Volume 179 — Illinois Appellate Court Reports

<p>L Judgments—power to open. Municipal Court Act, § 21, gives power and authority to vacate a judgment after thirty days on-petition setting forth facts which would be sufficient to vacate it in a court of equity.</p> <p>2. Judgments—where objection to judgment being opened is waived. Where a judgment in the municipal court is opened on motion of defendants after more than thirty days from its entry, plaintiffs, by appearing and taking part in the trial, waived their right to except to the order, and it is not reviewable on appeal.</p> <p>3. Jurisdiction—waiver of objection to. An objection to the jurisdiction, in order to be available on appeal or writ of error, must be persisted in and solely relied on.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Fosteb, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>1. Personal injuries—effect of regulation of traffic by crossing officer. In an action for personal injuries received through collision with defendant’s cab, the attempted regulation of traffic by a crossing policeman does not place or release legal obligations of plaintiff or defendant, but is of importance in determining negligence of defendant and due care of plaintiff.</p> <p>2. Nesligence—when evidence sustains directed verdict. In a personal injury action, where plaintiff, in crossing the street on foot was struck by the shaft of defendant’s cab and the evidence shows that the cabman moved as directed by the crossing policeman, at a slow speed and without negligence, a judgment on an instructed verdict for the defendant is sustained.</p>

<p>1. Husband and wife—actions and defenses. The “Act to revise the law in relation to husband and wife,” approved in 1874, providing that a married woman may in all cases sue and be sued without joining her husband, did not create for the wife a right of action for personal injuries to the husband which did not before exist, nor did it undertake to give her any more control of her husband’s property, earnings or other choses in action than she had before.</p> <p>2. Husband and wife—right of action of wife for injuries to husband. Where a married man receives personal injuries because of the negligence of a person who is liable to him for the injuries, his wife has no right of action against such person for her loss or damage caused by such injuries.</p>

<p>Contracts—performance. In an action for extra work and materials furnished, held, under the evidence, that a finding and judgment for plaintiff should not be disturbed.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>1. Appeals and errors—affidavit to contradict recitals over signature 'of trial judge. A court of review cannot consider an affidavit to the effect that the trial court did not sign the statement of facts on the date recited.</p> <p>2. Appeals and errors—record is conclusive. When the record is once made up, it is conclusive upon all parties until altered or set aside by a court of competent jurisdiction, and all questions relating to the time when it was in fact made, or in regard to the authority on which it was made, or in respect to the truthfulness of its recitals, must be settled by reference to the record alone.</p> <p>3. Appeals and errors—failure to enter a nunc pro tunc order. Where the failure to enter a nunc pro tunc order is the only defect in the record, it is a mere irregularity and does not make the bill of exceptions void.</p> <p>4. Municipal court—when nunc pro tunc order is void. An order by a municipal court judge more than thirty days after judgment is entered, permitting a certificate of evidence to be filed nunc pro tunc as of an earlier date when he signed the certificate, is void, since the court has lost jurisdiction.</p> <p>5. Appeals and errors—stipulation to change recital of trial judge on certificate of evidence. Where a certificate of evidence bears the signature of the trial court under a certain- date, a motion in the Appellate Court to withdraw the record for the purpose of having the date “corrected” will be denied, nor can it be corrected by stipulation.</p> <p>6. Appeals' and errors—where certificate of evidence is signed as of earlier date. Where a certificate of evidence is signed by the trial judge nunc pro tunc as of an earlier date, it is presumed by the appellate • court that the delay was the fault of the judge and not of counsel.</p> <p>7. Appeals and errors—when certificate of evidence is not filed in time. 'Where a certificate of evidence from the municipal court is signed by the trial judge within an extension of thirty days, but is not filed until after the time is up, a motion to strike it from the record in the appellate court .is allowed.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>1. • Contracts—instructions as to extra work. In an action for extra work and material furnished where the evidence is conflicting whether it was furnished as under the original contract or a special agreement hy which extra pay was to he given, defendant is entitled to an instruction that no recovery can he had if the work was performed as under the original contract to make it comply therewith.</p> <p>2. Contracts—instruction as to extra work. An Instruction is erroneous, poorly worded, and calculated to mislead where it designates defendants as plaintiffs in an action for extra work and material furnished and states that if the extra work was not done under any arrangement by which it was to be paid for, but was done correcting the defective work which was under a former contract, the finding should be for plaintiffs for the portion done under such circumstances.</p> <p>3. Appeals and errors—judgment cannot he affirmed on theory that jury guessed at meaning of improper instructions. A judgment cannot be affirmed on the theory that the jury, though improperly instructed, may have properly guessed at the court’s meaning and rendered the right verdict.</p> <p>4. Evidence—when cross-examination of plaintiff improperly excluded. In an action for extra work and material furnished in repairing floors which bulged up, it is error to exclude cross-examination of plaintiff as to the cause of the bulging and whether there were ingredients in his material which would damage the concrete under it, where he testified in chief that his original contract was properly and completely performed and that faulty concrete caused the injury.</p> <p>5. Verdict—when excessive. Where there is no proof of an item in the claim in an action for extra work, a verdict which includes such item is excessive.</p> <p>6. Municipal Court—when striking of statement in set-off discretionary, It is discretionary with the trial court to strike from the files a statement in set-off or recoupment because not sworn to under the court rules before the trial was begun.</p>

<p>1. Bbokebs—commissions. In an action for profits or commissions on sales of realty, judgment for plaintiff held, supported by the evidence.</p> <p>2. Evidence—statement of witness as to profits of sale of realty. A statement by a witness that the profits of a sale of realty are a certain sum is not the statement of a mere conclusion.</p>

<p>1. Executions—arrest. A judgment in tort does not warrant imprisonment in jail tor failure to pay when malice is not the gist of the action.</p> <p>2. Municipal Court—tort verdict in action on contract. That the verdict is in the form and language of a tort verdict while the statement of claim is in contract is not error.</p> <p>3. Corporations—doing business without license. In the absence of proof it is not presumed that plaintiff is a foreign corporation doing business without a license.</p> <p>4. New trial—diligence in discovering evidence. A party who moves for new trial on the ground of newly discovered evidence must show that he used due diligence.</p> <p>5. Depositions—motion to quash. A motion to quash depositions must be made in apt time.</p> <p>6. Appeals and errors—judgment entered against defendant in business name. Where one doing business in the name of his brother, appears and defends a suit naming the brother as defendant and judgment is rendered against him in the name of his brother it will be reversed and judgment entered on appeal against him in his real name, it appearing under the evidence that justice is done thereby.</p>

<p>1. Mortgages—when mortgagee is entitled to rents during period of redemption. Where a trust deed expressly secures to mortgagee a lien on the rents during the period of redemption, the owner of the equity is not entitled to any portion of the rents during such period until the mortgagee’s deficiency judgment is paid.</p> <p>2. Mortgages—rents and profits. Rents and profits are the subject of mortgage.</p> <p>3. Mortgages—when mortgagee has lien on rents. A mortgagee has a specific lien on rents and profits when they are expressly pledged by the mortgage as part of his security.</p> <p>4. Mortgages—rents and profits during period of redemption. At a foreclosure sale the rents and profits for the period of redemption are not sold, the mortgagee having a lien thereon by the terms of the trust deed.</p> <p>5. Mortgages—order as to application of rents and profits. Where by the terms of a trust deed, the mortgagee has a lien on the rents and profits during the period of redemption, no order can be entered that they be applied on the debt until after foreclosure sale.</p> <p>6. Mortgages—when rents and profits belong to owner of equity. Where rents and profits' during the period of redemption are not expressly mortgaged to secure the debt, they belong to the owner of the equity of redemption, if he is not personally liable for the mortgage debt and there is no deficiency judgment against him.</p> <p>7. Mortgages—final disposition of rents during period of redemption. Where the mortgagee has a lien on the rents for the period of redemption, the court need not wait until expiration of the period before making a final disposition of them.</p>

<p>1. " Chancery—when will not relieve from adjudication at law. Equity will not interfere to relieve from an adjudication of a law court having full jurisdiction except upon the ground of newly discovered evidence; of fraud in obtaining the judgment; or of some inevitable accident or mistake.</p> <p>2. Chancery—when will not enjoin enforcement of judgment at law. When in a suit on a note in a court having complete jurisdiction matters of set-off and payment were pleaded, evidence was heard and judgment was rendered for plaintiff, equity will not enjoin its enforcement on the grounds that it was unjust, irregular or erroneous or because the court of equity would have come to a different conclusion iff deciding the case.</p>

