No. 9. It is insisted that under this instruc- | meridian, that quarter section was taken into tion the jury was not directed to determine drainage district No. 3 by the commissioners the damages from the evidence, but was per- and was classified and assessed, and the mitted to give appellee such sum as it owner has since that time paid all assessthought he was entitled to, regardless of the ments on the land. Hammond mutual drainevidence. While the instruction is open to age district of the town of Unity, in Piatt criticism, its infirmities are not of a kind county, and the towns of Lowe and Lovingthat were likely to be prejudicial or harm- ton, in Moultrie county, was organized in ful, but were of that technical character 1889. The southeast quarter of section 30 contemplated by section 700, Burns 1914, adjoins the Hammond mutual drainage disfor which a reversal is inhibited. trict. In 1902 the owner of the quarter sec tion laid a tile drain therein, connecting with the ditches of the Hammond mutual drainage district, and in August, 1914, the commissioners of the latter district, under the authority of section 42 of the Farm Drainage Act, We might add that it appears from the record, by implication at least, that appellant did not regard the verdict as excessive, as no such ground appears in his motion for new trial. Finding no error in the record, the judg-made an order annexing the quarter section ment below is affirmed. FELT, C. J., IBACH, P. J., and CALDWELL, BATMAN, and DAUSMAN, JJ., con cur. (276 111. 516) PEOPLE ex rel. ENNIS v. DICK et al. (No. 11042.) to the Hammond mutual drainage district and proceeded to classify it and levy an assessment upon it. Thereupon an information in the nature of quo warranto was filed in the circuit court of Piatt county on the relation of Louie H. Ennis, the present owner of the land, calling upon the commissioners of the Hammond mutual drainage district to show by what authority they exer (Supreme Court of Illinois. Dec. 21, 1916. Re- cised jurisdiction over the quarter section of hearing Denied Feb. 9, 1917.) DRAINS 15- ASSESSMENT - ESTOPPEL land in controversy. Pleas and replications were filed, which need not be noticed because it was stipulated that the parties might introduce on the trial any evidence competent under any plea or replication properly pleaded. On a trial judgment was rendered in favor of the defendants, the information was dismissed, and the relator appealed. Under Farm Drainage Act (Hurd's Rev. St. 1915-16, c. 42, § 117) § 42, providing that the owners of land outside of a drainage district may connect with ditches of the district already made, by the payment of an assessment as if originally included, and that if landowners shall so connect they shall be deemed to have voluntarily applied to be included, and their lands The only question in the case is whether benefited shall be treated as other lands in the the Hammond mutual drainage district could district, where the relator's predecessor in title, although then a member of one drainage dis- annex the land in controversy, which was trict, connected her drain with another district, already, a part of drainage district No. 3. she voluntarily applied to have the land includ-It was stipulated that all the proceedings in ed, and she and the relator, are estopped to claim that the district was without authority to grant such application, and the land may be assessed by each district for the benefits conferred through its drains. [Ed. Note.-For other cases, see Drains, Cent. Dig. 88 7-10; Dec. Dig. Farmer, J., dissenting. 15.] the organization of both districts were regular and the proceedings for taking the relator's land into each of said districts were regular, but the relator claims that the proceedings of the Hammond mutual drainage district for taking her land into the district were not lawful because her land was al Appeal from Circuit Court, Piatt County; ready a part of drainage district No. 3. George A. Sentel, Judge. When drainage district No. 3 was organized, Information in the nature of quo war- a main tile was laid from the southwest ranto on the relation of Louie H. Ennis corner northeast through the quarter section, against John W. Dick and others. From a which connected with the main ditch of disjudgment for defendants, dismissing the in-trict No. 3, and numerous lateral tiles were formation, the relator appeals. Affirmed. laid connecting with this main tile. The Thomas J. Kastel, State's Atty., and Carl Reed, both of Monticello, and Redmon, Hogan & Redmon, of Decatur, for appellant. James L. Hicks and W. Thomas Coleman, both of Tuscola, for appellees. DUNN, J. Drainage district No. 3 of Unity township, in Piatt county, was organized in 1886 under the Farm Drainage Act. In 1887, upon the petition of the owner of the southeast quarter of section 30, township 16 north, range 6 east of the third principal tile drain laid by the owner of the land in 1902 started at a point in the northwest quarter of the quarter section and extended south and southwest to a tile in the highway adjoining the quarter section, which through intermediate tile connected with the ditch of the Hammond mutual drainage district. This tile furnished drainage to about 60 acres of the quarter section all the time. The evidence shows that the general slope of the land, except a small part