Volume 285 — Illinois Reports

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.</p>

<p>Contracts—what agreement respecting land cannot be enforced. A verbal agreement by the owner of a tract of farm land to sell the land to an agent at $200 per acre and one-half over that price on all sales made by the agent", the parties to share equally in the expense of improving the land and the purchase price to be paid out of the proceeds of re-sales by the agent, is a mere verbal privilege which must be carried out within a reasonable time and cannot be enforced after the lapse of several years, during which time the agent has been in possession of the land, paying full farm rent to the owner, and where the improvements made consisted only of setting out some trees, repairing fences and fertilizing and seeding the land, at a total cost of $200, of which each party paid one-half.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Richland county; the Hon. Charles H. Miller, Judge, presiding.</p>

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

<p>Writ oe Error to the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.</p>

<p>Wills—when zvife should not be compelled to accept provisions of husband’s zvill. A wife should not be compelled to accept the provisions of her husband’s will and enjoined from renouncing it under the statute, on the ground that the will was one of two mutual wills executed by the husband and wife and was therefore binding on the wife after the husband’s death, where the agreement evidenced by the wills is inequitable to the wife in limiting her to a life interest in the husband’s property, although they had no children, and in giving her separate property to the heirs of the husband at her death.</p>

Writ oe Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Coles county; the Hon. Walter Brewer, Judge, presiding.

Writ oe Error to the First Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the ITon. Oscar M. Torrison, Judge, presiding.

<p>Municipal corporations—statute requiring written notice before suit for personal injury does not apply to young child. The statute requiring written notice within six months after an injury by any person intending to sue a city does not apply to a child seven years old, who is physically and mentally incompetent to give such notice, as the act, though general in its terms and containing no specific exception, must be construed as having been passed with due regard'sto the established rules of law for the protection of incompetent persons.</p>

<p>1. Practice—evidence need not be preserved to support facts found by the decree. On appeal to the circuit court from an order denying a petition to probate a will, which alleges that the petitioners are the grandchildren of the testator, if the decree, rendered after hearing evidence, sustains a prior motion to dismiss the appeal and finds that the petitioners are the grandchildren of the testator, the evidence on that point need not be preserved by a certificate of evidence but will be presumed, on appeal, to sustain the finding.</p> <p>2. Same—when an order denying probate is properly set aside—• notice. Where a probate petition naming only the children of the testator as his heirs-at-law and legatees is denied by the county court, the court may at the same term set aside such order without notice to the petitioners, where it is shown to the court that there were minor legatees named in the will who were not mentioned in the petition and who were entitled to notice of the hearing thereon.</p> <p>3. Same—order of circuit court dismissing an appeal in a probate proceeding may be reviewed by appeal. Notwithstanding the amendment in 1897 of the law in reference to the probate of wills, an order of the circuit court dismissing an appeal from an order of the county court denying probate may be reviewed in the Appellate Court or the Supreme Court, as the facts may require, either by appeal or writ of error.</p> <p>4. Wiles—a contingent interest is sufficient to authorise appeal from an order denying probate. Where a will creates a trust for twenty years, in favor of the testator’s named children, at the end of which the estate is to be divided among them, share and share alike, and in case any of them be dead at that time “his or her share shall descend to his or her children,” living grandchildren of the named devisees are entitled to notice of a proceeding to probate the will, and may by their guardian ad litem, if minors, appeal from an order denying probate.</p>

<p>Writ oe Error to the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding.</p>

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

<p>Deeds—when grantee takes a life estate, only. A deed to the grantor’s son “and his heirs of his body,” the habendum clause providing that the grantee is to hold the real estate for the term of his natural life, only, “with remainder to his heirs of his body,” passes a life estate to the grantee, under section 6 of the Conveyances act, with remainder in fee to his children, which is contingent until the birth of a child, when it vests subject to being re-opened to let in after-born children. (DuMeld v. Dufñeld, 268 111. 29, distinguished.)</p>

<p>1. Parties—bill to restore alleged lost deed must make grantor’s heirs parties. A bill to restore an alleged lost, stolen or destroyed deed, by which it is alleged the grantor divested himself of all title, must make the grantor or his heirs, devisees or persons claiming under him, parties to the suit.</p> <p>2. Same—objection of non-joinder of indispensable parties may be made at any time. Whenever it appears to the court that parties against whom relief is sought have not been joined as defendants and it has no jurisdiction over them the court should proceed no further, and the objection of non-joinder of indispensable parties may be made at any time at the hearing or on appeal or writ of error and need not be made by demurrer.</p>

<p>Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>Appeal from the County Court of Tazewell county; the Hon. J. M. Rahn, Judge, presiding.</p>

<p>1. Fraud—person charging actionable fraud must prove he has suffered injury. One who charges actionable fraud in a real estate transaction must prove with a reasonable degree of certainty that he has suffered an injury, otherwise he is not entitled to relief.</p> <p>2. Notice—party having actual notice of conveyance is bound thereby. One who before he purchases property has notice that another deed has been executed to another person is bound by such former deed, even though his own deed was recorded first.</p> <p>3. Deeds—when a deed is properly delivered. Where a deed is turned over to the notary who took the acknowledgment, upon the understanding that he is to hold the deed and the purchase money until the abstract of title has been made, examined and approved, when he is to deliver the deed to the grantee, a delivery by him to the grantee after such condition is complied with is good.</p> <p>4. Pleading—when a general prayer for relief is sufficient. A general prayer for relief is sufficient to support any decree warranted by "the facts alleged in the bill and established by evidence.</p> <p>5. Principal and agent—when dual agency will not avoid real estate transaction. Where the grantor knows the grantee is not purchasing the property for himself and is satisfied with the price received and the commission paid by him to the grantee, and the purchaser from the grantee is satisfied with the price paid by him, including his commission to such grantee, the fact that the latter received commissions both from his grantor and his grantee, neither of whom was misled, will not avoid the transaction.</p> <p>6. Interest—when purchaser of land is not chargeable with interest. Where the purchaser of land deposits the purchase money with a notary, in accordance with the agreement of the parties, but the notary is prevented from delivering the purchase money because the grantor refused to complete the transaction and conveyed the property to a third person, the purchaser is not liable for interest.</p>

