Volume 180 — Illinois Appellate Court Reports

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

<p>1. Wills—unequal distribution. Where there is no evidence of undue influence an unequal distribution of property does not itself destroy the validity of the will.</p> <p>2. Wills—insertion of clause after execution. A will is not destroyed by the insertion of a clause after its execution.</p> <p>3. Wills—presumption as to change. It is presumed that marks made upon a will are those of the testator when it was in his possession up to the time of his death.</p> <p>4. Wills—question of fact. It is a question of fact for the jury as to whether a testator made marks upon a will with the intention of canceling it.</p> <p>5. Wills—intent to cancel. Marks made upon a will by the testator have the effect of canceling it when made with that intent.</p> <p>6. Compromise and settlement—consideration, when invalid. Where a claimant in the settlement of a controversy obtains a compromise by fraud, duress, or where no legal right ever existed, or where the matters sought to be compromised are of a criminal or unlawful character, then the consideration is unlawful and cannot be enforced.</p> <p>7. Compromise and settlement—of a doubtful right. The compromise of a doubtful right where there is neither actual nor constructive fraud and the parties act in good faith is sufficient consideration to support a promise.</p> <p>8. Compromise and settlement — consideration, when valid. Where a controversy that may be determined at law is compromised and settled in good faith and without fraud or oppression, such settlement constitutes a good consideration for the promise to pay money or other valuable thing.</p> <p>9. Evidence—as to ground for contesting a will. In an action to enforce a settlement made in good faith between legatees who disputed the validity of a will it is proper to exclude evidence offered by defendants tending to show that no valid ground existed that would authorize a contest.</p> <p>10. Compromise and settlement—where dispute among legatees is compromised. Where legatees claim the right to contest a will on account of unequal distribution, its mutilated condition, and undue influence over the testator in its execution, and a settlement is reached with other legatees in good faith, the latter cannot question the consideration after the year in which to file a contest has elapsed.</p>

<p>1. Brokers—recovery of commission. Whether plaintiff was engaged to negotiate the sale of a property, subject to, or free from leases presents a question of fact for the jury.</p> <p>2. Appeals and ebeobs—verdict, when conclusive. Unless the Appellate Court finds from the record that a verdict is so manifestly against the weight of the evidence as to require a reversal, the verdict is conclusive.</p>

<p>(Three Cases Consolidated).</p> <p>1. Husband and wife—separate maintenance. Defendant, the husband of a nervous woman, neglected her, stayed out late at night, and was guilty of conduct tending to intensify such nervous condition, and finally left her. Held, that a decree finding him to be living separate and apart from her without her fault would be affirmed.</p> <p>2. Husband and wife—rule as to alimony. The ordinary rule is to allow a wife for temporary alimony about one fifth of the joint income, but the amount varies from a sum sufficient for her actual necessities to a third or even a half of the husband’s income.</p> <p>3. Husband and wife—alimony excessive. Where the total net value of property owned by defendant in proceedings for separate maintenance is seven thousand dollars, and his average income is eighteen hundred dollars per year, an allowance of one hundred and twenty dollars per month is excessive.</p> <p>4. ’ Husband and wife—amount of solicitor’s fees to 6e determined, from evidence. In determining an allowance for solicitor’s fees in proceedings for separate maintenance, the court should consider professional opinions as to the value of the services rendered and ascertain the customary charges.</p> <p>5. Husband and wife—solicitor’s fees. Allowance of solicitor’s fees for a wife in proceedings for separate maintenance cannot be sustained where no evidence is preserved showing what services were performed nor the value thereof.</p> <p>6. Husband and wife—alimony lien on real estate. A lien may be decreed upon real estate to secure the payment of alimony, but methods may be provided in such decree by which the lien can be released in case of sale.</p>

<p>1. Fbactice—directing verdict. On a motion to direct a verdict, the court is without power to weigh the evidence, and in doing so, invades the province of the jury.</p> <p>2. Fbactice—directing verdict. A court errs in directing a verdict, where it is bound to assume that a contract in suit was made as testified by plaintiff, and not according to the testimony of the defendant.</p> <p>3. Fbactice—directing verdict. Where plaintiff levied upon two pianos, one of which he was shown to have stated to defendant belonged to a piano company, an instruction by the court, finding as a fact that no such statement was made, and directing a verdict for plaintiff, is error.</p> <p>4. Compbomisb and settlement—admissions competent. While an offer of compromise is not binding, independent admissions and statements of facts made in connection with such offer, though made in an effort to effect settlement, may be given in evidence against the party making them.</p>

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

<p>1. Nuisance—when obstruction of water course temporary. Where a private corporation unlawfully places slack from its mine in a ditch the obstruction is temporary and such corporation cannot give it the character of a lawful permanent obstruction.</p> <p>2. Damages-—nuisance. Recovery for damage to land submerged when defendant placed slack from its mine in a ditch can be had only to the time of the action even if permanent injury by the mine water is shown where it is not shown that such land was rendered wholly unfit for cultivation.</p> <p>3. Damages—measure of, where nuisance destroys lands for cultivation or as a habitation. It would seem if a mining company by unlawfully obstructing a ditch with slack rendered plaintiff’s land wholly unfit for cultivation or destroyed it as a habitation or damaged his well, that recovery might be had for damage subsequent to the bringing of action if such condition could not be remedied by the abatement of the nuisance.</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Administration of estates—debts of deceased. The estate acquired by an administrator is chargeable with the burdens placed thereon by deceased.</p> <p>2. Administration of estates—rights of administrator. An administrator acquires the exact interest in property owned by the deceased at the time of his death, subject to liens thereon, valid as between the parties.</p> <p>3. Mortgages—chattel mortgage, when void. A chattel mortgage is void as to third persons if possession is not taken on maturity of the debt, but the widow, heir, or administrator, of a mortgagor is not such third person.</p> <p>4. Mortgages—recording. As between the parties to a chattel mortgage, it is valid, though not recorded.</p> <p>5. Mortgages—chattel. A chattel mortgage is valid, though the mortgagor was insolvent and in possession of the goods at the time of his death, and the instrument was not filed for record until two days afterward, and the administrator will not be allowed to assail or impeach the acts of his intestate in behalf of unsecured creditors.</p>

<p>1. Landlord and tenant—landlord not covenanting to repair may recover rent. A lessee agreed to “maintain the demised premises in as good condition and repair as the same should be upon taking possession, natural wear, injury by fire, or other inevitable accident, excepted,” and that all inside repairs were to be'“made at expense of the lessee and all outside repairs at the expense of the lessor.” The building was constructed out of inferior material, one wall was out of plumb, and both the lessor and lessee were served with notice by the city building commissioner that the building was in an unsafe and dangerous condition, requiring immediate repair or removal, and directing that it should be braced so as not to be in danger of falling. The lessee abandoned the premises and refused to pay more rent, because the building was untenantable. Held, that the two clauses would be construed to require the lessee to make all the repairs, the expense of the outside repairs to be paid by the lessor,.and that in the absence of covenant of lessor to make repairs, the tenant is liable for rent.</p> <p>2. Landlord and tenant—covenant to repair not implied. A lessee, who undertakes to keep a house, being the whole of the premises, in as good repair as when he took it, fair wear and tear excepted, is not entitled to abandon it upon its becoming uninhabitable for want of repair during the term, the landlord being under no implied obligation to make repairs.</p> <p>3. Landlord and tenant—“caveat emptor" applies. The rule of “caveat emptor" applies to a contract of letting, and the landlord is not bound to make repairs unless he has assumed such duty by express agreement with the tenant.</p> <p>4. Landlord and tenant—waiver of covenant. Where a landlord covenants to repair before the term, and the tenant takes possession without such repair having been made, he cannot abandon the lease and refuse to pay rent for a breach of any other covenant than for quiet enjoyment.</p> <p>5. Landlord and tenant—general repairs of apartment building. It is the duty of a landlord of a building, containing many rooms or apartments, which are rented to different persons, to keep up the general repairs of the whole building and the portions controlled by him.</p> <p>6. Landlord and tenant—repairs ordered by building commissioner not waiver. A landlord, in straightening up a demised building, on order from the building commissioner, does not thereby waive the tenant’s covenant to repair.</p> <p>7. Contracts—construction of, where written and printed clauses conflict. Where a type-written clause in a contract conflicts with a printed provision, the former should prevail but effect should be given to all the terms, if possible.</p>

