Volume 292 — Illinois Reports

<p>1. Appeals and errors — when Appellate Court is presumed to have found facts the same as the trial court. Where the Appellate Court reverses a judgment in favor of the plaintiff without remanding the cause or finding the facts and enters final judgment for the defendants, it is presumed that the Appellate Court agreed with the trial court on the facts but held them insufficient to sustain the plaintiff’s cause of action, and the Supreme Court, on further appeal, can only determine whether there is any evidence tending to support the cause of action.</p> <p>2. Bills and notes- — when evidence of acceptance by drawee bank is unnecessary. Proof of acceptance of a check by the drawee bank is unnecessary, where the check, having been honored by another bank, is forwarded through the usual channels to the drawee bank, which charges the check to the account of the drawer and includes the amount thereof in a check drawn by it on another bank to cover the amount of checks honored by various banks and forwarded through the Federal Reserve Bank for collection and remittance.</p> <p>3. Banks — when funds of foreign bank are subject to garnishment in Illinois. Funds of a bank of another State in the hands of a bank in Illinois are subject to garnishment in aid of an attachment suit in Illinois begun by an Illinois bank to recover the amount of a check paid by it drawn on the foreign bank, which the latter subsequently received and charged to the drawer’s account but failed to pay, owing to its funds being taken possession of by the bank examiner.</p> <p>4. Conflict of laws — when courts of Illinois will not enforce insolvent laws of another State. The funds of a non-resident bank may be garnisheed in an attachment suit in Illinois although said bank at the time the suit was instituted had become insolvent and a receiver had been appointed under the laws of its own State to take possession of the assets of the bank, as the courts of Illinois will not enforce the insolvent laws of another State against an attaching creditor. (Rhawn v. Pearce, 110 Ill. 350, followed.)</p>

<p>1. Workmen’s compensation — what to be considered in determining whether a person is an independent contractor. Each case must depend upon its own facts as to whether one who works for another is an employee or an independent contractor, but the most important element to be considered is the right to control the manner of doing the work, although the mode of payment and the right to terminate the performance of the work at any time by discharging the worker are also important elements.</p> <p>2. Same — when teamster engaged to haul freight is not an independent contractor. A teamster who is engaged to haul freight with his own horse and wagon is not an independent contractor, where he is employed continuously by the same employer, is paid a fixed sum per week, is required to report for duty every day or send a substitute, gives all his time to the work, and where there is nothing in his contract or in the conduct of the work that indicates that his employer has surrendered the right to control any part of the details of the work.</p> <p>3. Same — question whether employer is under act must be raised affirmatively. An employer claiming he is not under the Compensation act must raise such question affirmatively, not only before the Industrial Commission but before the circuit court.</p> <p>4. Same — circuit court cannot enter money judgment for award and order execution. The circuit court in confirming an award by the Industrial Commission cannot enter a money judgment and order execution to issue.</p>

<p>1. Fraud — contract price must be grossly excessive to be evidence of fraud. The fact that land is not worth the price per acre stipulated in the contract of sale is not ground for refusing to enforce the contract unless the stipulated price is so excessive as to furnish satisfactory evidence of fraud.</p> <p>2. Same — fraud is an affirmative defense, which must be proved. Fraud is not presumed but is an affirmative defense, which must be proved like any other fact.</p> <p>3. Specific performance — a contract free from objection will be enforced as a matter of right and not as a favor. If a contract is unjust and inequitable although it may be legal and enforcible at láw' a court of equity will not compel specific performance, but if a contract is free from objection specific performance is allowed as a matter of right and not as a favor.</p> <p>4. Same — when court will decree specific performance of contract for sale of farm land. Where the owners of a farm made no fraudulent representations or concealmeht as to their land and did nothing to prevent a full examination by the purchaser, who was experienced in farming and made a thorough inspection of the improvements on the land although she did not go over the farm, a court of equity will decree specific performance of the contract of purchase, where the price per acre is not so-unreasonable as to be evidence of fraud.</p> <p>5. Appeals and errors — when cause must be remanded although decree is affirmed. Where the trial court, in decreeing specific performance, has retained jurisdiction to make any further orders necessary for carrying into execution the provisions of the decree, the Supreme Court, on affirming the decree, must remand the cause for further orders to carry the decree into effect.</p>

<p>Writ op Error to the Circuit Court of White county; the Hon. Julius C. Kern, Judge, presiding.</p>

<p>Information to disbar.</p>

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

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

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

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

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

<p>Appear from the Circuit Court of Kendall county; the Hon. Mazzini Srusser, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Second District; — heard in that court on writ of error to the Circuit Court of Rock Island county; the Hon. William T. Church, Judge, presiding.

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

<p>1. Mandamus — petitioner must show a clear right to writ. A writ of mandamus will issue only where the petitioner shows a clear, legal right to the writ or shows a clear obligation on the part of the party against whom the writ is sought to do the thing which the petitioner seeks to have performed.</p> <p>2. Schools — State superintendent cannot be compelled to publish revised price list under section 3 of act regulating sale of text books. Section 3 of the act for the adoption, sale and distribution of school text books, requiring the State superintendent to publish annually and send to each school district a list of books and prices filed, in addition to the lists originally filed under the act, does not make it the duty of the State superintendent to file in his office and send to the districts revised lists of prices on books which have been previously filed within the five-year period specified in the act, as it is the intention of the act that the prices originally quoted continue without increase during the five-year period.</p>

<p>1. Wills — zuill may be sustained although testator was guilty of immoral conduct — evidence. Where the weight of evidence in a suit to contest a will is that the testator was of sound mind when he executed his will, the will will be sustained even if it be shown he was guilty of immoral conduct; and exhibits which witnesses testify the testator kept for the purpose of overcoming sexual impotency are not admissible in evidence.</p> <p>2. Same — burden is on contestants to overcome case made by proponents. In a will contest case the burden is on the contestants to overcome, by a preponderance of the evidence, the case made by the proponents.</p> <p>3. Same — when verdict in a will contest case will be set aside. The verdict in a will contest case has the same force and effect ajft a verdict in an action at law and when sanctioned by the trial cou(p) is entitled to great weight, but where the record shows the verdict is against the clear weight and preponderance of the evidence it will be set aside, the same as in a case at law. •</p> <p>4. Same- — zvhat does not shozv undue influence by the party who drezv will. Where there is no proof that the party who drew the will ever advised or suggested the making of any of its provisions, the mere fact that institutions in which said party was interested received substantial benefits from the will does not support the claim of undue influence.</p>

<p>1..Specific performance — equity will enforce an agreement among devisees and legatees to settle rights under will. An agreement among all the devisees and legatees to settle their rights under the will is looked upon with favor by courts of equity and will be enforced unless there is some insuperable bar to prevent.</p> <p>2. Wills — what is sufficient consideration for agreement among devisees and heirs to settle rights under will. The surrender by certain heirs of their right to file a bill to set aside a will is sufficient consideration for an agreement among all the heirs and devisees to settle a controversy over their rights under the will; and such an agreement will not be affected by the re-probate of the will by heirs who were not notified of the original probate but who are parties to the agreement, as the agreement, if otherwise capable of enforcement, will supersede the will, and it is immaterial whether or not the will is set aside by the court.</p> <p>3. Same — executors may act as commissioners under agreement of devisees to settle rights under zvill. Where all the devisees and legatees have entered into an agreement to settle their rights under a will, the fact that the commissioners they appoint to act in the matter'of settlement are also executors and trustees under the will does not affect their duties as commissioners where the effect of the agreement is to divest the trustees and executors of all property disposed of by the will.</p> <p>4. Same — when remainders are contingent and will be destroyed by quit-claim deeds among heirs and devisees. Where a testator divides his property equally among his children, and provides that upon the death of a particular son and daughter, who have no children at the time the will is made, the shares devised to them shall go, respectively, to their children if they leave any surviving them, and if not, to the other children of the testator, the remainders are contingent and will be destroyed by mergers of the life estates and the reversions by quit-claim deeds exchanged among the heirs, devisees and legatees to specific' portions of the land, pursuant to an agreement among all the heirs, devisees and legatees to settle their rights in the property. (Lachenmyer v. Gehlbach, 266 Ill. 11, distinguished.)</p> <p>3. Same — provisions in case of the death of devisee are to be construed according to intention of testator. Such expressions as “die without children,” “die without living children or grandchildren,” “die leaving no children or grandchildren,” and “die without issue,” are to be construed according to the intention of the testator as ascertained from the whole will, and no technical meaning is to be attributed to the particular words used.</p> <p>6. Same — testator may create a life estate in personal property voith remainder over. A testator may create a life estate in personal property with a remainder over, which may be either vested or contingent, as the principles applicable to the vesting of remainders in real estate apply to gifts of personal property where the original gift is personalty and not merely a payment of income.</p> <p>7. Same — when agreement of devisees supersedes will. Where all the heirs, devisees and legatees of all the property disposed of by a will enter into a contract, after the death of the testator and the probate of the will, to settle their rights in the property, the will is superseded by the' contract and the property becomes intestate property.</p> <p>8. Same — representatives of deceased devisee are bound by his contract to dispose of his share. Where all the heirs, devisees and legatees of all the property disposed of by will enter into an agreement to dispose of the property among themselves according to the terms of the agreement, the death of one of the parties does not terminate the contract, as both he and his representatives are bound by his act.</p> <p>9. Dower — right of dower is subject to incumbrance existing at time of seiziire. The right of dower subsists by virtue of the seizin of the wife or husband and is always subject to any incumbrance, infirmity or incident which the law attaches to that seizin, either at the time of the marriage or at the time the husband or wife became seized.</p> <p>10. Partition — husband or wife of tenant in common is not a necessary party. The husband or wife of a tenant in common is not a necessary party to a suit for the partition of real estate, as the liability to be divested by a sale.in partition is an incident which the law affixes to the seizin of all joint estates, and the inchoate right of dower is subject to that incident and exists only in the share of the personalty or of the realty which the tenant in common takes in severalty by the partition.</p> <p>11. Same — husband or wife; of tenant in common is not necessary party to deed for partition by agreement. As a tenant in common has a right to compel partition by process of law, to which the husbands or wives of his co-tenants need not .be parties, the inchoate right of dower in the husband or wife of a co-tenant is, in the absence of fraud, likewise affected in case of voluntary partition, where the co-tenants agree to divide the property by deeds among themselves; and the husband or wife of a- co-tenant need not be a party to such a deed.</p> <p>12. Same — partition affects only unity of possession and does not affect the title. Partition, whether voluntary or. by judgment or decree, has .the effect, only, of severing the unity of possession and does not vest in either of the co-tenants any new orl different title so that either co-tenant can be said to hold under the other, but after the partition each party has the same title which he had before, except that his possession is now in severalty.</p>

