ployer is made certain, and the question whether or not he was negligently injured is not to be considered. After he secures his award for compensation against his employer, if his employer should become insolvent and wholly unable to pay or without any disposition to pay, or should fail to bring suit against the party causing the injury for his benefit, we think it is clear that, although his right of action against the party who injured him has been transferred to his employer to be brought in his employer's name, in case of the refusal of such employer, under such circumstances, to bring such suit against the party causing the injury the employee may do so in his employer's name for his own use and force the party causing the injury to pay the compensation if he is solvent. In other words, instead of having to rely altogether on his common law right of establishing negligence against the party who caused his injury and of establishing due care for his own safety, and finally upon the solvency of the party causing his injury, under section 29 his compensation is made sure and certain if injured while in the line of his employment, and its collection certain if either his employer or the party injuring him is solvent. In addition to those advantages, there are other sections of the Compensation act that require the employer to make provision or take steps looking to the certainty of the payment of the compensation for any injury occurring to any of his employees.

We do not think there is any single objection raised to the constitutionality or validity of this section of the statute that can be sustained. It may be true, as appellant insists, that under the Compensation act he will not receive sufficient compensation to adequately compensate him for his real damages. We think it is certainly true in this case. The answer to that is, that he had the option, before he was injured, to have elected not to be bound by the Compensation act. The fact that it has happened that he has chosen the course that realizes him the least money must

be charged to his unfortunate judgment or choice. It is no ground for invalidating the statute. In case he should finally fail to recover in his common law action against the party causing his injury,―i. e., in case his employer should be unable to prove that appellant has any right of action against appellees,—his action that brought him under the Compensation act will result in a pure benefit to the amount of compensation he will receive from his employer.

We are clearly of the opinion that section 29 is legal and valid, and that the court was right in holding, under the facts in this case, that appellant has no right of action against appellees.

The judgment of the circuit court is affirmed.

Judgment affirmed.

(No. 11543-Judgment affirmed.)

HENRY M. MARSHALL, Appellant, vs. E: H. IRWIN et al.

Appellees.

Opinion filed October 23, 1917.

EVIDENCE-Section 36 of Evidence act construed as to power of a foreign commissioner. Section 36 of the Evidence act does not authorize a commissioner appointed by a court in a foreign State for the purpose of taking depositions in Illinois to apply for an order of an Illinois court to compel a witness subpoenaed by such officer to appear before him and give his testimony, and in so far as such section purports to authorize a circuit court to punish a witness for contempt who willfully refuses or neglects to appear before such officer it has been held unconstitutional. (Puterbaugh v. Smith, 131 Ill. 199, and McIntyre v. People, 227 id. 26, approved.)

APPEAL from the Circuit Court of Cook county; the Hon. THOMAS G. WINDES, Judge, presiding.

EUGENE P. KEALY, for appellant.

CAVENDER & KAISER, for appellees.

Mr. JUSTICE FARMER delivered the opinion of the court:

This was a proceeding supposedly brought under section 36 of our statute on evidence. The circuit court of Monroe county, Alabama, in which a certain cause was pending, issued a commission to appellant, Henry M. Marshall, of the city of Chicago, to take the depositions of appellees, E. H. Irwin and Robert C. Bennett, also residents of the city of Chicago, upon interrogatories annexed to the commission, to be read upon the trial of said cause in the circuit court of Monroe county, Alabama. Appellant issued subpoenas duces tecum for appellees. The subpoenas were duly served upon them and their fees as witnesses paid. They refused to obey the subpoenas and appear and give their testimony. Appellant thereupon filed a petition in the circuit court of Cook county setting up the facts and the refusal of the witnesses to appear and testify. The petition prayed the circuit court of Cook county to enter an order upon appellees to appear before that court and show cause why that court should not enter an order commanding appellees to appear before appellant in obedience to the subpoenas. Appellant gave notice to appellees of the filing of the petition and that he would appear before the circuit court of Cook county on a certain day to ask that a rule be entered upon appellees to appear before appellant to give their depositions. Appellees demurred to the petition. The demurrer was sustained and the petition dismissed, and the appellant has prosecuted this appeal to this court on the ground that the validity of a statute is involved.

We do not understand section 36 purports to authorize a commissioner appointed by a court of a foreign State to take depositions in this State, to procure an order of a court of this State requiring a witness subpoenaed by the officer to appear before him and give his deposition. In so far as said section purports to authorize a circuit court to punish a witness for contempt who willfully refuses or

neglects to appear before such officer in answer to a subpœna issued by him and give his deposition it is unconstitutional. (Puterbaugh v. Smith, 131 Ill. 199; McIntyre v. People, 227 id. 26.) The procedure resorted to here, however, was not for an attachment for contempt in the first instance, but it was sought to procure an order from the circuit court directing appellees to attend before appellant and give their depositions, and it is claimed that if they failed to obey such order they would then be subject to punishment for contempt of court. There is no doubt of the power of courts of this State, independently of any statute, to prevent the embarrassment or obstruction of the courts in the administration of justice, to punish for contempt in cases pending in said courts. (Schmidt v. Cooper, 274 Ill. 243.) In this case there was no cause pending in any of the courts of this State and no contempt of the circuit court was committed by appellees but their action was a contempt of the commissioner who issued the subpoenas. This seems to be recognized by the appellant, as he did not seek to have them punished for that contempt but indirectly sought to accomplish the same object by procuring an order of the circuit court of Cook county commanding appellees to appear before the commissioner and give their depositions, and then, if they failed to appear, ask that they be punished for contempt of the court issuing the order. It is an attempt to do indirectly what Puterbaugh v. Smith, supra, and McIntyre v. People, supra, held could not be done directly.

Some reliance is placed by the appellant upon People v. Kipley, 171 Ill. 44, and Inter-State Commerce Com. v. Brimson, 154 U. S. 447. Those cases were referred to and distinguished in McIntyre v. People, supra.

This proceeding was unauthorized by the statute, and the court properly sustained the demurrer to the petition. The judgment is affirmed. Judgment affirmed.

(No. 11513. Decree affirmed.)

JURKO REMMERS et al. Appellants, vs. PETER REMMERS,

Appellee.

Opinion filed October 23, 1917.

WILLS-when remainder is vested but subject to executory devise over. A devise to the testator's wife for life with remainder to the testator's sons, but in case either of the sons shall die previous to the termination of the life estate the share of such son shall go to his children, gives a vested remainder to the sons but subject to the executory devise over to the children, and the sons can not convey a fee simple title during the existence of the life estate. (Lachenmyer v. Gehlbach, 266 Ill. 11, followed.)

APPEAL from the Circuit Court of Piatt county; the Hon. GEORGE A. SENTEL, Judge, presiding.

J. L. HICKS, for appellants.

CARL S. REED, for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

Peter Remmers was the owner of 410 acres of land in Piatt county and had four sons and five daughters. He died on October 1, 1913, leaving a last will and testament, by which he provided for the payment of his debts, bequeathed to his wife, Anna Remmers, all his personal property after the payment of debts, absolutely, devised to her all his real estate for and during her natural life, bequeathed to Henry Remmers, one of his sons, $2000, to be paid him when he should reach the age of twenty-one years, and devised his town residence in DeLand, Illinois, in fee simple to Jennie Remmers, one of the daughters. His plan for the disposition of the remainder in the 410 acres after the life estate of Anna Remmers, was to make the four sons and five daughters equal but to give the daughters their shares in money and make the payment of the same charges