<p>Appeals and errors-—when decree will not be reversed for want of proper parties. A decree setting aside a will which left all of the testator’s property to the widow will not be reversed, on appeal by the widow, for error in proceeding to a decree without all the children of the testator being made parties or a guardian ad litem appointed for those who were minors, where such error does not injuriously affect the appellant or any other person, the decree being in favor of the children and fully protects their interests.</p>

Writ or 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 Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Moultrie county; the Hon. George A. SENTEL, Judge, presiding.</p>

<p>Appeals and Errors—when a freehold is not involved in suit for damages to real estate. A freehold is not involved in an action for damages to real estate from overflowing, the same where the positive allegation of the declaration as to plaintiff’s ownership of the land is admitted by demurrer and no question is raised as to the title to the land.</p>

<p>1. Pleading—zvhen a motion to strike pleas from the files is not proper practice. A motion to strike a plea from the files is proper if the plea is filed contrary to a rule of court or established practice, but insufficiency of the plea in substance or form must be taken advantage of by demurrer, and a motion to strike for such grounds is contrary to the rules of pleading and practice.</p> <p>2. Same—affidavit of merits may be stricken from files if insufficient. If an affidavit of merits to a plea to a verified count is insufficient it is proper practice to strike it from the files and give judgment for the plaintiff, and it is not necessary to strike the plea from the files although such practice is common and not improper.</p> <p>3. Same—zvhen affidavit of merits may be filed zjvith each plea. An affidavit of merits may be filed with each plea which sets up a different defense as to separate 'causes of action on different promissory notes.</p> <p>4. Same—zvhen an affidavit of merits is not subject to objection that it is made on information and belief. An affidavit of merits which states the facts set out in the special plea to which it is attached is not subject to the objection that it is made on information and belief because it states that the defendant is informed and believes that he has a good defense upon the merits.</p> <p>5. Same—when judgment cannot be sustained because no plea was on file to common counts. Where the plaintiff’s declaration consists of the common counts and two special counts on two promissory notes, with an affidavit of merits showing that the plaintiff’s claim is on the notes, the action of the court in giving judgment for the plaintiff after erroneously striking from the files the special verified pleas of the defendant cannot be sustained on the ground , that there was no plea on file to the common counts.</p>

<p>Writ oe Error to the Circuit Court of Adams county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>1. Constitutional law—the act of 1917, making sentence to the house of correction commutable, is invalid. The amendment of 1917 to section 9 of the act relating to houses of correction, (Laws of 1917, p. 532,) which attempts to make sentences to the house of correction commutable within thirty days by the court or judge entering the sentence, is invalid as taking from the Governor the pardoning power vested solely in him by section 13 of article 5 of the constitution.</p> <p>2. Same—Governor’s pardoning power embraces misdemeanors. The power granted by section 13 of article 5 of the constitution to the Governor to grant reprieves, commutations and sentences after conviction is “for all offenses,” including misdemeanors, and is not limited to felonies.</p> <p>3. Same—a misdemeanor is within rule precluding vacating of judgment after defendant has begun to serve sentence. The rule that a judgment of conviction cannot be set aside by the trial court after the defendant has begun to serve his sentence is not limited to cases where the place of imprisonment is beyond the territorial jurisdiction of the trial court but includes a conviction for a misdemeanor where the imprisonment is in the house of correction.</p>

<p>1. Trusts—all the trustees named must join in exercising their joint pozver. In executing their joint power all the trustees named in a will must join, and a contract signed by three of the four trustees named in a will and a fourth person who was named to act as trustee in case of a vacancy is not valid unless it is shown affirmatively that the vacancy had occurred and that the fourth person had qualified as trustee.</p> <p>2. Contracts—invalidity of contract of sale may .be urged as a defense to suit for commissions. The invalidity of a contract for an exchange of real estate because of an improper execution thereof by the trustees of an estate may be shown by the other party to the contract as a defense to a suit for commissions by the broker who procured the contract.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.</p>

<p>Appeals and errors—when a constitutional question is not involved. Where the Appellate Court reverses the alimony part of a divorce decree because the evidence is not preserved in any way and remands the cause for further proceedings, the question whether the trial court, on re-instatement, had power, under the allegations of the bill, to hear evidence as to alimony and render a decree for alimony and solicitor’s fees is not a constitutional question but a question of practice, and an appeal from the decree should be taken to the Appellate Court.</p>

<p>1. .Schools—what does not render organisation of high school district unconstitutional. The fact that the territory of a new high school district embraces all or parts of existing common school districts in which high school studies are being taught does not render the organization of the new district unconstitutional, but the constitutional limitations must be observed in levying school taxes.</p> <p>2. Sam®—what equivalent to consent of county superintendent to dividing school districts. The provision of section 89 of the High School act of 1917 that no existing school district shall be divided by high school district boundaries except where the county superintendent of schools shall deem it necessary, is complied with where a petition to organize a high school district which will divide existing school districts is submitted to the county superintendent, who orders an election.</p> <p>3. Sam®—territory need not be in form quadrilateral to be compact and contiguous. To be compact and contiguous within the meaning of the curative act relating to high schools it is not essential that the territory be quadrilateral in form.</p>

<p>1. Taxes—judgment should be against right of way in taxing district, only. A judgment for delinquent taxes against the right of way of a railroad company should be against the right of way in the taxing district, only.</p> <p>2. Constitutional law—title of the high school curative act is broad enough to cover the provisions of the act. The title of the high school curative act of June 14, 1917, is broad enough to cover the provisions of the act, including those of section 2.</p>

