Volume 173 — Illinois Appellate Court Reports

<p>1. Negotiable instruments—presentation. If notes payable at a certain bank are in such, bank at maturity there is a sufficient presentment.</p> <p>2. Bills and notes—question for jury. In an action against endorsers of notes it is not error to refuse a motion to direct a verdict for the defendants on the ground that there was no presentment for payment and no notice of dishonor or waiver thereof where the evidence as to waiver is conflicting.</p> <p>3. Evidence—foundation for documentary. Where the records of a note teller - at the bank at which notes were payable are offered in evidence, a telephone conversation between the plaintiff and one who stated that she was an aunt of the note teller is admissible to prove his nonresidence.</p> <p>4. Evidence—where admission of exhibits harmless. Where the facts shown by exhibits are already established by other evidence, admission of the exhibits if improper is harmless.</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>Tout—maliciously inducing breach of contract. Where a claim for personal injury has been assigned to an attorney under a contract for a division of the amount recovered, with a stipulation that any money received by the injured person in settlement of such claim, should be held as agent for the attorney, an action for maliciously persuading such person to break the contract cannot be maintained against a personal injury adjuster who caused a settlement to be made where it does not appear that he induped, or persuaded, or attempted to persuade such person not to hold the money as agent for the attorney.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

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

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

<p>Damages—not excessive. A verdict for six hundred dollars reduced by remittitur to four hundred dollars is not excessive, where a plaintiff, bitten upon both arms by a dog, suffered great pain and nervous shock and will retain permanent scars.</p>

<p>Innkeepers—when guest must give notice property is of special value. “75 to 100 jewelry designs” in a satchel is property of “special and unusual value” within the Innkeepers Act of 1909. Sec. 3, limiting hotel keepers’ liability to §50 for loss of baggage checked by a guest, unless the guest give notice that the property is of “special and unusual value.”</p>

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

<p>1. Master and servant—abandonment of contract. A travelling salesman is not justified in abandoning his contract of employment upon the ground that another salesman made sales in his territory, where the invasion of his territory was without authority the employer offered to pay him the commission, and the salesman continued to work for some time without complaint and did not set up the incident until at the trial, it further appearing that he had given as his only reason for leaving a desire to make more money.</p> <p>2. Master and servant—compensation. Where a contract, employing a travelling salesman for a year, provides that a part of his commission shall be payable monthly and the balance at the expiration of the year, the salesman on wrongfully abandoning his employment does not forfeit all his commissions and is entitled to the amount that was payable monthly.</p>

<p>Appeals and errors—abstract. Where, a plaintiff in error files an abstract of record, printed in smaller type than that required by the rule of the Appellate Court, the judgment will be affirmed.</p>

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

<p>1. Notaries—protest fees. Where a notary employed as a clerk by a bank agrees as part of his contract of employment that fees in protesting the bank’s commercial paper shall be retained by the bank, accepts his salary for five years without claiming fees that he knew had been collected and signs the semi-monthly pay-roll sheet which contains a statement that all claims are released, this course of conduct and the signing of the release, without reference to and apart from the original contract, operate as an assignment of any fees then collected which is effectual, as a bar to a claim for fees.</p> <p>2. Notaries—fees. Where a notary public, an employe of a bank, is given the alternative of accepting another position at a reduced salary, or of taking charge of the notarial work at his former salary waiving the right to protest fees and agrees that the protest fees shall be retained by the bank, even if the contract to assign the fees is to be regarded as void as against public policy, the employe was a free agent dealing on equal terms with the bank, both parties are in pari delicto and the employe cannot recover the notarial fees collected and retained by the bank.</p>

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

<p>1. Appeals and errors—moot question. On a tax-payer’s bill praying that a contract between a city and a reduction company be declared void and surrendered and cancelled, and that the company be required to pay over all the moneys, that have been paid to them, where it appears that by mutual consent, the contract was surrendered and cancelled and another contract was entered into, the question before the court is a moot question, in so far as it involves the prayer of the bill, asking that the contract be surrendered and cancelled.</p> <p>2. Cities and villages—when taxpayer has complete remedy at law. Where a taxpayer files a bill to declare void a contract between a city and a reduction company and to require the company to pay over all moneys that have been paid to them, if the decreeing of a money judgment is the only question before the court, R. S. Ch. 24, Sec. 172, provides a complete remedy at law which is exclusive and excludes the jurisdiction of a court of equity.</p>

<p>Corporations—assumption of indebtedness incurred prior to incorporation. Where it appears from the evidence that the two promoters of a corporation, who became president and secretary subsequent to incorporation, promised to pay a prior indebtedness due an attorney for organizing such corporation as soon as the company became able, that they frequently stated that they would pay or see to it that payment was made, that part of the debt had been paid by the secretary individually, and that just prior to complete organization a vote was made authorizing the drawing of an order to pay all indebtedness which was signed and approved by the board of directors subsequent to complete organization, such facts are sufficient to warrant a finding, that the indebtedness was adopted by the corporation.</p>

<p>Error to the Superior Court of Cook county; the Hon. Farlin I. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Insurance—specific performance of premium contract. Where an insurance company is indebted to an attorney for an unliquidated amount, an agreement that in satisfaction of such claim the company will deduct each year the increased premium rate due on a policy held by such attorney, on condition that a receipted bill for legal services be given for such deductions, may be specifically enforced.</p> <p>2. Insurance—discrimination as to , premiums. An agreement by an insurance company to accept an unliquidated claim in payment of increased premium rate due on a policy, on condition that a receipted bill be given each time for such deduction, is not discriminating within the meaning of the Illinois or New York law.</p> <p>3. Insurance—discrimination as to premiums. Hurd’s R. S. of 1908, Ch. 73, Sec. 27, providing that contracts reducing premiums due on insurance policies must be embodied in such policies, has no application to policies issued prior to its enactment.</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>Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Negligence—when question for jury. In an action for personal injuries defendant’s negligence and plaintiff’s contributory negligence are questions for the jury where plaintiff was struck while crossing a street by defendant’s horses and wagon driven by its teamster, the sidewalks were crowded, plaintiff testified that she looked before starting to cross, and that others were crossing at the same time, and there is testimony that the team was going at a fast trot, and that the street was crowded with people, but not with vehicles.,</p> <p>2. Instructions—directing verdict. A verdict should be directed for defendant on the ground of contributory negligence only where reasonable minds would agree that the injury wa's caused by contributory negligence and there is no evidence on which the jury might reasonably find otherwise.</p> <p>3. Trial—special interrogatories. In an action for personal injuries a special interrogatory, “Could"the plaintiff have avoided the accident by the exercise of ordinary care for her own safety immediately before and at the time of the accident,” is improper since it only instructs the jury to suggest some theory by which the accident might have happened.</p> <p>4. Verdicts—special. A special interrogatory is not properly answered where ten jurors answered “yes” and two answered “no”.</p> <p>5. Verdicts—special. Where a special interrogatory asking for “yes” or “no” is answered “yes”' by ten jurors and “no” by two, it is the duty of the party submitting it to move the court to send the jury back with instructions to answer the question.</p> <p>6. Evidence—impeachment of witnesses. In an action for personal injuries, it is correct to exclude the testimony of one witness as to statements made by another witness, and to rule that the time and place of the averments must be stated.</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>1. Carriers—res ipsa loquitur. Where the truck of the tender to an engine leaves the rails and the wheels run on the cross ties causing a passenger coach to tilt over and a passenger is injured, the rule of res ipsa loquitur applies.</p> <p>2. Carriers—that cause of accident is unknown will not rebut presumption of negligence. Where the truck of the tender to an engine leaves its rails and the wheels run on the cross ties causing a passenger coach to tilt over, and a passenger is injured, that' the cause of the derailment of the tender wheels is unknown will not rebut the presumption of negligence arising from the application of the rule res ipsa loquitur.</p> <p>3. Carriers—when employes are negligent in operating train after a derailment. The wheels of a tender to an engine going thirty miles an hour left the rails and the engineer ran the train for one thousand feet before lessening the speed, the derailed wheels cut through rotten ties for a distance of ten or twelve feet and the jar oik striking the sound ties caused a passenger coach to tilt over. There was evidence that the train crew were negligent in not noticing the derailment and in not taking steps to stop the train. Held, it was for the jury to determine whether the conduct of the engineer and train crew after the wheels were derailed was negligence which contributed to the accident.</p> <p>4. Damages—when $15,000 not excessive. Certain wheels of a' train became derailed and a passenger was thrown alternately forward and back in her seat, her breast striking the edge of a chair in front of her. At the time of the accident she had black hair, weighed two hundred and twelve pounds and was of great physical ability. At the trial, three years later, her hair was gray, she weighed one hundred and two pounds and was unable to do any housework. She suffered an injury to her spine, had a cancerous lump on her breast, and had had constant medical attention. Held, a verdict for $15,000 would be sustained.</p> <p>5. Damages—when proof is sufficient that injury was caused by accident. Certain wheels of a train became derailed, and a passenger was thrown alternately forward, and back in her chair, her breast striking the edge of the chair in front of her. Since the accident her hair turned gray, she lost one hundred and ten pounds in weight, lost the unusual physical strength she possessed, and has suffered with a cancerous lump on a breast, and with pains in her spine. Expert and non-expert witnesses testified on both sides. Held, a finding of the jury that the injuries were caused by the accident would be sustained.</p>