<p>1. Practice — nature of writ of error coram nobis at common law. At common law the writ of error coram nobis could be sued out of the same court and before the same judge rendering a judgment at law to reverse the judgment for an error of fact which, if brought to the knowledge of the court, would be sufficient, of itself, to defeat the judgment.</p> <p>2. Same- — what errors of fact are available under writ of error coram nobis or under section 8p of Practice act. Error of fact which may be assigned under a writ of error coram nobis or by motion under section 89 of the Practice act must be some fact unknown to the court at the time judgment was rendered and which would have precluded the rendition of the judgment, such as the facts that the nominal defendant was dead, was an infant without guardian, a feme covert or a person insane at the time of the trial.</p> <p>3. Same — error in process may be sufficient to recall judgment under writ of error coram nobis. Error in the process or through the default of the clerk which is of sufficient character to preclude the judgment but which was unknown to the court at the time the judgment was rendered and does not appear on the face of the record is sufficient to reverse or recall the 'judgment under a writ of error coram nobis.</p> <p>4. Same — court cannot correct its own errors after term has ended. Before the term has ended the court may review its judgment rendered during the term as to matters of fact or of law decided by it and correct its judgment if erroneous, but after the term has ended errors of fact appearing on the face of the record or contradicting the finding of the court cannot be corrected by the court rendering the judgment but must be reviewed by an appellate court on writ of error or appeal.</p> <p>5. Same — demurrer to writ of error coram nobis admits fact alleged as error. On a writ of error coram nobis or in a proceeding under section 89 of the Practice act, the fact alleged as error is admitted by demurrer or plea of nullo est erratum or by a motion to dismiss.</p> <p>6. Same — zvhen writ of error coram nobis does not.lie. A writ of error coram nobis does not lie to contradict or put in issue any fact that has been adjudicated in the action, submitted to a jury or found by a referee or by the court sitting to try the issues, or to correct any error in the judgment of the court.</p> <p>7. Same — plaintiff’s failure to disclose defense to action is not a fraud for which writ of error coram nobis will lie. The plaintiff is under no obligation to introduce any part of the defendant’s defense which must'be specially pleaded, and the plaintiff’s failure to disclose -a defense to the action is not a fraud for which a writ of error coram nobis will lie, but such fraud must be some act on the part of the plaintiff or its counsel that prevents the defendant from making its defense.</p> <p>8. Process — sheriff’s return that president of corporation- was not found in county means he could not be found. The finding of a sheriff in his return that the president of a defendant corporation was not found in his county is equivalent to a return that the president could not be found in the county, and the court cannot do otherwise than regard the finding as true unless contradicted in some proper way recognized by law.</p> <p>9. Same — writ of error coram nobis does not lie to contradict sheriff’s return showing valid service. Both parties to a suit at law are conclusively bound by the sheriff’s return after the term in which judgment was rendered, where the jurisdiction of the defendant’s person depends on such return, showing that the defendant was duly served; and a writ of error coram nobis does not lie to vacate the judgment upon the ground that, contrary to the sheriff’s return, there was, in fact, no valid service, unless a false return has been procured by the fraud of the plaintiff.</p> <p>io. Same — false return may be taken advantage of by plea to jurisdiction of person. Before judgment is taken a false return by the sheriff may be taken advantage of by a plea to the jurisdiction of the person of the defendant.</p>

<p>1. Public utilities — when a judgment setting aside order of commission is appealable. If, on the petition of street railway companies for increased fares because of increased wages and operating expenses, the order of the Public Utilities Commission finds that the petitioners are furnishing service for less than cost and authorizes a temporary ■ schedule of increased fares until a further hearing is had to establish permanent rates, a judgment of the circuit court setting aside the order for the temporary increase in fares disposes of a definite branch of the controversy and is appealable.</p> <p>2. Same — when city may appeal from order authorising temporary increase in fares of street railways. An order of the Public Utilities Commission authorizing street railway companies operating in a city to put into effect a temporary schedule of increased fares may be appealed from by the city, where it has a contract with the railway companies as to the rates of fare and it has received notice of the hearing and appeared before the commission and contested the order.</p> <p>3. Same — contract as to rates of fare is subject to legislative control. By the statutory provision enacted pursuant to section 4 of article 11 of the constitution, that cities may grant the right to a street railway company to operate for twenty years, the legislature has not divested itself of its control over a contract as to rates of fare although the contract creates a partnership between the company and the city by which the city shares in the income from the, rate fixed, and the intervention of the State, either on behalf of the utility to secure a reasonable return for the service rendered or of the city to reduce rates which have become excessive, does not abrogate such a contract. (Public Utilities Com. v. City of Quincy, 290 Ill. 360, followed.)</p> <p>4. Same — the “Mueller law” does not affect legislative control over rates of fare. There is nothing in the so-called “Mueller law,” authorizing cities to acquire street railways, which either directly or by inference affects the power of the General Assembly to regulate rates of fare, and a contract between the city and street railway companies is subj ect to legislative control although it has been entered into under said statute and gives the city a share in the income from rates fixed by the contract to enable it to purchase the property of the companies.</p> <p>5- Same — every citizen of the State has equal right to use of streets of a city. A municipality is a mere agency of the State, and, whether invested with the fee or a. mere easement in streets, it holds them in trust for the people of the State, who have an equal right to the use of the streets for street purposes and are represented not alone by the city but by the General Assembly.</p> <p>6. Same — legislature is bound to see that rates of fare in use of streets are reasonable. The General Assembly has the power and is charged with the duty to see that rates of fare in the use of streets of a city are reasonable, within the limit of a fair return to the railway company and reasonable compensation for the service rendered; and the interest of the city cannot affect the exercise of that power and duty, as the question of rates of fare is not one merely of local concern.</p> <p>7. Same — commission has power to fix a temporary rate until further hearing to determine a permanent rate. Under section 36 of the Public Utilities act the commission is authorized to provide for an emergency by making an order for a temporary rate to meet an existing condition, limited to the time required for making an investigation and finding what a permanent rate should be.</p> <p>8. Same — when former adpidication of commission is not controlling. Where it is shown, on the application of street railway companies for increased rates of fare, that a temporary increase is necessary to meet increased operating expenses due to the increased wages allowed after a strike of the employees, a former adjudication of the Public Utilities .Commission that the existing rate is reasonable and proper is not a determination of what would be a reasonable rate under the changed conditions.</p> <p>Duncan, J., dissenting.</p>

<p>Appeal from the First Branch Appellate Court for the First District; — heard in that court on appeal from the County Court of Cook county; the Hon. John H. Williams, 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 Morgan county; the Hon. Norman L. Jones, Judge, presiding.

<p>1. Master and servant — Occupational Diseases act and Compensation act are not conflicting. The Occupational Diseases act and the Workmen’s Compensation act are not conflicting; nor is an employee given an election of remedies, as his remedy must be under the Compensation act if he is injured accidentally and under the Occupational Diseases act if he is injured in health because of a failure to comply with its provisions.</p> <p>2. Constitutional law- — section 15 of Occupational Diseases act is not invalid. Section 15 of the Occupational Diseases act, giving a right of action to any employee injured in health by willful failure of the employer to comply with any of the provisions of the act, is not unconstitutional as denying the equal protection of the law nor as embracing a subject not expressed in the title of the act, as it is a part of the means provided for enforcing the act and is reasonably necessary to secure the object indicated by the title.</p> <p>3. Workmen’s compensation- — the words “accidental injury or death” are used in popular sense. The words “accidental injury or death,” appearing in the Compensation act, are used in their popular sense, as meaning an accidental injury that may be traced to a definite time, place and cause. ,</p>

<p>1. Corporations — whether corporation is organized for lawful purpose is determined from its charter. Whether the purpose of a corporation is within the scope of the statute under which the corporation is sought to be organized is to be determined from its charter.</p> <p>2. Same — corporation to hold real estate as an investment can not be organized under the general Incorporation act. The general Incorporation act does not authorize the organization of a corporation for the purpose of acquiring leasehold estates in real property and the erection and improvement of buildings thereon as an investment.</p> <p>3. Same — organization of corporation is void if its only real purpose is unatithorized. Where the only real purpose of a corporation is the acquiring of a leasehold estate in land and the maintaining of a building thereon as an investment, its organization under the general Incorporation act is void, although one of the declared objects of its charter is the construction and leasing of safety deposit vaults.</p> <p>4. Same — when any party affected may question legality of act of corporation. Where a corporation has the general power to do an act necessary for its proper corporate purpose, the State, only, may raise the question of abuse of such power, but where the act done is beyond the legal powers of the corporation the act is wholly void and its legality may be questioned by any party affected by it.</p> <p>5. Same — effect where lease to corporation is ultra vires and void. Where the sole purpose of the organization of a corporation under the general law is to acquire a lease of land and maintain a building thereon as an investment, a lease of the property to such corporation is void and may be set aside by the lessor or the trustees of her estate at any time, and all equitable rights of the stockholders are satisfied if they receive the actual cash value of the building, which was purchased and improved by the corporation.</p> <p>6. Partition — complainants must show title. To entitle complainants to a decree ordering partition it is necessary for them to show title to the property, and if the complainants rest their claim on a void lease no title is shown.</p> <p>Dunn, C. J., and Carter, J., dissenting.</p>

Writ oe Error to the Appellate Court for the Third District; — heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. Walter Brewer? Judge, presiding.

