Volume 172 — Illinois Appellate Court Reports

<p>Error to the Criminal Court of Cook county; the Hon. William H. McStjbely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>1. Ihstkbakch — misrepresentations. Where the insured knowingly makes false statements in his application material to the risk, the policy is void.</p> <p>2. Insubance — materiality of misrepresentations. A representation in an application for life insurance that the applicant has not been confined to the house by illness within the past five years, where it appears that he was so confined with pneumonia within that time for a period of five or six weeks, is a false representation material to the risk.</p>

<p>1. Payment — when claim of set-off amounts to offer of. Where a vendee on receiving but part of a shipment of oil under a contract, when he is entitled to the whole, demands damages unless the rest of the shipment be guaranteed to sell at the minimum market price, and where on being refused he charges the amount of such damages against the contract price of the oil received and retained and notifies the vendor of such act, this constitutes a distinct offer to pay for the part received and retained.</p> <p>2. Contract — modification. Where a vendee receives but part of a shipment of oil under a contract when he is entitled to the whole, he may, on retaining the same and offering to pay therefor, stipulate as to future terms, and on a refusal to comply therewith may recover damages.</p>

<p>Error to, the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Landlobd and tenant — constructive evicton. It would seem that to constitute a constructive eviction the acts of a landlord must clearly indicate an intention that the tenant shall not have the beneficial enjoyment of the premises and must be of a grave and permanent character which deprive the tenant of the beneficial enjoyment.</p> <p>2. Landlobd and tenant — constructive eviction. Constructive eviction because of inadequacy of water supply in a flat is not shown where the evidence does not disclose the reason therefor or show that the lessor was' responsible for the condition but shows that the inadequacy was not permanent and that the lessee abandoned the premises without allowing the lessor a reasonable time to remedy the condition.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Feeeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Fraternal benefit societies — who the agent of. The recorder of a “District Court” of the parent benefit society is the agent of the parent society.</p> <p>2. Fraternal benefit societies — when acceptance of dues for prior month does not waive suspension. Where the constitution and laws of a fraternal benefit society provide that on nonpayment of dues for any month on the last day the member is suspended, the mere acceptance by the recorder of the dues for the prior month does not waive the suspension, since if the acceptance does reinstate the member he becomes liable for the assessment for the current month.</p> <p>3. Fraternal benefit societies — when sending statement of arrearages does not waive constitution and laws. Though the sending of notices by the recorder of a benefit society to a member stating the assessments for the current month and the prior month is some evidence of a waiver of the constitution and laws, it is not sufficient to constitute waiver either in law or fact where the constitution and laws provide that on nonpayment on the last day of any month the member is ipso facto suspended.</p> <p>4. Fraternal benefit societies — when constitution and by-laws not waived. The right of a benefit society to forfeit a certificate is not waived though the recorder sends the owner thereof, who is noted on the books as suspended for nonpayment of dues, a notice of the amount of the assessments for the current month and the prior month, where the constitution and laws provide that the member is suspended on the last day of a month if dues are not paid but that he may be automatically reinstated on payment within sixty days if in good health.</p> <p>5. Fraternal, benefit societies — when no recovery can he had under laws of society. No recovery can be had on a benefit certificate where the member was suspended for nonpayment of dues and when dues are subsequently paid within sixty days was in the last stages of a mortal illness unknown to the society, if the constitution and laws provide for suspension on nonpayment and reinstatement within sixty days on payment, if in good health, but further provide that acceptance of dues does not reinstate if the member is not in good health, and that dues shall not knowingly be received unless the member is in good health and that the receipt shall not reinstate in such cases.</p>

<p>1. Instructions — harmless error. An instruction in an action for injuries received in a fall caused by alleged defects in a railing guarding an entrance to a basement, referring to the condition of the sidewalk is not harmful to the plaintiff where the declaration refers to its condition, since the reference thereto was made in the first instance by the plaintiff.</p> <p>2. Municipal corporations — sidewalks. Evidence that a railing guarding a basement was frequently used by loungers as a meeting and resting place will support an inference that it was apparently sufficiently secure to sustain the weight of those so using it.</p> <p>3. Municipal corporations — instructions. On action for injuries received when a railing guarding a basement entrance broke, it is reversible error to instruct the jury that the plaintiff was bound to use reasonable care to detect and avoid such dangers as reasonably prudent persons exercising ordinary care would detect and avoid under the circumstances, since it was not the duty of the plaintiff to anticipate negligence on the defendant’s part.</p> <p>4. Municipal corporations — reliance on presumption of performance of duty. One injured .when a guard railing around a basement entry broke was, in the absence of knowledge to the contrary, entitled to rely upon the presumption that the city had performed its duty to keep the railing reasonably safe.</p> <p>5. Municipal corporations — duty of individual to avoid danger: One knowing of the dangerous condition of a railing guarding a basement is bound to exercise reasonable care in proportion, to the known danger.</p> <p>6 Damages — when instruction not improperly modified. It is not improper to modify an instruction as to damages for personal injuries by striking out the words “and also to what extent, if any, she has been marred or injured in her personal appearance.”</p>

