Volume 286 — Illinois Reports

<p>1. Bills and notes—a power to confess judgment must be strictly pursued. A power to confess judgment must be clearly-given and strictly pursued, and a departure from the authority conferred will render the confession void.</p> <p>2. Same—joint warrant of attorney to confess judgment does not authorise a several judgment. A joint warrant of attorney to confess judgment, executed by a partnership and the individual partners, does not authorize a confession of judgment by the individual partners, alone, notwithstanding the note itself may be joint and several.</p> <p>3. Same—vahen a confession of judgment is unauthorised. A warrant of attorney to confess judgment in favor of the payee of the note, the Farmers National Bank of Allendale, does not authorize a confession of judgment in favor of the Farmers and Merchants National Bank of Allendale.</p> <p>4. Judicial sales—when a sheriff’s deed is invalid. Where á warrant of attorney to confess judgment is not followed in attempting to take judgment by confession, the ■ memorandum by the clerk on the court record 'does' not follow the confession as to the parties, and the execution issued on the alleged judgment does not show any service, levy or sale or how or by what means it was satisfied, a sheriff’s deed issued on failure to redeem from the sale under such execution is invalid.</p>

<p>Taxes—vote for tuberculosis sanitarium tax does not authorize a tax in excess of constitutional limitation. A vote in favor of a tuberculosis sanitarium tax under the act of 1915 does not authorize a tax in excess of the constitutional limitation for county taxes, as the provision of the act of 1915 that the tax shall be in addition to all other taxes means only that it shall be in addition to other taxes authorized by the General Assembly and shall not be subject to reduction.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Robert E. Crowe, Judge, presiding.</p>

<p>1. Partition—complainant must prove ante-nuptial contract as alleged in bill. A complainant who seeks to partition land between himself and his brother as heirs of their deceased uncle, and who alleges in the bill that the widow of the deceased is barred from any interest in the land by reason of an alleged ante-nuptial contract set out in the bill, must establish, by clear and convincing proof, the existence of such contract in substance as set out.</p> <p>2. Same—what, offered proof is properly denied admission as self-serving. A complainant in a bill for partition who claims that the rights of the widow of the deceased are barred by an alleged ante-nuptial contract cannot be allowed to prove alleged statements by the deceased to witnesses to the effect that he had made such a contract.</p> <p>3. Same—when parties cannot testify to alleged conversation with deceased. In a proceeding by a nephew to partition land of his deceased uncle between himself and his brother, who, with the widow of the deceased, individually and as administratrix of the estate, was made a party defendant, the complainant and his brother are incompetent to testify to a conversation between them and the deceased and his wife in which was discussed the alleged ante-nuptial contract, which the bill sets out as barring the widow’s rights in the land.</p>

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

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

<p>1. Workmen’s compensation—to entitle widow to,award it is not necessary that she be living with husband at his death. Under paragraph' (a) of section 7 of the Workmen’s Compensation act it is not necessary, in order to entitle the widow to an award, that she be living with her husband at the time of his death, but it is sufficient if he was under legal obligation to support her.</p> <p>2. Same—fact of injury or death may be shown by circumstantial evidence. To establish a liability under the Workmen’s Compensation act, the fact of the injury or death and that it arose out of and in the course of the employment may be shown by circumstantial evidence.</p> <p>3. Same—paragraph (/) of section 7 of Compensation act, as to payment to legal representative, construed. Paragraph (/) of section 7 of the Workmen’s Compensation act, providing that the employer may pay the compensation to the personal representative of the deceased, to be distributed to the heirs who formed the basis for determining the amount of compensation, was intended to apply only where compensation is voluntarily paid without a hearing.</p> <p>4. Same—when Industrial Commission must determine who is entitled to compensation. If compensation is to be fixed by the Industrial Board, the board, in order to determine the amount, must also determine who is entitled to the compensation, and the fact that in a particular case the amount will be the same whichever of the contesting claimants is entitled to the award does not relieve the board of such duty nor impose it upon the probate court.</p> <p>5. Appeals and Errors—when parties cannot object to incompetent evidence. Parties who, on cross-examination of the claimant in a workmen’s compensation case, bring out certain evidence tending to establish her divorce from a former husband before she married the deceased employee, cannot object later that such evidence was incompetent to prove the divorce.</p>

<p>1. Constitutional law—power of the legislature to require municipal corporation to perform duties resulting in taxation. The General Assembly may compel a municipal corporation to perform any duty, which relates to the general welfare and security of the State, although the performance of such duty will result in taxation or create a debt to be paid by taxation.</p> <p>2. Same—the act of ipop, relating to bridges on county lines, is not invalid. The provision of the Roads and Bridges law, as amended in 1909, (Laws of 1909, ,p. 326,) fixing the liability of counties for the cost of a bridge which will exceed $5000, over a stream which is the boundary line, and requiring each county to pay its proportionate share, is not in violation of sections 9 and 10 of article 9 of the constitution.</p> <p>3. Same—there is no constitutional objection to leaving determination of question of building bridge to one county. There is no constitutional objection to the provisions of the Roads and Bridges law, as amended in 1909, leaving the determination of the question of building a bridge over a boundary stream to one county and preventing the refusal of the adjoining county to join in the work from obstructing the performance of the public duty to build the bridge.</p> <p>4. Bridges—the Roads and Bridges act, as amended in ipop, construed. The Roads and Bridges act of 1909 (Laws of 1909, p. 326,) contemplates that one county may determine whether a bridge shall be constructed across a boundary stream, and, having made an appropriation for its share of the cost, it may apply by petition to any court of competent jurisdiction for an order to compel the adjoining county to make an appropriation for its proportionate share, but it does not confer upon the former county the right to finally determine the kind and cost of the bridge and to construct the same and then compel the other county to pay its share.</p> <p>5. Same—the act of ipop contemplates a joint contract. The Roads and Bridges act, as amended in 1909, contemplates that-after one county shall have determined to build a bridge across a boundary stream, shall have made its appropriation, and obtained, with or without an order of court, an appropriation by the other county for its share, then there shall be a joint contract for the bridge, in which each county shall have a voice.</p>

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

<p>1. Public utilities—when order by Public Utilities Commission is unauthorized. An order made by the Public Utilities Commission finding, without any hearing on the facts or as to present conditions, that an order made more than two years before by the Railroad and Warehouse Commission was reasonable and just and directing the respondent railroad company to obey it is unauthorized, where the Railroad and Warehouse Commission was without power to make the original order.</p> <p>2. Same—effect of section 82 of the Public Utilities act. Section 82 of the Public Utilities act, authorizing the Public Utilities Commission to enforce all findings, orders, decisions, rules and regulations issued or promulgated by the Railroad and Warehouse Commission, is limited to such findings, orders, decisions, rules and regulations as the Railroad and Warehouse Commission was authorized to make.</p>