<p>1. Replevin—objection to jurisdiction to enter judgment in replevin in action on replevin bond. Plaintiff in a replevin action cannot urge when sued on his replevin bond that the judgment in replevin is void because the necessary orders of continuance by the justice from whom a change of venue was taken to the justice who entered judgment are not shown where he appeared in person before the justice who entered judgment and asked for and was granted a non-suit and a writ of retorno habendo was ordered.</p> <p>2. Replevin—when plaintiff in replevin estopped in action on bond to set up lack of jurisdiction to enter judgment in replevin. When sued on his replevin bond, plaintiff in the replevin action is estopped to set up want of jurisdiction of the justice before whom his action was brought, or before whom he appeared and prosecuted his action or before whom he obtained an order and judgment of non-suit and return of the property replevied.</p> <p>3. Replevin—material facts to be proved on action on replevin bond. In an action on a replevin bond, the material facts to be proved are the termination of the replevin action, judgment for defendant and the order for the writ retorno habendo.</p> <p>4. Replevin—when plaintiff loses right to contest defendant's claim to the property. Plaintiff in replevin by suffering his action to be dismissed with an order for the return of the property, loses all right to contest defendant’s claim to the property except, under the statute, to plead and prove his title in mitigation of damages.</p>

<p>Appeal from Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding. Heard in the Branch Appellate Court_ at the March term, 1911.</p>

<p>1. Appeals and errors—when remarle of counsel is reversible error. In a personal injury action where counsel for plaintiff called as a witness, one who testified he was formerly employed by defendant as a conductor, and was on the street car -upon the occasion that plaintiff was injured, and counsel then remarked, “I don’t care to offer this gentleman as my witness, but I simply want to show the court that he is here in the court room and I will be glad to have the court or the jury ask him any questions they want,” such conduct and language is reversible error.</p> <p>2. Street railroads—question for jury. Evidence as to negligence and absence of contributory negligence held to present question for jury in action growing out of collision between street car and wagon.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Municipal Court Act—statement of fact under Section 23. A document appearing in the record is not such a statement of facts as the Municipal Court Act, § 28, contemplates where it is not a hill of exceptions nor a stenographic report of the proceedings at the trial hut is a statement in detail of the evidence and contains a statement of the questions of law involved.</p> <p>2. Municipal Court Act—statement of facts may he stricken if it does not comply with, Section 23. The fact that a document in the record designated a statement of facts is not such a statement as the Municipal Court Act, § 23, contemplates is sufficient ground for striking it.</p> <p>3. Municipal Court Act—errors not considered which are hosed on insufficient statement of facts under Section 28. Where errors assigned are based entirely on a statement of facts which does not comply with the intent of the Municipal Court Act, § 23, such errors cannot he considered.</p>

<p>Appeals and ebbobs—failure to file abstract and brief. A writ of error may be dismissed for failure to file abstract and brief in accordance with the rules where additional time was given on four occasions and the fifth motion for an extension of time was made four days after the date' fixed for the filing of them by the last order.</p>

<p>1. Slander—plea of not guilty. A plea of not guilty in slander admits that the words- alleged were not true but denies that they were spoken.</p> <p>2. Slander—instructions. In an action for slander defendant is not harmed by an incorrect instruction which directs a verdict for plantiff, an architect, but does not leave it to the jury to determine whether the allegations of the declaration were proven that defendant meant to, and did convey by the words spoken, the meaning that plaintiff was unreliable and dishonest in the practice of his profession where such instruction requires the jury to find that the words were spoken of plaintiff concerning his profession and other words proved to have been spoken at the same time were such that the jury could not have failed to find that the words set out in the declaration were spoken with the meaning aforesaid.</p> <p>3. Damages—when excessive in slander action. A judgment for $2,000 in an action for slander is excessive and should be reduced to $1,000 where it is proved that defendant said of plaintiff, an architect, that he was “the biggest crook and grafter in town,” but there is no proof of the wealth of defendant nor any averment or proof of special damages.</p> <p>4. Costs—against appellee where judgment affirmed after remittitur. On appeal from a judgment for plaintiff where the judgment is affirmed after a remittitur is filed by appellee as required, costs will be awarded against appellee.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1912.</p>

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

<p>1. Master and servant—presumption that hraKeman Knows danger of crossing switch. It is presumed that a hrakeman knew the location and construction of a switch and the danger of crossing in front of a moving car.</p> <p>2. Master and servant—where tie in railroad is partly "burned away. Where plaintiff, a hrakeman, is injured while crossing a switch in front of a moving car, it is not negligence for the railway company to have a partly burned tie in the track when the injury cannot be attributed to it.</p> <p>3. Master and servant—choosing unsafe method. Where a brakeinan is injured while coupling the air brakes on moving cars when he could just as well have done so while they were standing still, he assumes the risk incident to the operation.</p> <p>4. Master and servant—custom of others in same hind of occupation does not excuse one who tahes rish. The fact that it is the custom to couple the air brakes while cars are in motion does not relieve a hrakeman of the duty of exercising- due care for his own safety.</p> <p>5. Master and servant—contributory negligence. Judgment for plaintiff reversed where the evidence shows plaintiff was not in the exercise of due care for his own safety at the time he received the injury and his negligence resulted in his injuries.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Appeals and errors—when errors waived. Errors assigned but not argued may be deemed to have been waived.</p> <p>2. Instructions—when not accurate in not confining jury to facts and circumstances in evidence. An instruction is not harmful to defendant which states “If you believe from all the evidence, facts and circumstances in this case that the defendant is guilty of adultery it matters not that such belief on your part is based upon direct or circumstantial evidence or both, though not technically accurate in not confining the jury to the consideration of the facts and circumstances in evidence.</p> <p>3. Instructions—error cannot be complained of where party made same mistalce. Even if an instruction for complainant that “If you believe from all the evidence, facts, and circumstances in this case,” etc. is erroneous, defendant cannot complain on the ground that it allowed the jury to go outside the evidence where some of her given instructions contain the words- “under all the circumstances” and “if the facts and circumstances.”</p> <p>4. Evidence—instruction as to preponderance of evidence where adultery is charged. An instruction in a divorce proceeding that a greater amount than a preponderance of the evidence is required to find one guilty of adultery is erroneous.</p> <p>5. Evidence—when time and place of conversation between parties need not be shoion. In divorce proceedings it is not error to allow a witness to show a conversation between the parties though the time and place of such conversation has not been shown.</p> <p>6. Evidence—when question properly excluded as assuming existence of a fact. In divorce proceedings a question to complainant as to when he first began to quarrel with his wife about going with other men is properly excluded as assuming that he quarreled with her.</p> <p>7. Evidence—exclusion of question subsequently answered in effect. A party cannot complain that a question was improperly excluded where an answer was subsequently permitted to a question to the same effect.</p> <p>8. Evidence—when party cannot complain that objection to question was overruled. Defendant cannot complain that his objection to a question was overruled where such question was not answered but was changed in form and answered without objection.</p> <p>9. .Divorce—verdict. A verdict in divorce proceedings stands exactly like a verdict in an action at law.</p> <p>10. Amendments—when amendment after verdict by changing name mentioned proper. In divorce proceedings on the ground of adultery where the bill charges adultery with one Bachtus about seven years before and the evidence tends to show adultery with one Pochtus shortly before the trial, it is not reversible error, after verdict that defendant was guilty of adultery with Pochtus, and pending a motion for new trial, to allow an amendment changing the name Bachtus to Pochtus where no objection was made on the ground of variance, the names being idem sonans.</p> <p>11. Amendments—when assumed no surprise worlced. It must be assumed that an amendment to the bill in cjivoree proceedings worked no surprise where it was made without objection or intimation of surprise. -</p> <p>12. Appeals and errors—when question as to sufficiency of bill waived. By answering the bill and going through the trial without any objection as to the sufficiency of the bill, defendant in divorce proceedings waives the right to raise the question of its sufficiency in the Appellate Court.</p> <p>13. Appeals and errors—when defendant cannot urge insufficiency of bill. Where defendant answers the bill and goes through the trial without objecting to its sufficiency, he waives the right to urge its insufficiency in a motion for new trial and then urge the point on appeal to the Appellate Court on the ground that the court erred in not granting a new trial.</p> <p>14. Divorce—suit money on appeal by wife. There is no statute authorizing an allowance of suit money and solicitor’s fees to the wife who appeals from a divorce decree against her for misconduct.</p>