<p>Error to the Municipal Court of Chicago; the Hon. John D. Tubnbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edwabd A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Reoeivebs — necessity of bond. A court of chancery is powerless to appoint a receiver without first requiring the complainant to give a bond as required by statute, unless the order of appointment discloses that for good cause shown, upon notice and full hearing, the chancellor is of opinion that the giving of such bond should be dispensed with.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edwin K. Waxkee, Judge, presiding. Heard In the Branch Appellate Court at the March term, 1910.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavahagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Geokge A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>1. Health — city may provide manner in which notice of contagious diseases must he given. It is within the province of the legislative department of a city government to enact in what way notice that persons have a contagious or epidemic disease shall be given to the health department by attending physicians.</p> <p>2. Health — when physician guilty in not reporting contagious disease. A city penal ordinance requiring a physician attending a smallpox patient to make a report in writing to the commissioner of health within a certain time together with the character and state of the disease and a rule made by the commissioner of health, pursuant to ordinance, requiring a report at once to the department of health and by mail, are not complied with by a physician ineffectually calling up by telephone and then directing the patient to report to a health official, which he did. ■</p> <p>3. Appeals and errors — ruling must he had on improper remarles of counsel. Alleged improper remarks of counsel in argument to a jury will not be considered on appeal where counsel “excepted” to the remarks but did not object to them or ask or obtain a ruling as to whether they were proper or not.</p>

<p>1. Intebtjrbaw. railroads — care required to avoid injuring trespassers. As soon as a motorman of an interurban railroad becomes aware of the presence of a trespasser on tracks on a bridge it becomes bis duty to use reasonable care to avoid injury, and unless there is some evidence tending to show a failure of such duty it is proper to direct a verdict.</p> <p>2. Interurban railroads' — -when evidence shows due care to avoid injuring trespassers. A motorman of an interurban train going forty-five miles an hour, when from 125 to 300 feet distant, saw a trespasser on her bands and knees between the rails on a bridge, and the trespasser remained in such position until struck. The motorman reversed bis motor, put on bis brake, and did everything in bis power to stop the train but was unable to do so until it bad passed over the trespasser. Held, a peremptory instruction for defendant was properly granted.</p>

<p>1. Contracts — right of third person under contract made for his benefit. Where a contract is made between two persons for the benefit of a third, such third person may maintain an action in his own name to enforce such contract in so far as his interests are involved.</p> <p>2. Contracts — terms of written contract are controlling as to rights of third person. Where a contract between two persons for the benefit of a third is in writing, the terms expressed in the writing are presumed to he the terms of the contract as made and are controlling as to the rights of a third person whose interests are involved.</p> <p>3. Reformation of instruments — jurisdiction of equity to reform insurance policy. Equity will in a proper case rectify a mutual mistake made in the terms of a 'contract of insurance and will retain jurisdiction to enforce it, as between the parties to it and their privies, according to its terms as rectified.</p> <p>4. Reformation of instruments — necessary parties on bill to reform. Equity will not reform a contract for mutual mistake' unless all the parties to it who have any interests that may he affected by the reformation and all persons, who have acquired rights or assumed obligations under it are in court as parties.</p> <p>5. Reformation of instruments — necessity that company reinsuring risk have knowledge of mistake. Before a fire insurance policy can he reformed in equity for mutual mistake, as against a company that has reinsured the risks of the original company, it must appear by the averments in the hill and by proof that the reinsuring company had actual or constructive notice or knowledge of the mistake at the time the reinsurance agreement was made, or that such company has estopped itself from relying on a want of knowledge or notice.</p> <p>6. Reformation of instruments — when insurance policy cannot be reformed. Where a fire insurance company reinsured the risks of another company, as then covered by policies, according to the terms and conditions of the policies, a policy cannot be reformed for a mutual mistake of the original company and insured as to the buildings insured, where it was not averred or proved that the defendant had any notice or knowledge of the mistake, or that it was estopped from resisting the reformation so as to increase its liability on its contract of reinsurance.</p> <p>7. Reformation oit instruments — when insurance company not estopped to object to reformation of policy. On a bill to reform a fire insurance policy for a mutual mistake, as to the buildings insured, against a company that reinsured the risks of the original company, the fact that the original company had paid a loss on buildings not specifically covered by the policy will not estop the defendant from objecting to the reformation, where the averment as to such prior loss did not show that it was not covered by the policy and there was no averment or proof that either company had any knowledge or notice prior to the reinsurance contract that such prior loss was not covered by the policy.</p>

<p>Mandamus. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. G. A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Stephen A. Poster, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Bills and notes — sufficiency of evidence in action oil. In an action on a collateral promissory note tried by a court without a jury, evidence held to sustain a finding for plaintiff.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John C. Scovkl, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Brokers — sufficiency of evidence in action for commission. In an action by brokers for a commission alleged to have been earned upon a sale of tbe defendant’s property, evidence beld to sustain a finding for tbe plaintiffs.</p> <p>2. Appeal and error — review of conflicting evidence. A determination by a trial court as to tbe credibility of witnesses on conflicting evidence is conclusive on appeal.</p>

<p>Account, action on — sufficiency of evidence. In an action on account, evidence held not to sustain a judgment for the plaintiff.</p>

<p>1. Husband and wife — right of wife to pay husband’s debts. A wife may use her money deposited in a bank to pay her husband’s debts and for this purpose may permit him to sign checks for her.</p> <p>2. Garnishment — of wife’s money by husband’s creditor. Where the legal title to money on deposit in a hank is in a wife it cannot he garnisheed by a judgment creditor of her husband.</p>

<p>1. Innkeepers — relation to guests. Where a person engaged a room at a hotel of from five hundred to six hundred rooms, of •which all hut a few were occupied hy transients, for an indefinite period, obtained a rate without meals, was given a key in the regular way, which she left with the clerk whenever she left the hotel, the relation of innkeeper was assumed hy the hotel rather than that of a lodging house keeper.</p>

<p>1. Appeal and error — reservation of grounds. No question is presented for review on an appeal from the finding of a court without a jury where the appellant did not submit propositions of law to be held by the court in accordance with Practice Act, § 61 (former act, § 42).</p> <p>2. Corporations — right of stockholder to inspect hooks. Under statutes conferring on a stockholder an unlimited right to inspect the books and' papers of a corporation, it is no ground for a refusal to permit an inspection that the stockholder is influenced by improper motives or purposes in desiring to .procure the information. ¿</p> <p>3. Corporations — right of stockholder to inspect hooks. A stockholder is not precluded from having an inspection of corporate books and records by the fact that he had negotiated with an officer of thd corporation for the sale of his shares and that such officer had instituted proceedings in chancery for the specific performance of an alleged contract of sale.</p>

