Volume 182 — Illinois Appellate Court Reports

<p>Abstract of the Decision.</p> <p>1. Damages, § 218*—default as an admission of plaintiff’s damages. Default entered for failure of defendant to file sufficient affidavit does not admit the amount of plaintiffs’ damages.</p> <p>2. Damages, § 231*—rights of defendant in assessing damages after default. After default for want of plea or affidavit of merits, defendant with respect to the amount of damages has right to cross-examine plaintiff’s witnesses, introduce evidence, ask for instructions and preserve his rights for review by bill of exceptions.</p> <p>3. Damages, § 221*—right of court without jury to assess, after default. A proceeding for assessment of damages after a default is not a “trial” within the meaning of section 30 of Municipal Court Act, J. & A. V 3342, preserving to the parties the right of trial by jury. Grldley, J., dissenting.</p> <p>4. Municipal Court of Chicago, § 13*—-when affidavit of merits may be stricken from files. Affidavits of merits which are ambiguous and evasive and fail to state nature of defendant’s defense may be stricken from the files.</p> <p>5. Municipal Court of Chicago, § 13*—procedure on failure to file affidavit of merits. Default may be entered for failure of defendant to file sufficient affidavit of merits.</p> <p>6. Municipal Court of Chicago, § 5*—what governed by rules. Whether damages may be assessed by the court or by a jury, after default has been entered for want of a plea or affidavit of merits, is a matter of practice only which may be governed by the rules of the Municipal Court.</p> <p>7. Municipal Court of Chicago, § 5*—rules of court construed. Rule 17 of Municipal Court, in so far as it authorizes court after default to assess damages without a jury, was adopted in lieu of section 59 of Practice Act, J. & A. If 8596, and such rule is not in conflict with section 30 of Municipal Court Act, J. & A. 3342, preserving to the parties the right of jury trial.</p>

<p>1. Judgment, § 444*—former adjudication. Recovery in a suit against husband and wife for use and occupation of premises as a family expense, held no bar to a subsequent action against the wife alone on her written lease.</p> <p>2. Landlord and tenant, § 310*—when failure of landlord to relet no defense. In suit to recover for the actual use and occupation of leased premises, a plea that landlord failed to attempt to reduce the claim by reletting the premises is incompetent.</p> <p>3. Landlord and tenant, § 306*—recovery of rent as family expense. In an action against husband and wife to recover for use and occupation of premises as a family expense, a claim by husband that he did not join with his wife in a lease is immaterial.</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 October term, 1911.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, 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. Ear-tin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>Abstract of the Decision.</p> <p>1. Husband and wife, § 233*—when right to temporary alimony presumed. Wife suing for separate maintenance is presumed entitled to temporary alimony.</p> <p>2. Husband and wife, § 234*—when wife entitled to allowance of temporary alimony and solicitor's fees. Wife apparently suing for separate maintenance in good faith is entitled to temporary alimony and attorney’s fees, notwithstanding husband’s answer charges her with adultery, since the time for determining such issue is upon trial to the merits.</p> <p>3. Appeal and ebbob, § 1357*—when amount allowed as temporary alimony not an atuse of discretion. Claim of husband that most of his property produces no income, held not to warrant Appellate Court in interfering with discretion of chancellor as to amount allowed for temporary alimony.</p>

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

<p>1. Judgment, § 49*—form- of. Litigants are not entitled to any particular form of a judgment order other than that which sufficiently expresses the judgment of the court.</p> <p>2. Judgment, § 269*—when motion to change form of, should he denied. A motion to change the form of a judgment should he denied when no convincing reason is pointed out for making the change.</p>

<p>1. Mines and minerals, § 74*—proximate cause. Permitting a car to be lowered into a mine without a linch-pin in an axle to keep wheel on, held to be the proximate cause of the injury, where an employe, engaged in removing cars from cage at bottom of shaft, is injured by falling coal while reaching into the shaft to recover a wheel which came off.</p> <p>2. Mines and minerals, § 181*—proximate cause as question for jury. Whether the negligence of the defendant was the proximate cause of the injury is a question for the jury.</p> <p>3. Negligence, § 49*—rule as to proximate cause. Where the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of a third person will not excuse the first wrongdoer.</p> <p>4. Damages, § 111*—when not excessive. Award of twelve thousand five hundred dollars to a miner, held not excessive where plaintiff received a compound fracture of the back of the skull and the optic nerve of both eyes was injured so that the central vision of the eyes was absent.</p> <p>5. Mines and minerals, § 85*-—when use of car without linchpin is negligence. Permitting a car to be lowered in a mine without a linch-pin to keep wheel on axle, held negligence.</p>

<p>1. Cobpobations, § 181*—place of holding corporate meetings. A corporation organized not for profit under the laws of Illinois cannot lawfully hold its corporate meetings outside of the State.</p> <p>. 2. Cobpobations, § 240*—place of holding elections. The election of directors or trustees of a corporation is a corporate act requiring the election to be held within the State which granted the charter.</p> <p>3. Cobpobations, § 240*—statutes construed, as to place of holding elections. Sections 20 and 32 of the Corporation Act, J. & A, IHf 2437, 2450, do not authorize election of trustees to be held without the State.</p> <p>4. Cobpobations, § 665*—where corporate acts must be performed. Corporate acts, strictly so called, as distinguished from ordinary business transactions such as may be performed by agents, can only be lawfully performed in the State in which the corporation was created, and such rule applies to corporations organized not for profit.</p> <p>5. Cobpobations, § 181*—place of holding directors’ meetings. Acts of directors at directors’ meeting aré not corporate acts, requiring such meetings to be held in the State where corporation was created.</p> <p>6. Cobpobations, § 184*—voting by delegates selected by constitutent assemblies. A corporation organized under the laws of this State cannot by its by-laws provide for the election of its trustees by delegates selected by constituent assemblies in this and other States, instead of an election by the members, in person or by proxy.</p> <p>7. Cobpobations, § 247*—when member may compel quo warranto proceedings against officers illegally elected. A member of an Illinois corporation deprived of the right to vote for trustees, except by and through delegates selected from constituent assemblies in elections held without the State, may file a petition for mandamus to compel the State’s Attorney to sign a petition for leave to file an information in the nature of a quo warranto against trustees so elected.</p>