<p>1. Divorce—custody of children. In granting- a divorce, the welfare of the children is the controlling consideration in determining who shall have custody of them where hoth husband and wife are equally fit.</p> <p>2. Divorce—discretionary power as to custody of children. The common law right of the father to the custody of the child must yield to the discretionary power vested by statute in the court, where the best interests of the child demand it.</p> <p>3. Divorce—custody of children. Where a wife, granted a divorce, has been granted liberal alimony but denied custody of the children, the Appellate Court on modifying the decree and awarding custody of a female child to the wife may provide that she shall not apply for a further allowance for her support but in case she is not willing to defray the expense of support and education may return the child to the father.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Sales—when owner not divested of title. Where the owner of a machine left it with a company to display as a model to take orders from and authorized a sale thereof under certain conditions if he approved the order, title does not pass to a creditor of such company who took the machine in payment for a debt hut knew it was made hy the owner, made no attempt to ascertain whether the company owned it, signed no order and received no invoice, the owner having immediately repudiated the transaction.</p> <p>2. Agency—when rights of owner of personalty not prejudiced hy statements of agent that he owns it. A company, with which a machine is left to display as a model to take orders from, with authority to sell under certain conditions if the owner approves the order, cannot prejudice the owner’s rights by representing to a creditor, who takes the machine in payment for a debt, that it is the owner thereof.</p> <p>3. Assumpsit—when action lies. Where a company with which a machine is left by the owner to display as a model and take orders from sells it, without authority, to a purchaser who disposes of it and receives the price, the owner may sue the purchaser in assumpsit.</p> <p>4. Agency—when one with whom goods are left is only a factor. Where a machine is left with a company to display as a model and take orders from, with power to sell on certain conditions on the owner’s approval, such company is only a factor and cannot transfer title to a creditor who takes it in payment for a debt, though such creditor has no notice of the owner’s relation to it.</p> <p>5. Fobeign corporations—when not doing business in Illinois. A foreign corporation is not transacting business in this state, where it places machine on display with a company in Illinois and authorizes it to take orders and to sell the display machine under certain conditions and a creditor of the company takes a machine in payment for a debt, which transaction the corporation immediately repudiates and demands payment from the creditor whom it credits with a part payment made by the company.</p>

<p>L 'Automobiles—contributory negligence. If the driver of an automobile which was damaged in a collision with a street car looked and saw the car coming and drove upon the track with the intention of compelling the car to stop, he was guilty of contributory negligence.</p> <p>2; Evidence—court’s discretion as to cross-examination. In an action for damages to an automobile struck by a street car which it is alleged was running at a faster rate than permitted by ordinance, it is within the court’s discretion to permit plaintiff, on cross-examination of the conductor, to show its speed and refusal to permit such cross-examination is not reversible error.</p> <p>3. Evidence—what not proper cross-examination. Where it is alleged that a street car which struck an automobile was traveling at a faster rate than permitted hy ordinance if evidence, offered on cross-examination of the conductor by plaintiff, tends to establish a schedule rate at the time and place of the accident in excess of that permitted by ordinance it is a part of plaintiff’s case in chief and not proper cross-examination.</p> <p>4. Evidence—when ruling excluding certain cross-examination for time being not error. Where a refusal to permit certain cross-examination is not final, the ruling is not error in the absence of a subsequent offer of the evidence.</p> <p>5. Evidence—hypothetical questions. A party who asks a hypothetical question in rebuttal which he thinks is predicated-on the evidence cannot assume what is not within the range of legitimate evidence.</p> <p>6. Evidence—order of. Where plaintiff in an action for damages to an automobile which was struck by a street car fully went into the question of the speed of the car in his evidence in chief, evidence as to its speed which may be considered testimony in chief was proper then only, and the court may in its discretion exclude further evidence on that question offered in rebuttal.</p> <p>7. Witnesses—when motorman of street car has not shown qualifications to give expert opinion. An experienced motorman, called in an action for damages to an automobile which was struck by a street car, has not shown qualifications to give an expert opinion as to the speed of the car, when the motorman started to set the brakes, based on the distance the automobile, on which the brakes were set, was carried by the car, where he has shown no knowledge or experience as to the retarding effect of striking an automobile with its inner and outer brakes set,</p> <p>8. Evidence:—what hypothetical question properly 'excluded. A hypothetical question asked in rebuttal in an action for damages to an automobile which was struck by a street car, as to the speed of the car is properly excluded where it is not directed to the car in question; only the type of the track and not the type of car is stated; the track is described as shown by photographs in evidence, but only the car is so shown; the direction in which the car was going to knock the automobile in a certain direction is not stated; the question in substance was put to the witness in chief and answered; and no cross-examination was made on the subject.</p> <p>9. Evidence—what competent on re-direct examination. In an action for damages to an automobile struck by a street car where plaintiff on cross-examination of the motorman goes into the question as to his purpose in setting the brakes, it is competent for defendant on re-direct to prove that he did not set the brakes to avoid a collision but to take on a passenger.</p> <p>10. Witnesses—when witness disqualifies himself from answering hypothetical question. A witness is disqualified from answering a hypothetical question as to the speed of a street car when the motorman started to set the brakes, based on the distance an automobile which it struck was carried, when it does not state the extent to which the brakes were set, where he previously stated that it would depend on “how tight the brakes were set,”</p> <p>11. Evidence—discretion of court as to re-direct examination. It is within the discretion of the trial court to permit re-direct examination as to a matter concerning which the opposite party cross-examined.</p> <p>12. Negligence—when instruction as to due care not misleading. In an action for damages to an automobile where numerous instructions correctly instruct as to the necessity of the driver using due care for its safety an instruction providing that he must use due care for his own safety cannot mislead.</p> <p>13. Automobiles—instructions. Where action is brought for damages to an automobile struck by a street car, an instruction is proper which states that, if the driver in the exercise of due care could and should have looked and seen the car and avoided the collision and did not, the finding should be for defendant.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heabd, Judge, presiding. Heard in this court at the April term, 1912.

<p>1. Pleading—variance between counts. In an action for injuries caused to land by waters it is not a variance that in some counts plaintiffs allege they are absolute owners while in others they allege ownership subject to the homestead and dower rights of their mother.</p> <p>2. Doweb—right of possession. Unassigned dower does not give the right of possession.</p> <p>3. Evidence—when bas-relief model of tract is inadmissible. In an action for damage caused to land by waters it is not error to refuse to admit in evidence a wooden model of the surface in basrelief which magnifies the vertical scale fifty times from the horizontal scale.</p> <p>4. Instbuctions—evidence. In an action for damage caused to land by waters of a sanitary district where a deposition made by a former owner in filing a claim against the state for damages from the erection of a dam, stated the lands had been destroyed, it is improper though not reversible error to instruct the jury that there is no evidence that the former owner received any compensation or damages because of the dam.</p> <p>5. Instbuctions—when party cannot complain of instructions. A party who has offered a certain class of instructions cannot complain of instructions of the same kind given at the request of the opposite party.'</p> <p>6. Damages—possession necessary to recover for damage to land. In an action for damage caused to land by waters of a sanitary district an instruction that open, peaceable, notorious and exclusive possession constitutes sufficient proof of title in plaintiffs for the purposes of the suit is properly given.</p> <p>7. Special intebbogatobies—when properly refused. Evidentiary interrogatories are properly refused.</p> <p>8. Evidence—declarations of former owner as to value of land. In an action for damage to land, declarations of the former owner during his ownership are competent evidence against the heirs succeeding him in title.</p> <p>9. Damages—when excessive. In an action for damage to 160 acres of land by waters of a sanitary district, a remittitur of $3,000 will be required on a judgment of $9,000 where the evidence shows the land was unfit for cultivation before the waters of the sanitary district affected it and the improper remarks of counsel. for plaintiff were such as would tend to aid in producing an excessive verdict.</p>

<p>Error to the Circuit Court of Bureau county; the Hon. Richabd M. Skinneb, Judge, • presiding. Heard in this court at the October term, 1911.</p>

<p>1. Brokers—commission. Plaintiff was authorized to sell a farm in three days, and three days after such period defendant traded the farm for another farm and cash on substantially the same terms as had been conditionally agreed upon by the parties, previously to plaintiff’s becoming interested and suggesting such trade. Held, that the jury finding from the preponderance of the evidence that’ the trade was made without plaintiffs assistance, he is not entitled to recover commission.</p> <p>2. Evidence—of ivife competent as husband's agent. Where defendant’s wife has acted as his agent in his important business transactions for several years, owing to his feeble health and defective mental capacity, and he expressly directed plaintiff to make the contract in suit with her, she is a competent witness as his agent.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the June term, 1912.</p>