<p>1. Injunction — effect of „amending petition after granting writ. Au order sustaining a demurrer to a bill for an injunction and permitting an amendment after tbe granting of the writ and th6 making of an amendment pursuant thereto will not prejudge the injunction though the order be silent as to its effect thereon.</p> <p>2. Injunction — necessity of verifying amendments to Mil. Amendments to a bill for an injunction made after the granting of the writ need not be verified where the injunction was granted on a verified original bill, no further relief by way of injunction is prayed therein, and the injunction does not require for its support the additional matter brought out by the amendments.</p>

<p>Appeal from the County Court of Cook county; the Hon. W. A. Wall, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Negligence — sufficiency of evidence to support verdict. In an action for the death of a child struck by a wagon, in which there was a verdict for the plaintiff, evidence held to sustain a finding that the defendant’s driver was guilty of common-law negligence.</p> <p>2. Death — assessment of damages. In an action for the death of a child, instructions which related to the measure of damages, stating the doctrine that as to collateral kin no more than nominal damages might be allowed unless it appears from the evidence that they suffered pecuniary loss and that when suit is brought on behalf of collateral kin some evidence of that character is necessary, were properly refused as ignoring the rights of parents, who were among the next of kin.</p> <p>3. Death — damages for death of child. A jury in assessing damages for the death of a child is nc confined to the pecuniary value of the services of the deceased antil it should arrive at the age of eighteen, but may consider * j.& pecuniary benefit which the next of kin might derive from it at any age of life had there been no accident.</p> <p>4. Appeal and eeboe — harmless error. In an action for death of a child, an instruction that the jury might consider the pecuniary benefit which the next of kin might have derived at any age of the child’s life had she lived was not prejudicial though the persons for whose benefit the suit was brought included, in addition to parents, collateral relations as to whom no pecuniary loss was shown, where the damages assessed were less than those allowed in similar cases brought for the benefit of parents alone, as to whom no such proof is required.</p> <p>5. Tbial — instructions. In an action for the death of a child, the court properly refused an instruction requested by the defendants to the effect that the defendant’s driver was not required to be on guard against the unusual, extraordinary and not reasonably to be expected, where another instruction told the jury that there could be no recovery unless they found from the evidence that the driver was negligent, and none if the child ran under the horse as claimed by the defendants.</p>

<p>Landloed and tenant — forfeiture Toy breach of covenant to pay taxes. Equity will not relieve from a forfeiture incurred by a breach of a covenant to pay taxes where the property has been sold therefor as the covenant can no longer be performed.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. •Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Contract — evidence in action on. In an action on contract to recover money advanced, evidence held to show that the money was given the defendant as a gift or gratuity rather than under an arrangement to repay..</p>

<p>Error to the Municipal Court of Chicago; the Hon. John H. Gillen, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>1. Negligence — questions for jury. In an action for injuries to a boy struck by a crowbar, whether the defendant’s employe handled the bar in a negligent and unskilful manner, held, under the evidence, properly submitted to the jury.</p> <p>2. Negligence — instruction. In an action for injuries to a boy struck by a crowbar, an instruction that the burden of proof was not upon the defendant to show that it was not guilty of the specific negligence charged in the declaration but upon the plaintiff to prove the defendant guilty was not misleading.</p> <p>3. Negligence — burden of proof. In an action for injuries from negligence, the burden resting on the plaintiff to prove the specific negligence charged in the declaration does not shift.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Sales — damages on breach of contract. Where furniture was sold on a contract of sale and was held under a landlord’s lien and the seller assigned the contract of the purchaser and agreed to deliver the goods if possession could be obtained without litigation, the buyer, on a failure to deliver, could recover only a sum advanced for drayage and not amounts paid for the interest of a transferee of the original purchaser and for rent of a room rented in anticipation of receiving the furniture.</p>

<p>Contracts — consideration. One who had transferred his interest in premises to another had thereafter no title to improvements and an agreement by a later purchaser to pay him for such improvements was without consideration.</p>

Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911. Statement by the Court. This case is before us upon writ of error to the Circuit Court of Cook county. On April 5, 1906, plaintiff in error, complainant in the court below, filed a hill to set aside a certain consent decree upon the ground that it had been fraudulently procured by defendant. On June 11, 1907, tbe bill was dismissed on bearing for want of equity.

<p>Appeal from the Superior Court of Chicago; the Hon. George W. Patton, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term* 1910.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Baud, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding.- Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Judgment — court may enter, on part of claim admitted, and refer issue on talance to jury. Where the defendant admits part' of the indebtedness, under a contract, sued on by the plaintiff, and claims the right to recoup as to the other part, the court has power under Practice Act 1907, § 55 and Rule 17 of the Municipal Court to render judgment for the amount so admitted and submit the issue as to the balance to the jury.</p>

<p>1. Forcible detainee — what right cannot he determined in. An action of forcible detainer, does not lie to determine a boundary line or adjudicate a title.</p>