in the northeast corner, was toward the southwest, and that when the land was flooded the surface water ran to the southwest corner and finally reached the Hammond mutual drainage district's ditch through the tile laid by the owner of the quarter section and its connections. act his land was included in two districts, and the relator, who is his successor in title, cannot complain. No conflict of jurisdiction has arisen between the two drainage districts. Each can make assessments only for the benefits conferred on the land by, the drainage through the drains of that district. If any conflict of jurisdiction should arise between the two districts as to this land, it can be determined when it arises. The judgment of the circuit court will be affirmed. Judgment affirmed. FARMER, J.. dissenting. (276 Ill. 556) CHICAGO DRY KILN CO. v. INDUSTRIAL (Supreme Court of Illinois. Dec. 21, 1916. "ARISING OUT OF EMPLOYMENT WITHIN THE ACT." A watchman employed in a planing mill, whose employés would, independent of election, fall within Workmen's Compensation Act (Laws 1913, p. 339, § 3b), and be entitled to compensation, if injured while protecting the property at the plant from suspected persons, received an section, and was entitled to compensation. injury arising out of an employment within such Section 42 of the Farm Drainage Act provides that the owners of land outside of drainage districts organized under that act may connect with the ditches of the district already made by the payment of such amount as they would have been assessed if originally included in the district, and that if individual landowners outside of the district shall so connect they shall be deemed to have voluntarily applied to be included in the district, and their lands benefited by such drainage shall be treated, classified, and taxed like other lands in the district. It is under the authority conferred by this section that the respondents acted, and no question is made as to the regularity of the proceed-1. ings; but the appellant insists that two drainage districts cannot at the same time have jurisdiction over the same land, and that the fact that her land was already included in a drainage district precluded the Hammond mutual drainage district from annexing it to that district. The cases of Bishop v. People, 200 Ill. 33, 65 N. E. 421, People V. Crews, 245 Ill. 318, 92 N. E. 245, and People v. Lease, 248 Ill. 187, 93 N. E. 783, are relied upon to sustain this position, and they state that two municipal corporations cannot exercise jurisdiction over the same territory, for the same purpose, at the same time. In those cases, however, the controversy arose between the drainage districts and unwilling landowners over whom jurisdiction was sought to be acquired and exercised against their consent, or between contesting drainage districts. This case presents a different situation. By connecting the drains of this quarter section with those of the Hammond mutual drainage district and through them carrying the drainage of the land to that district's ditch, the landowner is deemed in law to have voluntarily applied to have the land included in the district. Appellant has obtained the benefit of the drainage of her land to some extent through [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 373.] 2. MASTER AND SERVANT ➡417(7) -WORKMEN'S COMPENSATION ACTS DECISIONS OF BOARD-CONCLUSIVENESS. The decision of the Industrial Board that an employé was injured by accident arising out of the employment, if there is competent or legal evidence to support it, cannot be reviewed, as it is not the court's province to pass upon weight or sufficiency of evidence. [Ed. Note. For other cases, see Master and Servant, Dec. Dig. ~417(7).] Cooke, J., dissenting. Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceedings by W. W. Jackson, employé, for workman's compensation, opposed by the Chicago Dry Kiln Company, employer. Certiorari to review decision of the Industrial Board awarding compensation. To refirming the award, the employer brings erview a judgment of the circuit court con ror. Affirmed. the ditches of the district for which she has not paid, and to the extent that her land is benefited it ought to be assessed by the dis- Adams, Crews, Bobb & Wescott, of Chitrict. By the voluntary application to be in-cago, for plaintiff in error. George E. Gorcluded in the district the owner of the land man, of Chicago, for defendants in error. is estopped to claim that the district was without authority to grant the application, in- CRAIG, C. J. Defendant in error W. W. clude the land, and assess it for the benefit it Jackson (hereinafter called the "applicant") has received. By an application formally was an employé of plaintiff in error (heremade by the owner and allowed, the land inafter called the "company") as a night was annexed in 1887 to drainage district No. watchman. The company was engaged in 3, and by another application made by the drying lumber and operating planing mills, owner the same land was annexed in 1914 to its plant covering several blocks in the city the Hammond mutual drainage district. The of Chicago. There were also on the premises owner could not complain that by his own of the company several buildings occupied For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-64 by tenants, one of the buildings being