<p>1. Carriers, § 364*—liability to passenger falling through open space between ear and station platform. Elevated railroad stopping its cars at a platform where it is dangerous for passengers to alight, by reason of an open space between a car and the platform, held liable for injuries sustained by a passenger falling through such open space while attempting to alight. ■</p> <p>2. Cabbiebs, § 347*—proximate cause. Failure of elevated railroad company to provide barriers under its platform at side of track to prevent a passenger falling from track platform to the ground is negligence contributing to the injury of a passenger who falls through an open space between car and platform to the track and thence to the ground, if the facts show that the company ought to have foreseen and guarded against such an accident.</p> <p>3. Cabbiebs, § 480*—when question of negligence is for jury. Whether failure of an elevated company to provide barriers under its station platform at side of track is negligence, contributing to the injury of a passenger who falls .from platform to ground, is a question for the jury.</p> <p>4. Cabbiebs, § 464*—when evidence not relevant to the issue. Evidence offered by carrier tending to show want of negligence in the method of constructing station platform, not admissible when declaration does not allege negligence in the construction.</p> <p>5. Cabbiebs, § 455*—when amended count does not state new cause of action. Where an original count avers negligence in the construction and operation of defendant’s train and platform, such count when amended by omitting the charge of negligence in the construction does not state a new cause of action.</p> <p>6. Damages, § 115*—when excessive. Verdict for twenty thousand dollars for personal injuries, held excessive and on condition of remittitur reduced to thirteen thousand dollars where the earning capacity of plaintiff, a young woman, did not exceed five and one-half dollars per week and the injuries consisted of a fracture of the elbow and other serious injuries requiring a double abdominal cavity operation.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. H. Steeling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

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

<p>Abstract of the Decision.</p> <p>1. Mortgages, § 393*—when holder of part of notes may declare forfeiture. Option clause in a trust deed giving holder of notes right to declare whole amount due in case of default in payments or waste, held to authorize a holder of a portion of the notes to exercise the option where another clause, referring to such option clause, shows that intention.</p> <p>2. Mortgages, § 480*—supplemental hill. An original bill, insufficient because notice of default was not given before suit was begun but sufficient to restrain defendant from committing waste, may be aided by a supplemental bill setting up subsequent service of such notice.</p> <p>8. Mortgages, § 487*—when defense not set up by cross-bill. In proceeding by holder of the notes to foreclose, defendant claiming he is the equitable owner of such notes may set up such fact as a defense without a cross-bill</p> <p>4. Equity, § 263*—supplemental bill. An original bill sufficient for one kind of relief prayed is a sufficient foundation for a supplemental hill for other and more extensive relief.</p> <p>5. Appeal and error, § 352*—when party entitled to appeal after parting with his interest. A party having disposed of his interest pendente lite may appeal where his grantees were not made defendants in his stead and he continues as the only party representing their interests.</p> <p>6. Appeal and error, § 1447*—when dismissal of cross-bill harmless. Error in dismissing a cross-bill is immaterial where the same facts contained therein were afterward set up in an answer and a full hearing was had upon the issues thus raised.</p> <p>7. Appeal and error, § 1041*—when assignment of errors treated as a separate assignment.. An assignment of errors purporting to be made by all the defendants “jointly and severally” may be treated as a separate assignment where only one defendant appeals.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, 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. 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. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>1. Master and servant, § 238*—essentials to relation of vice-principal. A servant may be a vice-principal though he has no power to employ and discharge men under him.</p> <p>2. Master and servant, § 242*—when servant performing work of a fellow-servant is vice-principal. A servant who has control of the manner of performing the work, and to whom other servants are directed to report for work, held a vice-principal though engaged in performing the work of a fellow-servant.</p> <p>3. Master and servant, § 220*—liability for combined negligence of master and a fellow-servant. Master is liable to a servant for injuries resulting from the combined negligence of the master and a fellow-servant.</p> <p>4. Mastib and servant, § 241*—liability for negligence of vice-principal combined with his negligence as a fellow-servant. Master is liable to servant for injuries where the proximate cause of the injury was a negligent order of vice:principal combined with his negligence while' performing the work of a fellow-servant.</p> <p>5. Master and servant, § 411*—liability when injury results from negligent order of vice-principal. Servant may recover for injuries resulting from obeying a negligent order of a vice-principal unless the danger was so imminent that a reasonably prudent person would not have encountered it.</p> <p>6. Master and servant, § 755*—questions for jury. Whether, in obeying a negligent order of vice-principal, the danger was so imminent that the servant should not have encountered it is a Question for the jury.</p>

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

<p>1. Master and servant , § 115*—when railroad companies jointly liable for injury to servant. Where a servant of a lessor railroad is injured by the negligence of the lessee railroad, both are jointly liable.</p> <p>2. Master and servant, § 548*—when declaration avers joint liability of railroad companies for injuries to servant. Count in a declaration in an action against two railroad companies held to state a cause of action where it alleges that defendants owned and operated a railroad with engines, cars, trains, tracks, etc., and that plaintiff while employed by one of the companies was injured by the defendants carelessly operating their cars.</p> <p>3. Master and servant, § 532*—when additional counts state no new cause of action. Additional counts differing from the original counts in alleging that one of the defendant railroad companies owned and managed the tracks and that the other operated as lessee, while the original counts alleged that both defendants owned and operated the engine and cars which injured the plaintiff, held not to state a new cause of action.</p> <p>4. Master and servant, § 779*—when instruction applying foreign law to joint defendants, erroneous. In an action by a servant of a lessor railroad company against both lessor and lessee companies for injuries resulting from the negligence of the latter while employed in another State, an instruction purporting to apply to both defendants and based on a law of such other. State which takes away certain defenses but applies only to railroads which are employers of the servant injured, held erroneous.</p> <p>5. Railroads, § 485*—liability for negligence of lessee company. Both lessor and lessee railroad companies are liable for the negligence of the lessee company.</p> <p>6. Statutes, § 272*—necessity of pleading laws of other States. Unless the law of another State is pleaded it is not admissible in evidence, and it will be conclusively presumed to be the same as the law of this State.</p>

<p>1. Sales, § 98*—when "buyer not entitled to rescind. A buyer of frozen poultry in a cold storage warehouse with the understanding that the goods are to be withdrawn and paid for before a certain day is not entitled to rescind the sale for breach of warranty as to the condition of the goods, where he has withdrawn and paid for a portion and has made no attempt to rescind the contract within a reasonable time.</p> <p>2. Sales, § 106*—rule as to buyer’s right to rescind. In ex-ecutory contracts when the article delivered is not the article ordered, or is not equal to the sample, or does not comply with some representation as to quality, the buyer may reject and return the article as soon as it is found not to comply with the contract of purchase, provided he exercises such right within a reasonable time and has done nothing in the meantime beyond what is necessary to make a fair test of the article delivered.</p> <p>3. Sales, § 105*—when buyer waives right to rescind. Buyer waives right to rescind an executory contract of sale for breach of warranty where he neglects to make an examination of the goods within a reasonable time.</p> <p>4. Sales, § 330*—when refusal of instruction on right to rescind, not error. Refusal of instruction to the effect that the buyer may rescind for misrepresentations as to quality or that goods were not equal to samples “upon discovery of such fact,” held not error, since the instruction places no restriction on time to rescind.</p> <p>5. Sales, § 330*—when instruction as to rights of buyer for breach of warranty, not objectionable. An instruction that buyer had no right to rescind for breach of warranty under certain circumstances and that he simply had the right to recoup, held not objectionable as indicating that buyer could not return the goods.</p> <p>6. Sales, § 330*—when instructions not erroneous in asserting contract was executed. Instructions detailing circumstances under which title would pass, held not objectionable as asserting that the contract became executed so that buyer’s only defense was his right to recoup for damages for breach of warranty in suit for contract price.</p> <p>7. Municipal Coubt of Chicago, § 17*—when not error to refuse offered written instructions. When Municipal Court elects to instruct the jury orally, it is not error for the court to refuse to give an offered written instruction even though it is correct and applicable to the evidence.</p>