<p>1. Mechanics’ liens—weight of evidence. Where on a hill for mechanic’s lien, alleging that in pursuance of a certain contract complainant constructed machinery for hoisting and loading coal for defendant who refuses to pay the balance due thereon, a cross-bill is filed alleging the machinery was inadequate and not adapted to the purposes for which it was installed, a decree for complainant will be reversed where the evidence shows the machinery was imperfect and had to be replaced at considerable expense.</p> <p>2. Recoupment—where machinery furnished is not according to the contract. Where complainant files a bill for a mechanic’s lien on certain machinery constructed for defendant, the fact that defendant has received and used the machinery does not prevent it from recouping damages if the machinery was not built according to the contract.</p> <p>3. Mechanics’ liens—set-off and counterclaims. In an action to enforce a mechanic’s lien an owner is entitled to make any defense against the contractor by way of set-off, recoupment, or counterclaim that he could in any action at law.</p>

<p>1. Cabbiebs-—prima facie case. Evidence that plaintiff was a passenger on defendant’s car when an accident happened and injury resulted to her, is sufficient to make a prima facie case.</p> <p>2. Cabbiebs—evidence. Where the evidence is undisputed that plaintiff was thrown violently against the seat in front of her so as to injure her side and cause her to become sick, a verdict finding defendant guilty of negligence will be sustained though defendant’s witnesses testified the car came to a slow and easy stop.</p> <p>3. Evidence—testimony of physician who examined plaintiff a few days before the trial. Testimony of a physician, who has attended plaintiff for several months, regarding her physical condition a few days before the trial, is properly admitted.</p> <p>4. Evidence—testimony of physician as to cause of injury and the pain suffered. Testimony of plaintiff’s physician as to the cause of the injury and the pain suffered is not prejudicial when corroborative and accumulative of facts and conditions established by evidence of defendant.</p> <p>5. Damages—when verdict is sustained. Where plaintiff, a healthy woman able to carry on her business, teaching school and vocal music, is injured in an accident on defendant’s electric railway so that she is nervous and unable to teach school without great exertion and exhaustion, a verdict for $3,110.00 is not so large as to show passion, prejudice or disregard of the evidence by the jury.</p> <p>6. Continuance—when not error to deny motion for. Where plaintiff is allowed at the close of her evidence, to amend her declaration by increasing the ad damnum from $3,000.00 to $5,000.00 there is no error in refusing to continue the case, where defend* ant’s affidavit is uncertain and indefinite and shows no particular reason why additional preparation is required.</p>

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

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

<p>1. Judgments—joint. A joint judgment against codefendants in an action for breach of warranty on a motor buggy purchased by mail order will be reversed where the evidence shows that the contract was made with only one of the defendants, though only the general issue is pleaded.</p> <p>2. Pasties—joint liability. While the statute relieves plaintiff from showing joint liability in the first instance, yet in the absence of a plea denying joint liability, the defendant may present such defense under the general issue.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Mines and minees—when no liability for injury from falling of coal. If falling coal which injured a miner came from the face of the room in which he was working and was of a kind which would have been taken down by him in the usual course of his work, there is no legal liability for the injury received.</p> <p>2. Instructions—when should be accurate. Where the question whether props and caps for use in a mine were demanded and whether they were furnished on demand is vital, instructions concerning that question should be accurately drawn and given.</p> <p>3. Mines and miners—what instruction as to delivering props as required erroneous. An instruction to the effect that the owner, etc., of every coal mine shall keep props and cap pieces on hand and deliver them as required, is erroneous when the accident in question occurred when the Act of 1899 was in force, since under that act the demand for the props must come from the miner.</p> <p>4. Mines and miners—instructions as to props. An instruction is not accurate under the evidence where it states that the mine manager shall always provide a sufficient supply of props on the miners’ cars, when demanded, as nearly as possible in suitable lengths and dimensions for securing the roof, when the evidence does not show that any particular length of props was demanded though the statute requires the miner to designate the length and size thereof.</p> <p>5. Mines and minees—when miner cannot complain if timbers are not of suitable length. The Mines and Miners’ Act requires a miner to designate the length and size of timbers he wishes to use and, if no timbers of a particular length are demanded, the miner cannot be heard to complain if the timbers are not of suitable length.</p> <p>6. Damages—suffering or pain. In an action for personal injuries, an instruction that the jury in passing on the question of damages can consider any future suffering or pain is not accurate since the element of pain should be confined to physical pain.</p> <p>7. Instructions—preponderance of evidence. Where witnesses in an action by a miner for personal injuries give directly opposite testimony and the greater number support defendant’s theory, it is error to instruct that the preponderance of the evidence is not determined alone by the number of witnesses who testify, but that the jury are to determine the preponderance “in accordance with the way in which it appears to their minds.”</p>

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

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

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

<p>1. Inteburban Railroads—injuries at crossings. A judgment in favor of plaintiff for damages to Ms team and wagon from a collision with defendant’s interurban car is reversed without remanding where the evidence shows that plaintiff’s agent in driving upon the tracks was guilty of negligence which contributed to the injury.</p> <p>2. Negligence—master charged with negligence of servant. Where plaintiff sues to recover for injury to his team and wagon, the negligence of the driver, plaintiff’s servant, is the negligence of plaintiff.</p>

<p>1. Statutes—construction. Where there is no equivocation in a statute, it is enforced as written.</p> <p>2. Statutes—construction with reference to common law. A statute is not to be construed as changing the common law beyond its expressly declared terms.</p> <p>3. Mines and miners—act of 1911. The miner’s act as revised in 1911 by leaving out the words “or other unsafe conditions” does away with the necessity of the mine examiner observing and reporting on dangerous conditions not specifically enumerated.</p> <p>4. Statutes—construction. The enumeration of particulars excludes generals, in the construction of a statute.</p> <p>5. Mines and miners—where miner is killed by break in the face of the coal. In an action for the death of plaintiff’s intestate, a miner, who was killed, while engaged in undercutting the face of the coal, by a large lump falling on him, defendant, the mining company, is not liable since, under the miner’s act as amended in 1911, a crack in the face of the coal is not required to be marked by the mine examiner.</p> <p>6. Mines and miners—assumed risk. A judgment under common-law counts for the death of plaintiff’s intestate cannot be sustained where intestate was an experienced miner and could have discovered the crack in the face of the coal which caused the accident.</p>

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

<p>. Appeal from the Superior Court of Cook county; the Hon. Richabd E. Bubiie, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John McNutt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