<p>1. Pleading—affidavit of merits. It is error to strike an affidavit of merits from the files in an action on a note where the declaration alleges that defendant, the maker of the note, endorsed it and delivered it to plaintiff, and the affidavit states that defendant is in no way indebted to plaintiff and has had no business dealings with him, and did not deliver nor authorize the delivery of the note sued on as alleged, and that no demand was made, and that she never received consideration therefor, hut the note was stolen' from her husband.</p> <p>2. Negotiable instruments—when plaintiff must show that he is holder for value. If it is alleged that a note sued on was stolen from the husband of the maker and endorser, the plaintiff must show that he is a holder for value.</p>

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

<p>1. Master and servant—questions for jury. Where plaintiff was injured while inside a car unloading it, on its being struck by a switch train, the question whether defendant’s foreman was present and had notice that plaintiff was in the car is for the jury where the evidence is conflicting as to whether such foreman was near the car watching plaintiff and gave a signal for the switching train to back against the' car. ■</p> <p>2. Appeals and errors-—presumptions. It will be presumed that an argument was given consideration by the jury.</p>

<p>1. Appeal and error—presumption on failure to abstract document. On a failure to give any information in the abstract of record as to the nature and contents of a document introduced in criminal conversation to prove a valid marriage, the court will assume that it was sufficient for the purpose for which it was offered, and that the marriage was properly proven.</p> <p>2. Husband and wife—criminal conversation. Proof of the reputation of a wife for chastity, and specific acts of unchastity prior to her marriage, while no defense in criminal conversation, is admissible in mitigation of damages.</p>

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

<p>1. Malicious prosecution—evidence. The admission in evidence of an order of nolle prosequi entered in a criminal court in the case which is the basis for an action of malicious prosecution, without any limitation of its purpose, is error.</p> <p>2. Malicious prosecution—evidence. Where an assistant state’s attorney testifies in malicious prosecution for defendant company as to conversations with certain officers of the company in his office, and it appears on cross examination that he had made a memorandum for his personal use of points among which one was that the defendant company was the prosecuting witness, such memorandum is not admissible as a public record nor as tending to impeach his direct testimony, since it contained merely his conclusions.</p>

<p>1. Pandering—information. Objections to an information charging pandering that it does not allege that the person is a “female person” and that she was induced to .remain “as such inmate” go merely to the form.</p> <p>2. Pandering—appeals and error. On appeal from a judgment on an information charging pandering it is too late to complain of informalities in the information.</p> <p>3. Pandering—sufficiency of information. An information charging pandering is not insufficient because it begins by saying that Lena Burkett comes “in his own proper person,” where it elsewhere appears that such person is a female and furthermore the name “Lena” imports a person of the female sex.</p> <p>4. Jury—waiver of jury trial. A waiver of jury trial signed by the defendant by making his mark is sufficient.</p>

<p>Husband and wipe—abandonment. A finding that defendant is guilty of wife abandonment and failure to provide as charged in an information in the language of the statute (Hurd’s Revised Stats. Chap. 68, § 24) should be reversed where it appears from the evidence and from statements of the prosecuting witness that the husband was always willing to return, but that she would not permit it, and that he gave her $5 a week for food and clothing and gave her $50 before leaving for a week, and that she during that time collected the receipts from his saloon amounting to $75 or $100, and that on his return she threw his clothes to him and would not let him in.</p>

<p>1. Contributory negligence—when for the jury. Questions of assumed risk and contributory negligence are usually for the jury, especially where the evidence tends to show that the party injured had no knowledge of the danger and could not have ascertained it by the exercise of ordinary care.</p> <p>2. Instructions—when peremptory properly refused. A peremptory instruction is properly refused where there is evidence tending to prove all the material allegations of a declaration alleging a failure of defendant company to perform its duty to provide plaintiff a safe place in which to work, in that insufficient light was furnished to make objects on the floor discernible, and in that crates were allowed to remain on the floor over which the plaintiff stumbled while exercising due care and was injured.</p> <p>3. Master and servant—instructions. An instruction, considered in connection with the facts, sufficiently covers the acts of defendant connected with the injury where it provides that a finding for plaintiff is warranted if from the evidence the jury believe that plaintiff, as defendant company’s servant, while exercising ordinary care was injured as charged in the declaration because of failure by defendant to use reasonable care to furnish a reasonably safe place in which to work, and that plaintiff had not assumed the risk of injury in the manner shown.</p> <p>4. Instructions—how considered. Instructions must be considered in connection with the facts of the case to which they are applied.</p> <p>5. Instructions—when do not authorize recovery,on evidence of negligence not charged in the declaration. An instruction authorizing a finding for plaintiff, if from the evidence the jury believe that plaintiff was injured as charged in the declaration because defendant failed to use reasonable care to furnish, a reasonably safe place in which to work, is not objectionable as.permitting recovery on evidence of negligence not charged in the declaration where the declaration charges failure to provide a reasonably safe place in which to work, and also failure to furnish sufficient light in a room, and that crates were thrown on the floor therein rendering it dangerous to walk over.</p> <p>6. Damages—instructions. An instruction as to the elements to be considered in estimating damages for a personal injury is not objectionable because it ignores the question as to whether plaintiff aggravated his injuries by inattention. .</p> <p>7. Damages—instructions. Whether plaintiff aggravated his personal injuries by carelessness is a matter of defense to be provided for by instructions for defendant.</p> <p>8. Instructions—when refusal not error. It is not error to refuse instructions fully covered by those given.</p> <p>9. Damages—when not •excessive. A judgment for $3,000 is not excessive where the plaintiff who was 48 years old was receiving from $16.50 to $19.00 per week, was in bed for six months with blood poisoning because of the injury to his leg, his whole side is affected, and his injuries seem to be permanent.</p>