<p>1. Wills—estoppel to dispute. A legatee or devisee cannot take under a will and at the same time dispute the truth of what the téstator has said in the will regarding the deduction of an amount advanced or loaned.</p> <p>2. Wills—legatee may show he has paid advancement. A legatee or devisee may show that he paid a loan or advancement after the will was executed and therefore deduction should not be made from his share.</p> <p>3. Wills—proof that advancement has been paid. A receipt signed by the testator in his own hand writing and bearing a date subsequent to the execution of the will is sufficient to show that a sum advanced to his daughter had been repaid and should not be deducted from her share.</p> <p>4. Appeals and erbobs—when cross errors cannot be assigned. An appeal from a single portion of a decree does not carry other independent matters involved therein, and cross errors cannot be assigned on such matters.</p> <p>5. Appeals and eerobs—where appeal is from portion of decree. An appeal from so much of a decree as finds certain shares not subject to a deduction on account of an advancement set forth in a will does not carry cross errors upon the allowance of solicitor’s fe.es to complainant.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putekbatjoh, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Payment—presumption as to checks. On hearing oí a claim against a decedent’s estate based on book account the executrix offered in rebuttal a number of checks, signed with decedent's name by a third person, drawn to the order of claimants, and by them indorsed, and paid and canceled by the bank. Of such checks, six had been credited by claimants on the account of decedent, and the others were claimed to have been applied by them on deals with the third person. Held, that the presumption is, if decedent, at the time of delivery of any of these checks, was indebted to claimants on his book account, that it was paid upon that debt until evidence shows that it was in fact paid upon the account of the third person or on some deal with him, or some other explanation appears in the testimony.</p> <p>2. Payment—presumption as to checks. "Where one pays money or delivers a check for money to another, and there is no explanation of the cause of such payment, if business relations only exist between the parties the ordinary presumption is that the" money was paid because it was due and owing.</p> <p>3. Payment—presumption as to check larger than balance due. "Where a check has been delivered by one owing on account much less than the amount of such check, the presumption is that it was paid, in whole or in part, on some pther account, and charging the excess against the payee is not authorized.</p> <p>4. Evidence—of plaintiff competent as to books of account in suit against executrix. In an action on a book account against an executrix, a member of the plaintiff partnership, who had kept the books, is competent to make the supplementary oath, authorizing the admission of the books in evidence.</p> <p>5. Evidence—by parties competent in all cases as to admission of books of account. A party to a suit may testify in all cases to the extent necessary to admit his books of account in evidence, but where the adverse party sues or defends as executor, etc., he cannot become a witness at large as to transactions entered therein.</p> <p>6. Evidence—by parties to suit for admitting books of account always competent. Section 3 of the act entitled “Evidence,” providing that any party may give the testimony necessary to admit hooks of account in evidence, is an independent provision, and has reference to neither of sections 1 and 2.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the City Court of Aurora; the Hon. Edwabd M. Mangan, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the County Court of Woodford county; the Hon. Arthur C. Poet, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Appeals and ebbobs—bill of exceptions. A clerk has no authority to certify what propositions of law were presented to the trial judge nor what rulings he made thereon.</p> <p>2. Appeals and ebbobs—when propositions of law cannot be reviewed. Propositions of law certified to hy the clerk and not inserted in a hill of exceptions are not considered by a court of review.</p> <p>3. Bankruptcy—effect of composition. Where a creditor files his claim on a note in a bankruptcy court having jurisdiction of the debtor and joins in a composition agreement, the debtor’s discharge is a good defense to an action on the note.</p> <p>4. Evidence—hearsay. The testimony of an attorney that the clerk of court told him there were no funds to pay a certain claim is hearsay and incompetent to prove nonpayment.</p> <p>. 5. Bankruptcy—effect of order. An order of the district court confirming a composition in bankruptcy is prima facie evidence that the money was paid to creditors.</p> <p>6. Judgments—when defendants not jointly liable. Where a declaration against several charges a joint liability, and one defendant shows he was never liable, a recovery cannot be had against the other defendant without dismissing the defendant not liable and amending the declaration by omitting the charge of joint liability.</p> <p>7. Appeals and ebbobs—when error is waived. A point not argued on appeal is waived.</p> <p>8. Costs—failure to establish joint liability. Where a declaration against several charges a joint liability, and one defendant sets up a discharge in bankruptcy which has accrued to him since he signed the joint obligation, such defendant may recover his costs in a suit, against both defendants, and yet plaintiff may be entitled to judgment against the other defendant.</p> <p>9. Bankruptcy—discharge as affecting joint liability. While the release of one joint debtor usually discharges, the other this rule does not apply to a discharge by a composition in bankruptcy.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puteebaugh, Judge, presiding. Heard in this court at the October term, 1912.</p>

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

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Fbank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. Richabd S. Fabrand, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibble, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Appeals and errors—what assignments of error present question whether complainant was entitled to relief. Assignments of error present the question whether under the allegations and proof complainants were entitled to any relief, where it is alleged that the court erred in dismissing the bill for want of equity, in not entering a decree directing defendants to account, and that the decree is contrary to the law and evidence.</p> <p>2. Chancery—what decree complainant entitled to on hill to set aside gifts on ground of undue influence and incapacity. On bill to set aside certain gifts and transfers, made by a decedent, on the ground of undue influence and mental incapacity, though such influenee and incapacity are not established, complainants are entitled to a decree determining title to funds in bank at the death of decedent claimed by them as part of his estate and by the widow as her property.</p> <p>3. Gifts—when acts considered those of competent person. Acta of a decedent in making certain gifts and transfers must be considered as the acts of a competent person where the evidence shows that he was fully capable of transacting business up to the last five weeks of his life and no act in question occurred during that period.</p> <p>4. Gifts—fiduciary relation. The mere fact that a decedent made gifts to his wife and son does not tend to prove a fiduciary relation.</p> <p>5. Gifts—hank account. A valid gift of a hank account is made where a decedent orders such account transferred to his wife’s name and she takes a certificate of deposit in her name and withdraws the account several months before decedent’s death and an intention by decedent to dispose of his property in his lifetime is shown.</p> <p>6. Evidence—presumption as to possession and control of hank hook. It may be presumed that a bank book was in the possession of decedent’s wife in his lifetime and remained in her possession and control up to the time of his death, where it appears that ■ decedent deposited money in his wife’s name a short time before his death, that both were authorized to make withdrawals, and that the wife made a withdrawal, in decedent’s lifetime, in his name written over the printed words on the blank receipt, “Owner of Bank Book.”</p> <p>7. Gifts—when gift of hank hook fully executed. A gift of a hank account to the donor’s wife is fully executed if the bank book was in the possession of the wife in the donor’s lifetime and remained in her possession and control up to his death and if the transaction was intended as a gift.</p> <p>8. Decbee—legal effect of, dismissing for want of equity and for want of jurisdiction. Where a decree dismisses the bill for want of jurisdiction and for want of equity, such decree in legal effect dismisses for want of equity.and it is immaterial whether the trial court by the use of the words “want of jurisdiction” intended that there were matters involved that it had no jurisdiction to consider.</p>

<p>1. Criminal law—when errors waived. Errors assigned on the record but not urged or suggested on appeal are waived.</p> <p>2. Assault—self defense. The Criminal Code, §§ 148 and 149 relating to self defense must be construed together.</p> <p>3. Criminal law—when party cannot complain of instructions. A party cannot complain that certain instructions are erroneous where his instructions contain the same defect.</p> <p>4. Assault—self defense. Where defendant testifies that he used only the force necessary to defend himself it is not error to instruct both as to the law of necessary self defense and of apparently necessary self defense.</p> <p>5. Criminal law—instructions. Where none of several instructions as to self defense .direct a verdict, even if part thereof, which relate only to the law of necessary self defense, standing alone are erroneous, such error is cured when other instructions fully give the law applicable to apparently necessary self defense.</p> <p>6. Criminal law—abstract instructions. An instruction giving an abstract proposition of law is not erroneous if not misleading.</p> <p>7. Assault—self defense. In a prosecution for assault with intent to do great bodily injury, where there is evidence that defendant made- an attack after the complaining witness ceased to attack him, the People have a right to an instruction on the theory that the defense of necessary self defense is not established if the jury believe such evidence.</p> <p>8. Criminal law—instructions. Where the words “If you believe from the evidence” are used in the first clause of an instruction, it is not necessary to repeat the restriction, “from the evidence,” in subsequent clauses.</p> <p>9. Cbiminal law—when instructions not objectionable as assuming that defendant committed act mentioned therein. An instruction which only purports to declare a principle of law applicable to the case is not objectionable on the ground that it assumes that defendant committed the act mentioned therein.</p>

