taxed for costs in the court appealed to, although he loses by the appeal, as the trial on the appeal is de novo.</p> <p>4. Constitutional i,aw—section 89 of Road and Bridge act is invalid. Section 89 of the Road and Bridge act, in so far as it purports to authorize the adjudging of costs against a land owner who appeals from a judgment of a justice of the peace in a proceeding to award damages for laying out a road, is unconstitutional.</p>

<p>Writ of Error to the Circuit Court of Jersey county ; the Hon. Norman L. Jones, Judge, presiding.</p>

<p>1. Workmen’s compensation.—the writ of certiorari provided in section ip of the Compensation act is different from the common law writ. The writ of certiorari provided in paragraph (/) of section 19 of the Workmen’s Compensation act for review of the decision of the Industrial Board is different from the common law writ, as it is issuable upon a prtzeipe filed with the clerk of the circuit court and service must be had not only on the board but also on the other party or parties interested .in the review.</p> <p>. 2. Same—circuit court can review decision of the Industrial Board only by the method pointed out in statute. The circuit court can review the decision of the Industrial Board upon a claim for compensation only by the method pointed out in the statute and not by a common law writ of certiorari.</p> <p>3. Same-—when evidence will be presumed to have been sufficient to sustain decision of Industrial Board. Where the record shows that evidence in addition to that contained in the stenographic report of the evidence before the arbitrators was heard before the Industrial Board it will be presumed that such additional evidence was sufficient to sustain the finding of the board if there is nothing to show what the additional evidence was.</p> <p>4. Same—verbal notice of accident is sufficient. Verbal notice to the employer of the employee’s injury and the claim therefor is sufficient.</p>

<p>Writ or Error to the Circuit Court of Franklin county; the Hon. J. C. Eagleton, Judge, presiding.</p>

<p>1. Homestead—the wife’s homestead is lost if not preserved by divorce decree settling all her interests in husband’s real property. Under section 2 of the Exemptions law the homestead exemption continues in favor of the wife occupying the premises after desertion by the- husband, but this right is lost if not preserved by the' decree of divorce, which purports to determine all her interests in the husband’s real property, and the Supreme Court cannot, on appeal in a subsequent proceeding by the wife for partition and assignment of dower, review the divorce decree.</p> <p>2. Dower—dower is not subject to lien for taxes paid after a divorce decree. Dower is not subject to the lien of a third party for taxes paid by him on the husband’s property while the husband was living but after a divorce had been decreed to the wife.</p> <p>3. Partition—heirs are entitled to rents until demand for assignment of dower. The heirs are entitled to all the rents from the death of the ancestor until demand is made for assignment of dower but not up to the entry of the decree assigning dower.</p> <p>4. Same—when the deceased husband’s administrator should be made party to bill for partition and assignment of dower. Where a husband deserts his wife and a decree of divorce is entered settling all her interests in his real property without preserving her homestead right but she continues to occupy the homestead, in a subsequent proceeding for partition and assignment of dower after the husband’s death his administrator should be made a party for the purpose of properly disposing of the rents due the estate.</p> <p>5. Same—husband is entitled to rents vohere wife continues to occupy his premises after divorce decree. Where one is in possession of land belonging to another, an obligation to pay rent therefor will be implied unless there is an express disclaimer to hold under the possessor, and where a wife continues to occupy her husband’s premises after obtaining a decree of divorce which determines all her interest in his real estate without preserving her homestead right, he will be entitled to rents for such occupation.</p> <p>6. Executors and administrators—when wife is entitled to a set-off against liability for rent. In a proceeding by the wife for partition and assignment of dower in her deceased husband’s estate, where she is liable for rent for the occupation of the homestead premises after her divorce decree, she will be entitled to set off against such liability the taxes paid by her and the amount of a lien in her favor which was fixed by the decree of divorce.</p>

<p>Information to disbar.</p>

<p>1. Public utilities—the meaning of the words “between two points in this State as used in section 42 of the Public Utilities act. The words “between two points in this State,” used in section 42 of the Public Utilities act, giving the Public Utilities Commission authority to establish joint rates to be charged by common carriers, refer to the territory over which the jurisdiction of the State and its agencies extends in regulating common carriers, as distinguished from the territory over which the jurisdiction of the Federal government extends in like matters.</p> <p>2. Same—when Public Utilities Commission is not required to treat carriers as engaged in mere switching services. The fact that-the transportation services rendered by intermediate and delivering carriers in the Chicago switching district in delivering car-load shipments originating outside of the city of Chicago are carried on entirely within the city does not require the Public Utilities Commission to treat them as mere switching services,' and the charge for such services may be required to be included in the joint rate.</p> <p>3. Same—what order of Public Utilities Commission does not violate section 44 of Public Utilities act. An order of the Public Utilities Commission requiring a joint rate to be established for the transportation of sand and gravel to points in the Chicago switching district, which rate shall cover the services of all carriers engaged in the transportation, does not violate section 44 of the Public Utilities act, providing that nothing in the act shall be construed as requiring any common carrier to. give the use of its terminal facilities to another carrier engaged in like business.</p>