<p>1. Public utilities — an injunction is proper remedy to prevent one public utility from unlawfully competing with another. A private corporation lawfully operating a public utility may have an injunction against another private corporation operating without authority of law a similar utility which competes with and injures the former’s business.</p> <p>2. Same — Municipal Ozvnership act and Public Utilities act are not conflicting. The Municipal Ownership act is complete within itself and governs all public utilities owned by municipalities, while the Public Utilities act governs public utilities owned by private corporations and none of its provisions repeal by implication any provision of the Municipal Ownership act.</p> <p>3. Same — section 83 of the Public Utilities act does not nullify rules of statutory construction. Section 83 of the Public Utilities act, providing that the invalidity of any of its provisions shall not affect the validity of the act, must be given a construction consistent with the rules of statutory construction and constitutional law, and does not justify holding that the exception of municipal public utilities in section 10 may be regarded as invalid without affecting the act as a whole.</p> <p>4. Same — exception of municipal 'public utilities in section 10 of Public Utilities act' is not invalid. The exception from the Public Utilities act of public utilities owned by municipalities, in sec-ton 10 of the act, does not violate the provision of the constitution against local or special laws granting special privileges, as there is a valid reason for the classification of municipal public utilities, and it is for the legislature to determine whether such utilities shall be subject to the Public Utilities Commission or be governed by the municipalities through the Municipal Ownership act.</p> <p>5. Same — legislature may authorize municipalities to own and operate public utilities.' The legislature has the power to authorize municipalities to own and operate public utilities, to prescribe the rates for the service performed, and to delegate to the municipalities the right to regulate and control such municipally owned plants.</p> <p>6. Same — right to fix rates for public utilities is vested in the State. The right to fix rates for all public utilities is vested, in the first instance, in the State, whether such utilities are owned and operated by private individuals or by municipalities, and the legislature may assume that the rates will not be the same for both classes of utilities.</p> <p>7- Same — Municipal Ownership act does not violate constitutional provision against special privileges. The Municipal Ownership act, authorizing municipalities to own and operate public utilities, does not violate section 22 of article 4 of the constitution, prohibiting the enactment of local or special laws granting special privileges.</p> <p>8. Same — municipality acts as a private corporation in supplying inhabitants with service 'of a public utility. A municipal corporation which supplies its inhabitants with light, gas or water does so in the capacity of a private corporation and not in the exercise of its powers of local sovereignty.</p> <p>9. Same — all public utilities owned by municipalities are excepted from Public Utilities act by section id. All public utilities owned by municipalities are excluded from the Public Utilities act and from the supervision of the commission by the exception in section 10 of the act, whether such utilities are operated by the cities solely for their own use or also to supply service to the inhabitants.</p> <p>10. Same — term “public utility" precludes idea of private service. The term “public utility” implies a public use, carrying with it the duty to serve the public and treat all persons alike, and precludes the idea of service which is private in its nature and is not to be obtained by the public.</p> <p>11. Statutes — before holding a particular provision invalid the courts should consider effect upon the entire enactment. In the determination of the validity or .invalidity of particular provisions of a statute the courts should not be unmindful of the effect upon the entire enactment of the holding of any particular provision invalid.</p> <p>12. Same — statute must be considered as a whole. In construing a statute the act must be considered as a whole and the intention derived from a consideration of all its clauses and provisions.</p> <p>13. Same — when invalidity of a particular provision renders the entire act invalid. Where different sections of a statute are independent of each other, that which is unconstitutional may be disregarded and valid sections allowed to stand; but where the court cannot say that the legislature would have passed the act with the void portion eliminated the entire act must be held invalid, as the court has no power to make that a law which the legislature did not intend.</p> <p>14. Constitutional law — municipal corporations may be classified as distinct from private corporations. While the word corporation,” as used in section 22 of article 4 of the constitution, prohibiting the passing of local or special laws granting special privileges, includes municipal corporations, such corporations may be classified in a statute as a class distinct from private corporations.</p> <p>15. Same — constitution does not prohibit a reasonable classification for purposes of legislation. Section 22 of article 4 of the constitution, prohibiting special laws, does not mean that the same rule shall apply to every individual' in the State under all circumstances but only under substantially the same circumstances; and laws may be valid though operating only upon particular persons or classes, if the classification is not arbitrary and there is a valid reason for the particular operation.</p> <p>16. Same — when classification is valid. The only reason which is recognized, as supporting a classification in a statute is a substantial distinction which differentiates in important particulars the particular persons to whom the law applies from all other persons and having some reasonable relation to the purpose of the law.</p> <p>Dunn, C. J., and Cartwright and Farmer, JJ., dissenting.</p>

<p>1. Eminent domain — special benefits are not confined to increased traffic in particular block. Special benefits do not become general benefits because they are common to other property in the vicinity, and to offset damages to property not actually taken in the construction of an elevated railroad in the business district of a city the benefits to such property from increased- traffic which may be considered are not limited to a consideration of the increased traffic in the block in which the property is located. (McCoy v. Union Elevated Railroad Co. 271 Ill. 490, explained.)</p> <p>2. Same — what is to be considered in estimating damages to property not taken in construction of elevated railroad. In estimating the damages to property not taken in constructing an elevated railroad the question to be considered is the total effect of the construction and operation of the railroad upon the market value of the property.</p> <p>3. Practice — when attorney cannot present brief of opposing counsel used in another case. The rules of the Supreme Court do not permit an attorney to attach as an appendix to his brief a copy of a brief used by opposing counsel in another case for the purpose of showing such counsel’s view of the law in that case.</p> <p>Cartwright and Duncan, JJ., dissenting.</p>

<p>Wills — when words “nearest akin” mean nearest blood relations. Where a testator devises land to his son for life and provides that at the son’s death the property shall “revert to his nearest akin,” the words “nearest akin” are intended for “nearest of kin” and mean the nearest blood relations of the life tenant to the exclusion of more distant relations, and do not mean legal heirs according to the Statute of Descent. (Chicago and Alton Railroad Co. v. Shannon, 43 Ill. 338, distinguished.)</p>

<p>1. Wills — devise of income of estate is equivalent to devise of the estate itself. A devise of all the rents, profits and income of an estate to the testator’s wife during her widowhood, and in case of her re-marriage then to her and the testator’s children, share and share alike, until her death, creates an estate in the property for the life of the testator’s wife.</p> <p>2. Same — will cannot be given effect if testator's intention can not be found therein. A will cannot be given effect if the intention of the testator cannot be found written in the will, and the court cannot guess the intention which the testator would have expressed if he had expressed his desire.</p> <p>3. Partition — when the heir may partition estate of testator. Where a testator creates an estate for the life of his wife and makes no disposition of-the remainder after the termination-of the life estate, the reversion descends as intestate estate to the heirs as tenants in common, and any of the tenants in common have a legal right to have the estate partitioned.</p> <p>4. Same — devisee under an impossible contingency is not a necessary party. Every person who in any contingency may be or become entitled to any interest in the premises is a necessary party to a suit for partition, but a contingency created in a will in case of the death of the testator, his wife and all his children, leaving no descendants surviving them, becomes impossible of performance upon the death of the testator leaving his wife and children surviving, and the devisee under such a contingency is not a necessary party to a suit for partition by one of the heirs.</p> <p>5. Same — when partition is not in violation of restriction imposed by will. If the clause of a will imposing a restriction on partition is void for uncertainty and the property therein described descends as intestate property to the heirs, the restriction against partition has no force and the property may be partitioned. (Dee v. Dee, 212 Ill. 338, distinguished.)</p> <p>6. Same — when partition cannot be had during life estate. Partition cannot be had during the existence of a life estate where the life tenant has a power of sale which she may exercise at any time and thereby defeat the title derived through such partition.</p>

<p>1. Workmen’s compensation- — what must be shown where employer has not elected to come under act. Where the employer has not elected to come under the Compensation act of 1915, to sustain the jurisdiction of the Industrial Commission it is necessary to show not only that the employer is engaged in an extra-hazardous business as defined in the act, but also that the injury to the employee arose out of and in the course of the employment in such extra-hazardous occupation.</p> <p>2. Same — what determines whether regulation by an ordinance renders a business extra-hazardous. The test to be applied 'in determining whether or not a municipal ordinance renders a business extra-hazardous, as provided by paragraph 8 of section 3 of the Compensation act of 1915, is whether the ordinance is for the protecting and safeguarding of the employees or the public against accidental injuries or death.</p> <p>3. Same — an ordinance regulating passageways in livery barns does not render the dairy business extra-hazardous. An ordinance regulating the width of stalls and passageways in all private, livery, sale or boarding stables is not such a municipal regulation contemplated by paragraph 8 of section 3 of the Compensation act as will render the business of distributing milk an extra-hazardous occupation merely because the employer maintains a stable for horses at the distributing station.</p> <p>4. Same — when driver of milk wagon is not engaged in extra-hazardous occupation. The driver of a milk wagon is not engaged in an extra-hazardous occupation, as defined in section 3 of the Compensation act, where his duties do not connect _ him with any extra-hazardous feature of the business in which his employer may be engaged.</p>

<p>This case is controlled by the decision in Geohegan v. Union Elevated Railroad Co. (ante, p. 261.)</p> <p>Cartwright and Duncan, JJ., dissenting.</p>

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. •</p>

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

<p>1. Disbarment — what advertising is unethical and unprofessional. Advertising by an attorney by means of the publication and distribution of a diary or calendar containing extracts from letters and testimonials laudatory-of the attorney, or by the distribution of souvenir post-cards on which a picture of the attorney with his address and “best wishes” are printed, is unethical and unprofessional.</p> <p>2. Same — what is unprofessional conduct. Unprofessional conduct is that which violates the rules or ethical code of a profession or such conduct as is unbecoming a' member of a profession in good standing.</p> <p>3. Same — extent to which attorney may advertise by circulation of business cards. Advertising by the publication and circulation of ordinary business cards is not per se improper, but such cards should be limited to the statement of the attorney’s name and location and his specialty in the law, if advertising such specialty is not prohibited by law, and such cards may refer to responsible persons for information as to standing and responsibility of the attorney.</p> <p>4. Same- — extent to which an attorney may advertise in publications. An attorney may advertise by the insertion of ordinary business cards in publications circulated among lawyers and business men or in publications in which the names of attorneys are listed, provided no improper contract is exacted of their subscribers by the publishers, or by the insertion of such a card in a local newspaper, if unaccompanied by self-laudatory statements by the attorney or the publisher, and provided such advertisements do not contain more information than ordinary legal business cards should give.</p> <p>5. Same — canon 27 of State Bar Association, on ethics of advertising, is to be commended. Canon 27 of the Illinois State Bar Association, which sets forth fully the class of advertisements by attorneys that is objectionable, unethical and unprofessional, is to be commended although it does not have the binding- force of a statute.</p>