<p>Appeal from the Circuit Court of Putnam county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Corporations—bin on note, payable out of surplus, must charge existence of surplus. A corporation issued a series of fifty “restricted treasury notes,” in which it “promises to the hearer” or registered holder, $1,000 subject to several conditions, one of which was that the principal “shall he paid only from the surplus of the company’s assets in excess of its co-existing other liabilities.” The corporation becoming insolvent with debts of $300,000, its capital stock being $100,000, the holder of six such notes filed a hill under section 16 of the Corporation Act to enforce personal liability of the directors for assenting to an indebtedness in excess of the capital stock. Held, that the promise being merely conditional, conferring a contingent lien on the corporate assets, remaining after the payment of its debts, failure to allege the existence of such a surplus and the fulfillment of all the conditions precedent on which the right of action depends, renders the bill bad on demurrer.</p> <p>2. Corporations—directors personally liable only to bona fide creditors. Officers of a corporation assenting to its incurring debts in excess of the amount of its capital stock are not personally liable, under section 16 of the Corporation Act, to a complainant who fails to show that he is a bona fide creditor of the corporation.</p> <p>3. Corporations—liability of directors before remedy exhausted against corporation. The personal liability of directors assenting to a corporate indebtedness in excess of the amount of capital stock for a claim which has not been reduced to judgment and where the remedy against the corporation has not been exhausted, is a question not authoritatively settled in this state.</p> <p>4. Equity—when allegation of title to instrument not certain. An averment in a bill that complainant is “the lawful holder and legal owner” of a non-negotiable instrument which is registered on the books of the corporation executing it in the name of another whose name is endorsed thereon, does not allege equitable title in complainant, with the certainty required.</p> <p>5. Equity—owner of beneficial interest must sue in own name: In equity, the owner of the beneficial interest not only may, but must sue in his own name.</p> <p>6. Assignments — endorsement of non-negotio,ble instrument. The endorsement of a name on the back of a non-negotiable note may or may not be intended as an endorsement for the purpose of transferring title.</p> <p>7. Parties—all holders of a series of notes, payable out of a surplus, are necessary parties. In chancery proceedings to enforce payment of a part of a series of “restricted treasury notes” of a corporation which are payable only out of the surplus of its assets over its indebtedness, all the holders of the remaining notes are necessary parties, because of the contingency of a pro rata distribution.</p>

<p>Appeal from the Circuit Court of Carroll county; the Hon. Oscab E. Heabd, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Evidence—when exctusion of testimony concerning a record not reversible error. Where plaintiff in an action for personal injuries is a militiaman, it is not reversible error to exclude testimony of the first sergeant of his company as to a report concerning him made by the hospital surgeon, where it is not stated what is expected to be proved by it and it does not appear that defendant was injured by its exclusion.</p> <p>2. Damages—what not excessive. A verdict for $700.00 is warranted where plaintiff was earning $3.00 per day and it seems that he was in bed eight days, that his left side was bruised, his ankle strained, one rib broken, and that he could earn only half pay for four months.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putekbaugh, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Carriers—stopping car at unsafe place. "Where the gravamen of the charge in a declaration is that the defendant street railroad company did not furnish the plaintiff, while a passenger, a safe place to alight, but negligently directed her, on a dark night, to alight at an improper and dangerous place, which it knew, or might with reasonable care have known was unsafe, and that she, while using due care for her own safety, in stepping from the car, had her ankle turned by reason of the rough and broken condition of the street, causing her to fall and be injured, etc., a cause of action is averrrd.</p> <p>2. Carriers—stopping car at unsafe place. A street railway company, having the right to select the place at which a passenger is to alight, must select a safe place, and while it may not be responsible for the condition of a street, unless it be between or - in the immediate vicinity of its tracks, it is liable to a passenger, injured, without his own fault, in consequence of its stopping a car for passengers to alight at an improper or dangerous place, which it knows, or should know, with reasonable care is unsafe, especially when no warning is given the passenger.</p> <p>3. Carriers—stopping car at unsafe place. Where a passenger is induced to alight from a street car in darkness, at a place where the street is being repaired and in a rough and unsafe condition, and steps from the car on a loose brick and is injured in falling, before she is clear of the car and while still a passenger, the company is liable for negligence in causing her to alight at an unsafe place, and there is no question of proximate cause.</p>

<p>Appeal from the Circuit Court of Bock Island county; the Hon. William: H. Gest, Judge, presiding. Heard in this court at the October term, 1912.</p>

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

<p>Appeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Bbokebs—when cannot recover commissions. Commissions cannot be recovered for the sale of a farm alleged to have been made on a certain contract alone when the contract was not signed by the vendee nor by the vendor’s wife who was made a party to the contract.</p> <p>2. Bbokebs—no recovery for commissions where contract may he forfeited. No recovery can be had for commissions for the sale of a farm where the contract provides that it is to be forfeited on failure by the purchaser to make the payments provided for therein.</p>

<p>1. Master and servant—counts disproved. Where plaintiff was employed in a scrap iron yard and injured by a boiler head falling upon him, due to negligent handling thereof by his fellow-workmen, in inserting it into a cutting machine, but the boiler head was immediately thereafter cut without difficulty, judgment on a verdict under a declaration alleging negligence of the master, in the boiler head having been too large, thick, hard, irregular, etc., to be so cut, will be reversed.</p> <p>2. Master and servant—fellow-servants. Although acting in the capacity of a representative of the employer, in ordering a boiler head to be put into a cutting machine, an employe who takes hold of the piece of iron with other employes, lifts it on the projecting shelf, and puts it into the machine, is a fellow-servant with such employes.</p>

<p>1. Vagrancy—gambling is not proof of. In a prosecution under the statute in regard to vagabonds, on a complaint charging defendant with using unlawful games, being a confidence man, neglecting lawful business, frequenting and lounging in gambling and tippling houses, having no lawful means of support and of having been convicted of crimes, the defendant showed that he owned property, supported his family and paid his bills promptly, and that he was a gambler. Held, that there being no competent proof of guilt, except that he was a gambler, the statute does not apply.</p> <p>2. Criminal law—hearsay. Testimony of a police officer, that defendant made it his business to solicit persons on the street and get them to a gambling house and “skin them up,’’ when he has not personally seen defendant so soliciting, is incompetent.</p>

<p>1. Equity—jurisdiction. A court of equity having acquired jurisdiction for one purpose may grant complete relief and do justice between the parties.</p> <p>2. Equity—possession of realty. Where the ownership of real estate is one of the questions at issue, a court of equity may decide questions as to the right of possession.</p> <p>3. Appeals and errors—sufficiency of transcript. Where there is an appeal based on the sufficiency of a hill to authorize a temporary injunction, enjoining the prosecution of a forcible detainer suit, appellant is not required to include evidence heard on the motions to grant or dissolve the injunction.</p> <p>4. Appeals and errors—presumption as to disposition of questions not hrought up on appeal. Where there is an appeal solely on the question of the sufficiency of a hill to authorize a temporary injunction, other questions are presumed to have been properly disposed of.</p> <p>5. Attorney and client—contract. A court of equity has jurisdiction to set aside portions of a contract improperly inserted by an attorney in a transaction with his client.</p> <p>6. Equity—jurisdiction. Where a lull alleges that- defendant, an attorney for complainant, induced complainant to sign a deed conveying certain property to him, representing that it was a contract of sale, the court has jurisdiction to determine the nature of the contract, to put into possession the party entitled thereto, to ascertain the rights of the parties hy an accounting, and determine the rights of a grantee of complainant.</p> <p>7. Injunction—when bill authorises temporary injunction. A bill alleging that defendant made an absolute conveyance of land to complainant in payment of certain debts, that afterwards defendant, as attorney for complainant, induced him to sign a deed of reconveyance, representing that it was an agreement to sell upon certain conditions, authorizes a temporary injunction enjoining defendant from prosecuting a forcible detainer suit against a grantee of complainant.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Master and servant—when servant assumes risk. Plaintiff, a man forty years of age and in the ordinary use of his faculties, assumed the risk of injury from tin falling through cracks in a platform under which he worked, where the cracks had been present for years and plaintiff who had worked there for some time knew of the danger, though he had complained and was told that repairs would be made when work was not being carried on, or that he would not be hurt.</p>

<p>1. Corporations—foreign. A foreign corporation which carries no stock of goods and fills no orders in this state, but sells and ships its goods from its main office in another state, is not doing business within this state under the terms of the statute requiring foreign corporations to obtain a license.</p> <p>2. Appeals and errors—final judgment. A judgment for defendant on demurrer to a replication, not providing that plaintiff “take nothing by this suit” or that “defendant go hence without day,” is not a final judgment, and an appeal therefrom will be dismissed.</p>