<p>1. Sales, § 254*—when implied warranty of fitness of canned goods for food. Person poisoned hy eating unwholesome canned peas purchased of retail dealer, held entitled to damages from such retail dealer on an implied warranty that the peas were fit for food.</p> <p>2. Sales, § 254*—when retail dealer impliedly warrants food provisions to he wholesome. In the sale of all provisions hy a retail dealer for immediate domestic use there is an implied warranty of the fitness and wholesomeness of such provisions for consumption.</p> <p>3. Sales, § 283*—questions for jury. Whether a person’s illness was caused from eating unwholesome food purchased of a retail dealer is a question for the jury.</p>

<p>1. Railboads, § 517*—duty to trespassers on tracks. Railroad owes no duty to a trespasser on its tracks except to refrain from wantonly or wilfully injuring him and to use reasonable care to avoid injury to him after he is discovered to be in peril.</p> <p>2. Railboads, § 564*—when contributory negligence, no defense. Contributory negligence such as that of a trespasser upon a railroad track cannot be relied on where such person is wantonly and wilfully injured by the railroad company.</p> <p>3. Railboads, § 531*—right of engineer to presume trespasser will leave track in time. The rule that an engineer upon discovering a person on the track may presume that such person will leave the track in time to escape injury does not apply where such person is on a bridge and because of high girders on each side of the track can not easily step out of danger.</p> <p>4. Railboads, § 578*—when declarations of engineer admissible. Declaration of engineer soon after the accident that “he saw deceased just enter the trestle * * * and thought he would get out of the way,” held admissible as a part of the res gestae and also competent evidence as tending to show his knowledge of the perilous position of deceased.</p> <p>5. Evidence, § 76*—test to determine what constitutes part of res gestae. For evidence to be admissible as part oí the res gestae, the act, declaration or exclamation must be so intimately interwoven or connected with the principal fact it characterizes as to be regarded a part of the transaction itself, and also clearly to negative any premeditation or purpose to manufacture testimony.</p> <p>6. Evidence, § 76*—rules in determining res gestae. Whether an act or declaration will be considered as part of the res gestae depends upon the circumstances of each case.</p> <p>7. Evidence, § 79*—when declarations part of res gestae. Declarations to be a part of the res gestae are not required to be precisely concurrent in point of time with the principal fact.</p> <p>8. Appeal and erbob, § 1775*—when declaration sufficient to sustain verdict. An entire verdict on several counts will not be set aside where there are one or piore counts sufficient to sustain it.</p> <p>9. Appeal and ebbob, § 1690•■'-^when error in overruling motion to direct verdict is waived. Objection to action of court in overruling motion to direct verdict is waived by proceeding to introduce testimony.</p>

<p>Abstract of the Decision.</p> <p>1. Negligence, § 187*—sufficiency of evidence to sustain verdict for injuries resulting from, collision with wagon. In an action to recover for personal injuries sustained by plaintiff by reason of the negligence of defendant in driving his wagon so as to collide with plaintiff who was attempting to board a street car, evidence held sufficient to sustain verdict for plaintiff.</p> <p>2. Release, § 22*—Effect of covenant not to sue one of several tort feasors. A covenant not to sue one of several tort feasors does not operate as a release of either the covenantee or the other tort feasors.</p> <p>3. Release, § 26*—questions for jury. In an action against two tort feasors, the question whether a certain sum paid to plaintiff by one of the defendants after the commencement of the suit was received in satisfaction of all claims against such defendant, held properly submitted to the jury.</p> <p>4. Appeal and errob, § 1507*—when restricting cross-examination as to release, not error. Trial court’s ruling in sustaining objections to questions asked plaintiff on cross-examination relative to her acceptance of a certain sum paid plaintiff by one of the defendants,. held not error where the court allowed counsel large latitude in questioning witness as to such subject.</p>

<p>Appeal from the Municipal Court of Chicago, the Hon. John D. Tuenbaugh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Abstract of the Decision.</p> <p>1. Bbokebs, § 48*—right to commissions when sale made by principal. Finding and judgment allowing plaintiff commissions on a sale of lumber by defendant direct to purchaser after an agreement by defendant to pay commissions and after disclosing identity of purchaser, held not contrary to the evidence.</p> <p>2. Municipal Coubt of Chicago, § 30*—when failure to prove claim as alleged, not reversible error. Fact that cause of action as proved was not accurately set forth in statement of claim, held not reversible error when defendant is not prejudiced thereby.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 358*—when servant is of sufficient age to assume the risk of injury. A servant aged eighteen years and six months who is engaged as a helper to a mechanic in connecting rain spouts on a building, and who is required to walk upon a ledge about fourteen inches wide, twenty-five feet above the ground, is of sufficient age to appreciate the danger of his employment.</p> <p>2. Master and servant, § 316*—when servant assumes the risk of injury. Where a servant assisting a mechanic in connecting rain spouts on a building was requested to throw a rope to such mechanic a distance of about ten feet, such servant being then upon a narrow ledge about twenty-five feet above the ground, held, that the servant was not misled by the order, and that he assumed the risk of falling from the ledge.</p>