occupied by Anderson & Shumaker as a blacksmith shop. Applicant's duties required him to watch the property of the company, and in so doing to make the rounds of the premises of the company and the premises of the respective tenants, including Anderson & Shumaker, every hour. In so doing he was required to walk about four blocks and was required to "pull" eleven "boxes" located in various parts of the premises of the company, one being in the shop of Anderson & Shumaker. The applicant had been employed as watchman for the company about five years, and on May 29, 1914, went to work as usual about 6 o'clock p. m. In making his rounds, when he arrived at the blacksmith shop he found three men there-Hard, King, and Miller, employés of Anderson & Shumaker. King asked permission to leave his motorcycle in the blacksmith shop. Applicant apparently was not acquainted with King, but was assured by the other two that he was an employé, and gave his consent. King tossed him a dime, which fell to the ground, and the applicant picked it up. Applicant went on about his duties, and in making the next round of the premises returned to the blacksmith shop about 7 o'clock. King was inside. Applicant again returned to the blacksmith shop about 8 o'clock. At this time the door of the blacksmith shop was locked and King was outside in the street or alley with his motorcycle. Applicant unlocked the blacksmith shop and went inside and hid the lock, with the intention, as he stated, of changing the lock or putting another one on the door. He returned to the blacksmith shop again about 9 o'clock. King, who in the meantime had become intoxicated, demanded the lock from applicant, and upon applicant's refusal to give it to him struck at the applicant, who punched or struck at King with a cane which he carried and broke it. During the scuffle, applicant, in trying to get away through the door and prevent King from getting the lock, as he claimed, caught his foot on the sill and fell and received the injuries complained of, which consisted of a fracture of the neck of the thigh bone. Commencing June 6, 1914, a week after the accident, the company paid the applicant compensation at the rate of $7.50 a week for a period of 41 weeks and then refused to continue making further payments. He then filed his application for an adjustment of claim with the Industrial Board. A committee of arbitration was appointed, as provided by the act, which heard the evidence of both parties and rendered its decision finding that the applicant was entitled to recover from the company $7.50 a week for a period of 416 weeks and was entitled to a pension of $10 a month thereafter during life. The company filed with the Industrial Board its petition for review of the decision the applicant was not totally disabled or incapacitated, that the alleged injuries did not arise out of the course of his employment, and that his present alleged incapacity did not result from the alleged accident. The Industrial Board rendered its decision finding that both the parties to the proceeding were at the time of the accident operating under and subject to all the terms and provisions of the Workmen's Compensation Act, that the accident for which compensation was claimed arose out of and occurred in the course of the applicant's employment, that his wages for the purpose of the proceeding were $15 per week, and that he was then totally and permanently disabled. The board confirmed the decision of the committee of arbitration, except that it ordered that after the expiration of the 416 weeks, for which the applicant was to be paid at the rate of $7.50 a week, he should receive from the company an annual pension of $249.60, payable in installments of $20.80 per month, for the remainder of his life, being 8 per cent. of the total amount which would have been due him had death resulted from the accident. The company then filed a præcipe with the clerk of the circuit court of Cook county for a writ of certiorari to the Industrial Board, which was issued and served upon the secretary of the board. On July 8, 1916, the court entered a judgment approving and confirming the finding of the Industrial Board and certified that the cause was one proper to be reviewed by the Supreme Court, and the company sued out this writ of error. Two points are raised in the briefs: (1) The injury the applicant received did not arise out of and in the course of his employment in a business or enterprise under the Workmen's Compensation Act; (2) the injury of the applicant did not arise out of the course of his employment. [1] It appears that the company had never elected to come under the provisions of the Workmen's Compensation Act and would not be subject to its provisions unless the company was engaged in one of the occupations or businesses enumerated in paragraph “b” of section 3 of the act (Laws of 1913, p. 339). It is conceded by counsel for the company that the business of the company in operating drying kilns and a planing mill is one of the occupations which would involuntarily come under the act, and as we understand the argument of counsel there is no question that one of the employés engaged in the planing mill, for example, would be entitled to recover compensation under the act in case of injury. The claim is that the duties of employment of the applicant in this