<p>1. Master and servant—“res ipsa loquitur.” Where plaintiff, a railroad gate keeper, was injured by an iron blow pipe flying out from a rapidly passing engine, the doctrine of res ipsa loquitur applies, since somewhere on some engine of defendant, a blow pipe must have been insufficiently áttached, and the inspection was not sufficiently careful to ascertain that fact.</p> <p>2. Master and servant—“res ipsa loquitur.” The rule that the doctrine of res ipsa loquitur does not apply in cases between master and servant, is not a hard and fast one, arbitrary in its application, but is applicable where the servant is the same as a stranger as to the operation of the particular thing or instrumentality causing the injury.</p> <p>3. Jury—circuit court may call. Where a county board fails to perform its duty in making up jury lists, the circuit court has inherent right to cause a jury to be summoned, and a motion to quash such a special venire is properly overruled.</p>

<p>1. Conversion—When contract of defendant to sell goods after trial is begun improperly admitted. In an action for conversion it is improper to admit a contract whereby defendant sold the goods in question after the action was begun, if it is introduced to prove conversion after the beginning of the action.</p> <p>2. Conversion—when shown. Conversion is shown where plaintiff shows that defendant locked up goods, which he, plaintiff, had bought and partly paid for and prevented his having access to them.</p> <p>3. Conversion—what evidence proper as to defendant’s treatment of goods after the beginning of the trial. A contract whereby defendant, in an action for conversion, sold the goods in question after the beginning of the action is competent as showing that when defendant locked up the goods before the action he meant thereby to possess himself thereof and its admission is not made erroneous by the fact that such sale is consistent with defendant’s testimony that he bought the goods of plaintiff on a settlement.</p> <p>4. Evidence—what instruction misleading. An instruction that if the evidence on any question is equally balanced it should be answered against the party having the burden of the issue is apt to mislead when the burden of the issue is not explained though there are two issues, and each of the parties has the burden of proving one of them.</p> <p>5. Evidence—instructions. In an action for conversion, an instruction is improper which is to the effect that plaintiff must satisfy the jury throughout the entire case of the correctness of his story.</p>

<p>Automobiles—when verdict against weight of evidence. Verdict for plaintiff in an action for personal injuries caused by the alleged negligence of defendant in driving his automobile at more than fifteen miles per hour and in not stopping when plaintiffs horse appeared frightened. Held, against weight of evidence.</p>

<p>1. Bills and notes—general issue. In an action on an accommodation note by one who purchased it from the payee, evidence of an extension is admissible under the general issue.</p> <p>2. Evidence—where question is too general. Where plaintiff, a bank, sues on a note purchased of the payee, a question of defendant asking the witness where the payee did its banking business while in business is too general and properly excluded.</p> <p>3. Bills and notes—evidence as to consideration. In an action on a note, testimony as to consideration is properly excluded, where there is no plea under which such evidence is competent and it is not cross-examination as to anything testified to in chief.</p> <p>4. Bills and notes—burden of proof. In an action on a note, the burden of proving that an extension made by plaintiff, the holder, was with knowledge that defendant was an accommodation maker is iipon defendant.</p> <p>5. Bills and notes—questions of fact. The question as to whether plaintiff, the holder of a note, made an extension with knowledge that defendant was an accommodation maker is one of fact for the jury.</p> <p>6. Bills and notes—when instructions properly modified. In an action on an accommodation note, where there are several makers and only one defends, the instructions are properly modified to relate to him only.</p> <p>7. Evidence—instructions. An instruction directing the jury to take into consideration the apparent consistency, fairness and congruity of the evidence, without saying anything about the lack thereof is properly refused.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Mazzini Seusseb, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. Emert C. Graves, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Carriers—contributory negligence. Plaintiff arose and went on the foot hoard of a moving street car trailer in the middle of a block and was thrown hy swaying of the car. Held, that the company was not guilty of negligence, and that plaintiff’s contributory negligence caused the injury.</p>

<p>Damages—what not excessive. Where plaintiff, a boy 11 years old, while standing on the tracks of defendant’s street railway at a crossing where there was no light, waiting for a south-bound car to pass, was struck by a north-bound car and received injuries which resulted in the loss of part of the left foot and a toe of the right foot, a judgment for $4,000 is sustained.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puteebaitqh, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the Circuit Court of DeKalb county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the County Court of LaSalle county; the Hon. William H. Hinebatjgh, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the County Court of Stephenson county; the Hon. Oscab E. Head», Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Negligence—dangerous premises attractive to children. Where the owner of land has unguarded dangers thereon, of such a nature as to he attractive to childish curiosity and instincts, such attractions are regarded as holding out implied invitations to children of tender years to come upon the premises, and the owner must use ordinary care to keep them in safe condition.</p> <p>2. Negligence—dangerous premises attractive to children. Where an injury results to a child from unguarded conditions upon the premises of another, the questions whether the premises are dangerous, or calculated to he attractive to a child of tender years and liable to lead such child into danger, and whether the child lacked such intelligent capacity and experience as to bring it within the protection of the rule, are for the jury.</p> <p>3. Landlord and tenant—both liable for dangerous premises. Where premises are rented in a bad state of repair the landlord is liable for injuries caused thereby to third persons, as well as the tenant.</p> <p>4. Evidence—of no previous accident incompetent. In a case for damages for the death of a child, who was drowned in a pond, evi< dence that no person had been drowned there before, is incompetent.</p> <p>5. Instructions—abstract propositions. Giving of an instruction, stating an abstract proposition of law which is correct and does not mislead the jury, is not error.</p>

<p>1. Executions—6ill of sale. To secure loans and advances, a bill of sale was executed for an automobile, which was delivered to the creditor and later seized by a sheriff under a deficiency decree against the debtors. Held, that the bill of sale was a bona fide transaction, and that replevin would lie against the sheriff.</p> <p>2. Appeals and erbobs—failure to assign cross-errors. Where an appellee fails to assign cross-errors, he cannot maintain a charge of fraud against appellant.</p>

<p>Error to the County Court of Lake county; the Hon. Lotus M. Reckhow, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Error to the County Court of Lake county; the Hon. Louis M. Reckhow, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Death—effect of plea of not guilty. A plea of not guilty in an action for wrongful death, does not put in issue the ownership, possession or operation of the instrumentalities or property which caused the death alleged but a defense based on an intended denial of such allegations in the declaration must be properly pleaded.</p> <p>2. Negligence—evidence as to care 6y parents for safety of child which was hilled. It is material to a recovery for the benefit of the next of kin for the death of a child six and one half years old that it should appear from the evidence that the parents were exercising ordinary care for its safety whether such care is alleged in all the counts of the declaration or not.</p> <p>3. Pbactice-—when immaterial after verdict whether due care 6y parents of child is alleged in more than one count. In an action by the father as administrator for the death of a child six and one half years old, it is immaterial after verdict for plaintiff whether it is alleged in more than one count that its parents were exercising due care for its safety. ■</p> <p>4. Witnesses—competency of wife to testify in her own behalf when husband is interested. The wife of an administrator who brings 'action for the death of his son six and one half years old is a competent witness, where in case of recovery, she will receive a distributive share which will be her separate property though her husband will receive commissions as administrator and an amount as a distributee.</p>

<p>Appeals and ebbobs—what not final judgment. A judgment that defendant recover costs and have execution therefor where plaintiff elects to abide by his demurrer is not a final judgment.</p>

<p>Error to the Circuit Court of Wayne county; the Hon. Jacob R. Cbeighton, Judge, presiding. Heard in this court at the March term, 1912.</p>

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

<p>1. Wills—devise of trust fund for payment of debts. On a bill in equity for accounting against the widow, individually and as executrix of a deceased village supervisor, for moneys received by him from the sale of real estate belonging to the village, where the will devised property to the widow and directed her to pay all just and lawful debts of deceased, she must be assumed in law to have individually taken such property in trust, charged with such burdens and for the satisfaction of the debts of deceased. '</p> <p>2. Wills—devise of trust fund for payment of debts. The acceptance of a gift in a will, providing that the donee is to pay debts of the testator, creates a personal liability of the donee upon which action may be maintained.</p> <p>3. Wills—devise of trust fund for payment of debts. An heir, accepting a devise under a will, which directs the payment of a legacy, becomes personally bound to pay the same, even where the devise proves to be less in value than the legacy, and payment can be enforced in a suit in equity against the real estate or by a common-law action directly against the devisee on promise implied by the acceptance of the devise.</p> <p>4. Wills—devise of trust fund for payment of debts. Provisions in a will, consistent with an intention on the part of the testator to have his debts paid in the usual course of administration, are not sufficient to raise a trust in favor of creditors, but when he specially charges the payment of his debts upon a particular fund, a trust is created, as against the devisee accepting such fund, in favor of the creditors.</p>