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

<p>1. Landlord and tenant, § 250*—who liable as landlord for injuries resulting from defective condition of premises. One who accepts an assignment of a lease from the original lessee and executes a lease demising the premises for a term expiring when the original lease expires, held to be a landlord and liable as such for injuries resulting to a pedestrian by the falling of a defective wooden awning suspended over the sidewalk in front of the premises.</p> <p>2. Landlord and tenant, § 426*—relation between lessee and his grantee of residue of term. Whether, as between a party who has received an assignment of a lease and his lessee for the residue of the term, the former is a landlord or a mere assignor of a lease depends upon the intention of the parties.</p> <p>3. Damages, § 110*—when not ■ excessive, for personal injuries. Verdict for three thousand dollars for injuries which caused pain in chest and neck for three years and permanent injuries, such as a “kink” or prominence in the back, crookedness of right arm and loss of freedom of motion of right elbow, held not excessive.</p> <p>4. Appeal and error, § 1735*—when decision on former appeal not res adjudicata. Decision of Appellate Court on a prior appeal remanding cause on the ground that declaration did not state a good cause of action against one defendant, held not res adjudieata on question of liability of the other defendant, such question not having been considered and the parties and the evidence being different.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 27*—sufficiency of delivery. A delivery of a note to an agent of the payee is a sufficient delivery.</p> <p>2. Bills and notes, § 121*—authority to indorse. No particular form of appointment is necessary to authorize a person to indorse a promissory note as agent.</p> <p>3. Bills and notes, § 375*—"burden of proof. Introduction of a promissory note in evidence without objection makes a prima facie case for plaintiff, and the burden of proving that the note was without consideration and was a mere accommodation note is upon the defendant.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 1447*—what constitutes prejudicial error. Where two counts of a declaration for personal injuries each state a good cause of action which there is evidence to support, the refusal of the court to instruct the jury to find the defendant not guilty under a third count charging “wilful and wanton misconduct,” which is unsupported by the evidence, is not prejudicial error warranting reversal.</p> <p>2. Street railroads, § 62*—what constitutes negligence in operation. In an action for personal injuries sustained by a woman while attempting to board an electric street car, due to the jolting or sudden starting of such car, held that the question as to whether the defendant was guilty of negligence was for the jury, and that their verdict was not manifestly against the evidence.</p> <p>3. Appeal and ebbob, § 1490*—what exclusion of evidence is harmless. Where the conductor of the car had testified that the motorman was trying to put plaintiff on the car and “she refused,” causing a delay of several minutes, the conductor, in answer to a further question as to why the car was delayed, replied “because she refused to get on.” On motion of plaintiff this answer was stricken. Held, the exclusion of this latter statement was not prejudicial error, even assuming that the statement was one of fact and not an expression of an opinion or conclusion.</p> <p>4. Instructions, § 138*—-when requested instructions need not he given. The refusal to give certain instructions is not prejudicial error where the matter is sufficiently covered by the instructions given;</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. Certiorari denied by Supreme Court (making opinion final.)</p>

<p>Error to the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, 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. Homes Abbott, Judge, presiding. Heard in this court at the October term, 1911.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Isadorb H. Himes, Judge, presiding. Heard in this court at the October term, 1911. Affirmed.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>1. Trusts, § 211*—what may he considered in determining a trustee’s compensation. While a trustee of an estate is not entitled to an allowance for strictly legal services, he is entitled to compensation for his labor, care and responsibility, and in determining wbat is just compensation the court may take into consideration the fact that he is an able and experienced lawyer.</p> <p>2. Tbusts, § 211*—how a trustee’s compensation is determined. The reasonable compensation of a trustee depends largely on the circumstances of each case, and in determining the amount the responsibility incurred, the amount of the estate and the time and labor devoted to the discharge of his duties may be considered.</p> <p>3. Tbusts, § 218*—what amount of compensation is proper. Held that the discretion of the court in fixing a trustee’s compensation at $17,500, where an estate worth about $600,000 was involved, and where the services covered a period of about two years and a half, would not be disturbed.</p>

<p>Railroads, § 584*—what evidence shows contributory negligence. Evidence held not to show that a person killed by a railroad train exercised reasonable care for his own safety. •</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>Abstract of the Decision.</p> <p>1. Account, § 19*—when may he had in equity. A bill in equity to determine the amount due department managers under a contract with a subscription book company for the sale of books in exclusive territory may be maintained where the settlement involves examination of an intricate account as to charges, expenses, salaries of assistants, supplies, etc.</p> <p>2. Appeal and ebrob, § 1570*—harmless error. Where a decree on accounting by sales managers against a subscription book company is erroneous in directing the turning of certain notes and accounts for books sold over to complainants, it will not for that reason be reversed where four years have elapsed since the period for which the defendant was required to account, during which, by virtue of appeals, it has retained possession.</p> <p>3. Equity, § 400*—what costs may he allowed on reference. Where, on a bill for accounting, a motion for an interlocutory order that certain notes and accounts be turned over to complainants was referred to a master to take proofs and afterwards a general order of reference to the same master was made and the parties stipulated that the proofs previously taken should stand as proof under the general order, the costs of taking such proofs are properly included in the master’s costs upon a judgment .against defendants for costs.</p> <p>4. Account, § 49*—what decree as to disposition of notes proper. Where, upon a bill for accounting by sales managers against a subscription book company, the court directs that certain notes and accounts for goods sold be turned over to complainants, the decree is properly modified by requiring the notes to he indorsed “without recourse.”</p>

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

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1911.</p>

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

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

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

<p>Judgments, § 106*—when affidavit of merits is necessary. While the Practice Act of 1907, J. & A. 8592, provides for judgment as in case of a default if an affidavit of merits is not filed in response to an affidavit of plaintiff’s claim, the prior act contained a condition that the defendants should be residents of the county; and where a suit was commenced against nonresidents before the Act of 1907 went into effect and was called for trial while such act was in force, it was improper to deny a motion to file the affidavit of merits and enter a default.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>1. Municipal corporations, § 810*—when water certificates are due. Where water certificates and the ordinance under which they were issued provide for a refund of the amount advanced by citizens for the cost of service pipes when a revenue of ten cents per foot per annum is being derived from such pipes, such certificates are due when the evidence shows such revenue from permanent improvements; and if the certificates and ordinances should require a “permanent” annual revenue of ten cents, the certificates would still be due, since the word “permanent” must he given a relative and practical meaning.</p> <p>2. Municipal corporations, § 1151*—when defenses to collection of water certificates must he pleaded and proved.' Where a city, acting within its charter powers, borrows and uses money for the extension of its water supply system, and issues water certificates to the citizens who lend the money, agreeing to repay the amount borrowed when a certain revenue is being derived, such city must plead, and has the burden of proving, in an action for repayment of the money borrowed, any defense based on the illegality or irregularity of the loan.</p> <p>3. Municipal corporations, § 1155*—when authority of signers of municipal water certificate must be shown. In an action on a water certificate, providing for the repayment or money borrowed which purports to have been executed by a city, and is authorized, it is not necessary to show the authority of the signers of the certificate, unless its execution is denied by a verified plea.</p> <p>4. Interest, § 46*—how computed. Where a water certificate issued by a city provides for repayment of the amount borrowed, whenever a proper survey shows that a certain revenue is being derived, without interest if refunded within two years from date but with interest if not so refunded within two years, it cannot be contended that interest should only be allowed after two years from the date of the survey establishing the required revenue.</p> <p>5. Municipal corporations, § 1154*—when city is liable for interest. A municipal corporation is liable for interest where water certificates issued by it expressly provide for such interest.</p>