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

<p>1. Cabbiebs—disregarding counts. Counts of plaintiff’s declaration alleging that it was the duty of defendant to furnish a sufficient number of cars so that they should not become unreasonably crowded, and to furnish plaintiff a seat and that defendant failed to do so whereby plaintiff was obliged to sit upon a fender and by reason of defendant’s negligence was thrown off and injured are properly withdrawn from the jury where the evidence does not support them.</p> <p>2. Negligence—due care. In an action for personal injuries to plaintiff, a 14 year old boy, an instruction that the allegation in the declaration “that the plaintiff at the time and place in question, was in the exercise of due care for his own safety and protection” is a material allegation and unless the jury believe from the evidence that he was then and there “exercising such due and reasonable care for his own safety and protection as a person of his age, experience and intelligence would exercise under similar circumstances and conditions” he cannot recover, while not technically accurate is not harmful in a case where no other verdict than one of not guilty could reasonably be sustained.</p> <p>3. Cabbiebs—permitting log to ride on fender of street car. Where a street car conductor collects the fare of a boy riding a fender at the rear end of the car, though it be held that the carrier thereby permits the boy to ride on the fender as a passenger, such permission is not negligence per se.</p> <p>4. Cabbiebs—passenger in dangerous position. Where a carrier permits a passenger to ride on the fender of the car it assumes the duty of exercising the care demanded by the circumstances.</p> <p>5. Carriebs—negligence. Where there is no evidence that the defendant carrier was guilty of negligence when the car on which plaintiff, a boy of 14 years old, was riding on the rear fender, gave a jolt or lurch, causing him to fall off, a verdict of not guilty will be sustained.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stouqh, Judge, presiding. Heard in the Branch Appellate Couri at the October term, 1911.</p>

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

<p>Appeals and errors—delay. Writ of error held sued out for purposes of delay and statutory damages awarded.</p>

<p>1. Appeals and errors—where verdict of not guilty is sustained. In an action for death where it is alleged that defendant negligently ran a street car over an excavation in which plaintiff’s intestate was working and caused the excavation to cave in on him, there being evidence that the excavation was in violation of city ordinances, that the soil was loose and unsupported, and that deceased, an experienced drain layer, must have known of the danger, a verdict of not guilty will be affirmed.</p> <p>2. Evidence—res gestae. In an action for the death of plaintiff’s intestate, a drain layer, killed by an excavation caving in, the testimony of a witness as to what he heard men around the scene of the accident say as to how the excavation caved in is admissible as part of the res gestae.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Max Ebebhabdt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>1. Carriers—Carmack amendment to Interstate Commerce Act. The Carmack amendment to the Interstate Commerce Act does not provide a method by which a contract of shipment may be altered or enlarged with respect to a change of destination.</p> <p>2. Carriers—effect of Carmack amendment. By the Carmack amendment, Congress so manifested a purpose to take possession of the subject of the liability of a railway carrier for loss or damage to an interstate shipment as to supersede all state regulations including laws invalidating contracts limiting the carrier’s liability.</p> <p>3. Carriers—action must be brought by one who holds bill of lading. Under the Carmack amendment an action for loss, damage or injury to property transported from a point in one state to a point in another must be brought by the holder of the bill of lading, and the presumption, is that the law was obeyed and a bill of lading issued, the purpose of the act being to protect the one legally entitled to possession of the property carried.</p> <p>4. Bill oe lading—loss of, doe's not defeat action. The loss or destruction of a bill of lading does not defeat an action to recover for damage to goods while in transit.</p> <p>5. Carriers—effect of Carmack amendment. Under the Carmack amendment, a provision in a bill of lading limiting the liability of the initial carrier to its own negligence is inoperative.</p> <p>6. Carriers—where ultimate destination of shipment is changed by oral agreement. Where the initial carrier agrees orally with the shipper while the goods are on its line to change the destination, it is liable under the Carmack amendment for damage the goods may receive in the hands of other carriers before they reach their destination.</p> <p>7. Pleading—in Municipal Court. In the Municipal Court, where no written pleadings are required, the party suing need not name his action and if misnamed it will not affect his rights if upon hearing the evidence he appears to he entitled to recover and the court has jurisdiction of the defendant and the subject-matter.</p> <p>8. Appeals and errors—saving questions. A statement of claim though technically defective, which apprises the defendant of plaintiff’s demand as required by section 40 of the Municipal Court Act is regarded as sufficient when questioned for the first time in the court of review.</p> <p>9. Costs—motion to tax cost of depositions. In an action where depositions are used which were taken in other cases between the same parties, dismissed on motion of plaintiff, it is proper to deny plaintiff’s motion to tax the costs against defendant.</p>

<p>1. Carriers—injury to trespassers. Where plaintiff, an employe of a packing house going from work, crosses defendant’s tracks in the stock yards at the crossing of a private road instead of crossing over a viaduct provided for that purpose and is struck by a train, there being evidence that the train was moving slowly and that the flagman or trainman did not see plaintiff in time to prevent the injury, a judgment for plaintiff will he reversed since plaintiff was a trespasser, and defendant was not guilty of wilful or wanton negligence.</p> <p>2. Railroads—running trains over crossing which many people are using. Defendant in a personal injury action is not guilty of wanton and wilful negligence in running trains on its tracks at a time when many pedestrians using a private road were crossing, when it has provided a viaduct over the tracks for the purpose of pedestrians.</p> <p>3. Railboads—where crossing is connected with public street. Where a railroad crossing is so connected with a public street as to be apparently a part of it and has been used by the public for many years, one who is injured in crossing is not held to be a trespasser.</p> <p>4. Railroads—trespassers. A railroad company, in the operation of its trains, owes no duty to a trespasser upon its right of way except not to wantonly or wilfully injure him.</p> <p>5. Railroads—duty to people using crossing. Where a place on a railroad company’s right of way has been openly used jointly by the railroad and the public as a crossing, the railroad company owes to persons crossing at such places the duty of exercising reasonable care to avoid injuring them, and the failure to give required signals may amount to wanton or gross negligence.</p>

<p>1. Municipal Court—evidence. Under rule 17 of the Municipal Court defendant is permitted to introduce evidence of only such defenses as are set out in his affidavit of merits.</p> <p>2. Municipal Court—when allegation of fact is admitted. Under rule 19 of the Municipal Court every allegation of fact in any statement of claim, counterclaim or set-off not denied specifically or hy necessary implication in the affidavit of defense is taken to he admitted, except as against an infant or lunatic.</p> <p>3. Municipal Court—who may sue. Under rule 23 of the Municipal Court the assignee and equitable and bona fide owner of any chose in action not negotiable may sue thereon in his name.</p> <p>4. Corporations—when certificate of incorporation is not recorded. A corporation has no right to transact business when it has not recorded in the county where its principal office is located a certificate of organization from the Secretary of State.</p> <p>5. Master and servant—action for wages. In an action by plaintiff as assignee of certan miners’ wage claims, where defendant does not deny they were assigned to plaintiff for a valuable consideration but contends that the claims were against a certain corporation and the evidence shows that the alleged corporation had not recorded a certificate of organization and that defendant was the owner and operator of the mine, there is sufficient evidence to sustain a judgment for plaintiff.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodobe Bbentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>1. Statute of frauds—how question raised. The statute of frauds cannot he relied on in the Appellate Court when the question was not raised in the trial court hy plea, objection to- evidence, motion to strike out evidence, or by instructions given or refused.</p> <p>2. Statute of frauds-—how question presented. The question of the statute of frauds is not presented by merely a request for a directed verdict.</p> <p>3. Master and servant—when contract for compensation established. Evidence held to support special counts alleging an agreement to pay plaintiff, an estimator, a monthly salary and certain commissions.</p> <p>4. Appeals and errors-—examination of record. When the Appellate Court reviews a record to determine whether the evidence supports the verdict and is convinced that it does and announces its conclusion without extensive analysis of the testimony it is not justly subject to the imputation that it did not examine the record and failed to discharge its duty.</p>