<p>1. Criminal law — what necessary to conviction for receiving stolen property. To convictdefendant, who purchased a stolen .automobile, of the crime of receiving stolen property the prosecution must prove, beyond a reasonable doubt, that when the defendant bought the car he knew it was stolen, and that he received it for his own gain with intent to prevent the owner from again possessing it.</p> <p>2. Same — when fact that the witnesses are convicts affects their credibility. The fact that witnesses are self-confessed criminals brought to the trial from prison to testify for the prosecution will not justify disbelieving, them if it otherwise appears they tell the truth, but their credibility is seriously affected if they knowingly testify untruthfully in part.</p> <p>3. Same — records of former convictions- of witnesses are admissible. Records of former convictions of witnesses for the proseciL tion should be admitted in evidence when offered, even though the fact that they are convicts appears from the oral testimony.</p> <p>4. Same — cross-examination of convicts testifying for prosecution should not be unduly restricted. Where the case made by the People rests largely upon the testimony of three witnesses who were brought from prison to the trial and were given their freedom while in attendance at the trial, counsel for the defense should be allowed to cross-examine them as to whether they assisted the prosecution in getting evidence and whether they were promised favors or clemency for such work.</p> <p>5. Same — in prosecution for receiving stolen property the testimony of the thief should be considered as that of an accomplice. In a prosecution for receiving a stolen automobile, testimony of the party from whom the defendant purchased the car, and who admits stealing it, should be considered the same as that of an accomplice, and such testimony is subject to grave suspicion and should be acted upon with the utmost caution.</p> <p>6. Same — vahen improper remarks by counsel for prosecution are harmful. In a prosecution for receiving a stolen automobile, the action of counsel for the State in remarking, interrogatively, during the cross-examination of the defendant, “Now, this isn’t the first stolen property you have bought ?” and statements in his argument that the defendant is an “arch-criminal” and “has his men to whom he will dispose of these cars,” when not based on the evidence, are improper and harmful although objections are sustained.</p> <p>7. Same — lengthy instructions on doctrine of reasonable doubt are improper. Instructions given at the request of the People on the doctrine of reasonable doubt which cover two and a half pages of the printed abstract are improper, as tending to impress the minds of the jurors with the conviction that the court had grave fear that they would think there was a reasonable doubt of the defendant’s guilt.</p>

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

<p>1. Drainage — meeting for classification of lands in a special drainage district need not be held within boundaries of the district. There is no provision in the Farm Drainage act requiring the meeting for the. classification of lands in a special drainage district to be held within the boundaries of the district, and the preliminary steps for calling such meeting need not be taken within the district.</p> <p>2. Same — meeting for levying assessment need not be held within boundaries of special drainage district. The meeting for levying of assessments in a special drainage district need not be held within the boundaries of the district. '</p> <p>3. Same — classification of lands, and not spreading of assessment, affects rights of land ozvners. The classification of the lands in a farm drainage district, and not the spreading of an assessment, affects the rights of land owners.</p> <p>•4. Same — no notice is required of time and place of meeting to levy assessments. Under the Farm Drainage act no notice is required as to the time and place of the meeting of the drainage commissioners for the levying of assessments.</p> <p>5. Same — land ozvners need not be .personally notified of meeting to hear objections to classification. Section 60 of the Farm Drainage act does not require any other notice to land owners of the meeting to hear objections to the classification of lands than the notice by publication as therein set forth.</p> <p>6. ' Same — when classification need not show fractional figures of proportion of assessment of ptiblic highway. The Farm Drainage act requires that the fractional figures shall be inserted in the classification showing the proportion of the assessment to be paid by any public highway or railroad, but an objection to the assessment of highways in a township that the classification does not comply with such statutory requirement is not fatal where the total assessment in the district is given with the total assessment against the highways in- the township.</p> <p>7. Same — levy of assessment in special drainage district is-governed by section 62 of Farm Drainage act. The method of levying an assessment in a special drainage district is not governed by section 26 of the Farm Drainage act but by section 62 of that act, which does not require the commissioners to adopt a resolution in the form provided for in section 26.</p> <p>8. Same — action at law is only remedy to collect unpaid assessment against highways. The only remedy to collect an unpaid assessment against public highways in a farm drainage district is to obtain a judgment against the commissioners in an action at law, and, if not paid, to follow it up with mandamus, as no judgment and order of sale of the highways can be had on application of the county collector.</p> <p>9. Same — highway commissioners are entitled to a hearing on question whether assessment exceeds benefits. In an action at law to collect an unpaid drainage assessment against highways the defendant highway commissioners are entitled to a hearing on the question whether the assessment exceeds the benefits.</p> <p>10. Same — proof that highzvays receive some benefit does not. estop highway commissioners to prove assessment exceeds benefit. In an action against highway commissioners to collect an unpaid drainage assessment, where no appeal was taken from the order confirming the classification, the highway commissioners are estopped to deny that the highways receive some benefit; but proof that they receive some benefit does not preclude the commissioners from proving that the assessment exceeds the benefit.</p> <p>11. Appeals and errors — all issues are before Supreme Court when cause is certified from Appellate Court. Where a cause is certified to the Supreme Court from the Appellate Court, the Supreme Court is not confined to the point upon which the cause is certified but all the issues involved in the case are before it for consideration.</p>

<p>1. Criminal law — when the record should be free from error. To sustain a conviction depending upon the testimony of a self-confessed accomplice who is impeached by his own sworn testimony given on the preliminary hearing, the record should be free from material or substantial error.</p> <p>2. Same — zuhether crime is infamous depends upon the statute. Whether a particular crime is infamous depends upon the statute and not upon the common law or the court’s view of the moral aspects of the offense:</p> <p>3. Same — evidence of conviction for assault to commit robbery is not admissible to discredit witness. Evidence that a witness was convicted of an assault with intent to commit robbery is not admissible to discredit his testimony, as that crime is not infamous under the statute.</p> <p>4. Same — evidence that witness has been indicted is not admissible to impeach testimony. A witness cannot be impeached by showing that he has been arrested and charged with crime, but it must also be shown that he was convicted.</p> <p>5. Same — questions tending to prejudice defendants in minds of jurors are improper. Questions which are asked for the sole purpose of prejudicing the defendants while they are testifying in their own behalf are improper, and the error is not cured where sustaining objections to the questions will not necessarily remove the prejudice thereby created in the minds of the jurors.</p>

<p>1. Wills — when absolute devise is limited by subsequent provision for disposition of remainder — precatory words. Where a testator by one sentence of his will gives all his real and personal property to his wife but in the next sentence provides that at her death the property shall be divided equally among their surviving children the wife takes a life estate and the children a contingent remainder, and the fact that in another sentence the wife is directed to make the division of the remainder by her will does not render the limitation precatory, as the method of division is not an essential part of the gift.</p> <p>2. Same — words "zvill” and “bequeath” may be used synonymously. The use of the word “bequeath” by the testator in referring to a disposition of property in a previous clause of his will, which reads, “I will and bequeath * * * all my real estate and personal property,” does not operate to limit the word “will” to the real property and the word “bequeath” to the personal property, but these words may be used synonymously, each meaning to give by will.</p> <p>3. Same — technical mies should not interfere zvith ascertaining testator’s intention. No technical rule of construction should be permitted to interfere with ascertaining the testator’s real intention, as the sole object of inquiry is the discovery of that intention, for which every part of the will will be scrutinized.</p> <p>4. Same — gift to survivors takes effect in favor of those, only, who survive, and is contingent. A gift to survivors which is preceded by a particular estate, at the expiration of which the gift is to take effect in possession, will take effect in favor of those, only, who survive the particular estate, and is contingent.</p> <p>5. Same — heirs are entitled to have will construed. Where the children of a testator are contingent remainder-men after a life estate given to the wife in all the real and personal property of the testator, the children, as heirs, are the owners of the reversion in fee, and in their capacity as heirs they have a right to have the will construed and the rights and interests of the parties determined by maintaining a suit against the life tenant for an accounting and for general relief.</p>

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

<p>1. Negligence — only ordinary care is required of carrier in the maintenance of station buildings and appurtenances. The rule requiring the highest degree of care on the part of railroad companies for the protection of passengers applies only to the "operation of trains and immediate incidents of transportation, and as to station buildings and other appurtenances the carrier is required to exercise only ordinary care to keep them in a reasonably safe condition for use.</p> <p>2. Same — degree of care required of carrier should be commensurate with the danger involved. The degree of care owed by a carrier to its passengers is lessened to the extent of the lessening of the danger involved.</p> <p>3. Same — when elevated railroad company is not liable for injury to passenger on stairway leading from station. An elevated railroad company is not liable for an injury to a passenger who slipped on a banana skin and fell on the stairway'leading from the elevated station to the street, where the evidence does not show that the company had notice that the skin was on the stairway or that it had been permitted to be upon the stairway for a sufficient time to imply notice.</p>