<p>Mandamus. Appeal from the Circuit Court of Fayette county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the October term, 1911.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the County Court of Madison county; the Hon. J. E. Hillskotter, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the Circuit Court of Wabash county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the Circuit Court of Williamson county; the Hon. William W. Clemens, Judge, presiding. Heard'in this court at the March term, 1912.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Lawrence county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the County Court of Marion county; the Hon. Charles E. Jennings, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding. Heard in this .court at the March term, 1912.</p>

<p>1. Limitations—against municipal corporation. A plea of the statute of limitations cannot be successful against municipal corporations respecting public rights or property held for public use, or held in trust.</p> <p>2. Limitations—against county. The statute of limitations is not available as a defense on action by a county against one who received the money sought while acting as attorney and agent »f the county, no private rights or contractual relations existing, and where the money when received must be expended for public purposes.</p>

<p>Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the City Court of Granite City; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>°Error to the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the City Court of Granite City; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the Circuit Court of Fayette county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>1. Mines and miners—duty of mine manager in permitting work under unsafe conditions. The provision of the Mining Act, section 18, that the operator of a mine may permit a man to enter the mine, to work under the direction of the mine manager, even where unsafe conditions exist, means that the manager under such conditions shall he vigilant to care for the safety of men under his charge.</p> <p>2. Mines and miners—when miner is not working in dangerous place under direction of mine manager. Where a miner employed to clear away a fall from the roof of a mine complies with instructions of the mine manager to make the roof temporarily safe, by setting props around the edges of the fall, and another fall occurs three days later causing injury, the manager not having given any directions or visited the place during the interim, the miner is not working under the directions of the mine manager as required by the Mining Act; section 18.</p> <p>3. Mines and miners—miner removing debris from ground is not making dangerous roof safe. Where a fall from the roof of a mine has occurred, and the miner has complied with instructions to make the roof temporarily safe by setting props around the edges of the fall, he is not, in removing the coal and material constituting the fall, making a dangerous place safe, and is entitled to the protection of the Mining Act when another fall occurs.</p> <p>4. Mines and miners—when wilful violation of statute as proximate cause of injury is for the jury. Where a miner employed to clear away a fall obeys instructions from the mine manager to make the roof temporarily safe by props, and another fall causing injury occurs three days later without the manager having again visited the place or given directions, whether such wilful violation of the Mining Act, section 18, was the proximate cause of ithe injury is for the jury.</p> <p>5. Mines and miners—when instruction is misleading. An instruction that if a miner in clearing away debris where a fall had occurred was restoring the place to a safe working condition under the direction of the mine manager, and was an experienced miner knowing the danger of another fall, he could not recover, is misleading in involving the inapplicable doctrine of contributory negligence.</p> <p>6. Mines and miners—when instruction improper in assuming facts. An instruction that if a miner was employed to set timbers under a roof where a fall had occurred, and to clean up the fall for the purpose of making the place safe, and was directed by the mine manager to set the timbers and clean up the fall, and was injured by another fall in performing work under the direction of the mine manager, he could not recover, is improper, where the uncontradicted evidence shows he was employed to remove the debris from the fall, and that setting of the props was only for temporary protection and not for the purpose of making the roof permanently safe.</p> <p>7. Mines and miners—instructions. Where a fall from the roof of a mine has occurred, and a miner by direction has set props under the dangerous place and is employed to remove the debris, and the mine manager does not visit the place before another fall occurs three days later, an instruction that if the manager went with the miner and directed him to set the timbers and clean up the fall, to make the place safe, and the miner was injured while performing the work he was directed to do, he cannot recover, does not state the law correctly.</p> <p>8. Appeals and errors—harmless error. The improper admission of testimony of a physician concerning future results of injury not based upon existing conditions is not injurious where a verdict for $600.00 for injuries from which a miner suffered great pain, loss of work, and reduction of earning capacity, might properly have been for a greater amount.</p>

<p>Error to City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>1. Appeals and errors—saving questions. On appeal in an action on interest coupons, an objection that a mortgage introduced was not identified as the one securing the coupons should not be sustained where there is evidence that the coupons came from bonds of a certain number, a record of a mortgage securing bonds is introduced describing bonds with interest coupons similar to those sued on, and where though the admission of the mortgage for any purpose was objected to, the specific objection relied on was not made in the trial court and the record does not show that the point was raised'.</p> <p>2. Notice—record of mortgage. Where a recorded mortgage securing bonds provides that no action can be brought by bondholders until the trustee is notified of default, it would seem that the record of the mortgage is constructive notice of its provisions to bond purchasers.</p> <p>3. Mortgages—recovery on bond coupons. A bondholder is not entitled to recover on an interest coupon where the mortgage provides that no action can be brought on default unless, after default and notice thereof, the trustee fails to act, nor unless a majority of the bondholders request such action, there is no proof that such notice was given, and there is proof that officers of defendant had a conversation with officers of .plaintiff in which the provision in question was discussed and plaintiff’s proof merely raises a doubt as to whether certain officers were present.</p> <p>4. Judgment—res judicata. A judgment denying recovery on interest coupons, on account of non-compliance with a provision of the mortgage requiring notice of default to the trustee, and allowing him a reasonable time to act and requiring a request for such action by a majority of the bondholders, will not prevent recovery on the coupons involved either in plaintiff’s name or in the name of the trustees on compliance with the mortgage provisions.</p>

<p>1. Officers—criminal violation of duty. Where no charge of any duty Imposed by ordinance is found in an indictment charging the mayor of a city with palpable omission of and malconduct in the discharge of his official duties, the prosecutor must rely upon the violation of some statutory duty such as imposed by the Cities and Villages Act, R. S. Ch. 24, Art. 2, to warrant and sustain a conviction.</p> <p>2. Indictment and information—duplicity. If an indictment alleges a series of acts, and said acts as a series constitute but one offense, it does not necessarily make the indictment bad as being double.</p> <p>3. Officers—indictment charging mayor with breach of official duty. An indictment containing several counts charging the mayor of a city with palpable omission of and malconduct in the discharge of his official duties, in that he neglected to use any effort to stop gambling and the operation of slot machines, setting forth numerous names of persons violating the law, on being construed with the Cities and Villages Act, R. S. Ch. 24, Art. 2, Sec. 14, concerning the liability of mayors to indictment, is not vague, uncertain, or bad for duplicity since a number of acts may be charged, which being considered together will constitute one offense.</p> <p>4. Officers—instructions where mayor indicted for breach of duty. On trial of the mayor of a city under an indictment charging a breach of official duty in failing to suppress gambling and the operation of slot machines, an instruction based on the language of the Cities and Villages Act, R. S. Ch. 24, Art. 2, Sec. 14, concerning the liability of mayors to indictment, is not erroneous.</p> <p>5. Officers—keepers of slot machines as accomplices of mayor. On the trial of the mayor of a city indicted for breach of official duty in failing to suppress the operation of slot machines, an instruction stating in substance that certain keepers of slot machines, testifying for the state, were accomplices and therefore their evidence should be acted upon with caution, is properly refused since such witnesses are not, as a matter of law, accomplices.</p> <p>6. Criminal law—instructions. An instruction that it is the duty of a jury to find the defendant guilty, if from all the evidence they are satisfied of his guilt beyond a reasonable doubt, omitting to add, “as charged in the indictment,” works no injury where on taking the instructions as a series and the evidence the jury must have understood that if they found the defendant guilty, they must find him guilty “as charged in the indictment.”</p> <p>7. Criminal law—instructions. An instruction advising a jury that they are “the sole judges of the weight to be given to the testimony of the defendant,” and that in judging its weight they have the “right to consider the reasonableness of the story he tells,” is not misleading and does not erroneously single out defendant, particularly when an instruction for defendant tells the jury, that defendant is a competent witness and states the law as to what extent the interest of defendant in the trial is to be taken into consideration.</p> <p>8. Criminal law—instruction on effect of number of witnesses. An instruction stating that the truth of a disputed fact is not to be determined alone by the number of witnesses, who may testify for or against the same, in a measure invades the province of the jury, and in effect tells them that they cannot determine the truth or falsity of a fact from the number of witnesses who testify in favor or against it.</p> <p>9. Criminal law—testimony of the greater number of wit nesses. It is for the jury to determine whether the proof of a disputed fact may be determined alone by the number of witnesses that may testify, for or against the truth of such fact, and if a greater number of witnesses testify to the truth of a fact than testify against it, and all the witnesses are of equal credibility, and no fact or circumstance in evidence either corroborates or refutes the testimony of the witnesses as to such facts, then the jury may determine the truth of the fact upon the ground that more witnesses have testified to its truth than have testified against it.</p> <p>10. Criminal law—harmless error. Where it appears from the whole record that substantial justice has been done, judgment will not be reversed by reason of erroneous instructions, provided no prejudice has resulted therefrom.</p>