<p>Writ oE Error to the Second Branch Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.</p>

<p>1. Negligence—when declaration must negative application of Compensation act. Where the defendant in a common law action by an employee for personal injuries is an employer whose business is enumerated in paragraph (b) of section 3 of the Workmen’s Compensation act the declaration must allege that the employer had elected not to be bound by the act. (Beveridge v. Illinois Fuel Co. 283 Ill. 31, adhered to.)</p> <p>2. Same—when cause of action in an amended declaration is barred. Where a demurrer to a declaration stating a cause of action for common law negligence is sustained on the ground that it has failed to allege that the defendant, a coal mining- company, had elected not to be bound by the Compensation act, an amendment to the declaration supplying the omitted allegation more than a year after injury comes too late and the declaration is open to a plea of the Statute of Limitations.</p>

<p>1. Descent—effect of section 2 of Statute of Descent, respecting illegitimates. The effect of section 2 of the Statute of Descent, respecting illegitimates, is to abrogate the harsh rule of the common law that an illegitimate was the child of nobody and to make such illegitimate the child as well as the heir of its mother.</p> <p>2. WiEES—natural heirs will not be disinherited by dubious words. A testator is presumed to know the law and to make his will in view of existing statutes, and natural heirs will not be disinherited by dubious or ambiguous words but will take under the will unless an intention to disinherit them is disclosed.</p> <p>3. Same—when illegitimate child will take under a will. A devise of a remainder to “the child or children” of a named niece of the testatrix will include an illegitimate child of such niece who was in being when the will was made, whose existence and relationship to the niece were known to the testatrix and who was the only child ever born to the niece, although she was a married woman at the time the will was made.</p>

<p>1. Wills—the words “bodily heirs” may be construed to mean children. The words “bodily heirs,” when used in their technical sense, mean the limited class of heirs appointed by law to succeed to real estate in case of intestacy; but the words may be construed to mean “children” where such construction is in accordance with the testator’s intention and no settled rule of law or principle of public policy is violated.</p> <p>2. Same—it is presumed testator did not intend to die intestate as to any of his property. It is a universal presumption that the testator intended his will should take effect and that he did not intend to die intestate as to any portion of his property.</p> <p>3. Same—when term “bodily heirs” means children. Where the remainder after a life estate in the testator’s widow is disposed of in one-sixth shares to “the bodily heirs” of the testator’s six named children, one of whom was dead when the will was made and all of whom had living children at that time and at the testator’s death, the words “bodily heirs” will be construed to mean the children of the testator’s children and will give them a vested remainder, and as the entire estate is disposed of there is no reversion in the heirs of the testator.</p>

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

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

<p>Taxes—the board of review cannot increase valuation without notice to owners. The valuation fixed by the board of assessors for the quadrennial period cannot be increased by the board of review without notice to the owners, where there have been no improvements on the land.</p>

<p>1. Corporations—when an action for money had and received will lie against proposed incorporators. Where parties proposing to organize a life insurance company receive from a subscriber a sum of money in full payment for a certain number of shares of stock and give him a receipt showing him to be entitled to such shares, fully paid and non-assessable, as soon as the proposed corporation shall be entitled to issue stock, an action for money had and received will lie against them if they abandon the attempt to organize the corporation.</p> <p>2. Same—statute does not authorise incorporators of life insurance company to use subscriptions for expenses. The statute providing for the organization of life insurance companies requires that the entire amount of capital subscribed and paid for shall remain as the capital of the company, and does not authorize the proposed incorporators to expend for expenses of selling stock and other preliminary expenses money paid in by a subscriber for shares of stock.</p> <p>3. Same—publication of proposed charter is not notice of anything not required to be stated therein. If the publication of a copy of the proposed charter of a life insurance company is notice at all it is not notice of anything not required by the statute to be stated therein, and is not notice of any supposed right of the proposed incorporators to spend a stock subscriber’s money for organization expenses.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding.</p>

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

<p>1. Pensions—police pension not payable to person still a member of police force. Under the Police Pension Fund law a pension is payable only to one who has served on the police force for twenty years or more and has ceased to be a member of the police department, and not to a person who is still a member thereof.</p> <p>2. Same—salary at time person ceases to be member of force is the basis for computing pension. Under the Police Pension Fund law the amount of salary paid to a police officer at the time he ceased to be a member of the police force is the basis upon which his pension is to be figured and not the salary attached to such office at a time several years later, when he is seeking to establish and enforce his rights.</p>

<p>1. Criminal law—what evidence will support a conviction for murder. Proof that the defendant, having in his possession a basket of stolen goods from a recently burglarized house, shot a plainclothes policeman when the latter asked what he had in the basket and started to raise the cover, justifies a conviction for murder whether or not the defendant knew the deceased was an officer.</p> <p>• 2. Same—when evidence of burglary and larceny is admissible in murder trial. On the trial of one for shooting a plain-clothes policeman as the latter attempted to raise the cover of a basket the defendant was carrying, which contained clothing, proof that a house in the vicinity had just been burglarized, and that the clothing, as well as some other articles on the defendant's person, were stolen at that time, is admissible, as characterizing the defendant’s conduct.</p> <p>3. Same—when alleged newly discovered evidence is not ground for a new trial. Alleged newly discovered evidence which would merely tend to impeach one of the witnesses for the State in a murder trial, and which is not of a conclusive character, is not ground for a new trial.</p>

<p>WRiT OR Error to the Circuit Court of Edgar county; the Hon. Walter Brewer, Judge, presiding.</p>

<p>1. Winns—formal attestation clause is to some extent evidence of the facts therein stated. An attestation clause which is in due</p> <p>■ form is some evidence of the facts therein stated, and may, under some circumstances, prevail over the testimony of a subscribing witness that some of the requisites stated in the attestation clause as having been complied with were not, in fact, complied with.</p> <p>2. Same—-when circuit court may admit a will to probate. The circuit court, on appeal, may admit a will to probate where the attestation clause is in due form and the signature of a deceased subscribing witness is proven, even though the living subscribing witness testifies that the testatrix did not sign the will or acknowledge it in his presence and that no one requested him to sign the will as a witness, where the testimony of such witness is so contradictory and improbable as to warrant the belief that his denial of the facts stated in the attestation clause signed by him was untrue.</p> <p>3. Same—testamentary capacity shown to exist is presumed to have continued. Testamentary capacity of the testatrix shown to exist a short time before the will was made, is presumed to have continued unless the contrary is shown by sufficient evidence.</p> <p>4. Evidence—testimony of witness may be so inherently improbable as to stand discredited. There may be such inherent improbability' in the testimony of a witness as to authorize the court or jury to disregard it, even though there is no contradictory testimony by other witnesses.</p>