<p>1. Highways — petition for new road need describe only its general course. The' office of the petition for a new highway is to describe the general course of the proposed road, and the order of the commissioners should fix the particular route.</p> <p>2. Same — when record is sufficient to show proper notices were posted to lay out a new road. On appeal from a judgment of the circuit court quashing a writ of certiorari which was sued, out to review the record of the highway commissioners in laying out a highway, the record is sufficient on the question of the posting of the statutory notices to give the commissioners jurisdiction where it sets out the form of the notice, which complies with the law in every particular, and b.oth the final and preliminary orders filed with the clerk of the road district specify that notices were posted in three of the most public places in the district in the vicinity of the proposed road.</p> <p>3. Same — a substantial compliance with statute is sufficient for laying out highway. A substantial compliance with the requirements of the statute in the laying out or establishing of a road is all that is required, where nothing is omitted which is fundamental.</p> <p>4. Same — what is a substantial compliance with statute requiring filing of memorandum of commissioners’ decision with district clerk. In a proceeding on a petition to lay out a highway there is a substantial compliance with section 76 of the Roads and Bridges act, requiring the filing of a memorandum of the decision of the commissioners with the district clerk within five days, where the resolution itself is filed within that time, although the resolution, or a memorandum thereof, was not indorsed upon the petition nor appended to it.</p> <p>5. Same — a hearing on certiorari must be had on the record as returned. Where a record is certified to a court of review under a common law writ of certiorari, the matter to be determined is whether or not the inferior tribunal had jurisdiction or whether it exceeded its jurisdiction or otherwise proceeded in violation of law; and the hearing in the circuit court on a writ of certiorari to review the proceedings of highway commissioners in laying out a proposed road must be had on the record of the proceedings as returned, and oral evidence cannot be heard to aid or contradict the record.</p> <p>6. Same — land owner cannot object to plat of proposed road on certiorari record in circuit court. On a writ of certiorari to review the record of proceedings of highway commissioners in laying out a proposed highway, land owners cannot question the accuracy of the plat shown in the record nor object that the survey contains error, as the only subject for review is the record.</p>

<p>1. Equity — when allegations of bill must be taken as true. On the hearing of a petition to file a bill to restrain the disbursement of public moneys by State officers, the allegations of the bill, which accompanies the petition, must be taken as true when sworn to by the petitioner.</p> <p>2. Constitutional law — legislature can exercise no judicial functions not especially granted by constitution. The legislature cannot exercise any judicial functions except those that are especially granted by the constitution.</p> <p>3. Same — what powers are 'possessed, by the legislature.’ .The legislature possesses every power not delegated to some other department of the State or to the Federal government or not denied to it by the constitution of the State or of the United States.</p> <p>4. Same — legislature cannot conduct a judicial investigation of charges against an institution or individual. While the legislature has power to obtain information for the purpose of acting upon any subject nipón which it has power to legislate, it cannot conduct a public and judicial investigation of any charges, made against a private institution or individual under the pretense of investigating for the purpose of legislation, and all such investigations by the legislature, when judicial in character, are in violation of the constitution.</p> <p>5. Same — a judicial investigation should give all parties affected, a full hearing. A judicial investigation should at all times proceed in an orderly manner before a tribunal legally constituted to make such investigation and in such a manner as to give to all parties thereby affected a full hearing and an adjudication that will determine their rights.</p> <p>6. Same — tax-payer may resort to equity to restrain disbursement of public funds under an invalid resolution. Where a resolution of the legislature to conduct an investigation is invalid á taxpayer may resort to a court of equity to prevent the misapplication of public funds in the payment of the expenses of the investigation.</p>

<p>1. Cloud on title — zvhat makes prima facie case of title. Proof by the complainant of possession and payment of taxes for more than seven years under a deed purporting to convey title is sufficient to make out a prima facie case of title.</p> <p>2. Same — zvhen the complainant should reimburse holder of tax deeds. The complainant in a suit to quiet title by .setting aside tax deeds should reimburse the holder of the tax deeds for his expenses in securing the deeds and in payment of taxes and proper expenditures as provided by law, where the descriptions in the tax deeds are sufficiently definite to constitute a cloud upon the title.</p> <p>3. Same — when costs should not be taxed against defendant in suit to set aside tax deeds. A decree ordering the removal of tax deeds as clouds upon the title should not tax the costs against the holder of said deeds, where there has been no tender by the complainant of a specific sum to pay the defendant the amount of the judgment for taxes, interest and costs.</p>

<p>1. Workmen’s compensation — accident must have its origin in some risk of the employment. An accident, to be within the Compensation act, must have had its origin in some risk of the employment; but there is no fixed rule for determining what is a risk of the employment.</p> <p>2. Same — zvhen injury resulting from quarrel with another employee does not arise out of employment. An injury to an employee in a fight with another employee, growing out of a quarrel about the employer’s work in which the employees are engaged, arisés out of the employment, but the mere fact that their association in the same work gives opportunity for an altercation is not sufficient to justify an award for the death of an employee from a blow struck by another employee because the former refused to let the latter drink from the former’s can of water.</p>

<p>Workmen’s compensation — writ of error is governed by law in force when it is sued out. The suing out of a writ of error is the bringing of a new suit and is a part of the law- of procedure, to which there is no vested right, and hence an application for a writ of error to review a judgment of the circuit court in a compensation case after July i, 1919, must be made within the time allowed by section 19 of the Compensation act as amended in 1919, although the judgment of the circuit court was entered before the amendment took effect.</p>

<p>1. Quo warranto — default of defendants to an information admits only the truth of the facts alleged. The default of defendants to an information in the nature of quo warranto to test the legality of the organization of a school district admits the truth of the facts alleged but not that the People are entitled to relief prayed.</p> <p>2. Schools — the special act of i86p organizing Pekin School District is still in force. The special act of 1869 creating the Pekin School District is not repealed either by the Community High School act of 1917 or by section 2 of the curative act of 1919 validating the organization of community high school districts, and hence the territory comprising the Pekin School District can not be joined with other territory in the organization of a community high school district.</p>

<p>1. Criminal law — when right to discharge for want of warrant is waived. One arrested by a police officer without a warrant waives his right to be discharged, where, instead of making, a motion for his discharge on the day a warrantds issued and served, he moves for a continuance.</p> <p>2. Same — when a bill of particulars is not necessary. The requirement of a bill of particulars rests in the discretion of the court, and there is no necessity for such a bill where the various allegations of an information amount to only one charge and are intended to bring the defendant within the definition of a vagabond, as contained in the statute referred to in the", information.</p> <p>3. Same — oral testimony of previous offenses is not admissible against defendant charged with being a vagabond. On the trial of a person charged with being a vagabond it is error to permit witnesses to testify, over objection, that defendant had been previously fined and had been arrested several times for disorderly conduct.</p> <p>4. Same — what necessary to convict defendant of being a vagabond. A defendant who is charged with being a vagabond, as defined in section 270 of the Criminal Code, cannot be convicted solely on testimony that he is reputed to be a pick-pocket; but the fact that he is a pick-pocket or is otherwise within the terms of the statute must be proved beyond a reasonable doubt.</p>

<p>1. Public utilities — statute authorising charge for bond-issue certificate is void as to foreign railroad corporations. Section 31 of the Public Utilities act, authorizing the commission to charge every public utility receiving permission under the act. to issue bonds or other evidences of indebtedness a fee of one-tenth of one per cent of the total issue of the bonds, is void when applied to a foreign railroad corporation issuing bonds secured by a mortgage on its entire system, as such a charge imposes a burden on interstate commerce.</p> <p>2. Same — article 3 of Public Utilities act applies to issue of securities and not to their sale. Article 3 of the Public Utilities act, prohibiting the issue of bonds of indebtedness without the authority of the commission, applies to the issue of such securities and not to their sale.</p>

Writ oe Error to the Appellate Court for the Third District; — heard in that court on writ of error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding.

<p>1. Statutes — what should be considered in ascertaining intention of legislature. The principal object in construing a statute is to ascertain and give effect to the intention of the legislature, and that intention is to be gathered not only from the language of the act, but also from considering the reason, necessity and purpose of the enactment and the evil to be remedied, together with the preexisting laws on the subject and any changes therein.</p> <p>2. Same — statute should be construed so as to give effect to its ordinary meaning. A statute should be so construed, if possible, as to give to each phrase and word its ordinary and accepted meaning.</p> <p>3. Same — construction of laws passed in compliance with mandate of constitution. Laws passed in compliance with a provision of the constitution should receive a liberal construction to the end that the mandate of the constitution be carried out, but where such a law is unambiguous the courts cannot say that the legislature intended a different law; nor is such a law" unconstitutional because it does not go as far as it might have gone in carrying out the mandate of the constitution.</p> <p>4. Same — statute which is not ambiguous is not open to construction. Where the intention of the legislature in enacting a statute is apparent from pre-existing laws on the same subject "which have been frequently re-enacted in the Same language, the court will not give the statute a meaning different from that plainly expressed.</p> <p>5. Mines — construction of section p of Mining act, as revised in ipil, requiring two available means of egress from mines. Paragraph (a) of section 9 of the Mining act, as revised in 1911, providing that every mine shall have, in addition to its hoisting shaft, an escapement shaft or a communicating passageway to a contiguous.mine, requires one additional means of egress, which, with the hoisting shaft, shall constitute two separate means of egress from the mine; and paragraph (b) of said section, requiring that the escapement shaft shall be not less than 500 feet nor more 2000 feet from the main shaft, does not apply to the hoisting shaft of the contiguous mine when the communicating passageway is the additional means of egress adopted. .</p>

<p>1. Deeds — when possession under deed from co-tenants does not amount to disseizin as to parties not joining in deed. Although a deed from co-tenants purports to convey the entire title, where one of the co-tenants who did not join in the deed is the. wife of the grantee and the others are minors, of whose interest the grantee is informed, the grantee is not a purchaser in good faith of the entire title, and his possession under such deed cannot operate as a disseizin of the parties who did not join and is not adverse as to them. (Burgett v. Taliaferro, 118 Ill. 503, distinguished.)</p> <p>2. Limitations — what does not render husband's possession adverse to that of wife. The facts that a husband manages, improves, rents and collects rents from land belonging to his wife, who lives with him, do not render his possession hostile or adverse to his wife.</p> <p>3. Partition — what evidence is not sufficient to prevail over record title. Where the record title to land is' in a wife as heir of her father, in a partition suit between her devisee and the heirs of her husband testimony of a witness to conversations he had in regard to the land when he was a prospective purchaser, and in which he claims the wife said all the land belonged to her husband, that she had no claim except her dower interest and that she had quit-claimed her interest to her husband, is not sufficient to prevail over the record title, there being no proof of such quit-claim deed nor of its delivery.</p>