<p>1. Landlord and tenant—consent to assignment. A provision in a lease requiring the lessor’s consent to an assignment is waived, where the assignee of the leasehold interest takes possession and pays rent directly to the owner of the lease.</p> <p>2. Landlord and tenant—when assignee of reversion cannot declare forfeiture. The assignee of the reversion cannot take advantage of a cause for forfeiture of a lease for nonpayment of rent which accrued prior to the assignment.</p> <p>3. Landlord and tenant—where lessor has waived grounds for forfeiture. The assignee of a reversion cannot declare forfeiture of the lease upon grounds which accrued prior to the assignment and were waived hy the lessor.</p> <p>4. Conditional sale—when assignee may assert title. Where the owner of certain buildings and a ground lease makes a contract of conditional sale to a corporation, his assignee is entitled to assert title when the corporation becomes bankrupt and fails to comply with the conditions.</p> <p>5. Forcible entry and detainer—lies only to restore actual possession. An assignee of a leasehold interest who has had only constructive possession of the premises cannot maintain forcible entry and detainer.</p> <p>6. Forfeitures—not favored ty courts of equity. In equity a provision for the forfeiture of a lease for nonpayment of rent is treated as intended merely for security and equity assumes jurisdiction to relieve tenants from forfeiture upon payment of all rent in arrears.</p> <p>7. Equity—power to enjoin landlord from enforcing forfeiture of lease. Where complainant, assignee of a leasehold interest, has tendered defendant, owner of the reversion, the hack rent which accrued before defendant acquired title and the next instalment as it fell due and defendant has taken possession claiming the right to declare a forfeiture, equity has power to issue a mandatory injunction enjoining defendant from interfering with complainant’s occupation of the premises.</p>

<p>1. Municipal Court—default. In a fourth class action in the Municipal Court, where plaintiff has filed a statement of claim and defendant an affidavit of merits, it is error to enter judgment on the statement of claim as by default upon defendant’s failure to answer interrogatories filed by plaintiff within ten days, since the court has no such power as rule 9% attempts to confer.</p> <p>2. Municipal Court—roles. Section 20 of the Municipal Court Act does not give the court power to adopt a rule whereby a party’s pleadings may be stricken from the files and judgment entered by default upon his failure to comply with an order for the production of evidence.</p> <p>3. Constitutional law—due process of law. The constitutional guaranty of due process of law, without which no person may be deprived of his property requires inquiry before judgment, hearing before condemnation.</p> <p>4. Municipal Court—right to he heard on the issues. Where defendant puts a statement of claim at issue by an affidavit of defense he cannot be deprived of his right to be heard on the issues thus presented merely because of contumacy in disobeying an order that does not directly relate to such pleadings or the settlement of issues thereby raised.</p>

<p>1. Iitstjbaitce—what by-law does not contravene Act of 189S, § 15. A by-law of a mutual accident insurance company doing business on the assessment plan, which provides that payment in case of accidental death would be made only in case such death resulted within 90 days after the accident, does not contravene any express provision of the Act of 1893, § 15, relating to what must appear in the policy of life and accident insurance companies.</p> <p>2. IirsTrBAiTCE—construction of policy. If there is any contradiction between the policy issued by a mutual accident insurance company and the by-laws the policy will govern.</p> <p>3. Insubance—what by-law not contradiction of policy. Where a policy of a mutual accident insurance company provides for payment in case of accidental death and that liability is subject to subsequent by-laws, a subsequent by-law is not a contradiction of the policy, but is a qualification thereof, where it provides that payment on account of accidental death shall only be made where death results within 90 days after the accident.</p> <p>4. Insubaxce—what by-law parsed after issuance of policy not unreasonable. Where a mutual accident insurance company, having power to change its by-laws and authorized by the Act of 1893, relating to life and accident insurance companies, to change the risks to be assumed and their duration, issues a policy providing for payment in case of accidental death and making its liability subject to by-laws subsequently passed, a subsequent by-law, providing that payment shall be made in case of accidental death only when such death results within 90 days after the accident, is within the contemplation of the parties and not inconsistent with the provisions of the policy nor unreasonable in character.</p>

<p>Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>; 1. . Evidence—testimony of defendant as to memorandum of transactions. In an action by an executor to recover a balance claimed to be due on a note given by defendant to deceased, the testimony of defendant that a note book he had offered in evidence containing only a series of dates and amounts represented transactions with deceased is inadmissible.</p> <p>2. Evidence—checlcs made payable to currency. In an action by an executor on a note given by defendant to deceased, checks of the defendant, offered in evidence, made payable to currency and bearing no endorsements of deceased are properly refused and the testimony of defendant that they represented payments made to deceased is inadmissible.</p>

<p>1. Carriers—general issue. Where defendant street railway company pleads the general issue, plaintiff is required to prove her allegations that she was a passenger and that defendant was negligent in suddenly starting its car.</p> <p>2. Instructions—which direct a verdict. Where an instruction directs a verdict against defendant if the jury find certain facts, it should include all the elements of the cause of action that the declaration makes essential to recovery.</p> <p>3. Carriers—instructions assuming facts. Where defendant street railway company pleads the general issue, instructions which assume that plaintiff was a passenger are erroneous.</p> <p>4. Evidence-—where failure of proof does not constitute admission. In a personal injury action, where defendant, claiming to have had no knowledge or notice of the case until suit was instituted, pleads the general issue and in its defense proceeds to question the claim of negligence and the relationship of carrier and passenger, a failure to disprove either directly does not constitute an admission.</p> <p>5. Carriers—questions of fact. In a personal injury action, questions of fact as to the relationship of plaintiff and defendant and as to negligence of defendant are to be determined by the jury without any intimation or assumption in the instructions as to the proper conclusion.</p> <p>6. Carriers—where instructions assume facts. In a personal injury action, an instruction which assumes that merely being on a street car creates the relationship of passenger and carrier and assumes that plaintiff was on the car is erroneous.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gbmmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</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, 1912.</p>

<p>1. Replevin&emdash;when cannot he maintained. Plaintiff cannot maintain a replevin action for certain saloon property where it appears that the property belonged to his brother for whom he was managing the saloon.</p> <p>2. Replevin&emdash;when admission of evidence as to damages for the taking and holding of property under execution is error. Where plaintiff cannot maintain a replevin action instituted against a sheriff for certain property taken under an execution, he has no claim for damages for the taking and holding of the property under the execution and the admission of evidence as to damages is error.</p>

<p>Error to the ¡Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles E. Jennings, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Thomas P. Schlly, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Error to the Superior Court of Cook county; the Hon. William H. McSubely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</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, 1912.</p>