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

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

<p>1. Municipal court of Chicago, § 27*—what hill of exceptions should contain. Where the rules of the Municipal Court of Chicago are made part of the hill of exceptions and are certified by the judge, a motion to strike such rules from the bill because they were not offered in evidence on the trial cannot be sustained, since whatever is material to the decision of the Municipal Court, and which that court is required to take judicial notice of, should he presented to the reviewing court.</p> <p>2. Pleading, § 1*—what term “practice” includes. The term “practice” as used in section 34 of article IV of the Constitution of 1870, J. & A., p. 190, with reference to Municipal Courts, is broad enough to include pleadings.</p> <p>3. Municipal court of Chicago, § 5*—what rules may he made. Section 20 of the Municipal Court Act, J. & A. j[ 3332, authorizes the Municipal Court to make rules which abandon or change the system and forms of pleading in use in courts of record.</p> <p>4. Insurance, § 568*—when statement of claim may he treated as declaration. A statement of claim filed in the Municipal Court, setting forth insurance policies sued on, with averment stating that the defendant assumed the risks, the death of the assured, service of proof of death, performance of the conditions of the policies and failure of the defendant to pay the money due, states a complete cause of action and may be treated as a common law declaration; wherefore a contention that the plaintiff failed to file a declaration as required by section 28 of the Municipal Court Act, J. & A. fl 3340, cannot be sustained.</p> <p>5. Insurance, § 705*—what is essential to render contract of reinsurance effective. Where an insurance company accepted the transfer to it of policies and securities of another company and thereby reinsured all the then living policy holders of such other company, held that neither such contract of reinsurance nor the statutes required any express acceptance of the reinsurance contract by such policy holders; and if any was contemplated it was such acceptance as would be implied from the failure of a policy holder to exercise his right to be transferred to some other insurance company.</p> <p>6. Insurance, f 347*—what defenses are precluded hy incontestable clause. Where a clause in a certain insurance policy provides that it “shall be incontestable after one year from its date of issue,” such clause precludes defenses of fraud or misrepresentation, such as a defense that the insured misrepresented the fact that he had been rejected by another insurance company.</p> <p>7. Pleading, § 153*—what constitutes conclusion. General statements of an affidavit of merits filed by an insurance company that the policies sued on were not guarantied or reinsured by such company, that they were of no binding force and that nothing was due the plaintiff, held mere conclusions.</p> <p>8. Municipal court ot Chicago, § 13*—when affidavit of merits may he stricken. An affidavit of merits which does not set up a good defense is properly stricken.</p> <p>9. Damages, § 191*—when court may assess. In an action on insurance policies where the damages rest purely in computation and no evidence is required, the amount being undisputed, it is not reversible error for the court to assess the damages, even though a jury is demanded in apt time.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Municipal corporation, § 1051*—what constitutes contributory negligence. It is not negligence per se for the driver of a team to use a street because he has notice of its defective condition.</p> <p>2. Municipal corporations, § 1107*—when contributory negligence is question for jury. Where a street is full of holes at a point where a party has occasion to use it, and he drives into a hole while looking for the safest place and at the same time exercising care to avoid another trouble incident to street travel, the question of whether such party exercises due care for his own safety is one of fact upon which the findings of the jury will not be disturbed.</p> <p>3. Municipal corporations, § 1225*—when notice of injury is sufficient. A notice to a city stating that a person was injured “on or about the third day of December,. 1908,” complies with the statute, where the date mentioned is correct and the city is not misled, the wqrds “or about” not changing the fact that the notice designated the exact date.</p> <p>4. Municipal corporations, § 1225*—when notice to city of place of injury is sufficient. A notice to a city of an injury which designates the street^ on which and the two nearest intersecting streets between which the accident occurred, and which describes the nature of the defect causing the injury, meets the purpose of the statute by enabling the city to locate the place of injury.</p> <p>5. Municipal corporations, § 1104*—when instruction is unobjectionable. Instruction as to constructive notice of unsafe condition of street, held not objectionable as assuming controverted facts to be proved.</p> <p>6. Damages, § 110*—when excessive. Verdict for ten thousand dollars for permanent, severe injuries, attended by pains, as where left leg was fractured and shortened and other injuries sustained, held not excessive.</p> <p>7. Evidence, § 433*—what hypothetical questions are proper. Hypothetical questions as to matters of expert knowledge assuming facts with reference to the injuries and health of the plaintiff and concluding with the question as to whether the physical conditions described were caused by the accident, held not improper where it appeared that the defense was directed mainly to the condition of the street where the accident occurred and the claim of contributory negligence, although some effort was made to show that some of the conditions referred to in the questions might have resulted from previous illnesses and others from drinking habits..</p> <p>8. Municipal corporations, § 973*—what is street. Where a thoroughfare was paved and used for traffic and street cars and was patrolled by city officers, its existence as a street was prima facie shown.</p>

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

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

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

<p>Abstract of the Decision.</p> <p>1. Champerty, § 4*—when provisions of indemnity insurance policy not. Provisions of a policy of indemnity insurance giving the insurer the option of defending against claims for damages covered by the policy and providing that the insured shall not settle any claim, except at his own cost, nor incur any expense, nor interfere in any negotiations for settlements or in legal proceedings without the written consent of the insurer, are not champertous.</p> <p>2. Insurance, § 120*—when ambiguity as to provisions concerning premiums cannot be asserted. Where a policy of employers’ indemnity insurance provides that in case the pay roll during the term shall exceed or be less than the amount as estimated at the time of the application the proportionate sum shall be paid by the insured as an additional premium or refunded to him as the case may be, the insured, after adopting the construction placed upon the policy by the insurer, when adjustments were made, submitting statements of what purported to be the total wages and either paying the additional premiums or receiving rebates called for, cannot assert that the contract is uncertain and ambiguous.</p> <p>3. Insurance, § 156*—estoppel to claim additional premiums. Where the premiums under a policy of employers’ liability insurance are to be determined by the amount of the insured’s pay roll, the insurer is not estopped by settlements made on the basis of pay rolls submitted by the insured, where it was not put upon notice that the statements therein were not truthful and that insured was not acting in good faith.</p> <p>4. Fbauds, Statute of, § 68*—what contracts are in writing. A policy of indemnity insurance which plainly indicates the parties and their obligations and is complete without resort to parol evidence is to be regarded as a contract in writing, though not signed by the insured, where the insured accepted it and assented to and acted on its terms.</p> <p>5. Teiai, § 199*—when directed verdict unauthorized. Where, in an action for premiums on an employer’s liability insurance policy, an issue of fact arises as to the amount of wages, on which the premium is based, and a witness for' plaintiff, defendant’s former bookkeeper, testified from private memoranda of the pay rolls kept by him as to such amount, and a witness for defendant, who reported the pay rolls from which the premiums were computed, testified they were correct, a verdict is improperly directed for plaintiff.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 13*—statement of claim on contract. In suit on a contract, the covenants being' mutual and dependent, the statement of claim must allege tender of performance or facts excusing the same.</p> <p>2. Municipal Court of Chicago, g 13*—pleading defenses. When statement of claim on a contract containing mutual and dependent covenants does not aver tender of performance -or excuse therefor, an affidavit of merits setting up want of tender, held a good defense.</p> <p>3. Contracts, § 298*—necessity of tender of performance. Covenants in a contract whereby one party agrees to purchase and the other agrees to sell and deliver are mutual and dependant covenants, and neither party, without tender of performance, can demand performance of the other.</p>