<p>Writ op Error to the Circuit Court 'of Knox county; the Hon. George W. Thomps6n, Judge, presiding. ■</p>

<p>1. Workmen’s compensation — there must be a causal connection between the employment and the injury. An employer is liable to pay compensation for an accidental injury to his employee only when the injury is the result of an accident arising in the course of the employment and when there is a causal connection between the employment and thé injury.</p> <p>2. Same — when injury received in fight does not arise out of employment. Where a miner employed to dig coal and load it on cars delivered to him by a driver begins a quarrel with the driver because he failed to deliver a car the day before and is killed in the ensuing fight, in which the miner was the aggressor, the injury does not arise out of the employment of the deceased and his administrator is not entitled to compensation.</p>

<p>Appeals and errors — appeal from judgment awarding writ of mandamus to compel drainage commissioners to build bridge should be taken to Appellate Court. An appeal from a judgment of the circuit court awarding a writ of mandamus to compel drainage commissioners to build and maintain a bridge where the drainage ditch crosses a public highway should be prosecuted from the trial court to the Appellate Court. (Highway Comrs. v. Drainage Comrs. 257 Ill. 25, followed.)</p>

<p>1. Deeds — when presumption of delivery, raised by recording of a deed, is rebutted. The recording of a deed by the grantors is prima facie evidence of delivery, but in every case the question of delivery depends upon the facts proved; and the presumption of delivery, raised by evidence that the deed was recorded by the grantors, is rebutted where the deed imposes a liability or obligation upon the grantee.</p> <p>2. Same — a deed must be delivered to constitute a conveyance. There must be a delivery of the deed by the grantor and an acceptance by the grantee to constitute a conveyance.</p> <p>3. 'Same — when acceptance of deed is not-presumed. Acceptance will often be presumed where the deed is beneficial to the grantee, but where the deed imposes obligations without remuneration it is absolutely essential that the grantee shall accept it.</p> <p>4. Same — what necessary to constitute acceptance of deed. Acceptance implies an actual assent of the grantee not only to accept the benefits but also to be bound by the terms of the deed, and such assent must be expressed by the grantee to the grantor by words or positive acts.</p> <p>5. Same — when reservation of life estate does not affect question of delivery. The reservation of a life estate in a deed is evidence of intention to make immediate delivery, and delivery to the life tenant is a good delivery to the remainder-man; but such-presumptions of delivery are unavailing where the positive facts clearly establish that there was no delivery or intention to deliver the deed to the life tenant or to the remainder-man.</p> <p>6. Same — when the rule in Shelley’s case applies. A deed to a grantee of an estate “during her natural life and at her death to her heirs, if any,” conveys a fee simple title under the rule in Shelley’s case, as the words “if any” are not sufficiently explanatory of the word “heirs” to cause it to be construed to mean “children.”</p> <p>7. Same — word “heirs" is presumed to have been used in technical sense. Where an estate for life is granted with a remainder to the heirs of the life tenant there is a strong legal presumption that the word “heirs” is used in its technical sense, as denoting the whole of the indefinite line of inheritable succession.</p> <p>8. Trusxs — trustee takes no title unless he accepts the trust. In an express trust no title vests in the trustee unless he expressly or by implication accepts the trust or in some way assumes its duties and liabilities.</p>

<p>1. Criminal law — definition of confidence game. The confidence game may be defined as any swindling operation in which advantage is taken of the confidence reposed by the victim in the swindler.</p> <p>2. Same — form of transaction is immaterial in practice of confidence game. In a prosecution for obtaining money or property by means of the confidence game, if the transaction is, in fact, a swindling operation it is immaterial how the confidence has been acquired or that the transaction assumes the form of a lawful contract, if the confidence is used to enable the person in whom it is reposed to obtain the property of his victim and is used with that intent.</p> <p>3. Same — one may be convicted of the confidence game although confidence has been acquired by a long course of honest dealing. Where one has acquired the confidence of another, whether suddenly and by falsehood or by a long course of honest business dealing, and has made use of that confidence to obtain the other’s property with the intention of cheating him out of it, the person so obtaining the property may, under the statute, be convicted of obtaining the property by means of the confidence game.</p> <p>4. Same — mere acceptance of another’s property with intent to convert to one’s ozvn use does not constitute confidence game. A trusted agent who, without any action on his part to induce the offer, accepts securities voluntarily offered to him to be collected or sold or to be kept safely, is not guilty of obtaining them by means of the confidence game, even though he may have intended to convert them to his own use if he got them, as he had done nothing to procure them with that purpose in view.</p> <p>5. Same — when instruction as to confidence game is not erroneous. In a prosecution for obtaining securities by means of the confidence game, an instruction stating that if the jury believe the papers were delivered to the defendant at his request and because of confidence reposed in him and that he “procured” said papers with the purpose and intent of converting them to his own use they should consider such facts in determining his guilt is not erroneous, as the word “procure” implies action on the part of the defendant to bring about the delivery of possession to him.</p> <p>6. Same — in- a prosecution for confidence game, evidence may show property was obtained from owner’s agent. In an indictment for the confidence game it is sufficient to allege that the property-obtained was either that of the general owner or of the agent in possession, and it is sufficient to prove that the confidence game was practiced either on the owner or the agent.</p> <p>7. Same — what evidence of other transaction is not admissible in prosecution for confidence game. In a prosecution for obtaining notes and mortgages by means of the confidence game, evidence that the defendant, nearly five years before the finding of the indictment, borrowed money of the same person who is the alleged victim of the confidence game and gave a forged note as collateral security, tends to prove the crime of forgery and is not admissible.</p> <p>8. Same — contradictory instructions should not be given. Contradictory instructions should not be given, as it cannot be presumed that the jury will know which instruction should be accepted as the law.</p>

<p>1. Contempt — when judgment for contempt is a final judgment. Where a plaintiff who has begun a suit in assumpsit is ordered by the court, on the authority of a statute, to appear before a master in chancery and give his deposition, the proceeding to take the deposition, although it has its foundation in the main case, is a separate case prosecuted independently to enforce a compliance with the order of the court, and a judgment that the plaintiff is guilty of contempt in refusing to obey the order is a final judgment, from which an appeal may be taken.</p> <p>2. Evidence — court may compel taking of deposition of adverse party. Under sections 6 and 26 of the Evidence act, authorizing a party to a suit at law to obtain the deposition of an adverse party residing within the State, and more than one hundred miles from the jurisdiction of the court, the court has the power to enforce the taking of the deposition by ordering the party to appear before the commissioner and testify, and a refusal to appear and testify is a willful disobedience of the order of the court notwithstanding the fact that the commissioner issued the subpoena. (Puterbaugh v. Smith, 131 Ill. 199, McIntyre v. People, 227 id. 26, and Marshall v. Irwin, 280 id. 90, distinguished.)</p> <p>3. Same — attachment for contempt is proper method to enforce order for taking deposition. The power of the court, under sections 6 and 26 of the Evidence act, to require a party to a suit at law to appear and give his deposition carries with it power to enforce its order by adjudging the party to he in contempt if he refuses to obey the order.</p> <p>4. Same — statute for taking depositions is not unconstitutional because it cannot apply to corporations. The provisions of the Evidence act which authorize the court to compel a party to testify by deposition in a suit at law are not unconstitutional because they cannot apply to corporations, as the difference between natural persons and corporations is a sufficiently manifest reason for a difference in the rule of law as to taking the depositions of parties.</p> <p>5. Same — court has power to confine taking of deposition to relevant matters. The right of examination of a witness on the taking of his-deposition in a suit at law is not unrestricted but is limited to matters which are relevant to the issue, and if the witness is interrogated concerning any matter which he deems improper he may refuse to answer, in which case the commissioner may report to the court and the court will rule upon the question.</p> <p>6. Same — statutory right to a deposition does not depend on discretion of court or motive of party seeking it. The statute declares under what conditions a deposition in a suit at law may be taken, and when those conditions exist the right to take the deposition arises and is not dependent upon the discretion of the court, nor upon the alleged motive of the party who seeks the deposition, nor upon the question whether the deposition, when obtained, will be used on the trial of the cause.</p> <p>7. Appeals and errors — taking appeal to the Appellate Court waives constitutional questions. A party who takes an appeal to the Appellate Court waives any constitutional question then arising on the record.</p>

<p>1. Contracts — what necessary to rescind a contract because of misrepresentations. To sustain a bill to rescind a contract for the purchase of land because of misrepresentation the representation must be of a material fact known to the defendant to be false and made with the intent that it should be acted upon, and must have been acted upon by the complainant to his damage while he was ignorant of its falsity and reasonably believed it to be true.</p> <p>2. Same — when misrepresentation of value does not justify rescinding contract for purchase of land. The misrepresentation of a material fact, which is one of the elements to sustain a bill to rescind a contract on the ground of fraud and deceit, does not consist merely in an expression of opinion or judgment honestly entertained; and a misrepresentation as to value will not, alone, justify rescinding a contract for the purchase of land, where the complainant has examined the property and had' full opportunity to ascertain for himself its fair market value.</p> <p>3. Fraud — facts constituting fraud must be clearly set out. Both at law and in equity it is essential that the facts -which constitute the fraud relied upon as ground for rescinding a contract shall be set out clearly and concisely and with sufficient particularity to apprise the opposite party of what he is called upon to answer.</p>

<p>1. Public utilities — when short line railroad is not under Federal control. By the acts of Congress of August 29, 1916, and March 21, 1918, and by the President’s proclamation of December 26, 1917, the Federal government took possession and assumed control of all railroads which in the President’s discretion were needful for war purposes, but it was not intended that the Federal governtnent assume control of every “tap line” or other short •line of railroad unless its use became necessary, and until the Director General by some affirmative act has assumed control over such a line the State has authority to regulate its rates.</p> <p>2. Same — State may regulate railroad rates by virtue of police power. Under the police power the State has authority to regulate rates to be charged by railroads within its jurisdiction.</p>