<p>1. Appeals and errors—harmless error. An instruction permitting a jury to pass upon the credibility of witnesses by considering the surrounding circumstances appearing on the trial is improper, but is not reversible error, where nothing is shown to have appeared upon the trial, outside of the evidence, that was calculated to influence the jury, and nothing appeared in the record that could possibly have such effect.</p> <p>2. Appeals and errors—harmless error. The giving of instructions in a personal injury case referring to the declaration for the charges contained therein and permitting the jury to determine that question is not reversible error where the counts contain the necessary allegations for recovery, and no claim is made of the insufficiency of such counts.</p> <p>3. Mines and miners—Instructions. In an action by a miner for injuries alleged to have been sustained by reason of violation of the Mining Act, it is not erroneous to incorporate such statute in an instruction.</p> <p>4. Mines and miners—that mine examiner did not appreciate danger will not excuse failure to mark a dangerous place. Where a miner is injured by the fall of roof, the fact that a mine examiner who saw the condition of the room did not appreciate the danger will not release the employer from liability if a dangerous condition did in fact exist and the mine manager wilfully failed to mark it.</p> <p>5. Master and servant—contributory negligence. Where a declaration charges a wilful violation of the Mining Act an instruction that under the charges in the declaration the plaintiff, a miner suing for . personal injuries, was not required to show that he was in the exercise of due care for his own safety, states a proper legal proposition.</p> <p>6. Mines and miners—only necessary to prove one count where several counts charge distinct acts of negligence. Where there are two counts in a miner’s declaration, each charging a distinct wilful' violation of the Mining Act, an instruction that it was not necessary for the plaintiff to prove both counts, but that if he proved either he was entitled to recover, states a proper legal proposition.</p> <p>7. Mines and miners—instruction as to custom in mine of ordering timbers. In action by a miner for injury from his employer’s alleged wilful violation of the Mining Act, in not furnishing timbers to prop an unsafe roof, an instruction referring to the custom of ordering timbers through the drivers when needed and of such timbers being cut to the proper length by timbermen and of such order being a legal demand for timber may be proper.</p> <p>8. Mines and miners—when custom, in ordering props compels employer to furnish same in compliance with statute. Where it was a custom in a mine for miners to order props and for timbermen to cut them into proper lengths when they are delivered to the place where needed, it cannot be contended that since a miner did not give any directions as to the number of props he wanted, or their dimensions, the furnishing of any kind of a reasonable prop would comply with the Mining Act.</p> <p>9. Mines and miners—evidence sufficient to go to jury. Where a miner is injured by falling roof and there is evidence that the slip in the roof appeared a few days before the injury and was in a dangerous condition, that the mine examiner said that it ought to be propped and that the mine manager and others knew it was dangerous, a jury is warranted in finding that a dangerous condition existed and that the mine examiner saw the condition of the room and wilfully failed to mark it as a dangerous place, even though he did not appreciate the danger.</p> <p>10. Witnesses—contradiction. An alleged statement of a witness is not admissible for the purpose of contradicting his testimony where it does not appear that he signed it, or that it contains the declarations exactly as he made them, or that it is in his handwriting or that it was made upon the same paper that was shown to him.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1911.

<p>Appeal from the Circuit Court of White county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>1. Mines and mining—damages for coal taken. A verdict finding the amount of coal removed from plaintiff’s land should not he disturbed though not exactly sustained by either party’s estimate where there was a great divergence in the testimony, and the finding is within the range of estimates made.</p> <p>2. Damages—when coal is wrongfully mined. In trespass for wrongfully mining coal, the owner is entitled to the value of the coal in its condition as soon as it is detached from the real estate.</p> <p>3. Damages—wrongful mining of coal. A jury’s finding that the cost of transporting coal from where it was mined to the top was 25 cents a ton, is not sustained where the lowest estimate in evidence is 44 cents a ton.</p>

<p>1. Interest—action on replevin bond. In an action on a replevin bond interest may be allowed at 5% on the value of the property from the time it was taken under the replevin writ to the date of trial when judgment de retorno was had against plaintiff in replevin, but the property had been immediately sold at public auction since the .value was determined from the market price and the demand was not unliquidated.</p> <p>2. Tender—action on replevin bond. In an action on a replevin bond it is not error to exclude evidence offered under a plea of tender as to whether defendant was willing to return the property or whether it was within his power to do so, where it is shown that the property was widely scattered and that no claim was made that it had been tendered, or any offer made to put plaintiff in possession.</p> <p>3. Tender—what constitutes. There must be a delivery or an offer to deliver property to constitute a tender, in the case of ponderous articles it is necessary to show an offer to deliver them and to have them in such presence as to give such possession that an action for damages might be brought if the property is interfered with.</p>

<p>Error to the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Mandamus—to compel construction of bridges over drainage ditches. A petition for writ of mandamus to compel a county board in a county not under township organization to reconstruct two bridges over drainage ditches destroyed by a flood, is sufficient to require the defendants to answer thereto, where it avers that such drainage ditches were constructed along a natural water channel, even though the petition is not very specific as to the increased necessity, if any, for the bridges by reason of the construction of the drainage ditches.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Wayne county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the March term, 1912.

<p>1. Contracts—failure to perform. "Where plaintiff is discharged because of his refusal to continue with a contract unless an advance is given to which he is not entitled, he can only claim the money earned and not profits for the work to be performed.</p> <p>2. Evidence—profits. In action by. one who alleges that he was wrongfully prevented from performing a contract to sink a shaft, testimony of the person who completed the shaft as to the expense of completing it, and as to the profit which would have accrued to plaintiff should be admitted for the defendant, where it is doubtful whether the plaintiff is entitled to any profits, and where such plaintiff introduced evidence of the expense of completing the shaft, and as to the profits therefrom.</p> <p>3. Instructions—summarising case. Where in an action for money alleged to be due under a contract for sinking a shaft, there is evidence tending to show that plaintiff was discharged from performance because of refusal to continue unless advances were made, and that plaintiff was unable to complete the work, an instruction is vicious which attempts to summarize the elements essential to recovery but omits the elements of refusal to continue and the inability to complete the work.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Washington county; the Hon. A. D. Rodenbers, Judge, presiding. Heard in this court at the March term, 1912.