<p>1. Wills—what is not a bill merely to determine and declare a legal title. A bill by a remainder-man in possession asking for a construction of the will and alleging that by reason of its terms her title is so uncertain that she cannot borrow the money necessary to repair the property, which has become untenantable and nonproductive, is not a bill merely to determine and declare the complainant’s title but is to enable complainant to have the beneficial use of the property devised to her, and a court of equity has jurisdiction to entertain it.</p> <p>2. .Same—executory limitation may be made to depend upon any event. An executory limitation over after a fee may be made to depend upon any specified event or contingency not obnoxious to any rule of law, but the question whether such limitation takes effect and destroys the fee in the first taker depends upon the intention of the testator as to when and under what circumstances the devise over is to become effective.</p> <p>3. Same—when death of remainder-man without issue means during the lifetime of the life tenant. Where the devise of a fee is not imme'diate but is to take effect at the termination of the life estate, an executory devise over in case the remainder-man shall die without issue has reference to death without issue during the continuance of the life estate, unless there is other language in the will showing that the testator intended a later date. (Fifer v. Allen, 228 111. 507, and Gavvin v. Carroll, 276 id. 478, explained.)</p>

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

<p>Appeal from the Circuit Court of Sangamon county ; the Hon. E. S. Smith, Judge, presiding. '</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Mazzini SlussER, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding.</p>

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

<p>1. Wills—when an attorney may testify on question of mental capacity. Where the mental capacity of the testatrix is attacked, an attorney who was employed by her, several years before the will was executed, to resist a petition for the appointment of a conservator, may testify to facts and circumstances coming within his observation during his acquaintance with her and may express an opinion as to hef mental condition, so long as he does not testify to any communications which were privileged.</p> <p>2. Same—when instructions are not misleading. Instructions in a will contest case stating that the testatrix must understand the particular business in which she is engaged and the effect of the particular instrument on her property, be able to intelligently comprehend the nature and effect of the will and its provisions and to know from its contents whether it disposes of the property as determined upon', are not likely to mislead the jury into thinking that she must understand the technical language and legal forms of the will.</p>

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

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

<p>1. Workmen’s compensation—when record of hearing before arbitration committee is filed in time. The record of the proceedings before the arbitration committee filed before the'Industrial Board on March 22, 1915, is filed in time, under the statute then in force, even though the petition for review was filed in the preceding month of December, where the Industrial Board granted several extensions of time, each one being granted before the prior extension had expired.</p> <p>2. Same—when employer has sufficient notice of accident. Even though the written notice mailed by the claimant’s attorney thirty days after the accident did not reach the employer until the following day he will be deemed to have had sufficient notice where he was represented by his attorney and his foreman at the inquest held after the accident and knew that it was claimed the employee died as the result of a fall received in the course of his employment in his employer’s plant.</p> <p>3. Same—Supreme Court cannot consider the weight of the evidence. The Supreme Court cannot weigh the evidence in reviewing a workman’s compensation case but can examine the record only to determine whether there is competent evidence to sustain the award.</p>

<p>Writ op Error to the Circuit Court of Kankakee county; the Hon. Arthur W. Deselm, Judge, presiding.</p>

<p>Appeal from the County Court of Marshall county; the Hon. D. H. Gregg, Judge, presiding.</p>

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

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

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

<p>1. Workmen’s compensation—statutory period for suing out a writ of error applies to Workmen’s Compensation cases. The three-year period fixed by statute for suing out a writ of error applies to Workmen’s Compensation cases notwithstanding the writ cannot issue unless the trial court certifies that the case is a proper one to be reviewed, or the Supreme Court, or one of its judges, orders that the writ shall issue.</p> <p>2. Same—when Supreme Court is not bound by facts found in written decision of Industrial Board. In determining whether there is any competent evidence tending to support an award made by the Industrial Board the Supreme Court is not bound by the facts stated in the written decision of the board where there is a stenographic report of the evidence in the record. (Munn v. Industrial Board, 274 111. 70, explained.)</p> <p>3. Same—when award of Industrial Board must be upheld. If there is any competent evidence tending to sustain an award by the Industrial Board based on its finding that the deceased employee came to his death as a result of an accident which arose out of and in the course of his employment, the Supreme Court must uphold the award though the preponderance of the evidence is that the de-. ceased died from natural causes.</p>

<p>Writ oE Error to the Circuit Court of Macon county; the Hon. William K. Whiteield, Judge, presiding.</p>

<p>1. Eminent domain—what evidence as to sales of other lots is admissible. In a proceeding to condemn vacant land a witness may testify, subject to proper cross-examination, as to comparatively recent sales by him of lots in nearby subdivisions, even though some of the sales were to relatives of the witness and involved commissions to him.</p> <p>2. Same—nearness of time and place is not so important where sales are of industrial property. In a condemnation proceeding, in proving sales of other property on the question of the value of the land condemned, greater latitude as to nearness of time and place should be allowed where the sales are of industrial properties than where they are of residence lots.</p> <p>3. Same—when evidence of sales of industrial property should be admitted. Where the theory of the owner of land sought to be condemned is that its most valuable use, owing to its location near a belt line railroad, is for industrial purposes, evidence of sales of industrial property made, respectively, four and two and one-half years before the trial and at locations one and one-half and four miles from the land condemned, should be admitted if there is no other evidence of such sales nearer in point of time and location.</p> <p>4. Same—what evidence as to special assessments is admissible. In a proceeding by a city to condemn vacant land, the defendants are entitled, on cross-examination of a witness for the city, to have him state, if he knows, the amount of special assessments chargeable to the land condemned for improvements he has testified have been put in.</p> <p>5. Same—sale of property for its best use does not make it an extraordinary sale. The fact that the price of property for its highest and best use is its greatest market value does not make such a sale a special sale or one made under extraordinary circumstances.</p> <p>6. Samé—jury may consider adaptability for switch-track facilities though no switch track has been built. Where vacant property sought to be condemned is located near a belt line railroad and the defendant claims its best use is for industrial purposes, the jury may consider the adaptability of the property for switch-track facilities even though there was no switch track to the particular property at the time the petition was filed.</p>

<p>1. Practice—when branch of the Appellate Court may sustain motion after main court has denied it. Where the main Appellate Court for the First District transfers a case to a branch court after overruling a motion to strike the original stenographic report from the files, the branch court has power, on a renewal of the motion, to allow the same, where it appears from the record that the report was improperly filed.</p> <p>2. Same—consent of parties to filing original stenographic report is necessary under the Fees and Salaries act. The original stenographic report cannot be made a part of the record under the provisions of the Fees and Salaries act unless there is an agreement of the parties to that effect.</p> <p>3. Same—Municipal Court act does not authorize Ming original stenographic report in case of appeal. Paragraph 6 of section 23 of the Municipal Court act, authorizing the original stenographic report to be made a part of the record by an order of the court where the review is by writ of error, does not authorize such practice where the review is by appeal.</p>