<p>1. Cities and villages—defective sidewalks. Whether plaintiff exercises due care in passing over a sidewalk when it is in process of repair and she is fully acquainted with its condition is a question of fact for the jury.</p> <p>2. Evidence—when opinion of physician as to cause of injury is admissible. Where plaintiff fell over a water plug projecting above the level of the sidewalk, in a personal injury action against the city, negligence of defendant being admitted, the testimony of plaintiff’s physician as to whether her physical condition is the result of the accident complained of is admissible.</p> <p>3. Evidence—expert testimony. The opinion of a physician as to the cause of plaintiff’s injury is not conclusive but subject to be contradicted by other evidence.</p> <p>4. Instructions—pointing out questions of fact to be determined by the jury. An instruction that whether or not defendant was guilty of negligence; that whether or not defendant had notice or by the exercise of ordinary care would have had notice of the condition of the sidewalk complained of; that whether or not plaintiff exercised ordinary care for her own safety; and that whether or not plaintiff is entitled to recover are all questions of fact to be determined from the evidence; is proper.</p> <p>5. Instructions—when no evidence to support. Where there is no evidence on which to base a part of an instruction it is properly refused.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

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

<p>1. Sales—when buyer estopped to claim, reduction. Where defendant offers to pay plaintiff Elgin price for butter if it scores extra and in case it does not grade extra to hold subject to plaintiff’s order or return, and plaintiff makes a shipment with instructions to store and notify plaintiff if it grades below extra and defendant retains it and uses it, he is estopped to claim a reduction in price on the ground that it did not grade extra.</p> <p>2. Sales—where butter is shipped to commission merchants. Where plaintiff ships butter to defendants in Chicago who offer to pay Elgin price in case it grades extra, and the evidence shows it did not grade as high as extra, the Chicago price for that grade on the day it is delivered governs.</p> <p>3. Sales—when goods cure sold on an executory contract. Where goods are sold for a certain price on condition that they meet a certain standard when delivered and they are not up to the standard, the buyer may rescind the contract and return the goods or retain them and recoup his damages when sued for the price.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Hoard in the Branch Appellate Court at the March term, 1911.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Appeals and errors—when 6iZ^ of exceptions stricken. Where the time for filing a hill of exceptions is extended by the Municipal Court on application made more than sixty days after entry of judgment, the bill will be stricken from the files on motion of appellee.</p> <p>2. Appeals and errors—when defendant cannot question sufficiency of declaration. In an action on an insurance policy, defendant cannot raise the question for the first time in a court of review that the declaration fails to allege that proofs of loss were furnished.</p> <p>3. Pleading—defects cured hy verdict. In an action on an insurance policy, where plaintiff fails to allege in his declaration that proofs of loss were furnished to defendant and defendant does not object to the declaration on the trial, the defect is cured by verdict.</p>

<p>1. Payment—when not shown. Where plaintiff, the assignee of a note, -obtains a judgment against defendant, the maker, and the only evidence introduced by defendant in suport of his defense of payment was evidence that he had paid' in full an account for labor with the payee of the note, and it is not shown that the note had any connection with the account, the judgment is affirmed.</p> <p>2. Evidence—burden of proof. In an action on a note, .where defendant pleads payment, he- has the burden of proof.</p> <p>3. Evidence—as to payment of note. In an action on a note, evidence offered by defendant to show payment of an account for labor with the payee is properly excluded when there is no evidence to show that the note had any connection with the account.</p>

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

<p>1. Municipal court—affidavit of defense. Where in a fourth class action in the Municipal Court plaintiff’s statement of claim is based on unnecessary and unreasonable delay on the part of defendant carrier in the transportation of goods and defendant’s affidavit of defense is simply that it has a good and valid defense to the whole of plaintiff’s claim, the nature of which is “that there was no unnecessary and unreasonable delay,” etc., the only fact in issue is that of delay, and defendant is not entitled to avail itself of the absence of proof that it was the initial carrier, or of proof of a contract between plaintiff and defendant, or that plaintiff is the lawful holder of a receipt or bill of lading issued by it.</p> <p>2. Municipal coubt—affidavit of defense. On appeal, a defendant cannot complain of the absence of proof as to matters which he has admitted by failure to specifically deny in his affidavit of defense.</p> <p>3. Cabbiebs—act of God. A carrier cannot avail itself of the defense that a delay in transportation occasioned by a washout was due to an act of God for which it was not responsible, where, from the stipulated facts, it appears that had the goods been transported without delay upon receipt no delay would have been occasioned by the washout.</p>

<p>1. Insurance—conflict of laws. Policies of life insurance, like other contracts, are construed according to the law of the place where they are made.</p> <p>2. Conflict of laws—when common law is presumed to be m force. In construing a contract of another state when there is no proof of what the law of the place of the contract is, it is presumed that the common law is in force there.</p> <p>3. Insurance—conflict of laws. In an action on an insurance policy, where the application contains a provision that it will constitute no contract until the policy is issued, delivered and the first premium paid, and there is no evidence to show where the policy was delivered on the first premium paid, the contract will be construed according to the rules of the common law.</p> <p>4. Contracts—construction. ■ At common law contracts must be so construed as to carry into effect the real intent and understanding of the parties.</p> <p>5. Contracts—construction. Where the intent and understanding of the parties to a contract is sufficiently apparent, effect must be given to it, even if in so doing violence is done to the language employed, for greater regard is to be given to the clear intent of the parties than to any particular words used.</p> <p>6. Contracts—intent, how determined. In construing a contract, the intention of the parties must be ascertained from the words employed, the connection in which they are used, and the subject-matter of the contract.</p> <p>7. Contracts—when viewed from position of matter to determine intent. When necessary in construing a contract the court will put itself in the place of the parties and read the contract in the light of the objects they had in view and the circumstances surrounding them at the time it was made so as to understand the language in the sense intended.</p> <p>8. Contracts—construction. In construing a contract the scope and end of every matter covered by the contract is to be considered.</p> <p>9. Insurance—construction of policies. In construing a life insurance policy the intent of the insured as to who the beneficiary shall be controls.</p> <p>10. Insurance—construction of policy. Where insured has his policy issued payable to his wife “if living and if not, to their children or their guardian for their use” and, at the time, insured has only one child, the fact that the term “children” is used indicates that it is intended to designate a class.</p> <p>11. Wills—where fund is given to a class. Where by the terms of a will a fund is given to a class of persons, the determination of who belong to the class and who consequently are entitled to participate in the distribution of the fund is postponed until the death of the testator and the fund goes to .the survivor or survivors of the designated class.</p> <p>12. Insurance-—policy to be construed by rules applicable to construction of wills. In determining who are beneficiaries in an insurance policy the policy is to be construed by the rules applicable to the construction of wills.</p> <p>13. Insurance—where term “children” in an insurance policy describes a class. Where a bill of interpleader is filed by an insurance. company to determine who is entitled to certain insurance, the policy providing it should be payable to the wife “if living and if not, to their children or their guardian for their use,” and the insured survives his wife and daughter and dies leaving a son, it is held that the word “children” describes a class and the son being the only survivor is entitled to the insurance as against the administrator of the daughter.</p> <p>14. Insurance—vested rights of beneficiaries. The beneficiaries named in a policy of insurance have vested rights in the fund and only those named as beneficiaries have such rights.</p> <p>15. Insurance—who not beneficiary. Where insured has his policy issued payable to his wife “if living and if not, to their children or their guardian for their use,” a daughter who died ten years before her father, the insured, was not a beneficiary and never had a vested interest in the fund.</p>

<p>1. Attachment—fraudulent disposition of property. The facts that a debtor executed and delivered a bill of sale of all its property to its largest creditor who agreed to cancel all the obligations it held against the debtor and pay all its outstanding obligations, and that the creditor took possession employing the president of the debtor to manage the business, will not support attachment.</p> <p>2. Attachment—sale without fraud not ground. The mere sale or transfer by a debtor of part or all of his property does not warrant the issuance of a writ of attachment, though the sale or transfer results in a preference of some of his creditors and in hindering or delaying others in the collection of their claims where there is no element of intentional fraud.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Railroads—negligence in crossing tracks. Evidence in an action for the death of one struck by a suburban train, held to show that deceased was deliberately attempting to cross the tracks in front of the train when it was almost upon him to reach a platform and was guilty of contributory negligence.</p>