<p>1. Insurance—insurance company cannot bring action in its own name against one who has caused loss by fire. Where a loss by fire has been caused by the action of a wrongdoer and the insurance company has paid the loss it cannot maintain an action in its own name against the wrongdoer, but the suit must be brought in the name of the property owner, for the use of the insurer.</p> <p>2. Same—when both insurer and insured are bound by judgment in, a suit against wrongdoer. Where an insurance company which has" paid the amount of a fire insurance policy actively assists the insured in the prosecution of a suit against the wrongdoer who caused the loss, the judgment is conclusive on both the insurer and the insured as to the value of the property destroyed.</p> <p>3. Same—when acceptance by insured of insurance company’s offer'io pro rate in case of compromise with wrongdoer is not material. Where an insurance company, which has paid the amount of a fire policy for $800 and actively assisted the insured in prosecuting a suit against the railroad company causing the loss, wherein a judgment for $4000 was recovered, offers to assist the insured in defending an appeal or to accept $600 instead of $800 in case the insured chose to compromise the judgment, the insurance company is entitled to recover the $600 if the insured compromises the judgment, and it is not material whether the insured verbally accepted or refpsed the offer.</p> <p>4. Same—when evidence of expenses of insured for attorney’s fees in .suit against wrongdoer is not admissible in action by insurer against the insured. In an action by an insurance company against the insured to recover a sum it had offered to.accept if the insured compromised the judgment it had assisted him in recovering against the railroad company which caused the fire, evidence of the expenses of 'the insured for attorney’s fees in the suit against the railroad company is not admissible, where the insurer assumed an equal burden with the insured in the trial of that suit.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. Joseph B. Messicic, Judge, presiding.</p>

<p>1. Criminal law—a court of review must determine whether there is a reasonable doubt as to defendant’s guilt. While a verdict in a criminal case will not be set aside on the facts unless there is clearly a reasonable doubt of the defendant’s guilt it is still the duty of a court of review to determine such question, and a conviction upon evidence which fails to remove every reasonable doubt of guilt will not be sustained.</p> <p>2. Same—instructions as to reasonable doubt should be concise. The object of instructing the jury is to give them a concise statement of the principles of law which they should apply to the case, and the giving of instructions on the subject of reasonable doubt which are so exhaustive as to-induce the jury to' believe the court feared the jury might think there was a reasonable doubt of guilt when there was none, is erroneous.</p>

<p>Appeals and Errors—when judgment must be affirmed on second appeal. Where the only question on a second appeal in the same case is whether the lower court has followed the Supreme Court’s directions in entering judgment for taxes, if the lower court has substantially followed such directions the judgment must be affirmed.</p>

<p>Writ of Error to the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. F. Irwin, Judge, presiding.

<p>Writ op Error to the County Court of Stephenson county; the Hon. R. J. Carnahan, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Schools—how fact that petition to organise district had sufficient signers may he prima facie proven. Where there is no ofcial list of voters in a proposed new school district, the fact that the petition to organize the district had sufficient signers may be prima facie established by the uncontradicted testimony of the person who took a school census and made an unofficial list of voters.</p> <p>2. Same—action of county superintendent in deciding question of organisation of a new school district is administrative. The county superintendent of schools is authorized to decide finally on the question of the organization of a hew school district, but his action in such case is administrative and not judicial, and on appeal from the decision of the boards of trustees the fact that he announced at the hearing that he intended to grant the prayer of the petition for the new district will not render his 'subsequent order to that effect illegal.</p>