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

<p>1. Practice—opinion must be consulted where mandate directs decree to be entered in accordance therewith. Where the Supreme Court reverses a decree in a will case and the mandate follows the language of the opinion and directs the trial court to enter a decree in accordance with the views expressed in the opinion, it is the duty of the trial court, in carrying out the mandate, to consult the opinion, and on appeal from the decree so entered the only question is whether the trial court has correctly interpreted the opinion.</p> <p>2. Same—when question as to construction of a zvill cannot be re-argued. Where a decree in a will case is reversed and the cause is remanded, with directions to enter a decree in accordance with the views expressed in the opinion, which discloses that the provisions of the will have received a construction by the Supreme Court, the proper construction of such provisions cannot be re-argued on an appeal from the decree entered by the trial court in carrying out the mandate.</p>

<p>Writ oE Error to the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.</p>

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

<p>This case is controlled by the decision in People v. Metropolitan Elevated Railway Co. (ante, p. 246.) 0</p>

<p>Offices—when appointment of attorney and, secretary of board of education is unauthorised. Where the mayor’s appointments as members of the board of education are not concurred in by the city council the appointees have no legal title to the office and are without power to appoint an attorney, secretary and business manager for the board of education. (People v. Davis, 284 111. 439, followed.)</p>

<p>Writ oe Error to the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding.</p>

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

<p>1. Workmen’s compensation—when injury is within scope of Compensation act. An injury to an employee in an industrial plant caused by his being caught between the automatic gate and the floor of a combination freight and passenger elevator is within the scope of the Compensation act, where the employee had been taught to use and was expected to use the elevator as occasion required, and where, although the injury occurred during the lunch hour, the employees used the elevator in the same manner as in work hours in going to and from the part of the building where they chose-to eat their lunch.</p> <p>2. Same—statute does not require parents or lineal heirs to be dependent on deceased. To justify a recovery of compensation under the Compensation act for accidental death of an employee it is not necessary that the parents or lineal heirs shall have been dependent upon the deceased for support, but it is sufficient if the deceased employee leaves parents to whose support he has contributed within four years prior to the time of his injury.</p>

Writ op Error to the 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. Special taxation—when application for judgment for special sidewalk tax is premature. Where the entire cost of a sidewalk is apportioned upon the various lots according to their frontage, an application by the collector for judgment and order of sale for the tax cannot be presented until the entire sidewalk provided for is completed and a bill of cost filed in the office of the clerk.</p> <p>2. Same—property not liable for cost of proceeding to obtain judgment for special tax. The right to recover costs is entirely statutory, and there is no statute authorizing a recovery of the cost of a proceeding against property to obtain judgment for special taxes or assessments. (Merritt v. Thompson, 13 111. 716, and Jackson v. Cummings, 15 id. 449, explained.)</p> <p>3. Same—if a special tax ordinance is void it cannot be validated. Where a special tax ordinance passed under the Sidewalk act is void it cannot be validated by a subsequent ordinance, and the property owners have the same rights against the subsequent tax as against the first one, as section 8 of the Sidewalk act, as amended in 1907, does not extend the power of a city, village or town to make a void ordinance valid.</p>

<p>, 1. Attorney and client—attorney employed to contest a will must have special authority to compromise suit. An attorney employed to contest a will does not, in the absence of special authority, have power to accept money to compromise the suit, and his action in accepting the money without the authority, knowledge or ratification of the client is not binding upon her.</p> <p>2. .Same—what does not bar complainant from right to continue prosecution of suit. The fact that the attorney for the complainant in a suit to contest a will, without the authority or knowledge of the complainant, accepts a sum of money from the defendant on a proposition to compromise the suit, which was to be submitted to complainant for acceptance, does not bar the complainant from the right to continue the prosecution of the suit where she never accepted the proposition or received the money, and she is not bound, as a condition to such prosecution, to pay to the defendant the amount which he paid to the attorney, which the latter kept.</p> <p>3. Practice—when procedure of dismissing bill on motion and affidavits is erroneous. Where facts arise after the filing of a bill to contest a will which are relied upon by the defendant as barring the complainant from a further prosecution of the suit they should be set up by plea or answer, and it is error to hear the cause and dismiss the bill upon motion and affidavits without pleadings or issue joined.</p> <p>4. Same—when complainant does not waive right to have cause prosecuted in ordinary manner. The complainant in a bill to contest a will does not, by resisting the summary dismissal of her bill on motion of the defendant and proceeding to a hearing on the motion, waive her right to insist that the cause be prosecuted according to the ordinary rules of procedure.</p> <p>5. Pleading—the words “attorney of record” do not imply authority to compromise suit. An allegation that an agreement to compromise a suit to contest a will was entered into by the defendant with the complainant through her “attorney of record” does not imply any authority by the attorney to compromise the subject matter of the litigation.</p>

<p>1. Criminal law—what does not amount to indirect proof of former conviction. Where a witness in a murder trial testifies that he had known the defendant for several years before the killing, and defendant’s counsel, on cross-examination, elicits the fact that the witness was confined in the reformatory at Pontiac during that time, the fact that the State’s attorney, on further examination, brought out that the witness became acquainted with the defendant at Pontiac does not amount to indirect proof of a former conviction of the defendant.</p> <p>2. Same--when revolver, cartridges and sales sheet are properly admitted in evidence. On the trial of one charged with shooting a policeman, a revolver and cartridges, and a sales sheet showing their sale to the defendant the day before the killing, are admissible to prove his ownership and possession of the same kind of a deadly weapon with which the policeman was killed, even though it is not shown that the revolver and cartridges were of the same caliber as those used in the killing.</p> <p>3. Same—when fact that sales sheet is not signed in defendant’s name is not material. Where the person who sold a revolver and cartridges positively identifies the defendant as the man who bought them and signed the sales sheet, it is not material, so far as the admissibility of the sales sheet in evidence is concerned, that the defendant did not sign his own name thereto.</p> <p>4. Same—objection to letter should point out portions claimed to be irrelevant. Where a letter written by the defendant while in jail is offered in evidence and it is proven that he wrote the letter, a mere general objection to its admission in evidence does not save the question that certain parts of it were irrelevant and immaterial and should have been excluded by the court.</p> <p>5. Same—jury need not find age of defendant in murder trial where the question is not raised. In a murder trial it is not necessary for the jury to find the age of the defendant where no question as to his age is raised at any time during the trial.</p>