<p>1. Evidence — contractor may testify from estimate booh, though he has no independent recollection. ■ A contractor may read from his estimate hook in which he claims to have figured the whole job in controversy, though he has no independent recollection of the questions in issue apart from such book.</p> <p>2. Evidence — when estimate booh may be admitted in. Where a witness is permitted to testify from a book, aside from which he has no independent recollection, after such testimony, the book itself may be introduced in evidence.</p> <p>3. Appeals and ebboks — -when error in admitting evidence waived. Where opposing counsel expressly consents to the introduction of a book in evidence, error, if any is waived.</p> <p>4. Witnesses — exclusion of evidence. Where a witness is asked what plaintiffs said to him in a conversation relative to a plumbing contract with defendant in controversy, an objection thereto is properly sustained when it does not appear what was attempted to be proven, and no foundation for impeachment is laid.</p> <p>5. Evidence — reasonable price for completing performance. When a set-off is claimed for a refusal to complete performance under a plumbing contract, evidence as to tbe reasonable and customary price for tbe completion of sucb work is properly excluded as immaterial where tbe cost of completing sucb contract is not first shown.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Robert Wolcott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Benefit society — proof of death. Where a benefit society retains the proofs of death and pays part of a death claim, it waives all objections to the proofs not specifically pointed out.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Stipulations — when to he construed broadly. A stipulation of the parties to a ease, with reference to testimony designed to shorten the trial and to save expense, should he construed broadly.</p> <p>2. Carriers — stipulation as to condition of refrigerating car. A stipulation between a railroad company and a consignee that witnesses for the company would testify that their records, kept by them in the course of their duties, were true and correct and would show facts as to the movement of a refrigerating car, its temperature and ventilation, will be construed to mean that the witnesses shall testify in a legal way from records kept in the usual course of their duties, that they have no independent recollection of the facts and that using the records to refresh their recollection they will testify as therein stated, and is admissible in an action to recover for the loss of goods damaged by an improper temperature.</p> <p>3. Municipal Courts — when certified copy of rules is not part of record. On writ of error to the Municipal Court of Chicago, a motion for leave to file, in the Appellate Court, a certified copy of the rules of the Municipal Court, will be denied, as filing a certified copy of the rules would not make them a part of the record.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Robert N. Scott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Error to the Municipal Court of Chicago; the Hon. W. K. Dieterich, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Depositions — affidavit for taking. The provisions of revised statutes Chap. 51, § 25, requiring a satisfactory affidavit to be filed when depositions are sought of witnesses residing in a different county Should be substantially complied with unless the deviation is waived by the consent of the parties.</p> <p>2. Costs — when on failure to take depositions properly denied. Under revised statutes Chap. 51, § 29, providing for certain costs when depositions upon oral interrogatories are not taken, after notice, such costs, cannot be taxed in a case where the depositions were not taken, because a proper affidavit had. not been made, and where this omission was known and not waived by opposing counsel before he had incurred the expenses in question.</p>

<p>1. Appeals and errors — when plaintiff cannot complain that case was tried without a jury. The plaintiff cannot complain on appeal from a Municipal Court judgment in a ease of the fourth class that the case was heard without a jury, where no jury was demanded by him, at the commencement of the suit, as allowed in such cases by Municipal Court Act, § 30.</p> <p>2. Municipal Court — demand for jury trial. Under the Municipal Court Act, § 30, the defendant in a case of the fourth class may withdraw a demand for a jury trial at any time before trial.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

<p>1. Common carriers — wJiat is baggage. Photographs carried by a furniture salesman are baggage for which recovery may be had, where they cover the entire line, which is not covered by catalog or otherwise, and contain valuable memoranda, as to the woods and prices and where they were to be used at a furniture exposition.</p> <p>' 2. Common carriers — questions for jury. It is for the jury to determine what may properly be regarded as baggage within the rule.</p>

<p>1. Evidence — not error to strike out where subsequently admitted. Error is not committed in striking out testimony where full latitude is subsequently allowed in the examination as to the matter stricken.</p> <p>2. Assumpsit — evidence. A finding and judgment in assumpsit that defendant is indebted to plaintiff is not contrary to the evidence where there is strong evidence that the defendant in his personal capacity received money in trust for the plaintiff as indicated by a receipt and not as president of a company from which he has retired.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas C. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. W. W. Dietebich, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Replevin — election of remedies. Where the defendant refuses to accept, or pay for fobs delivered under a contract, but claims damages because they were not in accordance with the terms of such contract, the plaintiff, after having been defeated in a suit to recover the contract price, cannot bring replevin.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910. Statement by tlie Court.

<p>1. Recoupment — mechanics’ lien. On a contractor’s bill to enforce a mechanic’s lien for labor and materials, in constructing a foundation, a claim by the defendant for damages for non-compliance with the contract in constructing said foundation, necessitating its removal, is a claim for recoupment, and an affirmative decree in excess of the complainant’s allowable claim is erroneous.</p> <p>2. Mechanics’ lien — defenses. Under Sec. 13 of the Mechanics’ Lien Act’ as to defenses against the contractor by way of set-off, recoupment, or counterclaim, equity follows the law.</p> <p>3. Recoupment — claim must arise out of transaction. In recoupment, the demand sued for and that recouped must arise out of the same transaction.</p> <p>4. Recoupment — limitation of judgment. In recoupment an affirmative judgment in excess of the plaintiff’s claims cannot be had.</p> <p>5. Set-oee and counterclaim — can he pleaded, when. A set-off or counterclaim can be pleaded only when there is an indebtedness from the plaintiff to the defendant which might be made the subject of an independent suit.</p> <p>6. Set-oee^ — may exceed claim of plaintiff. A set-off claim may exceed the allowable claim of the' plaintiff.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Street railroads — evidence as to street crossing accident. A boy struck by a cable train testified that on crossing over a street at a cross walk, passing wagons obstructed his view, and that a train approached from- behind a wagon, going fast and without any bell or gong being rung, and struck him. Defendant’s evidence was that the accident happened some distance from the street crossing and that the boy got off a train, ran around the rear and suddenly into the course of another train not reasonably to be anticipated and with such suddenness as to render the occurrence unavoidable. The evidence on both sides was. corroborated. Held, on considering either the entire evidence, or the evidence for the plaintiff alone, a verdict for the plaintiff was not against the weight of the credible evidence.</p> <p>2. Appeals and errors — when improper argument of counsel will not reverse. Improper argument of counsel in a personal injury case in referring to evidence that has been ruled out, and to his efforts to find witnesses, a matter outside the record, and in appealing to the sympathy of the jury, will not reverse where the address of counsel for the defendant tended to provoke a reply, the trial judge promptly rebuked the attorney in the presence of the jury, instructing them to disregard the remarks, three trials have been had and it is not urged that a verdict for $10,000 is excessive.</p>