<p>1. Criminal law—under section 576 of the Criminal Code jury must find accused was keeper of house of prostitution in question. Under section 576 of the Criminal Code it is necessary for the People to allege and prove not only that the accused was guilty of permitting an unmarried female under eighteen years of age to stop and room in a house of prostitution but also that the accused was the keeper of such house of prostitution in manner and form as charged in the indictment, and the verdict must so find.</p> <p>2. Same—when verdict does not find that accused was keeper of house of prostitution. In a prosecution under section 576 of the Criminal Code, a verdict which finds the accused guilty of permitting a certain unmarried female under eighteen years of age to stop and rodm in a house of prostitution, “in manner and form as charged in the indictment,” is not equivalent to a finding that the accused was the keeper of the house although it is so alleged in the indictment. (People v. Lee, 237 Ill. 272, followed.)</p> <p>3. Same—when rule that defendant who is convicted of lesser offense is thereby acquitted of the greater offense does not apply. The rule of law that where a defendant is indicted for an offense and on trial is convicted of a lesser offense included in the crime charged the verdict is an- acquittal as to the greater offense cannot be applied where the verdict does not amount to a finding of guilty of any offense but -is merely an ineffectual attempt to find the accused guilty of the crime charged.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.

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

<p>1. Injunction—employees not under contract cannot be enjoined from striking. Employees who are not under contract with their employer cannot be enjoined from quitting work or striking when they please, and they have a right peaceably to assemble or hold meetings and discuss matters in which they are interested or which they deem to be for their benefit and to advertise and give notice of such meetings.</p> <p>2. Same—what may be considered to determine ivhether there has'been a violation of injunction. In order to determine whether there has been a violation- of an injunction it is proper to refer to the bill of complaint as a whole, and the answer thereto, as well as the injunction order itself, for the purpose of ascertaining the matters in issue between the parties in the controversy.</p> <p>3. Same—what is not a violation of injunction against calling employees "scabs.” Where strikers have been enjoined from addressing employees as “scabs,” an allusion or reference to them as “scabs” in a newspaper notice of a strikers’ meeting is not a violation of the injunction order, where the plain object of the bill of complaint and the order was to prohibit the strikers from, calling the employees “scabs”, by word of mouth or using language calculated to provoke a breach of the peace.</p> <p>4. Same—what is not a violation of an injunction order against strikers. An injunction order designed to prevent strikers from interfering with or stopping the employer’s business, from inducing employees to quit work and from publishing or sending out circulars or other communications to the employees to persuade them to quit work, is not violated by a newspaper notice relating to strikers! meetings and requesting the public in general to stay away from the shops where the strike was on.</p>

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

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. Deselm, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on writ of error to the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.

<p>Writ of Error to the County Court of Stephenson county; the Hon. R. J. Carnahan, Judge, presiding.</p>

<p>1. Specific performance—whether specific performance will be granted depends largely on the facts of each case. Even where the terms of a contract are clear, certain and unambiguous, specific performance is not a matter of right but rests in the sound discretion of the court, to be exercised largely according to the facts and circumstances of each case.</p> <p>2. Same—mere change in value of property zvill not prevent enforcement of contract. The fact that there may have been a rise in the value of property or that one person may have gotten the better of a trade, if there are no inequitable circumstances, will not prevent the enforcement of a contract.</p> <p>3. Same—when fact that agent acts for both parties zvill not defeat specific performance. Where an agent of the vendor is’ in the secret employment of the purchaser a contract made between the principal and purchaser through the agent’s efforts is not binding upon the principal, and that fact is a good defense to a bill for specific performance; but such is not -the case where it is known that the agent is acting for both parties and there is no proof tending to show falsehood or misrepresentation.</p> <p>4. Principal and agent—when an agent may act for two parties. Where a dual agency is disclosed to a known principal the agent may act for both parties and the agency cannot be questioned; and the same is true where the interests of the two parties do not conflict and where loyalty to one is not a breach of duty to the other.</p>

<p>Writ of Error to the Circuit Court of Christian county; the Hon. William B. Wright, Judge, presiding.</p>

<p>Deeds—a deed may be reformed to correct mutual mistake—injunction. A deed may be reformed upon the 'ground of mistake if the mistake is one of fact, mutual and common to both parties to the instrument, and is proved by clear and convincing evidence; and where proof of the mistake is clear, a suit in ejectment to enforce the deed according to its terms will be perpetually enjoined.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Macoupin county; the Hon. Norman L. Jones, Judge, presiding.