<p>1. Judgments—when not final. Where in action on an account due, defendant admits part of the amount and tenders it in court, with costs, hut contests the remainder, and the court orders that the sum and costs he paid over, hut orders that defendant recover costs for the term and continues the case, the judgment for costs is not a final judgment.</p> <p>2. Accord and satisfaction—what constitutes. Where in an action for an account due, defendant admits part thereof and tenders it in court, hut denies the remainder and plaintiff accepts the tender as part satisfaction, the court’s order so reciting, he is not precluded from recovering the remainder of his claim.</p> <p>3. Accord and satisfaction—when question for jury. Where a tender of part of a sum alleged to he due is made in court and accepted, it is a question of fact, in what sense and with what intent the money was received, and if any dispute exists, it is a question for the jury whether it was received in full satisfaction.</p>

<p>Appeal from the Circuit Court of Crawford county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1912.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Practice—exclusion of widow and children in action for death. The widow and children of deceased cannot he excluded from the court room in an action for death, though their presence will enlist the sympathy of the jury, since they are parties interested in the result of the suit.</p> <p>2. Negligence—res ipsa loquitur. In an action for death from injuries in an explosion, when it is alleged that because of defendant’s negligence a fire occurred in his feed house which reached an elevator building, causing the explosion, plaintiff, to invoke the doctrine of res ipsa loquitur, must show not only that the elevator building was under defendant’s control but also that the agency causing the explosion arose or came out of a building also under defendant’s control.</p> <p>3. Negligence—res ipsa loquitur. To invoke the doctrine of res ipsa loquitur, it must appear that the agency causing the accident is solely under the defendant’s management.</p> <p>4. Negligence—sufficiency of evidence. In an action for death caused by an explosion in an elevator building, the negligence alleged was in permitting a fire to occur in a feed house, which reached the elevator building through a cyclone pipe connecting them. If the fire occurred in the feed house, it was apparently caused by some hard substance, passing through the mill, but one of plaintiff’s witnesses testified that nothing had gone through, and the evidence of another witness indicated that the fire did not originate in the feed house. The evidence disclosed that the feed house and machinery were in good condition, and no negligence was shown in its construction or operation. The small verdict indicated that it was the result either of a compromise or of doubt in the minds of the jury. Held, that a verdict for plaintiff would he set aside on appeal.</p>

<p>1. Roads and bridges—assessment of damages. An appeal from a verdict assessing the damages caused by the laying out of a highway across certain land is properly taken to the County Court.</p> <p>2. Roads and bridges'—assessment of damages. The highway commissioners’ certificate to a justice asking for a jury to assess damages for laying out a road, need not give the width of the road, but need only give a general description, and it is proper to show at the trial the width of the road, its distance and course across the land in question, and that the survey was made.</p> <p>3. Appeals and errors—presumption when no certificate showing that record contains all the evidence. On appeal where there is no certificate that the record contains the whole of the evidence, it is presumed that the evidence warranted the verdict and judgment.</p> <p>4. Roads and bridges—when presumed on appeal that acts by commissioners were regular. On appeal from a verdict assessing the damages caused by laying out a road, it must be presumed that the steps taken by the highway commissioners in laying out the road and assessing damages were regular where it does not appear from the certificate that all the steps taken and shown on the trial are incorporated in the record.</p> <p>5. Roads and bridges—when presumed on appeal that proceedings of commissioners were regular. Though the record of proceedings of highway commissioners in laying out a road, as presented by the bill of exceptions is incomplete in the absence of a certificate, that it contains all the evidence, it must be presumed, so far as necessary to sustain the verdict and judgment, that the proceedings were regular.</p> <p>6. Appeals and errors—amended bill of exceptions. "Where the plaintiff in error with leave and without objection files an amended bill of exceptions after the defendant in error has filed his brief by which it appears that a motion for new trial was made because of refusal to grant a continuance, the motion and the court’s action properly appear in the record.</p> <p>7. Practice—when refusal of continuance reversible error. Refusal of a continuance is reversible error where in proceedings to assess damages for laying out a road, an affidavit was presented, stating that three witnesses if present would testify that the land was worth $100 per acre, that subpoenas had been issued, that one witness at least was sick and unable to be present, and that the facts could not be proved by other witnesses, and where the witnesses of the opposite party valued the land at from $27 to $35 per acre.</p>

<p>Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1912.</p>

Action in case for death caused by alleged wrongful act. Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the October term, 1912.

<p>Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>1. Evidence—parol as to consideration. Where a lease provides that the party of the first part for a consideration to be mentioned agrees that the party of the second part may mine coal for fifty years on certain property, and the party of the second part in consideration thereof agrees to keep accounts of coal mined and to pay a certain royalty, it cannot be shown by parol, that $100 was also given as consideration since there is a specific statement that all the consideration is contained in the terms of the agreement.</p> <p>2. Mines and miners—leases. A lease under which the first party agrees to allow the second party a fifty-year right to mine on certain property, and the second party agrees to keep an account of the coal mined and to pay a certain royalty, is not fair or within good conscience, and even if parol evidence of a payment of $100 as consideration by the second party is admissible, such a.payment will not induce equity to aid in making the lease valid, but the second party should be left to his remedy at law.</p>

<p>Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1912.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Williamson, county; the Hon. W. W. Duncan, Judge, presiding. Heard in this court at the October term, 1911.

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1911. Reversed with finding of facts.

<p>1. Appeals and errors—when evidence may be reviewed. Where the bill of exceptions shows that an exception was made to the finding and entry of the judgment, the appellate court may review the evidence, to determine the sufficiency thereof, although there were no propositions of law submitted.</p> <p>2. Appeals and errors—presumption of exclusion of incompetent evidence. Where evidence, subsequently found to be incompetent, is admitted subject to an objection, it will be presumed, on appeal, that the court rejected the same, where there is sufficient competent evidence to sustain the judgment.</p> <p>3. Municipal corporations—amendment of records. A clerk may amend the record of a municipal corporation, according to his knowledge of the truth, so long as he has the custody thereof, although he was not continuously in office, and such amendment was made after reappointment.</p> <p>4. Municipal corporations—amendment of records. A clerk may amend the record of a municipal corporation, according to the truth, without the necessity of some memorandum, or the direction of the officer whose actions were recorded by such record.</p> <p>5. Municipal corporations—amendment of records. The finding of the trial judge, that a clerk of a board of highway commissioners had an independent recollection of certain proceedings recorded in a record amended by him, is sustained by the evidence where it tends to show, that although an attorney furnished typewritten statements, from which the amendments were made, he received his data from the clerk.</p> <p>6. Roads and bridges—records of commissioners. Where all the meetings of the highway commissioners are proceedings on the same subject, such proceedings comprise but one record, and a signature by the president at the last meeting is a sufficient signing, under Chap. 121, Sec. 10, R. S., requiring that all records of the commissioners shall be signed by the president of the board, so as to make the records admissible in evidence.</p> <p>7. Roads and bridges—petition for county aid. Where the petition to the board of supervisors for aid in building a bridge is referred to a committee, as required by Sec. 19, Chap. 121 R. S., the fact that such committee is also a standing committee on roads and bridges is immaterial.</p> <p>8. Roads and bridges—county aid. Where a petition to the board of supervisors for aid in building a bridge is referred to a standing committee on roads and bridges, appointment of a new standing committee does not take away the jurisdiction of the old committee to act in regard to such petition.</p> <p>9. Roads and bridges—county aid. Under sec. 110 of the Road and Bridge Act of 1879, it was necessary, or a condition precedent to asking aid of the county toward building a bridge, that the records of the highway commissioners show their determination as to the necessity for the bridge; that its construction would be an unreasonable burden on the town, that the cost would exceed such sum as could be raised in one year by ordinary taxation for that purpose, and that one-half the necessary fund had been provided by the town.</p> <p>10. Roads and bridges—county and. Section 110 of the Road and Bridge Act, as amended by the Act of June 17, 1891, only requires as a condition precedent to asking aid of the county toward building a bridge that the records show the necessity thereof, and that the cost will be more than twenty cents on the one hundred dollars on the latest assessment roll, and that the road and bridge tax for two years last past in said town was for the full amount of forty cents on the one hundred dollars allowed by law, the major part of which was needed for ordinary repair of roads and bridges.</p> <p>11. Roads and bridges—contracts. In a suit for the breach of a contract to build a bridge, defendant cannot complain that the plans were not attached to the contract as provided therein and that they were not filed with the contract set out in the declaration, where a copy of such plans was attached to the contract at the time of the letting, and were not objected to.</p> <p>12. Damages—breach of contract to build bridge. Where the lowest bidder at the letting of a public contract to build a bridge refuses to perform, the amount of damages in a suit for such breach is the difference between the defendant’s bid and the amount of the subsequent letting.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1911.