<p>1. Appeals and errors — necessity of exceptions to vacation of order after term has passed. Where an order awarding a writ of mandamus is made under mistake of fact that the respondent has not pleaded, the petitioner cannot complain of an order vacating the original order after the term has passed where no exceptions to the vacating order are presented to the Appellate Court.</p> <p>2. Appeals and errors — when vacation of order after term has passed is waived. When an order awarding a writ of mandamus is made under a mistake of fact that the respondent has not pleaded, and is vacated hy an order after the term has passed, the entry of the vacating order is waived by the petitioner withdrawing his replication, demurring to the pleas, and appearing and arguing the demurrer.</p> <p>3. Mandamus — when order awarding writ may be vacated after term has passed. Where a demurrer to pleas to a petition for a writ of mandamus is overruled and an order awarding the writ recites that the respondent has failed to plead, it would seem that the order may be vacated after the term has passed by reason of its entry under a mistake of fact.</p> <p>4. Mandamus — necessity of demanding license to practice medicine. Where pleas in mandamus to compel the State Board of Health to issue a license to practice medicine deny that a demand for a license was made, additional pleas reciting that the petitioner has been guilty of unprofessional conduct, and that he has not passed the examination required do not show, on demurrer, that a demand would have been futile.</p> <p>E. Mandamus — license to practice medicine cannot be obtained without passing examination. On a petition for a writ of man damns to compel the State Board of Health to issue a license to practice medicine, pleas that the Board has passed a rule, under the act by which it was appointed, requiring applicants to take an examination and to answer a certain percentage of the questions correctly, that the board has passed a resolution abrogating its discretionary power to grant a license without an examination, and that the petitioner has not passed an examination, are good on demurrer.</p> <p>6. Mandamus — when unprofessional conduct will preclude granting of licenses to practice medicine. In a petition for a mandamus to compel the State Board of Health'to issue a license to practice medicine, a plea that the petitioner has twice been convicted of practicing medicine without a license, reciting the facts in connection with the second conviction, is good on demurrer.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richakd S. Tuthii.l, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Interpleader — when answer may not be amended. On a bill of interpleader by a fraternal benefit society, against the executrix and sole legatee and heirs at law of a decedent, to determine rights to a death benefit, it is within the discretion of the court to deny a motion for leave to amend an answer by adding certain allegations charging the society with bad faith in filing its bill, the motion being supported by an affidavit that the defendant “believed” the allegations to be true and that they could be sustained by proof, and that knowledge thereof had been gained but “recently” and “within the last month.”</p> <p>2. Appeals and errors — when time to present certificate of evidence may not be extended. It was supposed that an order extended the time to present a certificate .of evidence in an equity case to sixty days. The appellant contended that it showed on its face that ninety days had been granted and the court granted a further extension, reserving the right to vacate such order after a determination of the question of how many days were granted. The court vacated the order of further extension by an order to the effect that it had inspected its memorandum of the original order and had heard evidence and that the original order had been changed by some unknown person, without the authority of the court, to ninety days. Held, a further extension at the expiration of the sixty days was properly denied.</p> <p>3. Appeals and errors — -when finding by court precludes raising question on appeal. Where, to determine the rights to a death benefit, a fraternal benefit society files a bill of interpleader against the member’s executrix and sole legatee and heirs at law, alleging that it is entitled to file such a bill, on contention by the executrix and sole legatees that the bill is improperly filed, because the society is interested in the result and bound by contract to such party, a finding by the court that the bill is properly filed is sufficient on appeal in the absence of any showing in the record to the contrary.</p> <p>4. Insurance — what law governs in determining right to death benefit. Where the death benefit from a foreign fraternal benefit society is made payable to the insured as permitted by the society’s constitution, which, however, subjects its contracts to the laws of the state in which the member resides at the time of his death, and the contract was made in Illinois, the questions whether the sole legatee or the heirs at law are entitled to the benefit is to be determined by the Statute of Illinois relative to the eligibility of beneficiaries, and not by the law under which the society was incorporated.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Duane J. Carnes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Pandering — when information sufficient. If an information state the offense of pandering substantially in the terms and language of Hurd’s Statutes pf 1909, ch. 38, sec. 57z, defining the offense, or so plainly that the nature of the offense may be easily understood and the defendant be apprised with reasonable certainty of the offense he is called upon to meet, it is sufficient.</p> <p>2. Pandering — use of masculine pronoun erroneously. An information, and the affidavit thereto under Hurd’s Statutes, 1909, ch. 38, sec. 57g. cl. 4, for pandering, erroneously using a masculine pronoun referring to the informant and charging that the informant was unlawfully induced to remain in a house of prostitution, is not insufficient, particularly where the record shows that the court, before directing the filing of the information, saw the informant.</p> <p>3. Pandering — objection to an information cannot be first made on review. Where a masculine pronoun is erroneously used in an affidavit to an information for pandering, apparently by the inadvertence of the cleric who administered *the oath, it is too late on writ of error to complain if the defect is not called to the attention of the trial court.</p> <p>4. Pandering — when information sufficiently complies with Municipal Court Act. An information for pandering signed by the informant, verified by an affidavit, that the informant is a resident of the city and has read the information by the informant subscribed and that the same is true, sufficiently complies in such respects with the Municipal Court Act for Chicago, sec. 27.</p>