<p>Appeal from the County Court of Cook county; the Hon. John H. Williams, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Separate maintenance—to maintain bill for separate maintenance wife must show that living apart is without her fault. To maintain a bill for separate maintenance the wife must show not only that she has good cause for living separate and apart from her husband but also that such living apart is without fault on her part; and such fault, within the meaning of the, statute, may be a voluntary consenting by her to a separation, or such failure of duty or misconduct on her part as materially contributes to a disruption of the marital relation.</p> <p>2. Same—what questions are to be considered in determining amount to be allowed for separate ■maintenance. Where a wife is entitled to separate maintenance the amount to be allowed depends not only upon the question of the misconduct of the husband but also upon the matter of their property and income, as well as their ages, health, past and present habits, social conditions and circumstances, and upon the further question whether or not there are children dependent upon one or both of them for support.</p> <p>3. Same—ivhen wife should be allowed alimony in a separate maintenance suit. The amount of alimony to be allowed in a separate maintenance suit is tó be determined as in a case for divorce, and if the wife’s income be insufficient to maintain her and to carry on the litigation the husband’s income should be required to contribute as alimony and to bear the expense of the suit, but if the income of the wifq be sufficient to suitably support her there. is ordinarily no reason for making such allowance.</p> <p>4. .Same—how to compute the amount for separate maintenance where both have an income. Where both husband and wife have an incoihe, a proper method of computing an allowance to the wife, if she is entitled to separate maintenance, is to add the wife’s annual income to her husband’s, consider what, under all the circumstances, should be allowed her gut of the aggregate, then from the sum so determined deduct her separate income, and the remainder will be her proper annual allowance.</p> <p>5. Same—wife should not be left in worse financial condition by reason of her marriage. Where a wife is entitled to separate maintenance the settlement should not leave her in a worse financial condition by reason of her marriage, and she should have not merely what necessity demands but what complete justice requires, but both parties should first have their equities settled in property held by both, jointly and separately.</p> <p>6. Same—the court should settle rights in separate property. If either or both of the parties to a separate maintenance suit have property other than that acquired through the marriage relation, by reason of having purchased or contributed to the purchase or accumulation thereof, the court may decree equities to both in such property or award it to the one who purchased it outright or award other property in lieu thereof, after which the husband may be required to pay a further sum at stated intervals, according to whether the wife is equitably entitled to ’ further payments under the circumstances.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. Joseph B. Messick, 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 Sangamon county; the Hon. James A. Creighton, Judge, presiding.

<p>1. Workmen’s compensation—questions of law are subject to determination for ñrst time in circuit court. As the committee of arbitration and the Industrial Board are administrative bodies and have no judicial functions, it is only on the review in the circuit court that questions of law may be determined for the first time, and any question of law is subject to determination that is presented by the record of the Industrial Board, whether or not there is a positive record or recital that the question was presented to the arbitrators or the Industrial Board.</p> <p>2. Same—when constitutional question is presented by record of Industrial Board. Whether or not the Workmen’s Compensation act, or any section of the same which it is claimed brings the case within its terms, is constitutional is a question of law presented by any record of the Industrial Board .containing a decision awarding compensation.</p> <p>3. Same—ordinary rules of practice will be followed unless in conflict with provisions of the statute. While a proceeding under the Workmen’s Compensation act is wholly statutory and is covered by the provisions of the act, the ordinary rules of practice and procedure will be followed upon a review of the judgment of the circuit court where they do not conflict with the express provisions of the act.</p> <p>4. Same—constitutional question cannot be raised in Supreme Court if not presented to circuit court. The rule that a constitutional question cannot be presented in the Supreme Court for review unless it was presented to the lower court for determination is applicable to a proceeding under the Workmen’s Compensation act, and the record of the circuit court must disclose in some manner that such a question was presented to it for its determination before it can be raised in the Supreme Court.</p> <p>5. Same—burden rests on administrator to show death was re-suit of accidental injury arising out,of and in course of employment. Under the Workmen’s Compensation act the burden rests upon the administrator to show that the death of his intestate was caused by accidental injury arising out of and in the course of the employment, and this proof must be by direct and positive evidence or by evidence from which such inference can be fairly drawn without being based on mere conjecture or surmise.</p> <p>6. Same—when fact that employee had on his uniform when hilled is not proof that injury was received in course of employment. The fact that a hotel porter, who was off duty for the day unless ordered to perform some service because still on the hotel premises, had on his uniform when he was found dead in a freight elevator in the hotel, is not, of itself, sufficient to sustain a finding that he received his injury while in the course of his employment.</p>

<p>Appeals and ERRors-^wApm decree will be affirmed for failure to file abstract of record. Where the plaintiff in error has failed to file an abstract of the record as required by rule 14 of the Supreme Court, and the evidence as ascertained from statements in the briefs is conflicting, the decree will be affirmed.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Christian county; the Hon. J. C. McBride, Judge, presiding.

<p>Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Irwin, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding.