<p>Abstract of the Decision.</p> <p>Vendor and tobchaseb, § 324*—when purchaser may recover money paid. In an action upon an oral contract by which a plaintiff was to obtain from a defendant his interest in certain lands, or in contracts for the purchase of such lands, where it appeared that the defendant sold such interest to another than the plaintiff, to avoid payment of interest, and taxes and forfeiture, held, that the defendant did not have a right to forfeit such contract but that it was rescinded by mutual consent, wherefore the plaintiff, or vendee, had the right to recover from the vendor money paid on the contract.</p>

<p>1. Notice, § 27*—what is extent of notice of filing of attachment. The proper construction of section 9 of the Attachment Act, J. & A. IT 500, is that from and after the filing of a certificate of levy such levy shall take effect as to creditors of, and bona fide purchasers from “the attachment debtor” without notice; and it was not intended by the legislature that the filing of an attachment lien against real estate in which it might be claimed the defendant had an equitable interest should operate as notice to grantees or others claiming under the holder of the legal title, but rather to those to whom the owner of the equitable title might convey.</p> <p>2. Equity, § 404*—when master’s fees are not excessive. An allowance of two hundred and fifty dollars, where a master spent fourteen days’ time in connection with a case, there being numerous continuances, is not excessive.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 866*—sufficiency of abstract. An abstract which is little more than an index is wholly insufficient.</p> <p>2. Appeal and ebbob, § 866*—what abstract must show. The abstract must show everything on which error is assigned for reversal of judgment.</p> <p>3. Appeal and ebeoe, § 864*—necessity of abstract. Court of review will not go to the record, to find reasons for reversing or affirming the judgment.</p>

<p>Error to the Superior Court of Cook county; the Hon. Homes Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, 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. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>1. Corporations, § 605*—when corporation is liable for debts of another corporation. The doctrine that two corporations become consolidated where one corporation absorbs all the assets of another, and that the absorbing company is liable for the debts of the absorbed company does not apply where a corporation sells all its assets to a partnership and a large portion of such assets are subsequently transferred to the second corporation.</p> <p>2. Corporations, § 213*—when finding as to value of property will not be disturbed. Seld, that a finding, as to the value of certain property turned over to a corporation for stock, was no't manifestly wrong.</p> <p>3. Corporations, § 124*—how stock may be paid for. In this State nothing but money or money’s worth is to be regarded as payment for shares of capital stock of corporations.</p> <p>4. Corporations, § 213*—when stockholders are liable to creditors. When either by fraud, accident or mistake stock of a corporation has not been paid for in money or money’s worth, the holder thereof is liable to creditors of the corporation to the full extent of the difference between the par value of the stock and the money or money’s worth paid to the corporation for such stock.</p> <p>5. Corporations, § 538*—lohen till will lie. Where a person recovered a judgment against a corporation and execution was returned unsatisfied, 7veld that a bill was proper under Chancery Act, § 49, J. & A. | 929, for the satisfaction of such judgment, and when it appeared that certain stockholders had overvalued property turned over to the corporation, a judgment against such stockholders was proper.</p>

<p>Error to 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>Error to the Municipal Court of Chicago; the Hon. Habby Olson, 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. John Mc-Nutt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

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

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

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

<p>1. Indemnity, § 11*—liability on indemnity insurance contract. No action lies on an insurance contract of indemnity against loss or damages from liability, as distinguished from a contract of indemnity against liability merely, when no loss has in fact accrued to the insured.</p> <p>2. Indemnity, § 20*—who may sue on employer’s indemnity contract. An injured employe of insured or any other third party cannot maintain action on an indemnity insurance contract since no privity exists between the parties.</p> <p>3. Indemnity, § 14*—when surety on appeal "bond entitled to indemnity. Where an employer’s indemnity insurance company in prosecuting an appeal for the insured procured a guaranty company to sign an appeal bond for the insured on its representations that it was carrying the liability of the insured, held, that though the guaranty company cannot recover from the insurance company for loss sustained by it in being compelled to pay the judgment upon an implied promise of the insurance company to hold it harmless, a recovery would be sustained upon the ground of estoppel.</p>

<p>Error to 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 Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

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

<p>1. Judges, § 9*—when interchange is proper. Under Hurd’s K. S. ch. 37, § 245, J. & A. If 3294, judges of city courts may hold court for each other and for Circuit and Superior judges anywhere in the State, including Cook county.</p> <p>2. Appeal and error, § 1718*—•when error is waived. The Appellate Court has no power to pass on the validity of a statute, and when a person appeals to such court assigning other errors which the court has jurisdiction of he waives his right to contend that the statute is invalid.</p> <p>3. Trial, § 31*—when case may he tried out of order. Under Practice Act, § 21, J. & A. If 8558, authorizing the court to try a cause out of its regular order for “good and sufficient cause,” the sufficiency of such cause is a question for the trial court, and its3 decision will not be interfered with on review unless there has been a clear abuse of discretion.</p> <p>4. Continuance, § !*■—when proper. A motion for a continuance is properly denied when based upon the ground that the plaintiff had a similar or the same suit pending in another court, and the affidavit did not suggest that the trial in the other court was necessary in order to obtain all the relief sought in the two suits.</p> <p>5. Teial, § 192*—when direction of verdict is proper. Where a plaintiff and defendant were both present in court with their attorneys and there were no unsettled pleadings or other sufficient reason why the cause should not be tried, both parties had the right to have a final disposition of the cause, and when the defendant demanded a trial and the plaintiff refused to introduce any evidence, although he had the burden of proving his case, it was proper to direct a verdict for defendant.</p> <p>6. Dismissal, nonsuit and discontinuance, § 38*—when involuntary nonsuit is proper. An involuntary nonsuit cannot be legally obtained through the voluntary action of the plaintiff and against the objection of the defendant.</p>

<p>Abstract of the Decision.</p> <p>1. Teiax, § 31*—when case may 6e tried out of order. Under Practice Act, § 21, J. & A. fl 8558, authorizing the court to try a cause out of its regular order for “good and sufficient cause,” the sufficiency of such cause is a question for the trial court and its decision will not he interfered with on review unless there has been a clear abuse of discretion.</p> <p>2. Trial, § 31*—when cause is properly advanced. Held that the advancement for trial of a cause concerning an estate was proper where such estate would be damaged by the delay.</p> <p>3. Executors and administrators, § 79*—when assets may he recovered. R. S. ch. 3, §§81, 82, J. & A. f ft 130, 131, as to the collection of assets by administrators, does not limit recovery only to “identical property,” and where a person charged with the duty of selling property and paying debts of a woman, only paid a portion of such debts, held that the administrator of such woman was entitled to recover the remainder of the proceeds arising from the sale of property.</p> <p>4. Executors and administrators, § 226*—when claim need not he probated. In a proceeding by an administrator under R. S. ch. 3, §§ 81, 82, J. & A. flf 130, 131, to collect assets, where it appeared that an agent of the deceased was to be allowed a certain commission for selling property, it was not improper to allow the retention of such commission without forcing the agent to probate his claim.</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 October term, 1911.</p>