<p>1. Public utilities—telegraph companies and telephone companies perform same public service. A telegraph company which was engaged in business in Illinois before the Public Utilities act took effect and which had for some years prior to that time been engaged in preparing its wires so they could also be used for telephone service need not obtain a certificate of necessity and convenience from 'the Public Utilities Commission before engaging in telephone service, as the latter service is substantially the same as the telegraph service, both being the transmission of messages over wires.</p> <p>2. Same—what is not the construction of new facility but merely an extension of existing service. The installation by a telegraph company in its building of the electric equipment, switch-boards, booths and instruments necessary to enable it to furnish telephone service over the wires it is using in its telegraph business is merely an extension of the company’s existing service and not the construction of a new plant, equipment, property or facility.</p>

<p>1. Taxes—what property of sanitary district is real estate and not personal property. Power transmission lines of a sanitary district, whether 'consisting of wooden poles set in the ground or steel towers on concrete bases, all being on land owned by the district, and spoil banks composed of material excavated from the channel, which are also on land owned by the district, are real estate, and, if taxes have been extended against such land, a tax on the spoil banks and transmission lines as personal property is void as amounting to double taxation. (Sanitary District v. Gifford, 2,$J 111. 424, distinguished.)</p> <p>2. .Same—what does not change character of property as real estate. The fact that the sanitary district has sold rock or stone from spoil banks located on its land and composed of material taken out in excavating the channel does not change the character of the spoil banks from real estate to personal property.</p> <p>3. The other questions involved in this case are controlled by the decision in Sanitary District v. Young, {ante, p. 351.)</p>

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

<p>1. Plats—acknowledgment and recording of statutory plat vests fee of streets and alleys in city. The acknowledgment and recording of a statutory plat operates to convey the title to the streets and alleys shown thereon to the city, and the fee thereof will remain in the city until the dedication is vacated in the manner provided by statute.</p> <p>2. Same—statutory method of vacation does not apply to common law plat. The statutory method of vacating a dedication does not apply to a common law dedication, and lot owners who follow the statute in executing a vacation piece with reference to streets or alleys shown on a plat thereby recognize the plat as a statutory one.</p> <p>3. Same—certificate to plat overcomes presumption of delivery of a deed of previous date. The fact that the owner of a platted tract, before acknowledging and certifying the plat, had made and acknowledged a deed, which was, however, not recorded until after the plat was acknowledged and certified, does not show that such owner had parted with his title, as the recital of the certificate that he is the owner of the land overcomes the presumption that his previous deed was delivered on the date shown therein.</p> <p>4. Same—when plat contains a sufficiently known and permanent monument. A plat on which are shown the exact location of the section line of the section in which the land is situated and the exact point where it is crossed by the quarter section line, with the distance in feet from such lines to two sides of the plat, contains a sufficiently known and permanent monument to comply with the statute, as the courts will take judicial notice that at all government section corners permanent monuments exist.</p> <p>5. Deeds—quit-claim deed does not pass after-acquired title. A quit-claim deed made by the former owner of a platted tract at a time when the fee of the streets and alleys is in the city has no effect as to such streets and alleys and does not pass a title thereto subsequently acquired by him by reversion when the streets and alleys are vacated under the statute, and neither he nor his subsequent grantee is estopped to assert such title.</p>

<p>1. Wills—policy of the law favors an estate in fee. Where a testator by his will employs language sufficient to pass the fee simple title to land a fee simple title will pass unless there is some expression of a clear intention to cut down the fee to a life estate.</p> <p>2. Same—fee will not be cut down by mere precatory language. Where a testatrix in various clauses of the will has devised separate tracts of land to her four daughters by language sufficient to convey a fee and other parts of the will show that its plan was to give such daughters a fee, such fee will not be cut down by the language of a separate clause stating that it is the express desire of the testatrix that all the property devised shall go directly to the daughters and to the heirs of their bodies or direct descendants and to no one else.</p> <p>3. Same—what indicates intention to devise a fee. The fact that both real estate and personal property are included in a devise by language sufficient to convey a fee indicates that it was the intention of the testatrix not to cut down such fee by langdage expressing the wish that the property should go directly to the devisees and to the heirs of their bodies, as an estate tail cannot be created in personal property.</p>

<p>No questions being involved giving the Supreme Court jurisdiction of this cause it is transferred to the Appellate Court.</p>

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

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

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

<p>Writ op Error to the Circuit Court of Will county; the Hon. Eran'ic L. Hooper, Judge, presiding.</p>

<p>1. Workmen’s compensation—exception to the rule that sufficiency of evidence is not subject to review by court. The Industrial Commission has no jurisdiction to apply the Compensation act to persons not subject to its provisions, and for the purpose of determining the question of jurisdiction the courts may review the evidence certified in the record.</p> <p>2. Same—when employment is casual. Where a teaming company hires a person as an extra helper for no definite time and without any intention on the part of either employer or employee that the employment shall be permanent, the employee, who was a carpenter by trade, testifying that he understood the employment was a pick-up job, the employment is casual within the meaning of the Compensation act.</p>

