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which remained in existence and continued its former corporate life without dissolution or interruption, leaving the Real Estate Title and Trust Company without property, stock, stockholders or franchises. The corporations had attempted to give to the consolidation the form of a merger of the Real Estate Title and Trust Company into the Chicago Title and Trust Company, but it was held that the transaction was governed and controlled by the statute, which did not authorize a merger, and that there was, in fact, a consolidation. The foundation rule declared was, that either consolidation, purchase or merger of corporations must have statutory authority. Under that rule it had been decided that the General Assembly may authorize the merger of one corporation into another and the continued existence of the latter, and had done so in the case of railroad corporations by authorizing the purchase by one corporation of the franchises, stock and property of another; (Chicago and Eastern Illinois Railroad Co. v. Doyle, 256 Ill. 514;) that in case of a consolidation it may result as a matter of law, on account of the territorial jurisdiction of the several States; that each of the constituent corporations remains in existence in a certain sense and a new corporation is created, as in the case of interState corporations, (Racine and Mississippi Railroad Co. v. Farmers' Loan and Trust Co. 49 Ill. 331; Ohio and Mississippi Railway Co. v. People, 123 id. 467;) but that in the case of a statute which simply provides for the consolidation of domestic corporations, the original corporations, as such, cease to exist and a new corporation is created with all the property, effects, rights and franchises held and enjoyed by either of the old corporations. (Scheidel Coil Co. v. Rose, 242 Ill. 484.) Manifestly, the question here involved is not the same as the one that would have arisen if the claim of the appellee in the former case had been upheld, and what is here said is not to be understood as intimating any opinion concerning the effect of

the purchase by one corporation of the property, stock and franchises of another, or the merger of one corporation into another or the absorption by one of the other, upon the question whether the corporation purchased, merged or absorbed, and left without property, stock, stockholders or franchises, has any further existence, or whether a purchase, merger or absorption carries with it the right to act as executor or trustee.

By the consolidation of the Real Estate Title and Trust Company and the Chicago Title and Trust Company the original corporations ceased to exist, and the appellee, as the consolidated corporation, acquired and succeeded to all the faculties, property, rights and franchises of its component parts and became subject to all the duties, obligations and conditions imposed upon them. (Robertson v. City of Rockford, 21 Ill. 451; Chicago, Rock Island and Pacific Railroad Co. v. Moffitt, 75 id. 524.) The material ques-. tion here is whether the general rule that a trustee cannot delegate his authority to another is an obstacle to the exercise of a power by the appellee to act as executor or trustee where one of the constituent corporations was named as such. That general rule rests upon the ground that the selection of a trustee implies personal confidence in his discretion and judgment. If a power is given to an executor or trustee which is not ministerial or given for the purpose of executing a declared trust which the court can enforce but which involves the exercise of discretion and judgment, the power cannot be delegated or transferred to another, either by the trustee or a court. The rule, however, cannot be applied to the case of a corporation, because the element of trust in the judgment and discretion of an individual is entirely wanting. A corporation is without personality, and if it is selected as trustee or executor there can be no reliance upon individual discretion or even upon the continuance of the same administration. Etta Nelson, in naming the Real Estate Title and Trust Company as executor

and trustee, knew that its directors, officers and stockholders might change from time to time, and that the statute authorized a change of name or place of business, enlargement or change of the object for which the corporation was formed, an increase or decrease of capital stock or change in the number of shares or par value, increase or decrease of the number of directors, and the consolidation of the corporation with any other corporation then existing or that might thereafter be organized. She therefore contemplated that these changes might occur and that the Real Estate Title and Trust Company might be consolidated with some other corporation such as the Chicago Title and Trust Company, and that it would thereby cease to exist and become a component part of a new corporation. A consolidation took place and a new corporation was created from the original corporations, with an enlarged capital stock and unimpaired franchises. The appellee was entitled to execute the trust, and the chancellor did not err in overruling the demurrer.

The decree is affirmed.

Decree affirmed.

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THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. LLOYD PARKER, Plaintiff in Error.

Opinion filed June 16, 1914.

I. CRIMINAL LAW-proof of intent is essential in assault with intent to commit murder. To prove a charge of assault with intent to commit murder it is as essential to prove the intent as to prove the assault.

2. SAME when evidence does not show intent to commit murder. Where the fight between the accused and his antagonist was a pre-arranged fight following a quarrel over a trivial matter, both parties agreeing to fight, and each fighting, so far as any witness could observe, with bare fists, the fact that the accused's antagonist was found, after the fight, to have a knife wound does not

establish an intent by the accused to commit murder, where the accused denies having used a knife or having one in his possession, and no proof is made as to how the wound was inflicted and no previous malice is shown.

WRIT OF ERROR to the Circuit Court of Franklin county; the Hon. J. R. CREIGHTON, Judge, presiding.

LAYMAN & JOHNSON, and WHITLEY & COMBE, (O. J. PAGE, of counsel,) for plaintiff in error.

P. J. LUCEY, Attorney General, W. F. SPILLER, State's Attorney, and C. H. LINSCOTT, for the People.

Mr. JUSTICE DUNN delivered the opinion of the court:

Lloyd Parker was convicted in the circuit court of Franklin county of an assault upon Harry Brown with intent to murder and has sued out a writ of error to reverse the judgment.

On August 15, 1913, Parker and Brown engaged in a fist fight in the city of Benton, which lasted probably two or three minutes, when they separated upon the command of a constable. Brown was found to have received a stab in the left side, between the seventh and eighth ribs, probably an inch and a half deep and a half-inch wide. A number of by-standers saw the fight from beginning to end but no one of them saw either of the contestants have any weapon. Each of the fighters received blows on the head, face and body and each was knocked to his knees in the progress of the fight. When this occurred no attempt was made by either to jump on the one who was down, but when the parties were knocked apart in this way they rushed together again and continued fighting. The combat was vigorous and continuous from beginning to end. After the fight a two-bladed, bone-handled pocket knife, with both blades closed and nothing to indicate that it had been used, was found on the ground. Parker denied that the knife

was his, that he had a knife in his possession during the fight, or that he used one. Brown testified that he had a small, bone-handled knife in his pocket during the fight but did not use it. There was no other evidence as to the ownership of the knife. Brown did not know he had a wound until after the fight was over. He was the larger man, being nearly six feet high and weighing 161 pounds, while Parker weighed 132. Brown was twenty-six years old, Parker twenty-eight. Brown was a rural mail carrier in the city of Benton. Parker was engaged in selling washing machines, and his home was in Harrisburg, in Saline county. The men quarreled about the payment for a washing machine which an agent of Parker had sold to Brown's wife, for which she had given a note. It appears indistinctly from what was said by the two men in quarreling that they had had a previous interview; that Brown had refused to pay for the machine and had sent word to Parker to come and get it; that Parker had had some disagreement with Mrs. Brown about the note and had called on Brown's father in regard to it. In the afternoon when the fight occurred Brown and Parker met on a street corner in the city of Benton and Parker demanded payment of the note. After some conversation on that subject, in which some heat was displayed and some profanity used, Brown testified that he said to Parker, "You have been talking to my father and the other fellows, and if you don't stop talking about my wife we will mix," and that Parker answered, "I am the best damned mixer on earth; we will go down right where we won't have a fine to pay.” They went away together some distance to a vacant lot, where, Parker testified, Brown threw his hat on the ground, remarking profanely that his hat was always in the ring. Parker, throwing his hat on the ground, said that his was too, and the fight began. Parker denied that he used any oaths and testified that he never used profane language. He proved a good reputation as a law-abiding citizen in

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