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. Joseph B. Messick, Judge, presiding.</p>

<p>1. WiiAS1—when false description may he rejected. Where thé general description in an instrument is sufficient to identify the property intended to be conveyed, the instrument will not be made void by false particulars which may be added but such fálse particulars of description will be rejected.</p> <p>2. Same—false particular description may he rejected although it precedes general description: A false particular description in a will may be rejected although it precedes the general description, where its insertion before the words of general description does not give a different meaning to the paragraph and where the devise is complete without the particular description.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.</p>

<p>1. Wills—what is a latent ambiguity in a will. A latent ambiguity is one which arises not upon the words of the will, deed or other instrument, as looked at in themselves, but upon those words when applied to the object or subject which they describe.</p> <p>2. .Same—oral evidence is admissible to enable court to understand circumstances surrounding testator. The general rule is that oral proof is not admissible to reform, alter, detract from or add to the terms of a will, but the court may hear such evidence for the purpose of understanding the circumstances by which the testator was surrounded.</p> <p>3. Same—it is presumed that a testator intended to devise all land owned. It is presumed that a testator intended to devise land which he actually owned and that he intended to dispose of his whole estate unless such presumption is rebutted by the provisions of the will or evidence to the contrary, and the fact that there is no residuary clause will strengthen this presumption.</p> <p>4. Same—when false description will be stricken out and devise sustained. Where a testator owning the northwest quarter of sec-' tion 17 devises "twenty-five acres of the northeast quarter of section 17,” which quarter he did not own, if the extrinsic evidence and the other terms of the will show that twenty-five acres from the northwest quarter was the only land not otherwise devised, the words “of the northeast quarter” may be stricken out and the devise sustained as to “twenty-five acres of section 17.”</p> <p>5. Same—court should place itself in position of the testator in the light of surrounding circumstances. The intention of a testator is found by construing the words employed in the will itself in the light of his circumstances and surroundings, and the court should, so far as possible, in the light of these circumstances, place itself in the position of the testator at the time the will was drawn.</p> <p>6. Same—rule as to when a codicil will revoke provisions in the will. There must be absolute inconsistency between the provisions of a will and those of a codicil in order to work a revocation, and if the provisions of the will and codicil can stand together there will be no revocation, as a gift by will cannot be taken away or modified by doubtful expressions but only by express words or necessary implication.</p> <p>7. Same—will and codicil must be construed together. A will and codicil should be so construed as to give effect to every word and every part thereof without change or modification, and the several clauses should be made to harmonize so as to give effect to every' provision, provided such construction is not inconsistent with the general intent and purpose of the testator as gathered from the entire instrument.</p> <p>8. Sam^—when devise creates a dry trust subject to operation of Statute of Uses. Where a testator provides that land devised to his daughter, in the event of her death before her son is twenty-five years old, shall be held by the executors in trust for the son, the fee simple title to be vested in the son upon his reaching said age, the trust created is a dry trust subject to the operation of the Statute of Uses, by which the fee simple title is vested in the son, even to the extent that he may dispose of it before his arriving at the age of twenty-five.</p> <p>9. Same—when costs and 'solicitor’s fees may be paid out of the estate. Where a testator has expressed himself so ambiguously as to make it necessary or advisable to go' into a court of chancery to obtain a construction of the will it is proper to allow the costs and solicitor’s fees to be paid out of the estate.</p> <p>10. Same—when court may allow fee to guardian ad litem in absence of evidence of value of his services. Where the trial court, in a proceeding to construe a will, is able to ascertain from its own knowledge, based on the evidence and records, the value of the services rendered by a guardian ad litem, it may allow a fee therefor without taking evidence as to the value of said services.</p> <p>11. Same—counsel for infant defendants to suit to construe will must show, if partition is desired, that it is for infants’ interest. It devolves upon counsel for infant defendants to a suit to construe a will, if they wish the land to be partitioned, to show that it is for the infants’ interest to grant the partition.</p> <p>12. Same—an accounting on unpaid notes is not germane to suit to construe will. It is the duty of the executor to collect any unpaid notes due his testator’s estate; and an accounting thereon, being subject to the jurisdiction of the county court, is not germane to a suit to construe the testator’s will.</p> <p>13. Same—when court may refer a matter to a special master in suit to construe will. Where it is clear that all the parties to a suit to construe a will have not had their day in court as to all questions involved the court may refer such matters to a special master to take additional evidence.</p>

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

<p>1. Appeals and errors—when it will be presumed the Appellate Court found facts same as trial court. Where the Appellate Court reverses a judgment without remanding • and makes no finding of facts, it must be presumed that it found the facts the same as the trial court and reversed the judgment for error of law.</p> <p>2.. Contracts—when delay will not entitle purchaser to refuse car-load of butter. A purchaser will not be entitled to refuse to accept a car-load of butter which has been delayed a week because the ship bringing the butter for the car was delayed by storms, where the evidence shows that time was not the essence of the contract, and where the purchaser was informed of the delay before the ship arrived but made no objection to the contract being carried out.</p>

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

Writ of Error to the First Branch Appellate Court for the First District;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding.