<p>1. Appeals and errors—when Appellate Court’s judgment as to negligence is conclusive. In an action against drainage commissioners for damages for overflowing land, caused by their alleged negligence, if the facts upon which the issue of negligence is to be determined are controverted the judgment of the Appellate Court on that question is binding upon the Supreme Court.</p> <p>2. Evidence—rule as to admitting expert testimony. Where the subject matter of the inquiry is of such a character that only persons of skill and experience in it are capable of forming a correct judgment as to any facts connected therewith, persons so skilled and experienced may give their opinions as an aid to the jury.</p> <p>3. Same—when alleged expert testimony is properly rejected. The fact that a person owns considerable land and has observed conditions on his own land and other lands with reference to drainage in a greater degree than is usual does not make him an expert on the subject of drainage; but, even though he were regarded as qualified to give an expert opinion, it is proper to refuse to allow him to answer hypothetical questions calling for a determination by the witness of the ultimate fact to be determined by the jury.</p> <p>4. Drainage—liability of drainage commissioners for neglect of duty. The liability of farm drainage commissioners for damages to any of the assessed lands, due to the neglect by the commissioners of their duty to provide adequate drainage for such</p> <p>lands, is created by statute and the duty itself is specific, although the commissioners have discretionary power to determine the system of drainage and in regard to the location of the drains and the details of the work.</p> <p>5. Same—when ihe commissioners are not liable. Where the ditches and drains of a farm drainage district are planned and constructed by and with the advice of skilled and experienced engineers, the drains and ditches are properly constructed according to such plans, the plans and completed drains are such as reasonably prudent men would provide for the district, and no defects in such system have appeared or come to the knowledge of the commissioners or could have been discovered by them by reasonable diligence prior to the sudden overflow of certain assessed land, they are not liable for the damage caused by such overflow.</p> <p>6. Same—rule zvhere damages are .caused by an unprecedented rainfall. Farm drainage commissioners are not liable for damage to assessed land from overflow caused by an unusual and extraordinary rainfall such as never had occurred before in the locality within the memory of man and which reasonably prudent men and skilled and experienced engineers could not anticipate and foresee.</p> <p>7. Same—when a land owner cannot complain of damage. If farm drainage commissioners make a change in the work at the request of a land owner, he cannot complain of damage to his land which results from the change being made.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. W. K. WhiteiELD, Judge, presiding.</p>

<p>Writ or Error to the Criminal Court of Cook county; the Hon. George Kersten, Judge, presiding.</p>

<p>1. Criminal law—when failure to allow separate trial is not prejudicial. Failure to allow to three of the defendants in a criminal case a trial separate from that of the fourth defendant, who was described in the indictment as an habitual criminal, is not prejudicial, where the latter defendant denied all connection with the crime and was found not guilty by the jury.</p> <p>2. Same—when there is no variance as to ownership of money and checks stolen. An averment in an indictment for robbery that the money and checks stolen were the property of a certain bank is supported by proof that the money and checks' had been delivered by a depositor to an agent of the bank who had been sent to get them and that they were taken by the robbers from the agent.</p> <p>3. Same—when alleged error in allowing stenographer to read notes zvill not reverse. Alleged error in permitting a stenographer to read from his notes an admission of guilt made by the defendants in the presence of the police is not ground for reversal, where such admission has also been testified to by the police officers and another witness, all of whom were present at the examination.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding.</p>

<p>1. Equity—court of equity is not a court of review to correct errors of a court of law. A court of equity is governed by and gives relief according to fixed rules, and it does not sit as a court of review to correct errors of a court of law.</p> <p>2. Same—when equity has no jurisdiction of bill to annul the judgment of the Appellate Court. Where the Appellate Court reverses five separate judgments in cases involving the same question and but one, only, of such cases is reviewed by the Supreme Court, the fact that the Supreme Court reverses the judgment of the Appellate Court in the case reviewed does not give a court of equity jurisdiction to set aside the other four judgments of the Appellate Court, even though that court refused to stay proceedings in the four cases until the one under review was decided by the Supreme Court, particularly where the parties did not exhaust their legal remedy in the Appellate Court.</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>Writ of Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De-Selm, Judge, presiding.

<p>1. Mechanics’ liens—sub-contractor has no lien on premise's if contract negatives it. Where a contract for the improvement of premises provides that there shall be no lien on the premises for materials or labor furnished, neither the contractor nor a subcontractor, under section 21 of the Mechanic’s Lien act, is entitled to a lien on the premises.</p> <p>2. Same—sub-contractor is entitled to lien on money due the contractor. The provision of section 21 of the Mechanic’s Lien act that a sub-contractor, as against the creditors, assignees and personal and legal representatives of the contractor, shall have a lien on the “moneys or other considerations due or to become due from the owner under the original contract,” must be construed as giving the sub-contractor a lien on the money due the contractor from the owner, unless the contract provides otherwise.</p> <p>3. Appeals and errors—rule where the Appellate Court’s judgment results from finding facts different from trial court. Where the judgment of the Appellate Court, on appeal in a suit at law, results from finding the facts in controversy different from the finding of the trial court, the question presented in the Supreme Court is whether the judgment is justified by a proper application of the law to the facts so found by the Appellate Court.</p> <p>4. Same—when question as to right of Appellate Court to reverse and enter judgment for plaintiff is waived. Where a judgment in favor of the defendant in a suit at law tried by a jury is reversed by the Appellate Court that court should not assess plaintiff’s damages and enter final judgment in his favor if the right to a trial by jury is not waived, but the right to question such action by the Appellate Court is waived in the Supreme Court where the question is not presented in the assignment of errors or the briefs.</p>

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

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding.</p>

Writ of 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. M. L. McKinley, Judge, presiding.

<p>Appeal from the Circuit Court of Coles county; the Hon. Walter Brewer, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. J. E. Gillham, Judge, presiding.