<p>Error to Municipal Court of Chicago, the Hon. Charles N. Good-now, Judge, presiding. Heard in the Branch Appellate Court at the- October term, 1911.</p>

<p>1. Pandering — sentence. Notwithstanding the phrase “fine or imprisonment, otherwise than in the penitentiary,” in the Bill of Rights, section 8, and the Municipal Court Act, sections 2 and 27, on an information in the Municipal Court of Chicago for pandering, under Hurd’s Statute of 1909, ch. 38, sec. 57g, providing for a punishment, by a fine and imprisonment, the court has jurisdiction to impose a sentence of both a fine and imprisonment in the House of Correction.</p> <p>2. Pandering — when error in procedure is waived. The record in a prosecution for pandering showing an information and sentence against the defendant alone, it was contended there was error in that the bill of exceptions disclosed that separate and distinct cases, against two persons, were tried together. Both persons were represented by the same attorney, who made various motions at the trial, and at the conclusion of the People’s case one was discharged for lack of evidence. Held, the alleged error in procedure was waived by failure to object thereto in the trial court.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Fbederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, ■ 1910.</p>

<p>Landlord and tenant — cancellation of lease. Where the lessee of a saloon cancels the lease under a clause therein permitting cancellation “if a saloon license cannot be obtained for said premises,” a directed verdict for rent accruing after such cancellation is proper where it does not appear that a reasonable effort was made to obtain such a license.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court, at the October term, 1910.</p>

<p>1. Assumpsit — money had and received. An action for money had and received is an equitable action, and may be maintained whenever the defendant has obtained money belonging to the plaintiff which, in equity and-good conscience, he has no right to retain.</p> <p>2. Banks — death of depositor revokes check. The payee of an unaccepted check has no right subsequent to the death of the depositor to collect the amount of his check from the bank, but must present his claim- to the Probate Court; and if he does collect his check after the death of the depositor he is liable to the administrator.</p> <p>3. Executors and administrators — administrator may maintain action of money had and received. Where a bank depositor gives his physician a check, telling him to keep the balance remaining after the payment of funeral expenses to apply on his account for professional services, the physician collecting his check from the bank after the death of the maker, and paying the funeral expenses, is liable to the administrator, in an action of money had and received, for the balance.</p>

<p>Error to the Municipal Court of Chicago; the Hon. IIenby C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Garnishment — what plaintiff must prove. In garnishment cases the plaintiff must prove the judgment and issuance of execution and return “no property found.”</p> <p>2. Garnishment — plaintiff’s affidavit not evidence of judgment. The plaintiff’s affidavit in garnishment cases is not evidence of the obtaining judgment, issuance of execution, and return “no property found.”</p> <p>3. Garnishment — exemptions. Whether one is a “wage earner” within the meaning of the Garnishment Act, sec. 14, is a mixed question of law and fact.</p> <p>4. Garnishment — wage earner. Under the Garnishment Act, see. 14, providing, for exemption from garnishment of wages of a wage earner who is the head of a family, one is a wage earner whose services require physical or manual labor whether skilled or unskilled.</p> <p>5. Garnishment — exemption. In garnishment, where an exemption of $15.00 per week is claimed by the nominal plaintiff under the Garnishment Act, sec. 14, evidence as to the nature of the services or work performed is necessary to enable the court to determine whether the money due is wages of a wage earner within the act.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Municipal Court of Chicago; the Hon. Stephen A. Postee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Chaeles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Contracts — where implied between owner and volunteer broker for compensation. Though a mere volunteer cannot recover for services rendered without a contract of employment, yet if the owner of property knows that an alleged volunteer is a broker and is trying to effect a sale and expects compensation, and it appears that the owner encouraged the broker and led him to believe that he would be compensated, a contract will be implied, if a sale is consummated by the broker.</p> <p>2. Trial — when motion to direct verdict denied. A motion to direct a verdict should be denied if there is any evidence upon which, considered in its most favorable light to the opposite party, the jury could reasonably find a verdict for such party.</p> <p>3. Trial — when error to direct a verdict. It is error to direct a verdict for the defendant in an action for commissions for the sale of real estate, where plaintiff was a real estate broker and the correspondence and conversations with the defendants seem to indicate an understanding that he was representing them and expected compensation, and that they did not dissent.</p> <p>4. Agenct — when of real estate agent ratified. Though a real estate broker begins work for the vendor as a mere volunteer his agency is acquiesced in and ratified, if the vendor understands that he expects a commission if a sale is effected and no inclination to disagree is indicated, but he is knowingly permitted to act upon that understanding until the benefit of his work is received.</p>