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1912.</p>

Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Franklin county; the Hon. Thomas J. Layman, Judge, presiding. Heard in this court at the March term, 1912.

<p>1. Landlord and tenant—when no implied covenants. There is no implied covenant by the landlord that the premises are tenant-able when let, or that the condition thereof will remain unchanged during the term, especially when the tenant inspects, unless there is fraudulent concealment of hidden defects.</p> <p>. 2. Landlord and tenant—when covenant for quiet enjoyment implied. If there is no express covenant in a lease relating to quiet enjoyment the law implies one.</p>

<p>1. Pleading—surplusage. Facts necessary to a cause of complaint or ground of defense must be stated in the pleading, and all in addition is surplusage.</p> <p>2. Pleading—anticipating defenses. A declaration which establishes a prima facie case is sufficient and it is unnecessary to anticipate and remove every answer which may exist or be opposed to it. •</p> <p>3. Official bonds—pleading. A declaration in debt on a police constable’s bond, for assault while acting as such officer, need not aver an ordinance creating the office, nor for what violation of law the plaintiff was arrested, nor whether the officer had a warrant, or was acting under the color of his office, or arrested on view, nor the existence of an ordinance requiring police constables to give bonds, such are matters of defense.</p> <p>4. Official bonds—police constables. Though a statute providing for police constable bonds does not provide that they shall be given for the benefit of third persons, such officers are liable on such bonds to third persons for unlawful acts towards them.</p> <p>5. Official bonds—declarations. A declaration in debt on a police constable’s bond sufficiently avers that the acts complained of were committed by virtue of the office and while engaged in the performance of its duties where it is charged that the wrongs were committed while he was acting as such constable and while the plaintiff was in his custody.</p> <p>6. Official bonds—police constables. Where a police officer gives a bond to the city for the faithful performance of his duties, the condition will be construed for the benefit of third persons assaulted hy the officer while making arrests, or while they are under arrest, since the city is not interested in such malfeasance and is not liable therefor.</p> <p>7. Official bonds—pleading. A declaration in debt on a police constable’s bond states a cause of action where it avers the appointment to an office provided for by law, the execution of the bond and its approval, an unlawful assault while acting as such officer, and consequent damage.</p>

<p>1. Judgments—one good count sufficient to sustain. One good count in a declaration supported hy the evidence is sufficient to sustain a judgment, though other counts are not supported hy the evidence.</p> <p>2. City—when liable for damages from filling street. Where the property of an abutting owner is damaged as a result of filling the street without providing sufficient openings to carry off the surface water, as it flowed in a state of nature, the city is liable for such damages.</p> <p>3. Damages—change of grade. Where the evidence as to the extent the property of an abutting owner was damaged by the filling of a street is conflicting, but the verdict was well within the amounts fixed by a number of the witnesses, the judgment on such verdict will not be disturbed. ^</p> <p>4. Damages—injuries to Tots, due to filling of street. An assessment of $200 and $230 respectively as damages sustained by the owners of two lots abutting on a street, the filling in of which caused the said lots to he overflowed, leaving a deposit of filth and sediment and polluting the water in the wells is not excessive.</p>

<p>Replevin. Appeal from the Circuit Court of Wabash county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the March term, 1912.</p>

Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1912.

<p>Assumpsit. Appeal from the Circuit Court of Pope county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>1. Negotiable Instruments Act-—alteration of date. The alteration of the date of a note is a material alteration under sec. 124 of art. 8 of the Negotiable Instruments Act.</p> <p>2. Alteration of instruments—ratification. Where an attorney on his own initiative alters the date of a note after it has been executed by the parties, in an endeavor to correct a mistake, a bill praying for a correction of the mistake and a foreclosure of the mortgage given as security for the note does not amount to a ratification of the attorney’s act.</p> <p>3. Alteration—spoliation. A material alteration of an instrument, by a stranger to the contract without privity of the grantee or obligee, is a mere spoliation and does not prevent a recovery on the instrument as it read before the alteration, provided its original tenor can clearly be shown.</p> <p>4. Reformation of instruments—mistake of fact. A court- of equity will not reform an instrument for a mistake of fact where it is not clearly shown to be common and mutual to both parties.</p> <p>5. Reformation of instruments—substituted note and mortgage. Where a new mortgage and note are made in substitution for the originals, a mistake as to the date of maturity relied upon by the mortgagor, as part of the consideration for making such new instruments, will not be corrected by a court of equity, nor will equity allow a foreclosure under the original mortgage.</p> <p>6. Reformation of instruments—substituted note and mortgage. Where a new mortgage and note are made in substitution for the originals, and a mistake as to the date is made but relied oh by the mortgagor, as part of the consideration for such substitution, an alteration by the attorney on his own initiative, in an endeavor to correct the same, will not prevent a recovery on the instruments as they read before the alteration.</p> <p>7. Equity—prayer for general relief. Where relief cannot be given in accordance with a special prayer, the court of equity may, under the prayer for general relief, grant such relief as complainant is entitled to, consistent with the case made by the bill.</p> <p>8. Equity—relief granted. Where a bill is brought to correct a mistake as to the date of a new note and mortgage made in substitution for the originals, or if that be denied, to grant foreclosure under the original instruments, and the complainant is not entitled to such relief, it is error not to decree a foreclosure of the new mortgage, where the bill contains a prayer for general relief.</p>

Action in case for personal injuries. Appeal from the City Court of Granite City, the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the March term, 1912.

Action in case for personal injuries. Appeal from the City Court of Bast St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1912.

<p>1. Bankruptcy—preferences. On action by a trustee in bankruptcy to recover an alleged preference, given within four months of the adjudication, the jury was warranted in finding that a preference was intended when the evidence seemed to show that the bankrupt was insolvent, that an agent of the transferee had reasonable cause to know of his condition, and that the bankrupt and transferee intended a preference.</p> <p>2. Appeals and errors—when question not saved. On action by a trustee in bankruptcy to recover a preference, alleged error in permitting a schedule by the bankrupt, which had been excluded as evidence, to be taken by the jury on retirement, cannot be urged on appeal, when it was raised on motion in arrest of judgment, and not on motion for new trial.</p> <p>3. Judgments—motion in arrest. A motion in arrest of judgment must be based on matter arising on the record proper.</p>

Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1912.