<p>1. Taxes—one objecting to tax on land assessed in another’s name must prove his interest. One who files objections to a tax on property assessed in the name of another person has the burden of proving his interest, which must be a property right, otherwise the objections will not be considered.</p> <p>2. Same—an agent cannot object in his own name to taxes on principal’s land. An agency for the management of real estate is not an interest in land, and though an agent, if duly authorized, may object to an application for judgment against land for taxes assessed in the owner’s name he may do so only as agent and in the name of the owner.</p> <p>3. Same—remedies of property owner for alleged excessive assessment. The judgment of the assessor as to whether there has been a change in the value of property in any year other than that of the quadrennial assessment may be revised by the board of assessors, and there is a further review by the board of review; but in the absence of fraud these are the only remedies available to the owner for an excessive assessment, and if they are not availed of courts cannot give relief.</p> <p>4. Same—what evidence not admissible in regard to value of land. Evidence that on April 1 of the year the tax objected to was levied the buildings on the property were in the process of being wrecked under a contract made for that purpose is not admissible, on application for judgment and order of sale, to show that the valuation made by the assessor was excessive.</p> <p>5. Same—certificate to correct error or mistake must be isstied before judgment. The certificate authorized to be issued under the proviso to paragraph 308 of the Revenue act (Hurd’s Stat. 1917, p. 2483,) where the assessors discover any error or mistake in an assessment must be issued before the judgment or order of sale for the tax is rendered, otherwise it is of no effect.</p> <p>6. Same—errors of judgment cannot be corrected by certificate of assessors. The proviso to paragraph 308 of the Revenue act, (Hurd’s Stat. 1.917, p. 2483,) authorizing the assessors to issue a certificate when an error or mistake has been discovered in an assessment before judgment or order of sale has been rendered, expressly excludes errors of judgment as to the valuation of property.</p> <p>7. Same—when land owner cannot have assessment corrected. An owner of land who has neglected to avail himself of the means provided by law for correcting an assessment of his property and has relied upon inconsistent defenses cannot have the assessment corrected after judgment has been rendered for the tax and the time for correction has passed.</p>

<p>Railroads—carrier of inter-State shipment cannot estop itself to collect freight charges. The fact that the carrier of an interstate shipment delivers a car-load of coal to the consignee without collecting the freight charges, and is thereafter unable to collect the same from such consignee owing to the latter’s becoming insolvent before judgment was recovered against it, does not estop the carrier from recovering such freight charges from the consignor; nor is such recovery to be defeated because no notice of the consignee’s default was given the consignor until over two years had elapsed.</p>

Writ oe Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.

<p>Bonds—when judgment against the principal is not admissible against sureties. Where the obligee in a contractor’s bond brings a suit for damages against the principal and his sureties but the sureties, only, are served, the summons as to the principal being returned not found, and after the sureties have filed their affidavits of a meritorious defense the suit is dismissed as to them, the fact that an alias summons is later issued and served on the principal and judgment recovered against him by default does not make the judgment binding on the sureties or admissible in a subsequent suit against them on the bond, where there is nothing to indicate that they had notice of the issue and service of the alias summons or were given an opportunity to defend.</p>

<p>1. Drainage—an assessment cannot be sustained if there is no judgment organising the district. Where a judgment organizing a drainage district is reversed because the petition had not been amended to conform to the directions of the Supreme Court when remanding the cause on reversal of the original judgment of organization, the mere amendment of the petition nunc pro tunc as of the day it was filed does not revive the judgment of organization, and if no new judgment of organization is entered the assessment levied and confirmed in the original proceeding cannot be sustained.</p> <p>2. Same—when judgment of confirmation is not free from collateral attack. Even though a writ of error in a drainage proceeding brought up not only the order of organization but also the judgment confirming the assessment, if the only errors assigned and considered by the Supreme Court related to the judgment organizing the district, which was reversed, the judgment of confirmation cannot be said to be free from collateral attack, but it may be shown on a subsequent application for judgment and order of sale that there was no judgment organizing the district.</p>

<p>1. Workmen’s compensation—when injury does not arise out of employment. An injury to an employee while engaged in a voluntary act not accepted by or known to his employer' and outside of the duties for which he was employed does not arise out of his employment.</p> <p>2. Same—when compensation cannot be awarded for death of garage employee. Where a garage employee, after taking a passenger by automobile to the destination directed by his employer, suggests to the passenger that they continue their drive while waiting for the train, and after riding some distance further is killed by the passenger, who had suddenly become insane, the death of the employee does not arise out of and in the course of the employment and compensation cannot be awarded.</p>

Writ oe 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. Marcus Kavanagh, Judge, presiding.

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. Kicicham Scanlan, Judge, presiding.

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

<p>1. Criminal law—what justifies order for temporary support pending a hearing of charge of wife abandonment. An order requiring the defendant in a wife abandonment prosecution to pay $12 per month for the support of the wife pending the hearing on the information is supported by proof that while the defendant had conveyed to his wife property of considerable value it was not productive of much income and that the wife was obliged to work to support herself.</p> <p>2. Same—defendant not entitled to jury on hearing of motion for allowance for support pendente lite. Under section 3 of the Wife Abandonment act of 1915, (Hurd’s Stat. 1917, p. 1657,) a motion for an allowance for the support of the wife pending the hearing of the charge in the information is addressed to the sound discretion of the court, and the defendant is not entitled to a trial by jury on the motion.</p> <p>3. Constitutional law—section 3 of Wife Abandonment act is within the title. Section 3 of the Wife Abandonment act of 1915, providing for an allowance to the wife pending the hearing on the information, is within the subject of the act as expressed in the title and is not invalid.</p> <p>4. Same—Wife Abandonment act of 1915 is complete in itself. The Wife Abandonment act of 1915, consisting of eleven sections, is complete in itself and is an independent act, and is not invalid as an attempted amendment of the act of 1903 without inserting said act at length in the new one.</p>

<p>Appeal from the Circuit Court of Stephenson county; the Hon. Robert K. Welsh, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. Walter Brewer, Judge, presiding.</p>

<p>Writ or Error to the Second Branch Appellate Court ' for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.</p>

<p>1. Constitutional law—the act permitting a city to organize into separate township is valid. The act of 1903, (Laws of 1903, p. 352,) requiring the county board, when requested by resolution of the city council of a city having a certain population and composed of parts of two or more townships, to provide that the territory of such city shall be organized into a separate township, is mandatory, and is not subject to the constitutional objections that it is incomplete or is a delegation of legislative power. (People v. Grover, 258 Ill. 124, followed.)</p> <p>2. Municipal corporations—provision permitting city to organize into separate township not repealed. The provision of the act of 1903 that a city having a certain population and composed of two or more townships may require the county board to organize the city into a separate township was not repealed by paragraph 26 of the Township Organization act, (Hurd’s Stat. 1917, p. 2912,) as amended in 1913.</p> <p>3. Same—courts will not take judicial notice that a town has been organized into a park district. Courts are not bound to take judicial notice that a certain town has held an election and organized as a park district. under the authority of the statute.</p>