<p>1. Receivers—compensation. A receiver appointed to manage property until it is redeemed if sold under the decree to satisfy a debt, is entitled to reasonable compensation for his services and to money reasonably expended in the care and operation of the property, only to the time of a demand for possession made by the owner after the debt is discharged.</p> <p>2. Receivers—recovery of solicitor’s fees. Where a receiver was appointed to manage property until redeemed if sold under the decree to pay a debt, he is entitled to recover his reasonable solicitor’s fees to the time that a court order was entered removing him, when he refused to surrender possession to the owner on demand after the debt was discharged and was removed by the court on petition of such owner.</p>

<p>1. Damages—permanent injury to realty. Where damages are sought for the permanent injury to realty caused by flooding, the measure thereof is the difference in the fair market value of the premises before and after the injury, and evidence not bearing on that question is incompetent.</p> <p>2. Damages—what evidence improper in action for damages to realty. Whether an action for damages to realty by flooding is for temporary damages or for the permanent injury, it is error to admit evidence of the inconvenience suffered by plaintiff’s tenants as- bearing on the measure of damages.</p>

<p>1. Evidence—when coroner’s verdict is admissible. In an action for wrongful death, the verdict of the coroner’s jury, finding that deceased came to his death by being run over by defendant’s switch engine, is properly admitted when there is proof that it was filed in the office of the circuit clerk.</p> <p>2. Instructions—as to presumption in favor of care for self-preservation. In an action for wrongful death, an instruction to the effect that if no one saw the accident, the jury are warranted in finding from the instinct of self-preservation that deceased was in the exercise of ordinary care for his own safety, unless the jury believe deceased was under the influence of liquor so as to make him incapable of exercising ordinary care, or to make him reckless, or that there were other circumstances indicating want of ordinary care, may be given.</p> <p>3. Appeals and errors—remarles of counsel. In an action for the death of plaintiff’s intestate, killed by defendant’s switch engine, a remark by plaintiff’s counsel in his closing argument that, “I have my ideas about this case, notwithstanding what the employes of the defendant might have, who had to swear this to hold their job with the company,” though improper, Is not reversible error when promptly withdrawn on objection of opposing counsel and the jury are instructed to disregard it</p> <p>4. Appeal and error—when judgment is sustained. In an action for wrongful death, where deceased was killed by defendant’s switch engine, a judgment for $1,300.00 is sustained where it appears from a consideration of the whole case that substantial justice was done.</p>

<p>1. New tbial—newly-discovered evidence. A motion for new trial on the ground of newly-discovered evidence is properly denied where the evidence is merely cumulative and furnishes no additional light on the questions at issue.</p> <p>2. Raileoads—use of other crossings in the locality of the accident. In a personal injury action where - plaintiff, crossing the tracks at a private crossing, is injured hy defendant’s engine, testimony as to the use made of such crossings in that locality is admissible to show acquiescence of the company.</p> <p>3. Raileoads—question of fact. Where plaintiff is injured while crossing defendant’s tracks, the nature of the crossing is a question to he determined hy the jury from all the facts and circumstances in evidence.</p> <p>4. Raileoads—care toward licensee. In a personal injury action, an instruction that, if “plaintiff was on the railroad right of way where he was injured, simply by the acquiescence of the railroad company, he was a mere licensee and the defendants would owe him no other or greater duty as to his safety than if he were a trespasser” is properly refused where deceased was struck while on a crossing.</p> <p>5. Raileoads—duty of care to persons walking along tracks. A railroad owes no duty to a person walking along its tracks without its invitation, either express or implied, except to refrain from wantonly or wilfully injuring him and to use reasonable care to avoid injury to him after he is discovered in peril; and it makes no difference in that respect whether he is a trespasser,. a mere licensee, or one who is on the tracks hy mere sufferance without objection by the company.</p> <p>6. Railroads—duty to persons crossing tracks. Where plaintiff is injured while crossing defendant’s tracks, his right to be there and the duty owed him by the railroad company depend in a large degree upon the circumstances surrounding the maintenance of the crossing at that point by the company.</p> <p>7. Instructions—as to preponderance of evidence. In a personal injury action an instruction that the jury should take into consideration the number of witnesses testifying on any particular point or issue in the case, and if they found a greater number had testified to certain facts on behalf of one party than had testified to the contrary on behalf of the other party, and they believed the credibility of the greater number equal to that of the lesser number, then they should find the preponderance of the evidence upon the side of the greater number, is properly refused, since it ignores the probative force of circumstances appearing in evidence apart from the testimony of witnesses.</p> <p>8. Damages—when not excessive. A judgment for $8,000 for injuries to plaintiff, a boy of eight years old, resulting in the loss of a foot is not so excessive as to call for a reversal.</p>

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

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

<p>Appeal from the City Court of DuQuoin; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October 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 October term, 1912.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. George A. Cbow, Judge, presiding. Heard in this court at the October term, 1912.</p>

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

<p>1. Contempt—when provision erroneously included in a decree. Where an accounting is ordered between two parties interested in the same business, there being no fraud in the case, it is error to provide in the decree that unless defendant pay the amount ordered within thirty days, he shall be considered and adjudged in contempt of court.</p> <p>2. Equity—when hill for accounting is improperly allowed. Where complainant, an employe in a certain company, entered into an agreement with defendant, principal owner of the capital stock to buy a one-fourth interest, continue his work in the stores of the company at a certain salary and to pay for' the stock with his share of the profits, his bill asking for an accounting should be dismissed for want of equity where his only complaint is that defendant was overbearing and discourteous in his treatment and had charged his salary for the second year at $165 a month instead of $80, as was done the first year.</p>

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

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bernbeuteb, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Roads and bridges—when commissioners not personally Halle. Highway commissioners are not personally liable to one whose horse was injured because of defects in the highway, on the ground of wilful neglect of their duty to repair the road, where their funds are expended, and one of their number, after notice of the defects, in good faith repairs the road about a week before the accident by placing poles, brush and dirt which are subsequently washed out, in the mud hole where the accident occurred.</p>

<p>1. Death—who entitled to damages. In an action to recover for wrongful death under the provision in the federal statutes relating to carriers engaged in interstate commerce the intestate’s mother is not entitled to share in the damages where there is a surviving widow.</p> <p>2. Damages—for wrongful death. To entitle the surviving widow to recover more than nominal damages for the death of her husband, it is necessary for her to prove that she received some support or pecuniary aid from him or had reason to believe that she would thereafter receive such.</p> <p>3. Settlement—as defense to action for wrongful death. A settlement made by the widow in good faith constitutes a complete defense to a suit to recover for her husband’s wrongful death.</p> <p>4. Death—when judgment not warranted l>y the evidence. Where intestate’s mother as administratrix, recovers a judgment for $5,500,00 for the benefit of the widow, the only evidence as to the damage being the testimony of the mother that deceased was a brakeman earning from $50.00 to $60.00 a month and lived with her, the judgment is reversed and remanded.</p>

<p>1. Damages—for overflowing land. Where an embankment constructed by defendant railway causes the overflowing of • plaintiff’s lands, the measures of damages is the fair cash rental value during the time plaintiff is deprived of their use, within the period for which he is entitled to recover.</p> <p>2. Damages—when not excessive. Where eighty acres of plaintiff’s land was damaged by overflowing for three years caused by defendant’s embankment, a judgment for $1,100 is held not excessive.</p>

<p>Error to the Circuit Court of Union county; the Hon William N. Butleb, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Assumpsit—preponderance of evidence. In assumpsit for government levee work, alleged to have been performed at the request of defendant, because of his liability as bondsman for another contractor, who failed to perform such work under his - contract, where such bondsman has collected the estimates, held, that the evidence and circumstances corroborate plaintiff’s claim and justify a verdict and judgment in his favor.</p> <p>2. Assumpsit—verdict for less than amount shown due. In assumpsit for work performed under an alleged agreement which would have entitled plaintiff to judgment for $3,553.55, where a verdict is rendered for $1,543.65, and there is no dispute, except as to the whole of the claim, the defendant cannot contend that the verdict is absurd and for less than shown to be due, the plaintiff alone being entitled to complain of such insufficiency.</p>

<p>Error to the County Court of Effingham county; the Hon. Barnet Overbeck, Judge, presiding. Heard in this court at the October term, 1912.</p>