<p>1. Instruction's — cautionary. In an action by a woman for injuries received because of the alleged sudden starting of a street car, an instruction that it is the duty of the jury to consider the defendant corporation as though it were a living person, and to consider the evidence with the same fairness as if the contest were between two women, does not relate to the credibility of witnesses or to the weight of the evidence, but is a cautionary instruction which is largely in the court’s discretion.</p> <p>2. Instructions — duty of jury. The jury may be instructed that it is their duty to determine the facts from the evidence and to apply to such facts the law as stated in the instructions.</p> <p>3. Instructions — duty of jury. It would seem that the jury may be told, where compensatory damages only are sought, that it is their duty to assess damages if they find for the plaintiff.</p> <p>4. Words and phrases — appears. The word “appears” as used in legal documents and among lawyers means manifest or proved, but as ordinarily used means seems, or probably true.</p> <p>5. Instructions — harmless error. An obstruction that if it “appears” that the accident was due to certain want of care by the plaintiff no recovery can he had, though not approved will not reverse where other instructions state that recovery could be had if from the evidence the jury find that the accident occurred as alleged in the declaration, and it seems that the jury were not misled.</p> <p>6. Instructions — contributory negligence. An instruction as to contributory negligence is proper in an action against a street railway company for injuries where there is evidence that, in running to get on a car in motion, the plaintiff caught her foot on a switch handle.</p> <p>7. Contributory negeigence — when question for the jury. Where, in an action against a street railway company, it appears that the plaintiff in running to board a car in motion, caught her foot on a switch handle, the question of contributory negligence is for the jury even upon the theory that contributory negligence assumes negligence by the defendant.</p> <p>8. Instructions — when not objectionable as singling out testimony of one witness. An instruction, stating that no recovery can be had if in passing from the walk to a street car the plaintiff tripped over a switch handle and was not injured because of the sudden starting of a car, is not objectionable as singling out the testimony of one witness where such matter was substantially the whole theory of the defense.</p> <p>9. Instructions — when error cannot he complained of. Error in instructions cannot be complained of where the party complaining submitted instructions containing the same error.</p> <p>10. Instructions — when repetition will not reverse. Repetition in instructions will not ordinarily reverse if correct statements of law are given therein.</p> <p>11. Instructions' — when repetition should not reverse in absence of other error. In an action against a street railway company for injuries, repetition of accurate “stock” instructions as to sympathy, the disabilities of the plaintiff, and that the defendant is not an insurer, should not reverse where there is no other error.</p>

<p>1. Evidence — parol to explain contract. Where in an action for damages for a breach of warranty contained in a contract for the sale of an automobile, it appears that the words “as per cat.” after the word “guarantee” on the margin of the written contract were inserted after the sale and that the word “guarantee” was the only statement of warranty thereon at the time of the sale the plaintiff may show the nature of the guarantee by oral evidence.</p> <p>2. Practice — what evidence considered on motion to direct a verdict. On motion to direct a verdict for the defendant only the proof most favorable to the plaintiff can be considered.</p> <p>3. Practice — when testimony rejected on motion to direct a verdict. On motion to direct a verdict the court cannot reject improbable testimony unless it is contrary to some natural law.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Landlord and tenant — eviction. A verdict finding that a tenant has been evicted from a cigar booth is not against the manifest weight of the evidence, where the evidence, although contradictory, tends to show that a detective was stationed before the booth who informed everyone that no sales were being made at that booth, and that subsequently persons were procured who removed the fixtures and stock of goods from the booth and there was further evidence that the tenant had paid his rent and complied with the lease until such eviction.</p> <p>2. Evidence — weight. The use of the phrase “Although hut slightly” in án instruction on the preponderance of evidence is not objectionable as misleading.</p> <p>3. Frauds — statute of — leases. A lease which is void because of the statute of frauds becomes a month to month tenancy where the tenant enters into possession and pays the monthly rent agreed upon.</p> <p>4. Landlord and tenant — notice to quit. A month to month tenant is entitled to notice to quit.</p> <p>5. Damages — eviction of tenant. Where a tenant with his stock and fixtures valued at $480 is evicted from a cigar booth with a most wanton disregard of his rights, a verdict for $1,000 is not excessive.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Building begubations — Chicago ordinance. The Act of 1907, providing for the protection and safety of persons constructing buildings, does not repeal section 204 of the Building Ordinance of the City of Chicago, imposing duties on owners and contractors of buildings in furtherance of the protection of employees.</p> <p>2. Abatement — statutory proceedings. Actions for personal injuries based upon an ordinance or act and pending at the date of its repeal are not ended thereby.</p> <p>3. Pleading — aider by verdict. A declaration in an action for death which does not directly set up facts showing a duty owed to plaintiff’s intestate, hut which alleges that defendant was engaged in the erection of a building and failed to comply with a duty imposed by an ordinance relative to laying floors, and that the plaintiff’s intestate while in the necessary performance of his duty and while exercising due care and diligence for his own safety was thrown from the fifth floor of such building, where the floors were not in compliance with the ordinance, and was killed, is cured after verdict.</p> <p>4. Pleading — aider by verdict. Where a declaration omits a matter necessary to be proved but contains terms sufficiently general which by fair and reasonble intendment include such matter, and without proof of which the jury could not have given the verdict, such defect is cured after verdict.</p> <p>5. Death — habits of deceased. In a suit to recover for the death of a person, caused by a fall from a building under construction, it is not error to receive evidence that the deceased was a careful man where no one saw him fall or knew the cause thereof.</p> <p>6. Appeals and errors — saving questions. The objection that an ordinance was improperly admitted in evidence, because the certificate attached thereto did not show that it was published in a newspaper as required by statute, cannot be raised for the first time in the Appellate Court.</p> <p>7. Master and servant — protecting floors. Section 204 of the Building Ordinance of the City of Chicago imposes the duty, to lay protecting floors, upon both the owner and the contractor.</p> <p>8. Master and servant — evidence. A verdict based on a finding that plaintiff’s intestate was not guilty of contributory negligence and that defendant’s failure to put down a floor as required by an ordinance was the proximate cause of the accident, is sustained by the evidence where it appears that deceased fell while passing along a poorly constructed runway, that it might have been necessary to pass along such runway, that there was no eyewitness to the accident, that deceased was a careful man, and that the accident would not. have happened had the ordinance been complied with.</p> <p>9. Negligence — when proximate cause a question of law. The question of proximate cause becomes a question of law only where the facts are clear and such that there could be no difference, in the judgment of reasonable men, as to the’ inference to be drawn therefrom.</p> <p>10. Negligence — proximate cause. To constitute proximate cause the injury must have been such as an ordinarily prudent person ought to have foreseen and must be the natural and probable consequence of the negligence.</p> <p>11. Master and servant — assumed rislc. Where an ordinance imposing a specific duty for the protection of employees is violated, an employe does not assume the risk of injury resulting from such breach of duty by continuing at work with knowledge thereof.</p>