<p>1. Masteb and servant, § 316*—when servant assumes rish arising from unsafe scaffold. In a common law action for injuries resulting to servant for failure of master to furnish a reasonably safe scaffold, servant assumes the risk when the defects are obvious.</p> <p>2. Building bestbictions and regulations, § 1*—defenses not available in action for injuries resulting from unsafe scaffold. Contributory negligence and assumption of risk no defense to an action for injuries sustained by a servant by reason of failure of master to furnish a safe and proper scaffold, under Hurd’s R. S. ch. 48, § 79, J. & A. If 5368.</p> <p>3. Municipal Court of Chicago, § 13*—sufficiency of statement of claim. Statement of claim in a fourth class action need not properly name plaintiff’s right of action.</p> <p>4. Municipal Court of Chicago, § 29*—when statement of claim sufficient to support verdict'. Objection that the verdict is not supported by the statement of claim is untenable in a fourth class action when the statement of claim is sufficient to apprise the defendant of the nature and character of the suit brought.</p>

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

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

<p>1. Insurance, § 866*—what declaration must contain. In an action on an insurance policy providing for the payment of a specific sum on the death of the insured, the declaration must aver the making of the certificate, its terms, the payment of the premiums, the death of insured and the giving of notice and proof of death as required in the certificate, and upon proof of such averments a prima facie right of recovery will be established.</p> <p>2. Insurance, § 872*—when insurer has burden of proof. An insurance association has the burden of establishing a defense, set up in special pleas, that the insured was suffering from Bright’s disease when accepted, and that her answers as to health were false.</p> <p>3. Insurance, § 909*—when finding will not be disturbed. Where an insurance association contended that the insured was suffering from Bright’s disease when accepted, and that her answers as to health were false, held that the findings of the jury that such defense was not sustained by the evidence would not be disturbed, such findings not being the result of passion or prejudice, or mistake as to the evidence.</p> <p>4. Tblal, § 213*—when direction of Verdict is improper. The giving of an instruction directing a verdict for plaintiff would be reversible error where a defense alleged in a special plea was ignored, but such error would not be prejudicial where the preponderance of evidence does not support such plea.</p> <p>5. Insurance, § 871*—what mil Be presumed. An association which has insured a person, after a medical examination, cannot attack the statements of its physician in an action on such policy, and it will be presumed that such physician acted in good faith and in the full discharge of his duties when he made the examination and report.</p> <p>6. Insurance, § 120*—how policy is construed. Where a provision of an insurance policy is inserted by the insurance association of its own volition, it will be given that construction which is most favorable to the insured.</p> <p>7. Insurance, § 330*—what is effect'of notice to agent of insurer. Notice to an agent at the time of application for insurance of facts material to the risk is notice to the insurer, and will prevent it from insisting upon a forfeiture for causes within the knowledge of the agent.</p>

<p>Abstract of the Decision.</p> <p>In accordance with directions of Supreme Court in 256 Ill. 548 to this court to affirm or reverse and remand, this cause is reversed and remanded. See 168 Ill. App. 333.</p>

<p>Abstract of the Decision.</p> <p>1. Death, § 46*—evidence sufficient to prove want of contributory negligence. In an action for death of plaintiff’s intestate where there was no eyewitness to the killing, administrator may prove ordinary care on the part of deceased by the highest proof of which the case is capable, including the habits of deceased, and from any other facts and circumstances from which jury may find that he exercised such care.</p> <p>2. Death, § 78*—when verdict not sustained by the evidence. In an action against an owner of a laundry to recover for death of an employe while cleaning a laundry wringer, verdict • in favor of plaintiff, held contrary to the weight of the evidence.</p> <p>3. Witnesses, § 131*—when defendant incompetent in an action for wrongful death. In an action for wrongful death, defendant held incompetent to testify whether he had talked with deceased or warned him with reference to the use of a machine.</p> <p>4. Instructions, § 126*—propriety of abstract instruction. Instructions which are only abstract propositions of law not connected with the evidence in the case may be properly refused.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Abstract of the Decision.</p> <p>Venue, g 3*—when county court has jurisdiction of dependent children. County court has jurisdiction of an infant to inquire into its dependency where the child is in the custody and control of a person within the county and the child is within the county part of the time.</p>

<p>Abstract of the Decision.</p> <p>1. Banks and banking, § 118*—when paid checks admissible. In an action to recover money deposited with a bank, checks showing payment of the money to plaintiff’s husband held admissible to show that bank did not still hold the money and to corroborate testimony of bank officers.</p> <p>2. Banks and banking, § 82*—deposits in wife’s name. Husband may legally deposit money in the bank in his wife’s name so that he can draw checks against it.</p> <p>3. Banks and banking, § 117*—proof of deposit. Evidence held insufficient to prove that plaintiff deposited money in defendant’s bank.</p>

<p>Appeal from the Circuit Court of Mercer county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Wobthington, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaügh, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Abstract of the Decision.</p> <p>New trial, § 125*—when refusal will not be reviewed. Where the record does not show the nature of a plaintiff’s suit, nor what defense defendant had thereto, it cannot be said that the trial judge exceeded his discretionary powers in refusing to set aside the verdict and grant a new trial though such verdict was rendered in the absence of defendant and his attorneys.</p> <p>Mr. Justice Carnes having tried the case in the court below, took no part in this decision.</p>

<p>Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farkahd, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Appeal from the City Court of Elgin; the Hon. Edwahd M. Mangan, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Appeal from the City Court of Sterling; the Hon. Henry C. Ward, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>1. Appeal and error, § 866*—what abstract must contain. Where objections and exceptions to a master’s report are not in the abstract, error cannot be assigned.</p> <p>2. Equity, § 435*—what is proper form of objections to a master’s report. Objections and exceptions to a master’s report must be specific.</p> <p>3. Stipulations, § 18*—what is effect of a stipulation. Where it was stipulated in a case that the real estate involved was mortgaged by a trust deed and the decree rendered was subject to such trust deed, the failure to make the trustee a party to the case could not affect the rights of a defendant or he available on appeal.</p> <p>4. Appeal and error, § 409*—when objection as to nonjoinder of parties will not be considered. Where real estate involved in a case was subject to a trust deed but no question ,was raised by plea, answer or demurrer to the nonjoinder of the trustee as a party, the question would not be considered on appeal.</p> <p>5. Mechanics’ liens, § 84*—-when statute is complied with. Lien statute of 1903, § 21, J. & A. ff 7159, as to claims for liens, held to be complied with where certain contractors filed claims within four months.</p> <p>6. Mechanics’ liens, § 17*—when lien is allowed. While items for wheelbarrows, a telegram and protest fees cannot be made the subject of lien under the Mechanics’ Lien Act, the allowance of such items will not be considered on appeal where no objection was made to a master’s report, the error being thereby waived.</p> <p>7. Appeal and error, § 1575*—when trifling error is ignored. An improper allowance of certain items in a large decree may be ignored under the maxim de minimis non curat lex.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>1. Evidence, § 160*-—what is evidence of settlement. In an action to have deeds of a deceased person declared mortgages, evidence of the grantee that he did not have in his possession any notes or evidence of indebtedness given by the deceased to him, and had not had any such notes since his death, was not evidence of a settlement with the deceased.</p> <p>2. Evidence, g 165*—when evidence is inadmissible as self-serving declaration. Where an issue was whether or not certain deeds made by a deceased person were in fact mortgages, the acts of the executor of the grantor in those deeds, in putting in an inventory the real estate described or intended to be' described in the deeds, would throw no light on the issue and would be in the nature of a self-serving statement.</p> <p>3. Appeal and error, § 1396*—when findings will not be disturbed. A finding that allegations of a bill to declare deeds mortgages were not sustained will not be disregarded when based on conflicting evidence unless manifestly erroneous.</p> <p>4. Mortgages, § 31*—iohat proof is necessary to show that deed is mortgage. A deed that is absolute on its face is not to be considered a mortgage unless it is made to appear clearly and satisfactorily that it was so intended at the time of its execution.</p>