<p>1. Special taxation — when objection should be stricken upon refusal to make it more specific. An objection to a special tax or assessment must be sufficiently specific to give notice to the petitioner of what it is required to meet, so that it may disprove or obviate the objection if it can, and an objection which is general and does not point out the alleged defects relied upon, and which the objectors, after a ruling by the court, have refused to make more specific, should be stricken from the files.</p> <p>2. Same- — cotirt may refuse to consider a general objection on motion to strike. Striking an objection from the files and refusing to hear evidence in support of it amount to .holding that the facts stated therein constitute no legal objection to the application for judgment, but a motion to strike admits only averments well pleaded, and it is not error for the court to refuse to consider a general objection which would be valid if so stated as to show the grounds of objection.</p> <p>3. Same — legal existence óf board of local improvements can not be tried in proceeding to levy special tax. In a proceeding to levy a special tax for- a local improvement an objection that no legal board of local improvements existed at the time of the passage of the resolution submitting the ordinance is properly stricken from the files, as the legal existence of the board cannot be tried in such proceeding.</p> <p>4. Same — majority of board of local improvements is sufficient to recommend an ordinance to city council. The concurrence of a majority of a board of local improvements is sufficient to recommend an improvement ordinance to the city council.</p> <p>5. Same — when objection charging that improvement is unreasonable is sufficiently specific. In a special taxation proceeding an objection which charges that the cost of the paving of a street is unreasonable and oppressive for the reason that a part of the street is already improved with a macadam or other hard road surface which is in excellent repair and sufficient for the purposes for which the street is used is sufficiently specific and should not be stricken from the files.</p> <p>6. Same — court will not enforce the levy of a special tax for improvement which is unreasonable or oppressive. The court will not enforce an improvement ordinance by the levy of a special tax or assessment where such ordinance is unreasonable, arbitrary or oppressive.</p>

<p>1. Criminal law — when defendant cannot take advantage of failure of court to instruct grand jury. The statute makes it the duty of the court to instruct the grand jury,' but a defendant can not take advantage of the fact that the record shows that that duty was delegated to the State’s attorney, where it does not appear that the defendant was thereby prejudiced in any way.</p> <p>2. Same — statement by wife, in husband’s presence, impliedly charging him with crime, is not admissible. A statement made by one in the presence of the accused charging him with the crime for which he is on trial is admissible if not denied, where the jury, under the evidence, may reasonably conclude that the accused has ratified the statement or impliedly admitted its truth; but a statement by the wife of the accused in effect admitting that he committed the crime is not competent.</p> <p>3. Same — when statement in instruction as to finding defendant guilty beyond reasonable doubt is erroneous. A statement in an instruction that “if, after a careful and impartial cohsideration of all the evidence and lack of evidence in the case, you can say and feel that you have an abiding conviction of the guilt of the defendant * * * then you are satisfied beyond a reasonable doubt,” is erroneous, as authorizing the jury to base its abiding conviction of guilt upon á lack of evidence from any source, including a failure of the defendant to produce it.</p> <p>4. Same — cause must be remanded where admission of improper evidence is prejudicial. Persons charged with crime cannot be convicted upon incompetent evidence unless the Supreme Court can say that its admission is not prejudicial, and where the admission of such evidence is prejudicial the cause must be remanded, although there may be enough evidence in the record, in addition to the incompetent testimony, to justify conviction.</p>

<p>1. Public utilities — when city cannot raise question that order of commission takes property without due process of law. Whether an order of the Public Utilities Commission authorizing a water company to install its own meters among its customers in a city if the customers are not willing to sell their private meters to the company at prices fixed in the order is unconstitutional as taking private property of consumers without due process of law, is a question which cannot be raised by the city, where it is not claimed the city owns or uses meters or represents any private consumer.</p> <p>2. Same — the Public Utilities Commission may authorize water company to install meters and fix rate for consumption. Under section 41 of the Public Utilities act the Public Utilities Commission has authority, after a hearing had upon its own motion or complaint, to order a water company in a city to install meters among its customers and to fix a uniform rate for consumption, thereby securing an equality among the consumers, so that water will not be wasted by those who were formerly .charged a flat rate.</p> <p>3. Same — commission may authorize separate charge for meter service. An order of the Public Utilities Commission authorizing a water company in a city to install meters among its customers and fixing a rate for consumption may provide for a separate charge for meter service, which is justified by the cost, use, inspection, testing and other work connected with the meters.</p>

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

<p>1. Practice — when party does not waive right to object to sufficiency of affidavit of merits. In an action in the municipal court of Chicago on a promissory note the plaintiff may either move to strike the defendant’s affidavit of merits or object to any evidence under the affidavit on the ground that it is insufficient, and by contesting the facts introduced on the trial the plaintiff does not waive the right to claim, on appeal, that the affidavit did not set up a legal defense and that the evidence was not admissible under it.</p> <p>2. Bills and notes — the purchase of stock is sufficient consideration for note of selling agent to secure payment of dividends. Where an agent who is selling stock for a corporation guarantees that dividends will be paid, and to induce a party t'o purchase the stock gives his personal note “to secure” either the payment of dividends or the re-purchase of the stock, there is a sufficient consideration for the note and the agent is bound according to the terms of his agreement.</p> <p>3. Same — meaning of the words "to secure,” when indorsed on a promissory note. The words “to secure 5000 shares of Regina stock,” indorsed on the margin of a promissory note given to a purchaser of such stock by the agent making the sale, mean to make secure, to assure or guarantee against a risk of some kind, and do not imply an absolute liability on the note.</p> <p>4. Same — zvhen words written on margin of note must be considered as a part of it. In an action on a promissory note, where the proof shows that words written oh the margin of the note were written there at the time the instrument was executed and delivered, the words must be considered as if written over the signature of the maker and are as binding on the parties to the instrument as if incorporated in the body tff the note.</p> <p>5. Same — oral evidence is admissible to ascertain meaning of note which is ambiguous on its face. Where marginal words written on a promissory note as a part of the instrument render its meaning incomplete or ambiguous, oral evidence is admissible to explain the indorsement and to show what the complete contract was, provided such evidence is in harmony with the written instrument so far as its meaning is. disclosed on its face.</p> <p>6. Contracts — written contract which is ambiguous may be explained by oral evidence. A written contract cannot be varied or contradicted by evidence of an oral agreement entered into between the parties before or at the time of making the contract, hut where the written contract is uncertain, ambiguous or incomplete, oral evidence is admissible to show the whole agreement.</p>

<p>1. Pleading — when demurrer is waived. Where the complainant has demurred to a cross-bill but files an answer thereto without securing a ruling of the court on the demurrer he will be held to have waived the demurrer.</p> <p>2. Wills — intention to limit devise of fee will prevail if clearly shown by other clauses. If it is clearly shown by other clauses or parts of a will that the testator intended to limit a fee already devised such intention will prevail, and it is immaterial in what .part of the will the intention is manifested.</p> <p>3. Same — intention of testator must govern. The intention- of the testator, if not inconsistent with the established rules of, law or public policy, must govern in the construction of a will; and this intention is to be gathered from the whole will and all its parts taken together.</p> <p>4. Same — when later clause of will modifies or abrogates former. A later clause of a will, when repugnant to a former provision, is to be considered as modifying or abrogating the former unless the later clause is in conflict with the general scheme of the testator.</p> <p>5. Same — meaning of words “die without issue" or "die without children." The words “die without issue” of “die without children” are to be construed in accordance with the intention of the testator where such intention clearly appears in the will, but unless there is a contrary intention shown in the will the words are to be construed as meaning “die without having had issue or children.”</p> <p>6. Same — when provision in case of death of devisee without issue creates a base fee. Where there is a gift of a fee to a devisee with an executory devise over in case he dies without issue the executory devise converts the fee into a base or conditional fee subject to being terminated by the death of the devisee without issue, but up@n the birth of issue the executory devise is destroyed and the fee becomes absolute in the devisee.</p> <p>7. Same — restriction upon alienation of a fee is void. Where a testatrix has devised property in fee to each of her children, a subsequent provision as to each child prohibiting the sale or incumbrance of the property devised until the devisee shall reach the age of fifty years is void as a restriction on the alienation of a fee.</p> <p>8. Partition — party who has only an expectancy is not entitled to partition. There can be no partition of an expectancy, and a party so interested in real _estate by virtue of an executory devise in a will has no right to partition.</p>

<p>1. Plats — statutory plat vests fee of streets and alleys in city. A statutory plat which has been accepted by a city vests the fee of its streets and alleys in the city.</p> <p>2. Same — when entire plat is vacated. The vacation of a plat, which is expressly declared to be according to section 6 of the Plats act, vacates the entire plat, including the streets and alleys, and the owner cannot make any exceptions, but if he desires to vacate only a part of a plat he must proceed under section 7 of the statute.</p> <p>3. Same — vacation of an entire plat re-invests streets in original owner. The vacation of an entire plat by the owner of the addition, to whom it has been conveyed after it was platted, re-invests the' fee of the streets and alleys in the original owner who made the plat, even though the city has accepted said streets and alleys.</p> <p>4. Deeds — when the grantor’s after-acquired title vests in subsequent grantees. Where one of two original owners who have platted an addition dies and the platted addition is conveyed by his devisee and the other maker of the plat by warranty deed to a party who subsequently vacates the entire plat, the warranty of title in said deed, in order to avoid circuity of action, operates to vest in subsequent grantees the undivided one-half interest in the fee in-a street which was re-invested in the living maker of the plat by the vacation while the other undivided one-half is in the heirs of the deceased maker of the plat. (Smiley v. Fries, 104 Ill. 416, explained.)</p> <p>5. Same — effect where plat is vacated after maker’s devisee has sold the platted tract. Where a statutory plat is vacated, under section 6 of the act concerning plats, after the platted tract has been sold by the devisee of the maker of the plat, the title to the vacated streets and alleys does not pass as after-acquired title under the devisee’s deed but goes to heirs of the deceased maker of the plat.</p> <p>6. Highways — what necessary to establish highway by prescription. To establish a highway by prescription the user must be adverse, open and notorious, exclusive, continuous and uninterrupted for the period required by the statute.</p>

Writ or Error to the Appellate Court for the Second District; — heard in that court on appeal from the Circuit Court of Rock Island county; .the Hon. Frank D. Ramsay, Judge, presiding.