case are not of such a nature as to entitle him to compensation under the act in case of an injury. Under the holding of this court in the recent case of Vaughn's Seed Store v. Simonini (No. 10789) 114 N. E. 163, the mere of something that happened outside such employment. In this case the Industrial Board found to the contrary, and, as above pointed out, the facts and circumstances under which the action arose seem to entirely justify the conclusion arrived at by the board that the applicant, as a watchman and in the course of his employment as such watchman, was injured while performing the duties as such for the company. occupation or business which might be un-, pensation for the reason that the injuries der the act does not entitle a person work- complained of did not arise out of and in ing for the employer to recover compensation the course of his employment, but by reason for injuries where he is injured in the course of his employment in another business conducted by the employer or in some employment remote from and having no connection with the hazardous occupation. As to whether the employé claiming compensation for injuries under the act is engaged in a line of employment that entitles him to such compensation depends to some extent on the particular facts of each individual case. In Suburban Ice Co. v. Industrial Board, 274 Ill. 630, 113 N. E. 979, where a teamster was in the employ of a concern engaged in making ice and in delivering ice and fuel and whose duty it was to handle ice and coal and care for the horses used by the company on premises adjacent to the ice plant, it was held that his duties were of such a nature and so related to and connected with the occupation of the company as to bring both employer and employé within the provisions of the Workmen's Compensation Act. [2] The second point urged for reversal, that the injury to the applicant did not arise out of and in the scope of his employment, is based upon the assumption that the applicant received his injury by reason of doing something outside of the scope of his employment; that is, undertaking to watch the motorcycle of King and that King gave him a dime for so doing. Whether the applicant was injured by reason of guarding his employer's property as he was hired to do and which injury would be one arising It is stated by counsel for the company in out of or in the scope of his employment, the argument that: "If a watchman, being engaged in protecting the property of his employer from thieves, is injured, no one would contend the injury did not arise out of the employment." or was injured by reason of having undertaken to guard the motorcycle of King, which was something outside of his employment, was a question of fact to be determined from the evidence by the Industrial It seems to be conceded by counsel for the Board. If there is competent or legal evicompany that the duties of the applicant dence to support the decision of the board, required him, among other things at least, it is not within the province of the court to to guard the property of the company against pass upon its weight or sufficiency. Parkfires and trespassers. Such an employment er-Washington Co. v. Industrial Board, 274 is not without its hazards and dangers. It Ill. 498, 113 N. E. 976; Armour & Co. v. Inmust be assumed that the duties of the ap-dustrial Board, 273 Ill. 590, 113 N. E. 138. plicant were necessary to the protection of the If the applicant had undertaken to watch company's property or he would not have been the motorcycle for the owner thereof and employed for that purpose, and in such em- had received his injuries in attempting to ployment he would run the risk of being sub-prevent some one from stealing it, or otherject to assault and injury in protecting the wise because of his undertaking to watch property of the company-and that was, in the motorcycle, a different question would fact, what happened in this case according arise. But such is not the case. There was to the finding of the Industrial Board. In the case of Anderson v. Balfour, 2 I. R. 497, a gamekeeper was attacked by poachers and wounded. It was held that he was entitled to recover under the Workmen's Compensation Act of Great Britain, from which the Illinois act was taken. In the case of Nesbit v. Bayne & Burn, 2 K. B. 689, Nesbit was employed as a cashier, and in the performance of his duties, while carrying a large sum of money and going by train to his employer's colliery, was shot and killed. The court held that the risk of being attacked by reason of carrying large sums of money was incidental to his employment and that the murder was an accident which arose out of his employment. To the same effect is Challes v. London & Southwestern Ry. Co., 2 K. B. 154. A number of cases are cited by counsel for the company. Without commenting upon them, it is sufficient to say that it was held by the court in each of those cases that the employé was not entitled to recover com evidence to sustain the finding of the In- COOKE, J., dissenting. (276 I11. 438) HUTCHISON et al. v. KELLY et al. (Supreme Court of Illinois. Dec. 21, 1916. Rehearing Denied Feb. 9, 1917.) 1. WILLS 107-EXECUTION-ALTERATION. The fact that one clause of a will was written in ink of a different color from the rest of the will does not of itself constitute an alteration, and is not evidence of an alteration requiring explanation by extrinsic evidence. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 245-248; Dec. Dig. 107.] 2. ALTERATION OF INSTRUMENTS 27(1) PRESUMPTION. An alteration in a written instrument raises no presumption of law as to when it was made or against the validity of the instrument. [Ed. Note.-For other cases, see Alteration of Instruments, Cent. Dig. §§ 230-239; Dec. Dig. 27(1).] 3. ALTERATION OF INSTRUMENTS 30 QUESTIONS FOR JURY-ALTERATION OF WRITTEN INSTRUMENTS. The question as to when, by whom, and with what intent a change in a written instrument was made is one of fact, to be submitted to the jury. [Ed. Note.-For other cases, see Alteration of Instruments, Cent. Dig. §§ 264-270; Dec. Dig. 30.] 27(2) 4. ALTERATION OF INSTRUMENTS BURDEN OF PROOF-EXPLANATION. One claiming the benefit of a written instrument must explain an alteration therein, and if it is suspicious in appearance and not satisfactorily explained, the conclusion of fact as to its invalidity follows against the instrument, although the appearance of the instrument alone may furnish a satisfactory explanation without extrinsic evidence. [Ed. Note.-For other cases, see Alteration of Instruments, Cent. Dig. §§ 240, 241, 243-247; Dec. Dig. 27(2).] 5. WILLS ~302(4) — EXECUTION - ALTERA TION. Even if different parts of a will were written at different times, this would constitute no evidence of an alteration, unless there is some circumstance creating suspicion that the alteration might have been made after execution. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 704; Dec. Dig. 302(4).] 6. WILLS 302(1)-EXECUTION ATTESTA TION CLAUSE. The attestation clause is prima facie evidence of the due execution of the win. [Ed. Note.-For other cases, see Wills, Cent. Dig. $$ 700, 703, 710; Dec. Dig. 302(1).] 7. WILLS 378-PROBATE-REVIEW-TRIAL ON APPEAL EVIDENCE. While proponents are confined in the county court to the subscribing witnesses, yet in the circuit court, on appeal, they may prove the execution of a will by any evidence competent in chancery for that purpose. [Ed. Note.-For other cases, see_Wills, Cent. Dig. 88 844-847; Dec. Dig. 378.] 8. WILLS 302(1)-EXECUTION EVIDENCE. A will, written all in the same hand, although by different colored inks, and attested by two credible witnesses, who certified that testator signed and acknowledged in the manner required by law, and one of whom made declarations under oath to the circumstances required for admission of the will to probate, was entitled to probate, although the other attesting witnesses repudiated his attestation, saying he had not read it, and denied that testator acknowl Iedged the will or was present when witnesses signed in attestation. [Ed. Note.-For other cases, see Wills, Cent. Dig. $$ 700, 703, 710; Dec. Dig. 302(1).] Appeal from Circuit Court, McLean County; Sain Welty, Judge. Proceedings by Elizabeth Hutchison and others to probate a will, opposed by G. F. Kelly and others. From decree for contestants, proponents appeal. Reversed and remanded, with directions. Herrick & Herrick, of Clinton, and W. B. Leach, of Bloomington, for appellants. De Mange, Gillespie & De Mange, Sterling & Whitmore, and W. W. Whitmore, guardian ad litem, all of Bloomington, for appellees. DUNN, J. Abram Kelly, of McLean county, died December 29, 1915, and an instrument purporting to be his will was presented in the county court for probate. Probate was refused, and upon appeal was also refused in the circuit court, and the proponents have appealed to this court. Abram Kelly was 86 years old when he died. The will purported to have been executed January 2, 1913. He was then living in Bloomington, having moved there in 1907 from Heyworth. He returned to Heyworth in the fall of 1913 and lived there until he died. The will bore his genuine signature and the following attestation clause was attached to it: "The above instrument, consisting of two sheets, was now here subscribed by A. Kelly, the testator, in presence of each of us, and was at the same time declared by him to be his last will and testament, and we at his request sign our names hereto in his presence as attesting witnesses. Ed. Wise, of Heyworth. "Edward Ryburn, of Heyworth." The signatures to the attestation clause It was proved on the trial, and was not diswere the genuine signatures of the witnesses. puted, that at the time of the execution of the paper Kelly was of sound mind. There is an irreconcilable conflict in the testimony of the subscribing witnesses as to the circumstances under which the signatures were attached to the paper. The witness Ryburn testified that he was in the Heyworth State Bank on January 2, 1913, for the purpose of making a deposit of rent which he had received the day before, when J. P. Shelton (who wrote the will, was named executor thereof and was cashier of the bank) asked him to sign a will as witness. Shelton stepped out of the bank to get another witness and brought Ed Wise in, and the three went to the back room of the bank, where Kelly was. Shelton said: "This is Mr. Kelly's will and he wishes you as witnesses, and he must sign in your presence and you must sign in his presence and in the presence of each other." Kelly signed the will in the presence of both witnesses, and the witnesses signed in his presence and in the presence of each oth |