<p>1. Wills—extrinsic evidence is never admissible to vary intent expressed in will. Extrinsic evidence is never admissible for the purpose of varying the intent of the testator as expressed by the will itself, and no words can be added to or taken from a will that have the effect of changing the plain meaning of the testator expressed therein.</p> <p>2. Same—when will will be sustained after rejecting words in false description in devise. Where false words are rejected in an ambiguous description in a devise in a will the will will be held valid if the remaining part of the description is sufficient to identify the subject of the devise in accordance with the facts and circumstances existing when the will was made, when considered with all the other terms and provisions of the will.</p> <p>3. Same—nothing can be added to description in devise in lieu of false words rejected. Nothing can be added to the description in a devise or inserted in lieu of false words rejected for the purpose of identifying the property devised unless the words added or inserted are authorized by the express terms and provisions of the will itself when the whole will is fully considered.</p> <p>4. Same—presumption that testator intended to dispose of all his property cannot be applied to defeat intention expressed in will. The presumption that a testator intends to dispose of all of his property by his will and that he does not intend to die intestate as to any of his property is never indulged in to the extent of defeating the will or of construing it against the manifest intent of the testator as therein expressed when all of the will is considered.</p> <p>5. Same—court is not authorized to supply the words “my real estate’’ or their equivalent. It is only when the will itself uses the words “my real estate,” “all my lands,” or their equivalent, that courts are authorized to consider such words when determining-whether enough remains, after striking out false words of description used in a devise, to identify the land devised.</p> <p>6. Solicitors’ EEES—when refusal to allow solicitor’s fees is proper. In a partition proceeding by the heirs, if the executor files a cross-bill asking for a construction of the will he will not be entitled to solicitor’s fees for services in merely resisting the rights of the complainants to partition nor for obtaining a construction of unambiguous provisions of the will, and if there is no evidence upon which to base the allowance- the court may refuse it.</p>

<p>1. Deeds—when deeds should be reformed to conform to intentions of the parties—fraud. Where, either by mutual mistake or through the fraud and misrepresentations of the grantees, heirs are led to convey a larger interest in land than was contracted for or intended, they are not bound to ask that the deeds be declared void but may insist that the deeds be reformed so as to conform to the actual contract.</p> <p>2. Same—court of equity will not uphold deed obtained by misrepresentations. Where heirs are led to believe, by letters sent and statements made to them by the grantees, that deeds conveying all of their interests in certain land will not convey their interests in that portion of the land which is'subject to their mother’s right of dower, the deeds obtained by such fraudulent representations will not be permitted to stand in a court of equity unless reformed to conform to the intention of the parties.</p> <p>3. Partition—holder of deed given as a mortgage is not entitled to partition. A grantee holding a deed given to secure a loan made by him is not the owner of such an interest in the fee of the land as will entitle him to maintain a bill for partition of the interest conveyed by the deed, as such a deed, though absolute in form, is but a mortgage.</p> <p>4. Same—purchaser with notice of_ agreement not to partition is bound thereby. One who obtains the interest of an heir with knowledge of an agreement among all the heirs that the land shall not be partitioned for a certain period is bound thereby.</p> <p>5. Pleading—when question whether deed was a mortgage is properly raised. Denial by the answers in a partition proceeding of an allegation of the bill that the complainant has purchased the interest of one of the heirs and become seized of such interest, puts in issue the complainant’s ownership and authorizes proof that the deed of such heir was intended as a mortgage.</p>

<p>1. Workmen’s compensation—when award to parents is conclusive. Under the Compensation act of 1915, if a deceased employee leaves parents to whom, within four years previous to his injury, he has contributed for their support the parents are entitled to an award; and if there is any competent evidence to support a finding by the Industrial Board that such condition existed the award must be upheld by the courts, as the sufficiency of such evidence cannot be considered by them.</p> <p>2. Same—paragraph (&) of section 7 of Compensation act of 1915 construed. Under paragraph (&) of section 7 of the Compensation act of 1915, if a minor child, within four years previous to his injury, has contributed to the support of his parents it is not necessary, in order to entitle the parents to an award, that the amount so contributed shall exceed the cost or expense of such child to the parents.</p>

<p>1. Drainage—how county court acquires jurisdiction. In the matter of organizing drainage districts under the Levee act the county court acquires jurisdiction of the subject matter by virtue of the statute, it acquires jurisdiction of the particular case by the filing of a petition in compliance with the statute, and it acquires jurisdiction of the person by the giving of the notices required by the statute.</p> <p>' 2. Same—finding of court as to posting, publication and mailing of notices is prima facie evidence of such facts. A finding by the county court in a drainage proceeding that the notices required by law were duly posted, published and mailed, that proof of the same was duly made, that the petition is in due form of law and that the court has jurisdiction of the subject matter and of the owners of the land, is prima facie evidence that the notices required by law have been given.</p> <p>3. Same—finding of jurisdictional facts may be contradicted by other parts of the record. A finding of the jurisdictional fact of service of process or publication of notice may be contradicted by other parts of the record, but unless some other part of the record is inconsistent with the finding such finding will be sufficient to sustain the jurisdiction of-the court.</p> <p>4. Same—what does not contradict finding as to notices. I11 a drainage proceeding under the Levee act the fact that previous notices given of hearings at earlier dates were insufficient because of an erroneous description of the district therein is not inconsistent, in the absence of a bill of exceptions, with a finding by the court, four months later, that due notice had been given of the hearing as provided by law, as such a finding might be based on oral testimony in open court.</p> <p>5. Same—continuances from day to day after entering upon hearing need not be entered of record. Under the Levee act the county court must fix a day certain for the hearing of the commissioners’ report, and if the commissioners are not ready to report on that day must continue the hearing to a day certain, but after the hearing has been entered upon, if it lasts over a day, it is not necessary that the adjournments or recesses of the court from day to day shall be made a matter of record, as the parties are bound to take notice of the oral announcements of the court.</p> <p>6. Same—when court may permit amendment without adjournment for hearing. Where levee drainage commissioners present a petition to amend their report by changing the course of one of the ditches, which change, in connection with the plats, plans and surveys attached to the report, is sufficiently indicated and lessens the estimated cost of the work, the court may allow the petition and order the amendment made without adjournment for a hearing and the filing of plans, plats and specifications showing the proposed change, as is required by section 15 of the Levee act in case the report is referred back to the commissioners.</p> <p>7. Same—court may enter an order organizing district without waiting for plat to be recorded. Section 16 of the Levee act, providing that if the court finds the district should be organized the plat of the same shall be recorded and an order made organizing the district, does not require that the court shall wait until the plat is recorded before making the order of organization.</p> <p>8. Quo warranto—plea may set up whole record of drainage proceeding. In a quo warranto proceeding against levee drainage commissioners the respondents have a right to include in their plea of justification the whole record, not only of the proceedings up to the order of organization but the subsequent proceedings leading to the confirmation of the assessment, whether or not the record of the subsequent proceedings has any tendency to show that the relators had submitted themselves to the jurisdiction of the court so as to be bound by the order of organization; and such plea is not subject to the objection of duplicity, as attempting to justify and also to estop the relators.</p>