<p>1. Criminal law—acts of intercourse other than one charged may be testified to. In a prosecution for the statutory crime of rape, the prosecutrix, in order to show the relations of the parties, may testify to acts of intercourse with the defendant at times and places other than the act charged in the indictment.</p> <p>2. Same—-fact of birth of child may be testified to. In a prosecution for the statutory crime of rape, where the prosecutrix has testified that the defendant is the only person who has ever had intercourse with her, the fact that she has given birth to a child is admissible in corroboration of her testimony as to the rape.</p> <p>3. Same—what instruction is properly refused in a prosecution for statutory crime of rape. In a prosecution for rape with the consent of the prosecutrix, an instruction is properly refused which authorizes the jury to consider whether the prosecutrix made any outcry and whether she returned to or near the same place where the defendant was after first getting away.</p> <p>4. Same—when an instruction as to circumstantial evidence is properly refused. In a criminal case an instruction stating the degree of certainty required where the evidence is circumstantial, alone, is properly refused where most of the evidence in the case is positive testimony.</p>

Writ op 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. Jesse A. Baldwin, Judge, presiding.

<p>Appeal from the County Court of Kane county; the Hon. S. N. Hoover, Judge, presiding.</p>

<p>Appeal from the County Court of Moultrie county; the Hon. John T. Grider, Judge, presiding.</p>

<p>1. Municipal corporations—rule where legislative power is delegated to a municipal corporation in general terms. Where a legislative power is delegated by the General Assembly to a municipal corporation in general terms it is implied that such power shall be exercised in a reasonable manner, and the courts will protect the citizens of the State against an illegal, unreasonable or oppressive exercise of such power.</p> <p>2. Same—rule where an ordinance is passed under an express power. Where an ordinance is passed under express" power delegated by the General Assembly to enact the particular ordinance, the courts cannot hold the ordinance void for unreasonableness unless the General Assembly itself was without power to authorize its enactment.</p> <p>3. Constitutional law—there are restrictions on exercise of police power by General Assembly. There are constitutional restrictions on the exercise of the police power by the General Assembly, and an act which deprives a citizen of his liberty or property rights cannot be sustained under such power unless the public health, comfort, safety or welfare of the people authorizes the enactment of such act.</p> <p>4. Same—■delegation of power to municipal corporations to prohibit cemetery within one mile of limits is valid. The delegation by the General Assembly to municipal corporations of the power to prohibit the establishment of a cemetery within one mile of the corporation is valid and does not violate any constitutional limitation on the exercise of the police power. (Town of Lake View v. Rose Hill Cemetery Co. 70 Ill. 191, distinguished.)</p>

<p>1. Criminal law—what does not justify shooting in self-defense. Testimony by the defendant that the deceased was drinking in a saloon and offering to fight anyone and that he was “looking mean” at the defendant does not justify the latter’s act in getting a revolver and going out of the side door of the saloon and shooting the deceased as the latter, with a companion, was leaving by the front door, even though he also testifies that when he met the deceased at the front door the latter had something shiny in his 'hand, which the defendant thought at the time was a knife.</p> <p>2. Same—practice of offering large number of instructions in simple case is to be condemned. Where the trial of a criminal case is finished the day after it is begun, the record is small and the principles of law involved are few, the offering of eighty-seven instructions is not justifiable, as it places an unreasonable and unnecessary burden on the trial court and tends to confuse rather than aid the jury.</p>

<p>AppEae from the Circuit Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding.</p>

<p>Appeal from the County Court of Wabash county; the Hon. W. S. Willhite, Judge, presiding.</p>

<p>1. -Eminent domain—general rule as to time when property is to be valued. In a condemnation proceeding under the Eminent Domain act the time of filing the petition is considered as the time when the property is taken and compensation is to be ascertained, and the evidence as to the value of the land condemned must be with reference to the time of filing the petition and not of the trial.</p> <p>2. Same—rule as to time for valuation where proceeding is under the Local Improvement act. Under section 18 of the Local Improvement act the time of filing the commissioners’ report is deemed the application for judgment of condemnation of the property sought to be taken for the improvement, and the value of the property is to be fixed as of the time of the return and filing of such report.</p> <p>3. Same—defendants cannot call commissioner as a witness to impeach his report. In a condemnation hearing under the Local Improvement act the defendants are not entitled to call one of the commissioners as a witness and interrogate him as to the elements of value he considered in making up the report and upon what basis it was made, for the purpose of impeaching such report.</p> <p>4. Same—what constitutes market value is a question of law. What constitutes market value is a question of law, and is the price which the owner, if desirous of selling, would under ordinary circumstances surrounding sales of property have sold the property for, and which a person desirous of purchasing but not compelled to do so would have paid for it.</p> <p>5. Same—when market value is not the legal standard. There are a few exceptional cases where market value cannot be the legal standard of compensation in a condemnation proceeding because the property is of such a nature and applied to such a special use that it cannot have a market value, as in the case of a church, college, cemetery, club house or railroad terminal, and as to such property any evidence available to prove value is permitted.</p> <p>6. Same—when property is not devoted to a special use. The fact that property, a part of which is sought to be taken by condemnation, is used as a soap factory and that the business carried on has been established many years and is very extensive does not make the property devoted to such a special use as takes it out of the general rule making market value the measure of compensation.</p> <p>7. Same—when "going value” or “efficiency value” cannot be considered. In a proceeding to ascertain compensation for a part of the ground and buildings of a soap factory taken for public use the jury should consider the market value of the land and buildings so taken, and the machinery therein, as a part of the whole plant, but cannot consider the so-called “going” or “efficiency” value, based on an estimated value of the owner’s established and successful business and anticipated future profits from such business.</p> <p>Carter, J., dissenting.</p>

<p>1. Workmen’s compensation—Compensation act does not apply if an employee was engaged in inter-State commerce. If the injury to an employee of a railroad company occurs while he is engaged in an inter-State commerce movement the liability of the employer is governed by the Federal Employers’ Liability act and not by the Illinois Workmen’s Compensation act.</p> <p>2. Same—when injury occurs in inter-State commerce movement. An injury to a member of a switching crew caused by falling from the engine as it was running light from one part of the yards to another is received while he was engaged in an inter-State commerce movement, where the engine had just moved a string of cars, some of which were inter-State cars and was on its direct way to get another string, of cars also containing inter-State cars.</p>

<p>Appeal from the Circuit Court of Piatt county; the Hon. George A. Sentel, Judge, presiding.</p>

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

<p>Writ or Error to the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding.</p>

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

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

Writ or Error to the Appellate Court for the Second District;—heard in that court on writ of error to the County Court of McHenry county; the Hon. D. T. S$iiLEy, Judge, presiding.