<p>Appeal from the Circuit Court of Hamilton county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>1. Cities and villages—power of council to contract. A city council cannot bind a city by any contract which is beyond the scope of its powers or entirely foreign to the purpose of the corporation.</p> <p>2. Cities and villages—power to hire expert accountants. A city council has power to employ expert accountants to examine the books and records of the city where in the exercise of their discretion they deem such investigation necessary..</p> <p>3. Cities and villages—special council meetings. The irregularity in calling a special meeting of a city council, without filing a” statement with the clerk setting forth its purposes and objects, etc., as required by ordinance, is cured where it appears that written notices were sent to all the aldermen stating the object of the meeting and that they were all present.</p> <p>4. Cities and villages—appropriation ordinance. Where no special appropriation has been made by the city council to defray the expenses of having expert accountants audit the books and records, the same may be paid out of the appropriation for miscellaneous purposes.</p> <p>5. Cities and villages—appropriation ordinances. The use of words “contingent,” “incidental” or “miscellaneous” as designating an appropriation under an appropriation ordinance amounts to the same thing.</p>

<p>1. Trusts—resulting. Where a person furnishes the consideration for the purchase of property, the title to which is "taken in the name of another person, the beneficial estate attaches to the party furnishing the consideration.</p> <p>2. Trusts—lender of purchase price. Where a person lends money to another to be used in the purchase of property, the title to which is taken in the name of the borrower, no resulting trust arises in favor of the lender.</p> <p>3. Trusts—resulting. Where a person requests another to furnish a certain sum of money to enable him to purchase certain property, promising to repay the same within a reasonable time, no resulting trust arises in favor of the latter on furnishing such sum of money.</p>

Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1912.

<p>1. Building and construction contracts—construction. Where a quarry company contracts to furnish stone for a bridge company and there is a doubt under its terms, whether the stone should be coursed to suit the convenience of the quarry company, or should be coursed subject to the approval of the bridge company, the interpretation which the parties themselves have by their conduct practically given the contract will prevail.</p> <p>2. Building and construction contracts—specifications. Where specifications given a quarry company bidding on a contract to furnish stone for a company constructing a municipal bridge, state that certain stone may be coursed to suit the convenience of the quarry company, but subject to the approval of the bridge company, and the engineers of the bridge furnish the plans after the contract is entered into, which contract provides that the stone should be cut and dressed in accordance with the plans and specifications of the engineers and should be furnished according to the course plans furnished by the bridge company and approved by the engineers, it is apparent that the parties understood and construed the bidding specifications to mean that the course plans were not fixed but were to be fixed by the engineers.</p> <p>3. Building and construction contracts—specifications. A quarry company contracted to furnish stone for a company building a municipal bridge and claimed that ambiguous specifications, under which they bid for the contract, were a part of the contract and permitted them to course certain stone to suit their convenience and that they are entitled to extra compensation on being compelled to course the stone under the specifications of the engineers of the bridge. The engineers’ specifications were furnished after the contract was entered into, which contract provided that the stone should he furnished' and coursed according to plans furnished by the bridge company and approved by the engineers. Letters from the quarry company to the bridge company, subsequent to the contract, indicated that they knew that the engineers’ specifications were to be followed. Held, that under the terms of the contract and the construction placed thereon by the plaintiff, it was not entitled to recover.</p> <p>4. Building and construction contracts—oral evidence. Where a quarry company contracts in writing to furnish certain stone for a bridge company at a certain price, in an action to recover a greater amount, oral evidence that the real consideration was the greater amount and that both parties subsequently agreed that the greater amount was to he paid and that the original price was a mistake is inadmissible.</p> <p>5. Appeals and errors—when presumed that trial court disregarded improper testimony. Where objection is made to an offer of inadmissible evidence and there is no specific ruling made on the offer, if it appears that the court trying the case without a jury said he would not consider anything but proper evidence, it will be presumed he disregarded the improper testimony.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1912.

<p>Damages—when right to recoup exists. In an action for a balance alleged to be due for sinking an oil well, defendant may recoup damages for plaintiff’s failure to pull from the ground a casing belonging to defendant, though he took possession of the well and operated it, where plaintiff agreed to pull the casing but could not, because it was unnecessarily sunk several feet below the surface by him.</p>

<p>1. Payment—application. In general a guarantor cannot control the application of a - payment by either the debtor or the creditor.</p> <p>2. Suretyship—surety bound by application of payments. The guarantor of part of an account is bound by the application of payments made as between the debtor and creditor.</p> <p>3. Payment—application. Where payment of an account for certain construction work is guarantied, but payment for extra work is not included, a payment which is credited on the account for extras, when no amount appears on the debit side of that account, must be applied on the guarantied account, though the evidence tends to show that certain extra work was not paid for, but does not show that it was then due.</p> <p>4. Payment—application. On payment to a creditor without directions as to its application the creditor may apply it to either a guarantied or an unguarantied account.</p> <p>5. Payment—change of application. After a payment has been applied by a creditor who has an unguarantied and a guarantied account, it cannot be changed without the consent of the parties.</p>

<p>Criminal law—verdict. Where an indictment charges assault with a deadly weapon, with intent to kill and murder, and assault to commit bodily injury with a deadly weapon, without considerable provocation, and under circumstances showing an abandoned and malignant heart, a verdict which merely finds defendant guilty of assault with a deadly weapon, with intent to do a bodily injury in manner and form as charged in the indictment, is fatally defective.</p>

<p>1. Criminal law—shooting, with intent to do bodily injury. To convict of the crime of shooting with intent to do bodily injury, without considerable provocation and with an abandoned and malignant heart, it must be proved beyond a reasonable doubt, that the defendant either had a wicked or malignant heart, or that no considerable provocation existed.</p> <p>2. Criminal law—shooting with intent to do bodily injury. A conviction for shooting without considerable provocation or under circumstances showing a malignant heart is not sustained where defendant shot after a quarrel during which the prosecuting witness threw beer glasses at him, and while such witness testified that he started to walk out after throwing the glasses, the defendant and other witnesses testified that the prosecuting witness started behind the bar after the defendant who then shot, and the testimony of the physician as to the course of the bullet tends to support the defendant.</p>

<p>1. Municipal court—jurisdiction of bastardy. The Municipal Court of Chicago has jurisdiction of a prosecution under the statute for bastardy.</p> <p>2. Bastardy—waiver of irregularity. If a proceeding in a prosecution for bastardy is irregular as to the filing of a supplemental complaint after the beginning of the trial, alleging the birth of the child, such irregularity is waived where the defendant proceeds to trial without objection.</p> <p>3. Costs—bastardy. Costs follow a conviction under the bastardy statute.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>1. Appeals and errors—proceeding to compel support of pauper. A proceeding to compel a person to support a pauper, Is not within the meaning of Sec. 8 of the Appellate Court Act, “a suit or proceeding at law or in chancery,” but a summary proceeding.</p> <p>2. Appeals—when decision final. Where a particular jurisdiction is conferred upon an inferior court, its decision when acting within the jurisdiction conferred is final, unless provision is made by statute for an appeal.</p> <p>3. Appeals and errors—what appealable. An appeal does not lie from the county court in a proceeding to compel the support of a pauper.</p>

Replevin. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1909. Certiorari denied by Supreme Court (making opinion final).

<p>Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909. Certiorari denied by Supreme Court (making opinion final).