Writ of Error to the Appellate Court for the Third District; — heard in that court on appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.

<p>1. Removal of causes — when petition for removal of cause is properly denied. A petition for the removal of a cause is properly denied where it is not on file, properly verified, until the second day of the return term of the court in which the suit is brought.</p> <p>2. Mortgages — second mortgagee acquires only an interest in equity of redemption. A second mortgagee acquires only an interest in the mortgagor’s equity of redemption under the prior mortgage, and the purchaser at the foreclosure of the second mortgage will be presumed to have regulated his bid with reference to the prior lien.</p> <p>3. Same — first mortgagee is not a necessary party to a suit to foreclose second mortgage. In a suit to foreclose a second mortgage the first mortgagee is not a necessary party, as the object of foreclosing a second mortgage is to cut off all claim of right or interest subsequent to it.</p> <p>4. Same — when first mortgagee cannot be compelled to accept proceeds of foreclosure sale of second mortgage. On a foreclosure of a second mortgage a first mortgagee cannot be compelled to accept payment from the proceeds of the sale unless his lien has matured and he appears and consents to the decree.</p> <p>5. Same — lien of first mortgage is not affected by a decree for foreclosure of second mortgage. Where a first mortgagee is made defendant to a bill to foreclose a second mortgage under the general allegation that he claims some interest in the premises, and a decree for foreclosure and sale is entered in the usual form, barring all defendants of any right or claim, the lien of the first mortgage - will not be affected.</p> <p>6. Cloud on title — when bill need not allege, in terms, that the master’s deed is void and a cloud on title. Where a party who has acquired title to premises from a first mortgagee after foreclosure files his bill to clear the title and alleges facts showing that a master’s deed under the foreclosure of a second mortgage is invalid as against his title and a cloud thereon, it is not necessary that the deed be alleged in express terms to be void. .</p> <p>7. Costs — when plaintiff in error should not be required to pay damages for delay. Section 23 of the Costs act, authorizing the court to order the payment of a sum not exceeding ten per cent of the judgment if the court is of opinion the writ of error has been prosecuted for delay, will not be applied where the suit is to clear the title to property of which the defendant in error is in possession and no money judgment is involved.</p>

<p>Appeal from the Superior Court of Cook, county; the Hon. Joseph B. David, Judge, presiding.</p>

<p>Writ or Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.</p>

<p>Workmen’s compensation — when injury to employee engaged in voluntary act does not arise out of employment. Where an employee voluntarily and without the direction, knowledge or acquiescence of his employer goes into hazardous work outside the duties for which he is employed, an injury received while he is so engaged does not arise out of his employment.</p>

<p>1. Judgments and decrees — when attack on judgment or decree is collateral. An attack upon a judgment or decree in a subsequent action or proceeding which has an independent purpose and contemplates some other relief or result is a collateral attack, although the overturning of said judgment or decree may be necessary to the success of the subsequent proceeding.</p> <p>2. Same — judgment of court having jurisdiction of subject matter and parties cannot be collaterally attacked. Where a court has jurisdiction of the subject matter and of the parties in a proceeding, its judgment or decree, when questioned collaterally, will be held valid, and although the judgment is erroneous it is binding until reversed on appeal or writ of error.</p> <p>3. Minors — a court of equity may authorise compromise of the minor’s litigation. Where it is shown by the evidence to be for the best interest of the minor a court of equity may authorize a compromise of a minor’s litigation, but great care should be exercised in such a case, as the minor is a ward of the court and is entitled to its careful consideration.</p> <p>4. Same — court of review will inquire info evidence to determine whether compromise is for best interest of minor. Where a decree authorizing the compromise of a minor’s litigation is properly before a court of review that court will inquire into the evidence to determine whether the finding of the chancellor that the compromise is for the best interest of the minor is sustained.</p> <p>5. Partition — decree in will contest cannot be attacked in subsequent suit for partition. Where a complainant in a partition suit alleges her interest in the land in accordance with a decree obtained in a will contest case previously brought by her, the decree in the will contest case cannot be attacked collaterally in the partition suit and is not before the Supreme Court on reviewing the partition -decree.</p>

<p>Workmen’s compensation — when the finding that loss of use of hand is result of injury cannot be set aside. Where there is evidence in the record justifying the finding of the Industrial Commission that the loss of use of the employee’s hand is the- result of an injury for which an award is payable under the Compensation act, the Supreme Court cannot set aside the finding.</p>

<p>1. Workmen's compensation — who may file petition in case of death. Either an administrator, a beneficiary or an employer may file a petition for the adjustment of 'a claim for compensation in case of the accidental death of an employee, and if an award is made to an administrator the compensation is to be distributed pursuant to an order of the court appointing him.</p> <p>2. Same — existence of a beneficiary is sole basis for compensation in case of death — burden of proof. The existence of a beneficiary at the time of the hearing furnishes the sole basis of a claim for compensation for the accidental death of an employee, and an award can be made only upon affirmative proof of that fact, which must be made by the party filing the petition for the adjustment of claim.</p> <p>3. Same — when the existence of beneficiaries is not sufficiently proved. The existence of beneficiaries is not sufficiently proved to justify an award to an administrator where such proof depends merely on the presumption of the continued existence of the beneficiaries, who were the parents of the deceased employee, and who were known, two years before the award, to be living in a .foreign country which was subsequently over-run by hostile armies but have not been seen or heard from since that time.</p> <p>4. Same — when procedure is governed by an act as amended. Where a petition for adjustment of a claim is filed after an amendment to the Compensation act has taken effect the procedure is governed by the act as amended.</p> <p>5. Same — when circuit court should remand cause for further hearing. Under section 19/ of the Compensation act, as amended in 1915, the circuit court should remand the cause for a further hearing where it finds that there has been an insufficiency of proof as to the existence of alleged beneficiaries.</p> <p>6. Evidence — presumptions are either conclusive or rebuttable. Presumptions are either of law or.fact and either conclusive or rebuttable.</p> <p>7. Same — when a person is presumed to be dead. If a person is absent from his usual place of abode and no word has been received from him within seven years and no account can be given of him, these facts, on grounds of public policy, raise a rebuttable presumption that he is dead, but there is no presumption of continuance of life during the seven years or at what time during that period the death occurred.</p> <p>8. Same — presumption of continuance of life is of greater or less force, according to circumstances. There is a general presumption of fact against a change under established and settled conditions, and where human life is once shown to exist it will be presumed to continue under the same conditions for a reasonable time, but the presumption is based on common experience as to the continuance of life, and is of greater or less force, according to the circumstances.</p>

<p>1. Specific performance — a parol contract to convey must be clearly established — Statute of Frauds. To maintain a suit for specific performance of a parol contract to convey land the complainant must clearly establish the contract by testimony of an undoubted character, and no amount of performance or attempted performance by one of the parties is sufficient to take the case out of the Statute of Frauds unless such a contract is shown to exist.</p> <p>2. Same — tvhen undelivered deed is not a sufficient memorandum of oral 'contract to convey. A deed prepared by one of the parties to an alleged parol contract to convey is not' a sufficient memorandum to take the case out of the Statute of Frauds where it is in the ordinary form and does not refer to or recite any of the terms or conditions of the alleged contract, and so long as the deed remains undelivered it does not operate to vest title in any of the parties.</p> <p>3. Same — to avoid Statute of Frauds complainant must show taking of possession in pursuance of contract. To avoid the operation of the Statute of Frauds the complainant seeking specific performance of an oral contract to exchange land must show the taking of possession and the making of valuable improvements by one of the parties in pursuance of the alleged agreement.</p> <p>4. Same — when sale of personal property on land is waiver of right to compel performance of conveyance. Under the doctrine of election of remedies the complainant in a suit for specific performance of an alleged contract to exchange land must be deemed to have waived his right to compel performance, where, after filing his bill, he has sold part of the personal property he obligated himself to transfer with the land, even though the sale of said property was for the purpose of paying an accrued debt.</p> <p>5. Same — party seeking specific performance must be in position to perform his part of agreement. Although one party to a contract for the exchange of land has refused to perform his part of the agreement, the other party, before he will be entitled to compel specific performance, must be in a position to convey all that he agreed to exchange.</p> <p>6. Contracts — -party seeking to rescind contract must p%it other party in statu quo. In order to rescind a contract for the conveyance of land the party who has accepted possession of the land in pursuance of the agreement must keep himself at all times ready and able to put the other party in statu quo by delivering to him the identical property conveyed to him, otherwise he must resort to whatever remedy at law he may have.</p> <p>7. Same — party to contract to convey may seek to compel specific performance or sue for damages for breach of the agreement. Upon the refusal of one party to perform a binding contract to convey land the other party may bring an action at law for damages for the violation of the agreement or he may sue in equity for specific performance.</p>

<p>1. Special assessments — courts do not take judicial notice of ordinances. If a city relies upon a general ordinance fixing the curb lines on unpaved streets as curing an insufficient description in an improvement ordinance it should introduce the general ordinance in evidence, as the Supreme Court, on review, will not take judicial notice of municipal ordinances.</p> <p>2. Same — when a local improvement is unreasonable and oppressive. The construction of a water supply-pipe and five fire hydrants on an isolated street in the city of Chicago, in a sparsely peopled region twelve miles from the court house, without access to industries or convenient transportation, and largely at the expense of vacant property not in demand and for which no demand will be created by the construction of the improvement, is unreasonable and oppressive, as the question is not merely the requirements of the few people in the district for water but the effect of the improvement upon the property assessed.</p> <p>3. Same — judgment of council as to necessity for improvement is subject to review by court. While the necessity, character and extent of a public improvement are committed to the judgment of the city council, the question whether that judgment has been exercised in a reasonable manner is open to review, and if, in view of the circumstances and surrounding conditions, the ordinance is unreasonable and oppressive, • it is the duty of the court to declare it void.</p>