<p>1. Municipal corporations—the streets of a city are under control of city council. The streets of a city are under the control of the city and its powers in respect thereto are exercised by the city council.</p> <p>2. Same—South Park Commissioners have no power to permit oroprohibit construction and maintenance of a street railway. The power to grant permission for the construction and maintenance of a street railway in the streets of the city of Chicago is exclusively in the city council, and the South Park Commissioners have no power either to prohibit or authorize such construction.</p> <p>3. Same—South Park Commissioners and city of Chicago have concurrent jurisdiction over street intersections. The city of Chicago and the South Park Commissioners have concurrent jurisdiction over the intersections of public streets with boulevards in the sense that each exercises authority in the same territory, but the jurisdiction of the city is for- the use of the intersection as a public street while that of the commissioners' is for its use as a boulevard and pleasure driveway.</p> <p>4. Same—what regulations may be imposed by the South Park Commissioners as to street intersections. The South Park Commissioners of the city of Chicago, at the intersections of its boulevards with the public streets, may exercise the police power in every particular relating to the preservation and use of the intersections for boulevard purposes and may compel compliance with all, such regulations by suitable penalties.</p> <p>5. Same—authority to make contracts for use of streets is not part of police power. The power to fix by contract the conditions upon which a street railway company may occupy a street is separate and distinct from the police power, which is neither involved in nor surrendered by a grant for the use of the street.</p> <p>6. Same—when South Park Commissioners cannot reqidre a street railway company to pave street intersections. The South Park Commissioners of the city of Chicago cannot, by ordinance, require a street railway company to pay for paving the intersections of boulevards in the park system with streets over which the city council has authorized the company to lay its tracks upon prescribed conditions.</p> <p>7. Same—when acceptance of ordinance by street raihvay company does not estop it to insist on want of consideration. The acceptance by a street railway company of an ordinance of park commissioners requiring the company to pave street intersections, and assuming, as consideration therefor, to allow laying tracks across park boulevards on streets over which the city council has authorized the company to lay its tracks, does not estop the company to insist on want of consideration for the contract when sued by the park commissioners to recover the cost of such paving.</p> <p>8. Jurisdiction—jurisdictions cannot be conflicting. It is of the essential nature of jurisdiction that two authorities cannot exercise power in the same territory over the same subject at the same time and for the same purpose.</p> <p>9. Contracts—contract without consideration is unenforcible. A consideration of some sort is necessary to forming a contract, and an agreement to do or pay anything on one side without any compensation on the other is void in law and unenforcible.</p>

<p>1. Wiias—under what provision of will property goes to heirs-at-law. Where a will creating a trust provides that upon the happening of a certain contingency the estate of the testatrix “shall be distributed according to law and the rules of descent as provided by the State of Illinois,” the property will go to the heirs-at-law and next of kin.</p> <p>2. Same—devise to heirs-at-law means heirs at death of testator in absence of contrary intention. A will speaks from the death of the testator, and a bequest or devise to the testator’s heirs-at-law and next of kin will be construed as referring to those who are such at the time of his death unless a different intent is plainly manifested by the will. (Johnson v. Askey, 190 Ill. 58, distinguished.)</p> <p>3. Same—it is presumed testatrix understood meaning of will. Where the language used all through a will is clear and unambiguous it must be assumed that the testatrix understood the meaning of the will as it was drawn.</p> <p>4. Same—meaning of words “then and in such case" in con- ' ncction with devise. The words “then and in such case,” used in connection with a devise over to the heirs-at-law of the testatrix, do not point to the time when the right of the beneficiaries to take begins but ordinarily refer to the event upon the happening of which the heirs-at-law take the property.</p> <p>5. Inheritance tax—when tax cannot be assessed against a nephew under devise to heirs-at-law. Where a will creates a trust in favor of the two daughters of the testatrix for life with remainder to their children, a subsequent provision that in case both daughters shall die without leaving issue the property shall be distributed according to the laws and rules of descent of the State of Illinois passes no possible interest to a nephew of the testatrix but only to the two daughters, who were the only heirs-at-law and next of kin of the testatrix at the time of her death, and as the nephew has no possible interest under the terms of the will no inheritance tax based thereon can be upheld.</p>

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of McDonough county; the Hon. Harry M. Wag-goner, Judge, presiding.

<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. Sheridan E. Fry, Judge, presiding.</p>

<p>1. WiEiiS'—what is necessary to revocation of will by cancellation. In order to constitute the revocation of a will by cancellation such cancellation must be a blotting or striking out or writing over the will or an essential portion thereof and must be made with intent to revoke the will.</p> <p>2. Same—a will is not canceled by merely writing upon it. Merely writing upon a will in blank spaces, without physically obliterating or striking out any of the words of'the will, is insufficient to work a destruction of the will by cancellation, even though the notation may express an intention to revoke and cancel.</p> <p>3. Same—when writing on will is not a revocation. A notation upon a will to the effect that the will is no good and that the testator has changed his mind cannot be held effective as a written revocation of the will where the notation is unsigned and unattestcd.</p>

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

<p>1. Constitutional law—provision of constitution against imprisonment for debt does not apply to tort actions. The provision of the constitution abolishing imprisonment for debt applies only to actions upon contracts, express or implied, and does not extend to actions for torts.</p> <p>2. Mandamus—it is the duty of the clerk, and not the court, to issue capias ad satisfaciendum. Where a plaintiff obtains a judgment in an action of trespass for assault and battery the statute authorizes the writ of capias ad satisfaciendum in the same terms as an execution against the defendant’s property, and by force of the judgment it is the duty of the clerk to issue the writ upon the request of the plaintiff; but the judge of the court can not be compelled by mandamus to order the writ, as such action is not necessary.</p> <p>3. Trespass—malice is of the gist of action for assault and battery. Malice is of the gist of an action of trespass for an assault and battery.</p>

<p>1. Workmen's compensation—when Supreme Cotirt will not weigh the• evidence. If there is in the record any competent evidence upon which the finding of the Industrial Commission can be based the Supreme Court will not weigh the evidence.</p> <p>2. Same—what objection is waived if not assigned before the Industrial Commission. Where physicians advise that an injured employee must submit to a minor operation before he can be entirely healed of the injury, and the employer agrees before the arbitrator to pay for the operation if such employer is liable for compensation, an objection that the employee forfeited his right to part of his compensation by his refusal to undergo the operation is waived by failure to assign it as ground for review before the Industrial Commission.</p>