<p>This ease is controlled by the opinion in No. 16,001, ante, p. 595.</p>

<p>1. Covenant—when action of lies. The action of covenant may be brought by a beneficiary to recover on a benefit certificate under seal.</p> <p>2. Pleading—amendment of verification. It is within the discretion of the trial court to deny a motion to amend an affidavit filed to verify a plea.</p> <p>3. Insurance—change in by-laws. Where the by-laws are made a part of the contract of insurance, the time stated in them for the payment of monthly dues cannot be changed without the specific consent of the assured so as to place him in default on failure to conform to the more drastic provisions of the amendment,</p> <p>4. Pleading—allegations not denied directly are admitted. Pleas to a declaration alleging waiver of proof of death of assured on the ground that defendants refused to give blanks for such proof and declared that they were not liable in any event admit the allegation of waiver where they allege only, that the constitution requires the Board of Directors to pass on death claims and that such board did not refuse to give blanks and did not declare that the defendants were not liable in any event; and that under the policy proofs of death must be made to the Supreme Lodge and were not so made.</p> <p>5. Appeals and errors—waiver. Though no cross-error is assigned by appellee to the refusal of an instruction to the effect that insured was not bound by a change in the by-laws of the insurer as to forfeiture on nonpayment of premiums, such fact is not a ground for reversal of a judgment against insured, where the entire defense was based on such a default in premiums and the Appellate Court takes the same view of the law as is stated in the refused instruction.</p> <p>6. Insurance—mortality tables. Where a certificate of insurance provides for an abatement from its face when the member shall have died without having lived out his expectancy according to the “American Experience Tables of Mortality,” the title page and a portion of another page of a book purporting to show the expectancy of life at the age of the member is properly excluded from evidence in an action on the policy, where it is not shown that the pages were from the “American Experience Tables of Mortality,” or were a correct transcript thereof.</p>

<p>1. Vendor and purchases—failure to record United States Patent in County does not matte title defective. It is no objection to the title of a vendor of property in Cook county that a patent from the United States for the property has not been recorded in such county.</p> <p>2. Vendor and purchaser—that incumbrance assumed is due later than time stated in contract is not a defect in title. Where a contract of sale provides that the buyer shall assume an incumbrance due in about four years, it is not a valid objection to the vendor’s title that the incumbrance is due in five years.</p> <p>3. Vendor and purchaser—when nonpayment of instalments of special assessments does not affect title. Where land is sold subject to any unpaid taxes or special assessments for improvements not yet completed, and to unpaid instalments “which fall due after —,” levied for improvements completed, the clause is to be construed as though the quoted words were omitted, and an objection to the title that two instalments of a special assessment have not been paid, is untenable when there is no showing that the improvement had been completed.</p> <p>4. Vendor and purchaser—what must be shown to render possession of another a defect in title. An objection stating that, a seller’s title is “subject to the rights, not shown of record, of anyone in the actual possession of the property,” not stating that any one is in possession thereof claiming any right therein, fails to state any defect in the title.</p> <p>5. Vendor and purchaser—seller not required, to furnish more than contract requires. Where a contract of sale does not provide that the seller shall furnish a survey of the land, the buyer cannot refuse to perform on the ground that a survey should be furnished.</p> <p>6. Trusts—when purchaser of trust property is not put on inquiry. That a trustee held certain property in trust for his son, and held other property in trust for the daughter of the creator of both trusts, does not put a purchaser of the property held in trust for the son on inquiry to ascertain whether the trustee had wrongfully used the money or property held in trust for the daughter for the purchase of the property held in trust for his son.</p> <p>7. Vendor and purchaser—what evidence of title need not he furnished hy the vendor. Where a vendor acquired title from a trust beneficiary whose trustee also held property in trust for the trust donor’s daughter, such vendor is not required to furnish evidence that the daughter and her heirs had no interest in the land.</p>

<p>1. Husband and wife—wife abandonment. A proceeding under the act approved May 13, 1903, providing that one who, without cause, abandons and neglects and refuses to provide for his wife or minor children, is guilty of a misdemeanor and liable to fine and imprisonment, is criminal, notwithstanding the court has power to direct the fine to be paid to the wife.</p> <p>2. Conflict of laws—where abandonment of wife takes place. A husband who left his wife in New York and came to Illinois cannot be prosecuted under the act approved May 13, 1903, making abandonment and failure to provide for the wife or children, without cause, punishable criminally, since the offense was committed in New York, and not in this state.</p> <p>3. Husband and wife—abandonment not continuing offense. Under the Act approved May 13, 1903, making the offense of abandonment coupled with neglect and refusal to provide for the wife or minor children punishable criminally, the offense is not a continuing one.</p> <p>4. Husband and wife—what is not abandonment. Where a husband abandoned his wife in New York and came to Illinois, and subsequently, on demand in Illinois, refused to resume marital relations, he is not punishable under the Act approved May 13, 1903, relating to abandonment and refusal to provide for the wife or minor children.</p>

<p>Mechanic’s lien. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>1. Insurance—automobile. An insurance policy on an automobile providing that “loss by theft, robbery or pilferage, by persons not in the employment, service or household of the assured, is covered” covers theft by an employee of a public garagekeeper at whose garage the car was kept.</p> <p>2. Master and servant—who is servant or employee. A servant or employee is one who is employed to perform personal service.</p> <p>3. Master and servant—contractors. A contractor is one who engages to do a particular thing, and the idea of personal service is not a necessary element in the bargain.</p> <p>4. Insurance—when employee of garageheeper in service of automobile owner within policy. An employee of garagekeeper, to be in the service or employment of the assured, within the meaning of a policy covering an automobile, providing “that loss by theft, robbery or pilferage, by persons not in the employment, service or household of the assured is covered,” must be subject to the control and direction of the assured, and bound to render personal service to him.</p>

<p>1. Municipal court—jurisdiction where punishment is try fine and imprisonment. The decision in People v. Dada, 141 Ill. App. 557, holding that the Municipal Court, before the amendment of 1907 to the Municipal Court Act, § 3, had no jurisdiction of an offense, where the punishment must be by fine and imprisonment, is controlled by People v. Glowacki, 236 Ill. 612, which holds that such court has jurisdiction to try on information, violation of criminal laws punishable by fine or imprisonment otherwise than in the penitentiary, or by both.</p> <p>2. Municipal court—jurisdiction to try charge of pandering. The Municipal Court has jurisdiction to try on information a charge</p> <p>of pandering, though the punishment therefor is fine and imprisonment.</p> <p>3. Municipal court—what information for pandering gives jurisdiction. A prosecution by information in the Municipal Court of Chicago, for pandering, which sets forth the offense in the language of the statute, is sufficient to give jurisdiction, though the act relating to such court provides that criminal offenses must be set forth with reasonable certainty.</p> <p>4. Pandering—remedy if information not specific. Where an information in the Municipal Court of Chicago, sets forth the offense of pandering, in the language of the statute, if the defendant is unable to identify the occurrence, he has his remedy by suitable motion in the trial court.</p> <p>5. Pandering—requirements of information. An information charging pandering, need not show on its face that the court examined the person presenting it; and required other evidence, but it is sufficient if the order granting leave to file, and the endorsement on the information recite that the judge examined the information and was satisfied that there was probable cause for filing it.</p> <p>6. Pandering—hearing of evidence before filing information charging is discretionary. After the judge examines an information charging the offense of pandering, and is satisfied that there is probable cause for filing it, further examination or hearing of evidence is discretionary under the Municipal Court Act.</p>

<p>Prosecution for wife abandonment. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the March term, 1912.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

<p>1. Criminal law—information first attacked on appeal. Where a person pleads guilty to a charge of pandering, and the question of the sufficiency of the information is raised for the first time on appeal, the judgment of the lower court will not be disturbed, where the information is sufficiently definite to inform the defendant with reasonable certainty with what offense he was charged.</p> <p>2. Criminal law—when sufficiency of affidavit to an information cannot he urged. The sufficiency of an affidavit to an information cannot be raised on appeal, where the defendant' pleaded guilty in the trial court.</p> <p>3. Informations—affidavit. An affidavit to an information which, omitting certain words, states that affiant “being duly sworn on oath deposes * * * that the foregoing information * * * is true,” is sufficient.</p>

<p>Appeals and ekroes—motion to dismiss. A motion to dismiss a writ of error, sued out more than thirty days after the judgment, will he granted.</p>