<p>1. Patents — royalties -prior to issuance. An inventor constructed, in consideration of royalties to he paid for the use of an invention, to give a manufacturer the exclusive < right to use and sell the invention during the life of the patent and to obtain letters patent as soon as possible. The first annual settlement was to be made on a certain day whether patents had been issued or not, and on such day the manufacturer agreed to give an accounting, though patents had not been issued. Held, that both from a construction of the contract based upon the acts of the parties and from the contract itself, the inventor was entitled to royalties on sales prior to the issuance of the patents.</p> <p>2. Sales — when purchaser may remedy defects and recover under warranty. Where a manufacturer guaranties that the material and workmanship of a 'pump is the very best and that he will replace defective parts, if a purchaser from the manufacturer gives notice of defects, and no attention is paid thereto, he may remedy the defects and recover the costs of the materials and labor.</p>

<p>1. (Damages — penalty or liquidated, damage. In determining whether a sum agreed to be paid as damages for the violation of a contract shall be considered as liquidated damages or as a penalty, the primary question is to determine the meaning and the intent of the parties from the contract itself, the subject-matter thereof, the terms used to express the intent, and the circumstances under which the contract was made.</p> <p>2. Damages' — contract for liquidated damages. A declaration averred that defendant agreed to sell and deliver a certain quantity of first-grade eggs to be delivered weekly for two months and also all the second-grade eggs he would have for shipment during such months and that he had had on hand during such months a certain quantity of second-grade' eggs. The contract was set out in full and required each party to deposit $500 with a bank to be paid over to either party on a default by the other. The pleas averred that the deposit was intended as liquidated damages, that it was agreed that damages were impossible of precise ascertainment by •reasons of fluctuations in price and delivery, and that the uncertainty was a reason for making the deposits. Held, on demurrer to the pleas, that the amount deposited was not unconscionable and the contract should be construed as providing for liquidated damages.</p>

<p>1. Trusts — when devise to trustees creates spendthrift trust. ' A devisa, by a father, of money to trustees to invest, directing them to pay the income in semi-annual instalments, in cash, into the hands of his son, in person, and not upon any order or assignment or transfer by the son and that in no event shall the son have the power to anticipate his income either by voluntary orders or transfers, or by application of law by virtue of any legal proceedings against the son, creates a spendthrift trust putting the fund and the income beyond the reach of the creditors until it is paid to the son in person, and an assignee of the son’s interest will take nothing under an assignment anticipating a .payment.</p> <p>2. Perpetuities — when provision as to time of distribution of estate does not violate rule. Where a testator devises his property to trustees directing them to pay the income to the beneficiaries, a provision that there shall be a final distribution of the whole estate ten years after the probate of the will does not violate the rule against perpetuities.</p> <p>3. Wills — when limitation over of personalty will not avoid devise. Where a father devises money to trustees to invest in securities directing them to pay the income to his son as long as he lives, and to pay the fund at his death to his children, and a spendthrift trust is created, it is the intention that the trustees' shall control the fund, and an alleged rule that a limitation over of chattels after the death of the first taker is void, has no application.</p>

<p>1. Insurance — when subordinate lodge may waive hazardous occupation by-law. A subordinate lodge of a fraternal insurance society is the agent of the supreme lodge and may waive a bylaw terminating membership if the insured changes his occupation to that of railroad switchman by accepting dues and assessments with full knowledge of all the facts constituting a violation of the by-law.</p> <p>2. Insurance — when notice to officers is notice to fraternal society. Where it is claimed that a by-law of a fraternal insurance society prohibiting extra hazardous occupations was waived, notice to a recording secretary, who was required to keep a descriptive roll of the members’ occupations, that a member had changed his occupation to that of railroad brakeman, is notice to the society.</p> <p>3. Insurance — when waiver of hazardous occupation by-law is for the jury. A member of a subordinate lodge of a fraternal insurance society requested a withdrawal card from the recording secretary of the supreme lodge as he had changed to an extra hazardous occupation prohibited by the by-laws of the supreme lodge. The'evidence was conflicting whether the recording secretary who' was required to keep a descriptive roll of the members’ occupations told him to let the matter rest until he saw him again. The financial secretary was the only legal receiver of assessments, but it was the custom of the recording secretary to collect from delinquents. Subsequent dues were paid to the financial secretary and receipted for by him. Held, whether the forfeiture under the by-law was waived by the supreme lodge was a question for the jury.</p> <p>4. Insurance — when instruction on effect of notice to officer is properly modified. Where a member of a fraternal insurance society changed to an extra hazardous occupation prohibited by the by-laws and his father notified the recording secretary, an instruction on the theory that the father and the secretary acted in collusion stating that if the secretary said to keep still and say nothing about the change the society was not bound by the notice is properly modified by requiring the jury to find that there was an understanding that the change in occupation was not to be reported.</p> <p>5. Insurance — when, instructions as to payment of assessment may be refused. In an' action on a death benefit certificate, an instruction that the financial secretary was the only legal receiver of. payments of dues and assessments may be refused when tbe evidence is undisputed that payments made to tbe recording secretary were, in fact, delivered to tbe financial secretary.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p> <p>Certiorari denied hy Supreme Court (making opinion final).</p>

<p>Appeal from tbe Circuit Court of Cook county; tbe Hon. Merritt W. Pinckney, Judge, presiding. Heard in tbe Branch Appellate Court at tbe October term, 1910.</p>