<p>1. Criminal law—indictment must allege all the facts constituting the crime. An indictment must allege all of the facts necessary to constitute the crime with which the defendant is charged, and an indictment which does not set forth such facts with sufficient certainty will not support a conviction.</p> <p>2. Same—indictment of accessory before the fact must contain allegation charging defendant as principal. An indictment of an accessory before the fact must contain an allegation charging the defendant as principal, but if the crime, with the attendant facts, is sufficiently described in the body of the indictment and the words “as aforesaid” are used in charging the defendant as principal, it is not necessary to repeat the facts in the concluding part.</p> <p>3. Same—court will take judicial notice of the political subdivisions. State courts will take judicial notice of the divisions of the United States into States, and of their own State into counties, cities and towns, and of the corporate character of civil divisions of the State.</p> <p>4. Same—term “body politic," in section 104 of the Criminal Code, construed. The term “body politic,” as used in section 104 of the Criminal Code, regarding falsely personating another in judicial proceedings, iifcludes the State of Illinois, and an indictment concluding that the People of said State were injured need not aver that they are a body politic.</p> <p>5. Rehearing—questions not raised in briefs cannot be raised in the petition for rehearing. Questions not raised in the original briefs of the parties filed in the Supreme Court cannot be considered when raised in the petition for rehearing.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. William F. Cooper, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.</p>

<p>1. Criminal law—burden of proving truth of alleged libel is on the defendant. Under the statute the truth, if published with good motives and for justifiable ends, is a sufficient defense to a prosecution for libel, but the burden of establishing such defense by a preponderance of the evidence is upon the defendant.</p> <p>2, Same—when trial court is not required to pass on propositions of law. The trial court is not required to pass upon propositions of law submitted in a criminal case tried before the court witho,ut a jury.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.</p>

<p>Writ of Error to the County Court of Wayne county ; the Hon. Virgil W. Mills, 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 Edgar county; the Hon. John H. Marshall, Judge, presiding.

<p>1. Registration oe titee—proceedings by which recorder of Cook county has authority to make abstracts need not be proved. The proceedings by which the recorder of deeds of Cook county has authority to make abstracts for the public for hire need not be proved in order to admit in evidence an abstract of title made by such recorder, nor is it necessary to show that the bond required by statute has been filed.</p> <p>2. Same—parties cannot recover costs paid for Ming unnecessary appearances. Parties who have unnecessarily filed separate appearances answering an application to register title but make no attempt whatever on the hearing to show that they have or claim any title or interest in the property or are entitled to any relief, by way of reimbursement or otherwise, cannot recover costs voluntarily paid merely for the privilege of appearing and filing answers.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.</p>

<p>Appeal from the Appellate' Court for the Second District;—heard in that court on writ of error to the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>1. Building lines—where the building line restriction shown by the plat is modified by subsequent deeds, the deeds will govern. Where the owner of a tract of land plats the same and indicates a building line on the plat on. certain of the lots but by his deeds conveying the lots he limits the life of the building line restriction to fifteen years, the deeds, and not the plat, will govern.</p> <p>2. Same—when grantor is estopped by his deed from insisting that previous agreement as to building line is not valid. Where a grantor states in the deed that the conveyance is subject to a previous agreement as to a building line restriction the covenants and conditions of the agreement become a part of the deed, and the grantor is estopped to thereafter insist that the agreement was not valid and binding upon him as to the land described in the deed.</p> <p>3. Pleading—when cross-bill is not germane to original bill. Where the original bill is for partition and asks that a building line restriction be removed as a cloud upon the title of the property, a cross-bill filed by certain of the defendants asking that the restriction be removed as a cloud on the title to their lots which are not involved in the litigation is not germane to the original bill and is open to demurrer.</p> <p>4. Construction—in ascertaining intention of maker of written instrument courts are not confined to literal construction of the language. In construing written instruments the intention of the parties as gathered from a cosideration of the whole instrument is to be ascertained and given effect if this can be 'done without violating some established rule of law or public policy, and the 'courts are not confined to the literal construction of the language used.</p>