<p>Writ or Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.</p>

<p>1. Drainage—petition, and not the assessment roll, should state purpose of assessment. In a proceeding to levy a drainage assessment it is the province of the petition to state the nature and character of the work to be done and the purpose for which the money is to be raised and used, and the drainage statute does not require that the assessment' roll shall state the purpose for which the assessment is to be made.</p> <p>2. Same—when the Stipreme Court will not interfere with verdict and judgment. In a proceeding to levy a drainage assessment, where the evidence is conflicting on the questions whether the property is assessed more than it is benefited and whether it is assessed moré than its proportionate share of the entire cost, the Supreme Court will not interfere with the verdict of the jury and the judgment of the trial court unless clearly against the weight of the evidence.</p> <p>'3. Same—what issues are submitted to jury in a proceeding to levy a drainage assessment. In a proceeding to, levy a drainage assessment the questions whether the property is assessed more than it is benefited and whether it is assessed more than its proportionate share of the cost of the entire improvement are the only issues to be submitted to the jury.</p> <p>4. Same—what instructions should be revised. In a proceeding to levy a drainage assessment, instructions which are argumentative in form and not accurate as to the facts stated are properly refused.</p>

<p>1. Courts—court may stop vexatious litigation by summarily dismissing bill. A court has inherent power to protect itself and litigants against harassing and vexatious litigation and an abuse of process of the court, and where a ’ complainant, in violation of an injunction of the court and in contempt of its authority, attempts to re-litigate matters finally and conclusively determined, the court may adopt the summary remedy of dismissing the suit.</p> <p>2. Trusts—trustee has equitable lien on trust estate for proper expenses. A trustee not at fault is entitled to be reimbursed for all his expenses properly incurred in the administration of his trust and has an equitable lien on the trust estate for the same.</p> <p>3. Same—trustee’s expenses and solicitors fees in defending groundless suit should be paid out of share of beneficiary bringing the suit. Where a beneficiary brings a groundless suit against his trustee, the solicitor’s fees and expenses of the trustee in defending the suit should be charged against the share of the complainant in the trust estate and not against the estate generally nor against a general fund, by which the co-beneficiaries would have to contribute.</p> <p>4. Same—right of one beneficiary to expenses for defending a groundless suit by another beneficiary. Where a beneficiary brings a groundless suit against his trustee and another beneficiary, the defendant beneficiary, as well as the trustee, is entitled to have his solicitor’s fees and expenses in defending the suit charged against the share of the beneficiary bringing the suit.</p> <p>5. Costs—costs cannot be recovered except by statutory provision. A party claiming, a judgment for his costs against his adversary must bring himself within the operation of some statutory provision, as courts have no power to adjudge costs against anyone on merely equitable grounds.</p> <p>6. Same—solicitors fees cannot be recovered as costs unless authorized by statute. Solicitor’s fees cannot be recovered as costs in the absence of statutory authority, and while a trustee and a beneficiary are entitled to have their solicitor’s fees in defending a frivolous and groundless suit brought against them by another beneficiary charged against his share in the trust estate, they are not entitled to recover them in the form of a judgment for costs. (Waterman v. Alden, 144 Ill. 90, explained.)</p>

<p>Writs oe Error to the Circuit Court of White county; the Hon. Charles H. Miller, Judge, presiding.</p>

<p>1. Taxes—State Board of Equalisation, in assessing property, may act on its own knowledge without evidence as to value—corporations. In assessing property the State Board of Equalization may hear evidence in order to ascertain the value but may act upon its own knowledge and judgment without such evidence, and it has the power to increase the valuation returned by the officers of a corporation without hearing evidence impeaching the return.</p> <p>2. Same—an unfair assessment cannot be sustained. The taxpayer is entitled to the honest judgment of the person or persons elected or appointed to fix the values, and a tax founded on an assessment which from corrupt and malicious motives is made excessive, or is rendered unequal or unfair by fraudulent practices of the officers, or is arbitrarily made at too high a valuation, can not be sustained.</p> <p>3. Same—attending circumstances may be considered to determine whether valuation was honestly made. In a proceeding for judgment for taxes, on objection that the assessment was arbitrarily made at too high a valuation, the attending circumstances may be looked into to determine whether or not the valuation was honestly made.</p> <p>4. Same—excessive valuation may be evidence of fraud. Excessive valuation of property does not, of itself, establish fraud, but where the valuation is so grossly out of the way as to show that the assessing body could not have been honest in its valuation and must reasonably have known that it was excessive, such fact is accepted as evidence of fraud.</p> <p>5. Same—the State Board of Equalisation cannot disregard its own rules in assessing property. A valuation of property arbitrarily made by the State Board of Equalization in disregard of the board’s own rules as to valuation cannot be sustained.</p> <p>6. BriEES—statements in briefs as to previous valuation must be supported by record. The Supreme Court is bound to follow the facts as stated in the record, and mere statements in the briefs of counsel as to the assessed valuations of property for previous years cannot be considered to support an objection that the property has been arbitrarily assessed too high, unless the facts are found in the record.</p>

<p>1. Public utilities—proof must show that public convenience and necessity demand through route and joint rate fixed by commission. Under the Public Utilities act an order of the Public Utilities Commission establishing a through route and joint rate on connecting lines of railroads must find, and the proof must show, that the public convenience and necessity demand the order, either because the rate charged is unjust, unreasonable or excessive or because there is no satisfactory through route or joint rate.</p> <p>2. Same—findings of the commission are conclusive on courts unless against the evidence. The findings of the Public Utilities Commission have the force and effect of reports of special masters in courts of equity and are conclusive on the courts unless manifestly against the evidence, in which case they may be set aside.</p> <p>3. Same—convenience or necessity must concern the public as distinguished from individuals. The existence of a public necessity or convenience is not necessarily determined by the number of people asking for it, but the convenience or necessity must concern the public as distinguished from the individual or any number of individuals.</p>

<p>1. Quo warranto—right of land owner to prosecute information against commissioners of drainage district. A land owner in a drainage district, having a right distinct from that of the public at large and enforcible by quo warranto, is entitled to institute a proceeding by information in the nature of quo warranto against the drainage commissioners, and if his petition is in proper form and makes a prima facie case it is the duty of the State’s attorney to sign and file the petition. (People v. Healy, 230 Ill. 280, followed.)</p> <p>2. Same—the defense of estoppel or laches should be set up by plea. Pacts relied upon to establish an estoppel or laches as a defense to an information in the nature of quo warranto should be set up by plea and not presented on motion of the defendants to set aside the order granting leave to file the information and to dismiss the petition.</p>