<p>1. Real property—title to land vests in the heirs on death of owner intestate. At the death of a land owner intestate the title to the land vests at once in his heirs-at-law under the Statute of Descent, and if letters of administration are granted the administrator has a mere naked power to apply to a court to sell the land to pay debts of the estate if the personal assets are insufficient.</p> <p>2. Same—extent of interest of executor and of administrator in land. An executor has no interest in or power over real estate by virtue of the law but has only such estate or power as is granted by the will, and an administrator takes no title to the real estate, either legal or equitable.</p> <p>3. Same—heirs may sell or convey their title without hindrance. The heirs of a deceased land owner hold their title in their own right, subject only to the payment of the debts of their ancestor in the particular mode and for the purpose prescribed by law, and they may sell and convey their title without hindrance.</p> <p>4. Constitutional law—laws imposing liabilities and burdens must be general. Under section 2 of article 2 of the constitution neither the person nor property of an individual can be subjected to any liability or burden except by a law which operates equally upon all other persons in the same situation.</p> <p>5. Same—section 7 of an act concerning land titles, as amended in 1903, is invalid. Section 7 of the act concerning land titles, as amended in 1903, (Laws of 1903, p. 121,) which requires executors and administrators and trustees holding title or power of sale under wills to apply for registration of the title to the lands owned by the decedent at his death and compels such registration even against the will of the heirs or devisees, is arbitrary and oppressive and in violation of the rights guaranteed by the constitution.</p> <p>6. Same—classification made by section 7 of the act concerning land titles, as amended in 1903, is arbitrary. The classification made by section 7 of the act concerning land titles, as amended in 1903, by which registration of title, even against the will of the heirs or devisees, is required where there is administration but not where there is no administration, and where a trustee holds title or power of sale under a will but not where he holds under a conveyance or other instrument, is arbitrary and unreasonable.</p>

<p>Appeal from the Second Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.</p>

<p>1. Quo warranto—the statute authorizes judgment for costs against the relators. Under section 6 of the Quo Warranto act, if the judgment is in favor of the defendants to an information in the nature of quo warranto to oust them from the offices of mayor, aldermen, city treasurer and city clerk, the court is authorized to give judgment for costs against the relators.</p> <p>2. Constitutional law—section 57 of the act concerning the commission form of government is invalid. Section 57 of the act concerning the commission form of government, which' requires any town, village or city having a special charter, or any area of contiguous territory, not exceeding two square miles, which shall have a population of at least 300 people, and which is not included in the limits of any incorporated town, city or village, to vote on the question of adopting the commission form of government at the same time it votes on the question of organizing as a village or city, is based on an arbitrary classification and is in violation of section 22 of article 4 of the constitution.</p> <p>3. Same—what is implied in prohibition of local laws for organising cities, towns or villages. The constitutional prohibition of local or special laws for incorporating cities, towns or villages implies that the benefit of any law for that purpose shall be available upon the same conditions to all persons in the same situation, and that the requirements of the law for persons in one locality shall not be different from the requirements for persons similarly situated in another locality.</p> <p>4. Same—what is necessary to make a law general. To be general a law need not operate on all individuals in the State but it is necessary that it operate uniformly upon all persons in the same situation, and if it does not bring within its provisions all persons and subject matter in substantially the same situation it is a local or special law.</p>

<p>Appear from the Circuit Court of Kankakee county; the Hon. A. W. Deserm, Judge, presiding.</p>

<p>Special assessments—when benefits must be restricted to particular use. A system of sewers which will drain land purchased for a cemetery addition is of benefit to such land, but where the use of the land is restricted by law to cemetery purposes the amount of the assessment for the sewer cannot exceed the benefits to the land for its restricted use, notwithstanding the cemetery company has not yet been required to use the land for burial purposes but has temporarily rented párts of it for small farming.</p>

<p>Appear from the Circuit Court of Whiteside county; the Hon. Frank -D. Ramsay, Judge, presiding.</p>

<p>Limitations—when title is acquired by limitation. One who, with his predecessors in title, has had for more than twenty years continuous, open, adverse and exclusive possession of land up to a boundary fence between his lot and an adjoining one, acquires title by limitation to the land enclosed even though the fence may not be on the true boundary line.</p>

<p>1. Quo warranto—what need not be set out in plea. Where an information does not charge the respondents with usurping the offices of president and members of the board of trustees of a village nor question such title but merely charges that they are usurping the office of president, secretary and members of a pretended board of local improvements, the respondents, in pleading their authority to act as the board of local improvements, need not show in detail their election and qualification to the offices of president and members of the board of trustees.</p> <p>2. Municipal corporations—president of village board is ex-officio president of the board of local improvements. The president of the board of trustees of a village is by statute ex-officio president of the board of local improvements.</p> <p>3. Same—superintendent of streets is a member of the board of local improvements. Under section 6 of the Local Improvement act the superintendent of streets of a village is by operation of law a member of the board of local improvements even though there is no office of public engineer in the village; but the fact that he is such member by operation of law does not render invalid an ordinance designating the president of the village and two of the trustees as members of the board of local improvements.</p> <p>4. Same—village board determines its ozvn rules of procedure. A city council or village board of trustees, under the general law, determines its own rules of procedure in the matter of adopting ordinances, subject to statutory requirements with respect thereto.</p>