<p>1. Wills—object of statute requiring zvitnesses to subscribe a will in the presence of testator. The object of the statute in requiring that a will shall be signed by the testator or acknowledged by him to be his will in the presence of witnesses, and that said witnesses must subscribe their names as witnesses thereto in his presence, is to make sure that the genuine will executed by the testator is the same one that is witnessed and that some other writing is not substituted in place of it.</p> <p>2. Same—attesting zvitnesses need not be personally requested by the testator to sign the will. Where it is not disputed that the testator desired to make a will and wanted it attested by witnesses, it is not necessary that the attesting witnesses be personally requested to act by the testator’s own words but they may be brought in by a third party to act as witnesses, and the testator’s assent will be inferred where they sign in his presence without any objection by him and with his knowledge as to what they are doing.</p> <p>3. Same—formal attestation clause is entitled to weight as evidence. A will, to be valid under the statute, must be signed by the testator in the presence of the subscribing witnesses or he must acknowledge it to be his act and deed, but an attestation clause in due form signed by the witnesses is entitled to weight, even though the witnesses have forgotten the circumstances or the facts set out in the attestation clause or subsequently testify differently. •</p> <p>'4. Same—when zvill is attested in presence of testator. A-will must be regarded as signed by the witnesses in the presence of the testator where the evidence shows they signed the will near the head of the cot on which the testator was lying, that they were within a few feet of him, with nothing to obstruct his view of them, and that he knew what they were doing.</p>

<p>Quo warranto—affidavit in support of petition for quo warranto cannot be based on belief. An affidavit in support of a petition for an information in the nature of quo warranto attacking the organization of a ■ high school district must be positive and be made by one knowing the facts, and it cannot rest on the information and belief of the affiant.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding.</p>

<p>1. Bonds—statutory bond need not be in language of statute unless expressly so required. A bond given under authority of law is not invalid because not executed in the form provided by the statute unless the statute expressly so requires, and such a bond, if in substantial compliance with the statute, is not a mere common law obligation but is a statutory bond, with the statutory measure of liability for its breach.</p> <p>2. Same—a bond conditioned for faithful performan.ee of all duties covers the paying over of moneys. A bond of the clerk of a court conditioned that he “shall faithfully perform the duties of said office as required by law,” covers the duty of paying over to the parties entitled thereto money received by virtue of his office and should be treated as a statutory bond.</p> <p>3Í Same—public officer and his sureties are liable as insurers for money received by virtue of office. - A public officer and his sureties are liable as insurers upon the officer’s official bond for money received by him by virtue of his office, and they are not relieved from liability for the loss of the money though without the officer’s negligence or default.</p> <p>4. Same—money paid to clerk by order of cotirt is received by him in his official capacity. Under an order of court requiring the clerk to accept a certain sum of money tendered by the defendants in a pending suit and hold the same until the further order of the court the clerk receives such money in his official capacity, and he and his bondsmen are liable for the loss of the money by the failure of the bank in which the clerk deposited it.</p> <p>5. Same—obligation of public officer to pay over funds received is same whether funds are public or private. The obligation of a public officer to pay over private funds received by him by virtue of his office is the same as his obligation to pay over public funds, and the measure of accountability to be applied is the same in either case.</p> <p>6. AppEaes and errors—when Appellate Court should not enter final judgment on the pleadings. Where the lower court, in an action upon an official bond, holds that the defendants’ affidavits of merits show a good defense and enters a judgment in bar without a trial, the Appellate Court, if it disagrees with such holding, should not enter final judgment against the defendants for the plaintiffs’ claim but should remand the cause, with directions to sustain a motion to strike the affidavits 'of merits from the files, leaving it open to the defendants to take such further action as they deem best.</p>

<p>Writ of Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.</p>

<p>1. Workmen’s compensation—burden is on administrator to prove injury occurred in course of employment. In a proceeding under the Workmen’s Compensation act the burden is on the administrator of the deceased employee to prove that the accident arose out of and in the course of the employment.</p> <p>2. Same—whether there is any evidence tending to prove the accident arose .out of employment is a question of law. In a proceeding under the Workmen’s Compensation act, if there is competent evidence in the record which, standing alone, fairly tends to" prove that the accident arose out of and in the course of the employment, neither the circuit court nor the Supreme Court may question its sufficiency, but whether there is any evidence in the record which fairly tends to establish that fact is a question of law for the determination of the court. ,</p> <p>3. Same—when injury to employee electrocuted in transformer room does not arise out of employment. Where an employee of a light and traction company who was employed as fireman in the boiler room, to which all his duties were confined, enters the transformer room, which all persons except the workmen particularly employed there were forbidden to enter by placards conspicuously posted, of which he was aware, and is electrocuted by coming in contact with a high-power wire, the accident does not arise out of and in the course of his employment where he entered the room merely for general conversation.</p>