<p>Writ of Error to the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding.</p>

<p>1. Workmen’s compensation—section 2p of Compensation act is not unconstitutional. Section 29 of the Workmen’s Compensation act, limiting an employee’s right to a common law action for injuries occasioned by the neglect of a third party, does not violate the constitutional provision for due process of law, for neither an employee, his personal representatives nor next of kin have any vested right to recover damages for personal injuries to the employee that the legislature cannot at any time do away with by a public enactment. (Keeran v. Peoria, Bloomington and Champaign Traction Co. 277 Ill. 413, and Friebel v. Chicago City Railway Co. 280 id. 76, followed.)</p> <p>2. Same—common law action under section 2p and claim for compensation may be prosecuted at same time. Under section 29</p> <p>of the Workmen’s Compensation act, where the injury to the employee is occasioned by the neglect of a third party not under the act, the employee is not put to his election between compensation under the statute and damages at common law, but the common law action against the third party and the claim for statutory compensation may be prosecuted at the same time.</p> <p>3. Same—section 29 of Compensation act does not limit damages to be recovered against third party not under the act. Section 29 of the Workmen’s Compensation act, allowing a common law action against a third party causing the injury where such party is not under the act, does not limit the damages that may be recovered but provides only for the indemnification of the employer out of the amount recovered.</p> <p>4. Same—either employer or employee may bring common law action under section 29 of the Compensation act. Under section 29 of the Workmen’s Compensation act, where the injury to the employee is caused by a third person not under the act, there is but one legal cause of action against such party and it is for the common benefit and use of both the employer and employee, and either may prosecute the suit to final judgment and enforce collection.</p> <p>5. Same—defenses of third party are the same whether he is sued in name of employer or employee. Under section 29 of the Workmen’s Compensation act, where the injury to the employee is caused by a third party not under the act, against whom a common law action for damages is brought, the defendant’s defenses, if he has any, are the same whether he is sued in the name of the employer or of the employee, and payment of judgment in one suit "will bar the other action.</p> <p>6. Parties—party having legal right of action may bring suit without showing for whose use. The party in whom is the legal right of action may bring and maintain a suit, and it is not necessary that the record should show for whose use or benefit the suit is brought.</p>

<p>1. Easements—natural water-course does not cease to be such because channel has been plowed out. A natural water-course does not cease to be such because a channel has been plowed out, and if the conformation of land is such that the surface water uniformly follows a definite course, within reasonable limits as to width, and is discharged upon servient land at a definite place, the line of flow is a water-course within the meaning of the law.</p> <p>2. Injunction—to justify injunction the injury need not be impossible of compensation in damages. Although an actual and substantial injury must be shown to justify relief by injunction, the irreparable injury necessary to give a court of equity jurisdiction is not one so great as to be impossible of compensation in damages but is one of such a character that the law cannot give adequate compensation for it.</p> <p>3. Same—right of a property owner to remedy by injunction. Where an owner of property is about to be deprived of a legal right in connection with the property by the wrongful act of another for which there is no legal redress the act may be restrained by injunction, or, if it has already been executed, it may be required to be undone, if this is practicable.</p> <p>4. Same-—an injury of frequent occurrence may be enjoined. Where an injury is of such constant and frequent occurrence that no fair or reasonable redress can be had for it in a court of law it may be enjoined.</p>

<p>1. Workmen’s compensation—ability to work by aid of mechanical device not inconsistent with complete loss of use of hand. The fact that by the use of a mechanical appliance or some substitute for the hand an injured employee is able to perform manual labor to some extent is not inconsistent with the permanent and complete loss of the use of the hand for practical work.</p> <p>2. Same—former injury to finger does not reduce compensation' for loss of use of hand. Where, as a result of an injury, an employee has permanently lost the use of one hand, he is entitled to compensation for the loss at the rate fixed by the statute; and the facts that one finger had been previously injured and partly amputated and that he might have recovered for that injury do not reduce the amount of compensation to which he is entitled.</p>

<p>1. Workmen’s compensation—whether second accident was an intervening cause of injury is a question of fact. Where an employee who has fractured his leg while engaged in an occupation coming under the Workmen’s Compensation act, and who has but partially recovered, falls while walking on a sidewalk and again breaks his leg at the point of previous fracture, the question whether the accident was an independent intervening cause of injury is one of fact, which is settled by the decision of the Industrial Commission if based upon any competent evidence.</p> <p>2. Same—when courts are bound by decision of the Industrial Commission. If there is in the record sufficient competent evidence to sustain an award and the action of the Industrial Commission affirming it, the circuit court and the Supreme Court, in the absence of fraud, are bound by the decision of the commission.</p>

<p>Writ of Error to the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding.</p>

<p>1. Workmen’s compensation—when injury to an employee on way to lunch arises out of employment. An injury to an employee on his way to lunch at the noon hour, as a general rule, arises out of and in the course of his employment; and it makes no difference that the injury occurs off the premises of the employer, if the employee uses premises which he has a right to use and which provide the only available way to reach the point to which he goes for lunch.</p> <p>2. Same—when rule that injury to employee on way to lunch arises out of employment does not apply. The general rule that an injury to an employee on his way to lunch or during his absence for lunch during the noon hour arises out of the employment does not apply where the employee chooses to go to a dangerous place where his employment does not necessarily carry him or where he incurs a danger while on a mission not connected with his employer’s business but merely for his own pleasure.</p> <p>■3. Same—the administratrix must prove injury resulting in employee’s death arose out of employment. The burden is on the administratrix suing for compensation for an injury resulting in an employee’s death to prove that the injury arose out of and in the course of the employment, and where the employee was injured during the noon hour, while going for his lunch across a railroad bridge not built for pedestrians, the administratrix must prove it was the only available way for him to reach his destination.</p> <p>4. Same—when party cannot complain of incompetent evidence. Where an administratrix suing under the Workmen’s Compensation act objects to certain testimony of a witness as being against the representative of the deceased, (her objection being sustained,)</p> <p>' and afterwards brings out the same facts by cross-examination of the same witness without making any motion to exclude the evidence, she cannot complain in the Supreme Court that such evidence is incompetent.</p> <p>5. Same—when injury to employee on way to lunch does not arise out of employment. An injury to an employee struck by a passing train while going after his noon lunch across a railroad bridge not built for pedestrians does not arise out of and in the course of the employment, where it appears from the record that the employee violated an instruction of his employer not to cross the bridge and it is not proved that there was no other way to get his lunch.</p>

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

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

<p>Appeal from the Circuit Court-of Peoria county; the Hon. John M. NiEhaus, Judge, presiding.</p>