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

<p>1. Master and servant—who fellow-servants. Where a boss driver in a mine when operating a motor for the regular motorman during his absence to get lunch, negligently drives against a car which plaintiff, a driver under such boss, is coupling • and injures him, it is a question for the jury whether the negligence of the boss driver is in the capacity of motorman and fellow-servant of plaintiff or of boss driver and vice principal.</p> <p>2. Master and servant—who are fellow-servants. A regular motorman in a mine and a mule driver who are habitually associated together in their work are fellow-servants.</p> <p>3. Master and servant—fellow-servant rule. The portion of the fellow-servant rule to the effect that, to be fellow-servants the duties of servants must be such as to bring them into habitual association so that they may exercise a mutual influence promotive of proper caution, means personal association calculated to exercise influence promotive to caution.</p> <p>4. Master and servant—who are fellow-servants. A boss driver in a mine, temporarily operating a motor, and a driver under him, injured by his negligent operation of the motor, who are not habitually associated in their work, are not fellow-servants.</p> <p>5. Mines and miners—provision as to lights on trains and trips of oars construed. Act 1911, section 15 (L. 1911, p. 407) relating to the lights on “every trip or train of pit cars moved by machínery” means that the rear light referred to need only be carried by a car when it is in the rear of a train or trip of cars.</p> <p>6. Master and servant—what instruction as to who are fellow-servants properly refused. Where a mule driver in a mine brings action for personal injuries received when the boss driver, who was temporarily operating a motor, drove against him, it is not error to refuse an instruction stating that the driver and boss driver would be fellow-servants if they were in the employ of defendant and were directly co-operating in the hauling o£ coal, or if the duties of a driver and motorman brought them into habitual association so they might exercise an influence upon each other promotive of caution.</p> <p>7. Instructions—when party cannot complain of modification. A party cannot complain of a modification of an instruction by striking a clause therefrom if the substance of such clause was given in another instruction.</p> <p>8. Instructions—how objectionable portions should be stricken. The trial court when striking out objectionable words in an instruction should completely obliterate them.</p> <p>9. Instructions—when modification by drawing line through clause not prejudicial. A modification of an instruction by running a line through the part stricken instead of obliterating, held, not so prejudicial as to require reversal especially when the same language was' contained in an instruction given.</p>

<p>1. Negligence—when one entering private road is licensee. Where a person, operating a traction engine, enters a private road with the permission of the tenant of the land, but without permission of the owner or a -lessee of the gas and oil rights, he is a licensee.</p> <p>2. Contributory negligence—when licensee cannot recover damages because guilty of. A licensee, driving a traction engine over a private road, cannot recover damages caused by the ignition of gas escaping from a pipe line broken by the engine, where the engine was three feet off the road at the place of the accident, and he was attempting to drive through a gate opening at a right angle turn in the road, on a night so dark' that a lantern was necessary to point the way through the gate.</p>

<p>1. Fraternal benefit societies—fraud in application. In an action on a life insurance policy by the beneficiary, involving questions of fact, as to whether the insured, at the time of making the application had tuberculosis and fraudulently denied it, and whether she died from such disease within a year thereafter, verdict and judgment for plaintiff, held, not manifestly against the weight of the evidence.</p> <p>2. Fraternal benefit societies—fraud in application. A benefit certificate was conditioned on the insured having complied in every particular with the laws of the order and not having obtained membership by fraud or misrepresentations as to age, family history, physical condition or occupation, the application being made a part of the certificate. Held, that where an applicant answers “no” to a question by the medical examiner, as to her being afflicted with any disease, although knowing that she had tuberculosis, such untruthful representation is sufficient to defeat recovery by the beneficiary.</p> <p>3. Insurance—“warranty” and “representations” of applicant. Although an insurance certificate and an application, which is made part thereof, contain no language constituting a “warranty” by the applicant, as to the condition of his health, fraudulent statements made in such application, in order to obtain the certificate, are classed as “representations,” which also bar recovery.</p> <p>4. Fraternal benefit societies—evidence of cause of death. Under a by-law of an insurance society, ten per cent, of the benefit was payable in full satisfaction in the event of any member dying within one year after examination, from tuberculosis. The physician attending a member in her last illness reported, certified and testified to his opinion, that she died from “galloping consumption.” Another physician testified that he had treated her previously and that he thought she had tuberculosis at that time, that she knew of her condition. Her sputum was shown to have contained tuberculosis bacilli. A nurse who had occupied the same room as deceased and attended her night and day during her last illness stated she did not cough and that her health was broken down from childbirth. There was other' evidence of prior good health. Held, sufficient to support a finding that the member did not die of consumption.</p> <p>5. Evidence—weight of opinion. The fact that a report to an insurance company and a certificate filed with the bureau of vital statistics, which are introduced in evidence, were signed by a physician, attending insured, and were to the effect that in his opinion insured died of galloping consumption, does not increase the weight of his testimony, in which he repeats such opinion, where he testifies to no facts as to the symptoms, appearance or condition on which he bases such opinion, the value of an opinion resting on the reasonableness of conclusions drawn from facts.</p>

<p>1. Corporations—actions after termination. In assumpsit on notes plaintiff filed a replication to a plea of nul tiel corporation, stating that plaintiff was an existing corporation of the state of Missouri at the time of execution of the notes and had later been incorporated as a national hank under the name of the American Exchange National Bank. It appeared that the American Exchange Bank, in whose name the suit was brought, went out of existence prior to the institution of the suit and that the rights of property in the notes and to sue was in the American Exchange National Bank. Held, that plaintiff’s lack of capacity to sue must work reversal.</p> <p>2. Parties—must be natural or artificial persons recognized by law. In all civil actions, the prime requisite as to parties is that they must each he, either a natural or artificial person in law,—an entity, which the law of the forum can recognize as capable of possessing and asserting a -right of action.</p> <p>3. Corporations—actions abate on dissolution. All actions of a corporation abate upon its dissolution, in the absence of statutes to the contrary.</p> <p>4. Pleading—amendment must be actually made. Leave to amend does not constitute amendment.</p> <p>5. Judgment—in excess of claim. Entry of judgment for a larger amount than claimed in the ad damnum is error.</p> <p>6. Evidence—as to foreign law. Rules of evidence relating to authenticated copies of statutes and reports of foreign states should be closely observed.</p>

<p>1. Pleading—effect of verdict. A verdict will aid a defective statement of a cause of action but will not aid the statement of a defective cause of action.</p> <p>2. Negligence—averments necessary to sustain action. The averments necessary to show a cause of action where injury from negligence is charged are the existence of a duty on the part of defendant to protect plaintiff from the injury complained of, a failure of the defendant to perform that duty, and an injury to the plaintiff resulting from such failure.</p> <p>3. Negligence—defendant’s duty to exercise reasonable care. A declaration which avers that defendant had an unloading track and had placed cars loaded with brick thereon for the purpose of being unloaded and that plaintiff with a co-worker was engaged unloading brick from a car into a wagon and had been so engaged all the day before the injury complained of and also on the day of the injury up to two o’clock in the afternoon, contains sufficient allegations of plaintiff’s right to be at the place at the time of the injury, if proven, to show a duty resting on defendant to exercise reasonable care not to injure him.</p> <p>4. Appeals and ebbobs—variance. A question of variance between the declaration and the evidence as to the manner in which the injury occurred must be raised at the trial in order to be considered by the court of review.</p>

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

<p>1. Landdobd and tenant—purchaser of crops liable to landlord after levy. A bona fide purchaser of hay from a tenant is liable for its value to the landlord when the latter has' levied thereon under a distress warrant and stacked and left the same on the demised premises.</p> <p>2. Landlobd and tenant—purchaser of crops liable to landlord after levy. A landlord causing a levy to be made under a distress warrant on fourteen tons of hay, the same being a bulky- article and its removal from the premises not being required, stands as a lienor in possession, and a purchase by others is subject to his rights.</p> <p>3. Landlobd and tenant—landlord’s lien is not legal title or right of possession. The statutory lien of a landlord, before levy of a distress warrant, is not a right of possession or title, but a secret right, resting in the breasts of the landlord and the tat» ant. unknown by the indicia of possession, or to any record of which the public is required to take notice.</p> <p>4. Landlord and tenant—replevin does not lie on landlord’s lien. The legal title to crops grown on demised premises is in the tenant, and the landlord, though clothed with a lien, has no such title as will enable him to maintain trover for its conversion without first levying or divesting the tenant’s title by some mode known to the law.</p> <p>5. Landlord and tenant—purchaser of crops without notice of Hen not liable. A purchaser of crops grown on demised premises, who has no actual knowledge or constructive notice, such as by the levy of a distress warrant, of the landlord’s lien, is not liable to the latter.</p> <p>6. Trover—by lienholder in possession lies against all participating. A lien holder, in actual or constructive possession, may maintain an action in trover against every person who, personally or by agent, commits or participates in the act of conversion by instigating, aiding, or assisting another, or who benefits by its proceeds in whole or in part.</p> <p>7. Trover—lies by one in possession. Possession, under a claim of title or right, is sufficient to sustain an action for conversion against one who does not show a better right or title.</p> <p>8. Liens—notice of. A finding of fact by the trial court, that defendants had no knowledge, and had not been put upon actual notice, that certain hay had been raised on premises leased from the plaintiff and was subject to his lien, held, not error.</p>