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

<p>ApfEae from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>1. Trusts—when a conveyance is presumed to be an advancement and not in trust. Where one party purchases real estate with his own money and has the title conveyed to a stranger the law will imply a resulting trust in favor of the one furnishing the 'purchase money, but where a husband or father furnishes the purchase money and has the deed made to a wife or child the presumption is that the deed is a gift or advancement.</p> <p>2. Same—party seeking to establish a resulting trust through payment of the purchase money must fully prove his claim. If the person holding title denies the party claiming a resulting trust paid the purchase money, it is incumbent upon the party seeking to establish the trust to prove the payment out of his own means by proof which is clear, full and satisfactory.</p> <p>3. Same—presumption that conveyance was a gift or advancement is not conclusive. The presumption that where a husband or father places the title to land purchased by him in the name of his wife or child the conveyance was intended as an advancement is not conclusive but may be overcome by proof showing a contrary intention, as it is the intention that must control, and what that intention was may be proved by the same quantum of evidence required to establish any other fact.</p> <p>4. Same—fact that father has. retained possession after placing title in name of son is of little importance. The fact that a father, who has purchased land and placed the title thereto in the name of his son, has retained possession is of little importance in determining whether the conveyance was intended to be an advancement or in trust, as the father could by oral agreement retain the control and use of the land during his lifetime and the conveyance would be a valid grant of the future interest.</p>

<p>1. Injunction—only question to be considered in a proceeding for contempt for disregarding injunction is whether the court had jurisdiction. Where an injunction has been disregarded and there is a proceeding for contempt the only question to be considered is whether the court had jurisdiction to order the injunction, and the question whether the court erred or the power was improperly exercised is not involved.</p> <p>2. Same—an injunction void for want of jurisdiction may be disregarded but not because it is 'erroneous. An injunction void because of want of jurisdiction in the judge who ordered it may be disregarded and the person disregarding it is not guilty of contempt, but a party enjoined cannot refuse to obey the injunction because it is erroneous or was improvidently granted, and if the bill upon which the order was granted is defective it must be tested by demurrer in court and not by disobedience tó the v/rit.</p> <p>3. Same—equity has no regard for the method adopted if the injunction is violated. A court of equity has no regard for the method adopted to evade an injunction if the order is substantially disregarded, and where parties enjoined from paying out money of a benefit society are advised by an attorney that they can do so • under the guise of official acts they will not be protected if the injunction is evaded in that manner.</p> <p>4. Same—when amendment to bill does not affect temporary injunction. An amendment changing the purpose of a suit for an injunction and the relief prayed for may render the temporary injunction on the original bill ineffective, but whenever an amendment is allowed which merely elaborates the facts, with no change in the character of the case, the injunction is not affected.</p> <p>5. Contempt—»courts have power to enforce their orders and judgments by contempt proceedings. The power of courts to enforce their orders and judgments by contempt proceedings is a necessary incident to the administration of justice, since if they were without power to compel obedience or to prevent unwarranted interference with the administration of justice they could not perform their functions or secure the rights of litigants.</p> <p>6. Same—when amendments to record of suit for injunction may be made on a contempt proceeding for disregarding the writ. On the hearing of a contempt proceeding for disregarding an injunction, where objections are made to the record óf the final decree in the suit for injunction' and it appears that said record was irregularly kept, in some minor matters, the necessary amendments in that respect may be allowed and made.</p>

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Randolph county; the Hon. W. E. Hadley, Judge, presiding.

<p>Appeal from the Second Branch Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding.</p>

<p>1. Disbarment—when zvriting a letter by an attorney need not be considered as a separate charge. Where the writing of a letter by an attorney is only an incident in the chain of events bearing on his conduct in the entire litigation for which he is being subjected to disbarment proceedings, it is not necessary to consider the writing of the letter'as a separate charge but all the attorney’s conduct in the litigation must be considered together.</p> <p>2. Same—attorney should not sacrifice client’s interests by withdrawing from his case. An attorney is not bound to take a client’s case nor to continue to act as attorney in the matter if he after-wards learns facts which will justify him in withdrawing, but in such case the attorney should not treacherously desert his client and sacrifice his interests.'</p> <p>3. Same—an attorney should not reveal anything to his client’s disadvantage. An attorney who has once accepted employment, even if he afterwards withdraws, should not do anything or divulge anything which he has learned by reason of being such attorney which will be to his former client’s disadvantage.</p>