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

<p>1. Payment—note as payment of debt. The mere giving of a note does not of itself, extinguish a precedent debt, whether it be an account or other demand.</p> <p>2. Payment^—question of fact. The question whether a debt is extinguished by a note is one of intention to be determined by the jury.</p>

<p>1. Agency—not irrevocable because exclusive. An exclusive agency to sell certain land is not irrevocable because exclusive.</p> <p>2. Agency—when not coupled with an interest. An agency is not coupled with an interest where the agent is given the exclusive right to sell certain property to a railroad company, which is sought by such company in condemnation proceedings, and the principal agrees to pay as commission the price secured above a certain sum.</p>

<p>1. Negligence—scalding hoiler repairer. Where from the evidence the jury may believe that plaintiff, a boiler inspector, informed defendant’s engineer to turn the cold water into. the combustion chamber because he was going in, and not to leave until he was done, and hot water began to be forced into the chamber when he was almost done and scalded him until the engineer returned five minutes later, a finding of negligence will be sustained.</p> <p>2. Negligence—care as to invitee. Where a lessee in possession of a building informs the owner’s agent that the boiler is defective and such agent notifies a company which sends its superintendent to investigate and report, such superintendent is rightly on the premises and the lessee owes him the duty to exercise ordinary care while he is on the premises in connection with the work.</p> <p>3. Master and servant—when servant is acting within scope of employment. Where an engineer charged with the care of the engine room and boiler of a building for one in possession thereof as lessee, is assisting a superintendent of a company who is sent to investigate and report as to alleged defects in the boiler on complaint by the lessee to the agent of the owner, such engineer in assisting the superintendent under his direction is in the performance of proper and usual duties fairly implied from the nature of and within the scope of his employment when there is no evidence that, at the time of the investigation, the lessee excused said engineer from his duties.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. William C. De Wolf, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>1. Appeals and ebbobs—harmless error. In an action for rent, the admission of a transcript of the record in another action for prior instalments is not reversible error, where the instructions to the jury are such that no harm was done to defendant by its admission.</p> <p>2. Judgment—when res adjudícala. In an action for rent, a former judgment for prior instalments is res adjudicata of all issues except as to payment of the particular instalments sought to be recovered.</p> <p>3. Insthuctioxs—when proper to direct verdict. In an action for rent, where the evidence offered by defendant does not tend to prove payment or establish any defense, it is proper to instruct the jury to return a verdict for plaintiff.</p>

<p>1. Trover—when instruction as to exemplary damages erroneous. An instruction which permits an award of exemplary damages in an action of trover, is erroneous where there is no evidence that defendant’s purchase of the goods from one claiming to be plaintiffs agent was not made in good faith, and where defendant removed the property openly and without haste, and was not notified that the sale was without the owner’s knowledge or consent until nearly all was removed.</p> <p>2. Tboveb—when error to exclude receipt. When exemplary damages are sought in an action of trover where defendant purchased the goods in question of one claiming to be plaintiff’s agent, it is error to exclude the receipt for the purchase price given to defendant, signed by such purported agent as agent, and describing the goods and their location.</p> <p>3. Tboveb—evidence—when exemplary damages are claimed. When exemplary damages are claimed in an action of trover, the facts and circumstances immediately connected with the transaction tending to exhibit or explain the motive and intention of defendant or tending to show that he did the acts complained of in good faith are admissible in evidence.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>Appeal from the County Court of Cook county; the Hon. William C. De Wole, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>These cases are controlled by the decision in No. 17,446, ante, p. 476.</p>

<p>1. Street railroads—evidence. In a personal injury action where all the evidence shows that plaintiff was injured by defendant’s street car at the time áhd place stated by the only witness, the verdict is sustained though the testimony of the witness who saw the accident contains contradiction.</p> <p>2. Contributory negligence—when question of fact. In a personal injury action where plaintiff, a boy seven years old, is struck by defendant’s street car the question whether he was guilty of contributory negligence is for the jury.</p> <p>3. Evidence—when admission is improper though not reversible error. In a personal injury action where plaintiff, a boy seven years old, is struck by defendant’s street car, testimony that he “hollered” when his hair was cut and cried when his face was washed after the accident though improper is not reversible error.</p> <p>4. Street railroads—instructions as to negligence. An instruction, that if the jury find from a preponderance of the evidence that defendant’s car struck plaintiff and that plaintiff was in the exercise of ordinary care for one of his age, capacity, knowledge, intelligence and experience before and at the time of the accident, and the motorman in charge of the car was aware, or ought to have been aware by the exercise of due care, of plaintiff’s danger, if ¡plaintiff were in danger, in time to have stopped the car before it struck and injured plaintiff, then the jury should find defendant guilty, is not erroneous because it does not tell the jury that they must also find the injuries complained of were the direct and proximate result of the negligence.</p> <p>5. Verdict—when not excessive. Where plaintiff, a seven year old boy, is struck and injured by defendant’s street car, a verdict for $2,500 is held not excessive, the weight and credit to be given the testimony regarding the extent of plaintiff’s injury being a question for the jury.</p>

<p>Appeal from the County Court of Cook county; the Hon. J. E. Owens, Judge, presiding. Heard in this court at the March term, 1913.</p>

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

<p>Error to the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the March term, 1910.</p>

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

<p>1. Appeals and errors—orders reviewable. It would seem that a writ of error cannot properly be sued out to reverse a void order.</p> <p>2. Dismissal—when erroneous. Where after a chancery cause has been placed on the trial calendar it is by agreement of the parties referred by the court to a master, but no notation of such reference is made on the calendar, it is erroneous to dismiss the cause for want of prosecution, when it is reached in the regular call, the proceedings before the master being still pending.</p> <p>3. Dismissal—effect of Practice Act. Section 21 of the Practice Act of 1907 does not deprive a judge of the power to pass a chancery case on the docket without action where he finds that it has been referred to a master.</p> <p>4. Jurisdiction—ouster. A chancery court after reference of the cause to a master to take evidence is not ousted of jurisdiction, and has power to make an order dismissing the cause for want of prosecution.</p> <p>5. Jurisdiction—void order. Where a court has jurisdiction of a chancery cause an inadvertent order of dismissal is not void.</p>