<p>1. Specific performance—contract must be mutual in. its obligations. In order that a contract for the exchange of lands may be specifically enforced it must be mutual in its obligations and remedy and be enforcibl'e by either party.</p> <p>2. Contracts—a mere naked assignment of contract does not bind assignee to performance. In order to bind the assignee of a contract for an exchange of lands to a performance of the obligations he must by his contract assume such liability, and a mere naked assignment is not sufficient for that purpose.</p> <p>3. Same—when a contract is, in a sense, an option contract. Where a contract for the exchange of land provides that if one of the 'parties shall fail to perform the contract she shall forfeit $500 liquidated damages and the contract be null and void, the contract, as to her, is in a sense an option contract, which she could not he compelled to specifically perform.</p> <p>4. Appeals and errors—when it will be presumed the court had sufficient ground for dismissing bill. Where the record does not show upon what ground the court sustained a demurrer to a bill and dismissed the bill for want of equity, it will be presumed that a sufficient ground for the action of the court was made to appear.</p>

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

<p>1. Easements—use must be adverse to establish a way by prescription. In order that a way over lands may be established by prescription the use for the required period must not only be with the knowledge and acquiescence of the owner of the land, but must also be adverse; exclusive, uninterrupted and under claim of right.</p> <p>2. Same—prescriptive way must originate in a claim of right and not by mere permission. A verbal permission to pass over the lands of another cannot ripen into a prescriptive right, however long the permissive use is enjoyed.</p> <p>3. Same—burden of proof where way by prescription is claimed as a defense to bill for injunction. One claiming a way by prescription as defense to a bill to enjoin his use of the way, where the ownership of the land is conceded to be in the complainant, has the burden of establishing his claim.</p> <p>4. Same—when way by prescription is not established. A way by prescription is not established by proof that the owner of certain land verbally agreed to allow the owner of adjoining land to use a way over the promisor’s land jointly with the promisor as long as the promisor lived, provided the other would pay half of the expense of keeping up the road and a bridge thereon, even though such use continues for more than forty years; nor is such prescriptive way established by a written agreement by the widow and heirs of the promisor extending such permission for a certain period.</p> <p>5. Appeals and Errors—what-alleged errors are harmless. On the hearing of an injunction suit by the chancellor, alleged error in permitting an incompetent witness to testify to a certain fact is harmless where such fact is abundantly established by competent proof; nor is it harmful to refuse to allow a witness to testify to a matter which is admitted.</p>

<p>x. Appeals and errors—general rule as to amending pleadings after cause is remanded. The general rule is that when a cause is remanded with directions to enter a certain order or decree the trial court is without authority to allow amendments to pleadings.</p> <p>2. Same—when an answer may be amended on remandment of the cause. Where a partition decree is reversed and the cause remanded, “with directions to dismiss the cross-bill and for such further proceedings as to law and justice shall appertain,” if it appears from the opinion that a question is left open by the Supreme Court for further consideration by the trial court, the trial court, after re-instating the case and dismissing the cross-bill, may permit an amendment to the answer for further hearing on such question.</p> <p>3. Deeds—in construing deeds intention of parties must be ascertained. The object sought in the construction of deeds is to ascertain the intention of the parties, but the court must seek only to interpret the instrument before it and not to create a new and distinct one.</p> <p>4. Same—estate conveyed in granting clause cannot be modified by subsequent clause. Where the granting clause in a deed clearly and in apt terms defines the estate granted, such estate can not be subsequently modified, restricted or nullified by- recitals in the habendum or later clauses.</p> <p>5. Same—rule of construction when granting clause does not definitely describe estate granted. Where the granting clause in a deed does not definitely describe the estate granted and there is an habendum or subsequent clause which does define the estate intended to be conveyed without being repugnant to the granting clause, the intention of the grantor may be ascertained from the wording of the entire deed, including the habendum clause, and not from the granting clause, alone.</p>

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. Henry Guerin, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding.</p>

<p>1. Workmen’s compensation—what is an “agreement” which may be reviewed under paragraph (Ji) of section ip of Compensation act. Voluntary payments by an employer of compensation as provided in the Compensation act and acceptance of the same by the employee constitute such an agreement for compensation as is referred to in paragraph (h) of section 19 of said act, providing for a review of an agreement or award for recurrence or increase of the disability.</p> <p>2. Same—when additional evidence should be. limited to recurrence or increase of disability. An injured employee may, within eighteen months after voluntary payments have ceased, file a petition for a review of the agreement on the ground that the disability has recurred or increased, notwithstanding the fact that in the meantime his petition for adjustment of his claim has been denied by the arbitrator; but the decision of the arbitrator, if unreviewed, is final as to all matters then in dispute, and the additional evidence should be limited to the question of a recurrence or increase of the disability.</p> <p>3. Same—finding of the Industrial Commission that disability has remrred or increased is conclusive. The question whether a disability has recurred or increased is one of fact for determination by the Industrial Commission upon consideration of the stenographic report of the original hearing and the additional evidence with respect to the increase or recurrence of the disability, and if the finding of the commission that the disability recurred is based upon competent evidence, such finding is conclusive on the courts.</p> <p>4. Same—employer cannot complain of award for partial disability on the ground that the evidence shows total disability. A plaintiff in error cannot take advantage of an error that is not prejudicial, and where the only additional evidence Jieard by the Industrial Commission on an employee’s petition for review on the ground that his disability has recurred or increased is that of the employee which shows that the disability is total, the employer can not complain that the award, which was for partial disability only, is not supported by the evidence.</p>

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

<p>1. Workmen’s compensation—compensation may be had for permanent disfigurement and also for permanent partial disability. Under paragraph (c) of section 8 of the Compensation act, as amended in 1915, compensation may be awarded if injuries result in permanent partial incapacity, as provided in paragraphs (d), (<?) and (/), and if there are also injuries not compensated for under said paragraphs which result in permanent disfigurement of the hands, head or face, compensation for such disfigurement may also be allowed. (Stubbs v. Industrial Board, 280 111. 208, distinguished.)</p> <p>2. Same—when employer cannot complain that there is no basis for compensation for permanent partial disability. If no claim is made by the employer before the arbitrator or the industrial commission that the evidence furnishes no data for the allowance of compensation for permanent partial disability the question cannot be raised in the circuit court or the .Supreme Court, where the injured employee claimed permanent total disability and so testified.</p>