<p>1. Judgment—power of court at subsequent term. The court has no supervisory power of a judgment at a subsequent term except to amend it in matters of form and correct clerical errors.</p> <p>2. Appeals and ebbobs—order dismissing suit. An order of dismissal is final and an order at a subsequent term setting it aside is void rather than erroneous.</p> <p>3. Appeals and ebbobs—when order dismissing motion is appeal-able. Where a suit is dismissed for want of prosecution and a motion to reinstate at a subsequent term is denied, the order is appealable and a motion to dismiss the appeal is denied.</p> <p>4. Appeals and ebbobs—motion to reinstate at subsequent term. Where a suit is dismissed for want of prosecution, a motion to reinstate at a subsequent term is properly denied, the court having jurisdiction to hear the motion but not to reinstate.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Injunction—damages. Evidence held to justify the assessment of certain expenses of securing the dissolution of an injunction as damages against complainant.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walkeb, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>1. Mortgages—when mortgagor who has conveyed is liable on foreclosure for deficiency. Where defendant purchases real estate and gives notes secured hy a trust deed in part payment and after-wards conveys a two-thirds interest to two grantees who each agree to assume and pay one-third of the encumbrance a deficiency decree is properly entered against defendant if the real estate when sold under foreclosure does not satisfy the indebtedness.</p> <p>2. Courts—when appellate court is bound to follow supreme court. The Appellate Court is bound to follow the decision of the Illinois Supreme Court in matters of local law though inconsistent with the U. S. Supreme Court.</p> <p>3. Mortgages—principal and surety. While as between the mortgagor and the grantee of the mortgaged property who assumes the mortgage debt, the latter becomes the principal debtor and the former the surety, this is only true between the mortgagor and grantee and the mortgagee may treat them both as principal debtors and have a personal decree against both unless he has agreed to release the mortgagor and look solely to grantee for payment.</p> <p>4. Novation—where mortgagor conveys mortgaged property. Where a mortgagor conveys mortgaged property there is no novation unless there is something to show the mortgagee has released the mortgagor and agreed to look solely to the purchaser for payment of the mortgage debt.</p> <p>5. Evidence—testimony of grantees of mortgagor where administratrix is complainant. In a foreclosure case where defendant, the mortgagor, had conveyed a two-thirds interest in the mortgaged property, the grantees are incompetent witnesses to testify that the mortgagee who is deceased agreed to look solely to them for payment of the mortgage debt.</p>

<p>Appeal from the Circuit court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>Error to the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Informations—when insufficient. A count of an information which charges that defendants, J. W. Martin and Marie Watson, being unmarried persons, lived together in an open state of fornication and adultery contrary to the statute, does not set forth facts constituting the statutory offenses since it is not averred that defendants are a man and a woman.</p> <p>2. Information—form. An information charging adultery and fornication should be carried on in the name and by the authority of the People of the State of Illinois and conclude against the peace and dignity of the same.</p> <p>3. Adultery—defined. Adultery is sexual intercourse of a married person with a person other than the offender’s husband or wife.</p> <p>4. Adultery—when people must prove that defendant is married. Where counts of an information charging defendant with adultery aver that defendant is a married person, the People must prove that averment.</p>

<p>1. Evidence—examination of experts. The approved method of introducing expert evidence as to the reasonable value of attorney’s services, for which action is brought, is to put questions to qualified expert witnesses which assume certain facts claimed to be based on plaintiff’s evidence and to ask what would be the reasonable and customary value of such services, assuming such facts to be true.</p> <p>2. Evidence—examination of experts. It is not proper in an action for fees for attorney’s services, in introducing expert evidence, to ask expert witnesses whether they heard the evidence of plaintiff in chief as to the services rendered and, after an affirmative answer, to ask what in their judgment is the reasonable, customary and ordinary charge for such services; but it is not reversible error when there is no conflict on the question of the services performed.</p> <p>3. Payment—iurden of proof. In an action for attorney’s fees and for money advanced, where defendant pleads payment, it is proper to instruct that the burden of proving such plea is on defendant.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the April term, 1912.</p>

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

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

<p>1. Death—family of deceased. In an action for the death of plaintiff’s intestate, an employe of defendant, evidence as to the ages of surviving children, that plaintiff is the widow of deceased, and that deceased supported his family is not erroneous though it is not proper to show pecuniary condition of widow.</p> <p>2. Master and servant—when evidence sustains verdict. Where plaintiff’s intestate, an employe of defendant, is directed by a vice principal to go to the top of a boom and place a chain, used in operating a steam shovel, over the top of shive wheels and before intestate is out of the way the vice principal starts the engine, the chain is rapidly pulled over the wheels and the end strikes intestate on the head, resulting in his death, there is no error in refusing to direct a verdict for defendant and a judgment for $6,00.0 will be affirmed.</p>

<p>1. Railboads—what instruction erroneous as to sufficient cattle guards. In an action for the value of a horse killed by an electric car of defendant it is error to instruct that, if the jury believe from the evidence that the horse in question without negligence on plaintiff’s part got upon defendant’s railroad track over a cattle guard maintained by defendant, that the horse got on the railroad on account of the insufficiency of said cattle guard, and that the place where the animal was killed was not at the crossing of a public- highway, nor within the limits of a town, city or village and that said railroad had been open for use for six months or more before the time said animal was killed, then in such case they should find the issues for plaintiff.</p> <p>2. Railboads—when cattle guard complies with statute. If a railroad cattle guard is suitable and sufficient to prevent ordinary stock or stock to some extent unruly from getting on the railroad, it complies with the statute and the owner of a horse which passes over such guard on the railroad where it is killed by a car cannot recover.</p> <p>3. Railboads—when no recovery on ground that cattle guard is not suitable. If a horse passes over a railroad cattle guard because of its unruly character and not because the guard is not suitable and sufficient to turn stock and not because of the railroad company’s negligence in failing to maintain a suitable and sufficient guard, the owner is not entitled to recover if such horse is killed on the railroad hy a car.</p> <p>4. Railboads—what evidence proper as to whether a cattle guard is suitable and sufficient to turn stock. In an action for the value of a horse killed by defendant’s electric car on its right of way because of defendant’s alleged negligent failure to keep and maintain good and sufficient cattle guards, evidence by experienced railroad men that the guard in question is of a standard make and in general use on first class railroads is proper.</p>

<p>1. Insurance—agency. An insurance company by sending a policy to a party to deliver to the insured makes such party its agent to deliver the policy, and an offer by the insured to return the policy to said party is an offer to return it to the company.</p> <p>2. Insurance—cancellation of policy. Where the insured tenders the policy back to the agent of the company who delivered it to him, and tells such agent that it is not what he contracted for he does all that is required of him to cancel it.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>1. Carriers—duty to use highest degree of care. It is the duty of a carrier of passengers to use the highest degree of care, skill and diligence reasonably practicable, consistent with the operations of a railroad, in providing passengers an opportunity and the means necessary to a safe passage from its cars, and at the same time passengers must exercise ordinary care for their own safety.</p> <p>2. Negligence—when question of due care becomes one of law. In a personal injury action where the plaintiff’s own negligence on the question of her care is free from conflict and the facts are undisputed and conclusively proved, so that there is no chance of drawing different conclusions from them, the question becomes one of law for the court, and if the plaintiff did not use ordinary care for her own safety, it is the duty of the court to give a peremptory instruction on request.</p> <p>3. Negligence—where plaintiff does not use due care. Where plaintiff, who was three months pregnant, in getting off an interurban car which had run past the platform, jumped from a step three feet from the ground, she was not in the exercise of ordinary care for her own safety and is not entitled to recover for injuries sustained.</p>

<p>1. Master and servant—contributory negligence. Where plaintiff twenty years of age after' working nineteen days for defendant electric railway company in learning the work of a substation attendant is directed to clean out a high tension room and while so doing is injured by an electric current, an instruction which limits the care of plaintiff to what he did while in the high tension room, is erroneous, there being evidence that he was guilty of negligence in going into the room without first opening the outside switches.</p> <p>2. Evidence—as to different construction of wires and switches in high tension room. Where plaintiff an employe of defendant electric railway was injured while cleaning a high tension room, evidence that a different construction of the wires and switches would have been safer for the employes is improperly admitted where the issue is whether defendants used reasonable and ordinary diligence to provide reasonably safe appliances.</p> <p>3. Argument oe counsel—improper remarles. It is error for plaintiff’s attorney to persist in making remarks which are objected to and sustained, to the effect that plaintiff was employed after a number of employes had gone on a strike.</p>

<p>Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Railroads—contributory negligence. Evidence held, to show that the motorman of an electric interurban car was guilty of negligence preventing recovery for injuries sustained in a collision with a switching railroad train at a crossing.</p>

<p>1. Licenses—discrimination. An ordinance requiring licenses from peddlers and hawkers which is not applicable to “farmers and gardeners and peddlers of fruit and vegetables from a basket by the person raising the same or his servants nor to the peddling of newspapers,” does not discriminate against any person or class of persons but is applicable to all persons and only’ regulates voluntary action.</p> <p>2. Ordinance—may derive validity from different grants. An ordinance may derive its validity from different grants of powers and does not necessarily depend on any single clause or section of the statute.</p> <p>3. Licenses—right to require. A city has the right to license peddlers of particular articles without requiring in the same ordinance that every peddler of any or all other articles shall be licensed.</p> <p>4. Ordinances—must he general. Ordinances of municipal corporations must be general in their character and operate equally upon all persons within the municipality of the class to which the ordinance relates.</p> <p>5. Interstate commerce—what sales not. Where defendant required purchasers of rugs on time to sign printed forms headed with the name of a firm with general offices in a foreign state, and the rugs were shipped in packages of twenty-five rugs which were broken and the rugs carried by him about the city and sold separately to different purchasers on time, such sales are not within the Interstate Commerce Act.</p> <p>6. Interstate commerce—elements determining. It is the locality where the sale is made and the article is at the time of sale that determines whether it comes within the provisions of the Interstate Commere Act.</p> <p>7. Interstate commerce—sales. The Interstate Commerce Act only has reference to sales in original packages and goods to be shipped from other states after the order is taken.</p>

<p>1. Agency—how proved. An agency cannot he proved by the statements of the person claimed to be an agent, but an alleged agent is a competent witness to prove the agency.</p> <p>2. Landlord and tenant—liability -for rent. It is error to refuse a peremptory instruction for defendant company in an action for rent for a building alleged to have been rented to the company where there is no evidence that such company rented the building or ratified the action of its agent merely authorized to sell its products in renting it.</p>

<p>Appeal from the County Court of Be Witt county; the Hon. Feed C. Hill, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Error to the Circuit Court of Moultrie county; the Hon. William G. Cochran, Judge, presiding. Heard in this, court at the April term, 1912.</p>

<p>1. Administration of estates—claims. Where a claim against the estate of a decedent for a subscription made toward building a church, is filed within a year in the name of the church, an amendment is properly allowed after a year changing the claimant to the board of trustees of the church.</p> <p>2. Religious societies—what is not necessary to establish claim, against estate of deceased. Where a claim is filed against the estate of decedent for a subscription made toward building a church, it is not necessary that the records of the church show every step necessary to bind it in its contracts, nor that the architect was licensed.</p> <p>3. Subscriptions—right to recover on. Where a claim is filed against the estate of a decedent for a subscription made toward building a church, evidence that the church was not built on the location decedent expected is properly excluded where there was no such condition attached to the subscription.</p> <p>4. Administration of estates—claims. An objection that a claim is filed against the executor instead of against the estate will not be considered when raised for the first time in the court of review.</p>

<p>Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Landlord and tenant—right of tenant to crops. A tenant who leases premises for a year is entitled to grow and obtain such crops as may be grown during the year and harvested prior to the expiration of the lease.</p> <p>2. Statute of frauds—what verbal promise to execute lease within. A verbal promise to execute a lease to premises for a year beginning on a certain date, if made prior to such date is within the statute of frauds.</p> <p>3. Landlord and tenant—when landlord may re-enter. Where a tenant abandons the premises before the expiration of his lease without notice to the landlord and without his consent and removes to another state where he thereafter resides, the landlord has a right to re-enter and take possession.</p> <p>4. Landlord and tenant—abandonment. The statute relating to gathering of crops on abandonment of premises has no application to crops planted by the tenant which cannot mature before the expiration of the lease but applies only to the growing and maturing of crops during the term for which the lease is executed.</p> <p>5. Landlord and tenant—crops. A tenant by planting a crop which cannot mature until after the expiration of the lease, obtains no right to re-enter to gather the grown crop.</p> <p>6. Landlord and tenant—landlord cannot be required to harvest crop. A tenant who plants a crop which cannot mature before the expiration of his term and abandons the premises before such expiration, cannot require the landlord after the expiration of the term to use the premises to mature or harvest the crop for his use.</p> <p>7. Landlord and tenant—when landlord may enter. Where the term of a tenant, who abandoned the premises before the expiration of his term has expired, his rights and interests in the premises have ceased though a crop planted by him has not matured and the landlord has a right to enter and execute a lease from the time of the expiration of such tenant’s term.</p>

<p>1. Criminal law—record. An alleged error in permitting the amendment of an information during vacation will not be considered where the record does not disclose that the information was in any manner changed or amended.</p> <p>2. Criminal law—when alleged error is immaterial. An alleged error in requiring defendants to plead during vacation is immaterial where the record shows that defendants were arraigned and pleaded not guilty at a subsequent term.</p> <p>3. Criminal law—evidence as to use of corporate name. In a prosecution for using a corporate name for the purpose of obtaining business without being regularly licensed, advertisements displayed by defendants are admissible.</p> <p>4. Criminal law—verdict of not guilty against part of defendants. Where three defendants are indicted for using a corporate name, for the purpose of obtaining business, without being regularly licensed, the fact that the jury found one defendant not guilty does not affect the judgment against the others found guilty.</p> <p>5. Names—use of corporate name. In a prosecution for using a corporate name to obtain business without being licensed, there being evidence that defendants displayed advertisements such as to give the general public the impression that they were incorporated, a verdict of guilty will be sustained.</p>

<p>Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Insurance—evidence. Refusal to permit defendant in an action on an insurance policy to show that a statement in the insured’s application to the effect that she had not been examined or attended by a physician for any serious disease was untrue is not error where there is no issue or fact raised by the pleadings whether any of the representations in the application were false, the application is not a part of the policy, defendant is permitted to introduce evidence that the insured was suffering with a serious disease at the time of and prior to the issuance of the policy, and such question is properly submitted to the jury.</p> <p>2. Instructions—repetition. It is, not error to refuse an instruction which is fully covered by instructions given.</p>

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

<p>1. Administration of estates—when report is res adjudicate/,. Where an item for certain attorneys’ fees is not written in the final report of an administrator but is presented by motion and is denied and no appeal is taken, such action is a final adjudication of the question, and it cannot be again raised by filing a supplemental report with only such item additional therein.</p> <p>2. Appeals and errors—affirmance. If the judgment of the trial court is correct, it must be affirmed regardless of the reasoning by which the court arrived at it.</p> <p>3. Administration of estates—when propositions of law may not properly he submitted. Where the question in proceedings on an administrator’s report is whether certain additional attorney’s fees should be allowed, the question is not one upon which propositions of law may properly be submitted.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. William Q. Cochran, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Damages—when improper to' submit question of punitive damages to the jury. Plaintiff contracted to purchase certain premises from defendant and was to receive the key as soon as a cash payment was made. Plaintiff placed a check for the payment in the hands of an attorney, obtained the key, but not from the defendant, placed goods in the house, and defendant never received the check took the goods to a warehouse and notified plaintiff where they were. Held, that the question of punitive damages was improperly submitted to the jury in an action for trespass.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Habéis, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Error to the Circuit Court of DeWitt county; the Hon. William G-. Cochran, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.</p>