<p>1. Witnesses, § 123*—when beneficiary of insurance is competent. A beneficiary named in a fraternal benefit certificate is a competent witness in an action for benefits.</p> <p>2. Insurance, § 809*—what persons may be beneficiaries. A person who is partially dependent on an insured even though not related to him may be a beneficiary.</p> <p>3. Insurance, § 809*—what persons are “dependent.” The word “dependent,” as used with reference to fraternal benefit associations, is in some sense at least used as similar to the dependence which usually obtains in the family relation, and the question of dependency of a beneficiary is one of fact.</p> <p>4. Insurance, § 814*—when stepmother is proper beneficiary. Evidence held to establish the “dependence” of a stepmother on a member of a fraternal benefit society, wherefore she was entitled to the insurance.</p>

<p>Error to the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>1. Appeal and ebbob, § 1819*—what is required of trial court on remand. Where a case was reversed and remanded with specific directions to take an account between certain directors and a corporation and to charge each of such directors the full value of stock issued and income certificates and dividends received, and where the record showed such values, nothing was required in the trial court but to make a computation and enter a decree accordingly.</p> <p>2. Appeal and error, § 1788*—what is effect of reversal of Appellate Court. Where a judgment of the Appellate Court reversing and remanding a cause and containing “specific” directions as to an accounting was reversed by the Supreme Court, but such Supreme Court viewed the directions of the Appellate Court as to the accounting as correct and proper, such question was finally determined, and it was immaterial that the directions of the Supreme Court were not specific.</p> <p>3. Coepokations, § 264*—what acts of directors may he ratified. Where a decision of the Appellate Court holding that “the acts of directors in illegally voting stock to themselves could not be ratified by a majority of the stockholders as against a dissenting stockholder or one who had no knowledge of such fraudulent action” was reversed, but the Supreme Court did not pass on that question, and "nothing in its opinion denied the proposition, the Appellate Court was justified in adhering to such statement.</p> <p>4. Cobpobations, § 283*—what compensation may he allowed directors. Where a case was reversed and remanded with directions for an accounting, the Supreme Court holding that certain directors of a corporation were not entitled to compensation for services shown in issuing void stock, such decision would not prevent such directors from setting up in an amended answer any services performed before the commencement of suit, outside of their duties as directors, other than those passed on by the Supreme Court, and have such services considered by way of counterclaim in the accounting.</p> <p>5. Set-oee and becotjpment, § 5*—when counterclaim may he allowed. In suits at law the rights of parties must be determined as they existed at the time suit was commenced, while in equity counterclaims arising after suit is brought are sometimes permitted where equitable reasons are shown, but in the absence of such reasons equity follows the law.</p>

<p>1. Master and servant, § 166*—what essential to charge master with liability for defects in machinery. In an action by servant for injuries resulting from defective machinery, master is not liable unless he had actual or constructive knowledge of the defect and a reasonable time to repair after he is charged with such knowledge.</p> <p>2. Masteé and servant, § 784*—when instructions erroneous as ignoring reasonable time to repair. Instructions ignoring the law of reasonable time to repair, held improper where theory of the case is that master had notice of defect in machinery when it was overhauled prior to the accident.</p> <p>3. Master and servant, § 654*—when conduct of other employes inadmissible. Evidence that certain other workmen usually performed their work in the same manner that plaintiff did, held inadmissible.</p> <p>4. Master and servant, § 625*—when opinions as method of work, inadmissible. Opinions of witnesses, however expert, on question of the relative safety of two ways of performing work, inadmissible when such matter is within the easy comprehension of the jury.</p> <p>5. Master and servant, § 182*—when rule of master is abrogated by habitual violation. Rule of employer may be abrogated by habitual violation with his knowledge, and his knowledge may be presumed when the violation continues for some time.</p>

<p>1. Divorce, § 114*—when payment of alimony is terminated. The remarriage of a.divorced wife does not ipso facto dissolve the obligation to pay alimony but it is a reason for absolving husband from the burdens imposed by the decree.</p> <p>2. Divorce, § 107*—when alimony may he changed. Past due alimony is a vested right and cannot be changed by a subsequent order of the court.</p> <p>3. Equity, § 76*—when suit is harred hy laches. Bill to subject certain lands to the payment of a decree for alimony rendered more than thirty years before the bill was "filed, held, barred by laches, especially since the divorced wife had made no attempt to collect the alimony and both parties had remarried.</p>

<p>1. Master and servant, § 7*—what is authority of foreman to employ physicians. Where a servant was taken suddenly sick and the foreman having supervision of such servant procured a physician, whereupon the servant was removed to a hospital, and subsequently operated upon, held, that the foreman had no authority to bind the master to pay for the physician’s services at the hospital, since there was presumably time, before operating, to communicate with the officers of the master having apparent authority to employ the physicians.</p> <p>2. Master and servant, § 7*—when foreman may procure physician to render first aid. Where a servant was taken suddenly sick and a foreman was the highest officer of the master on the ground, such foreman had authority to employ a physician to render temporary services, by way of first aid, to the sick servant.</p>

<p>1. Wills, § 468*—what is power of court of equity on renunciation of will. Where a widow renounces a will a court of equity may take hold of the estate renounced and distribute it equitably among the disappointed legatees.</p> <p>2. Wills, § 468*—what are rights of devisees and legatees when will is renounced. Where the renunciation of a will causes loss to devisees, such devisees have no right of contribution from other legatees, and in the absence of statute a court of equity will not rearrange the legacies and devises in such a way as to equalize the losses.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 1213*—errors of which appellant cannot complain. Appellant cannot complain of errors not affecting him.</p> <p>2. Appeal and ebbob, § 370*—when objection that minor was not represented by guardian ad litém, not preserved. Objection for failure of trial court to appoint a guardian ad litem for minor appellees cannot be first raised in a court of review.</p> <p>3. Appeal and ebbob, § 1213*—when failure of court to appoint guardian ad litem cannot be complained of. Objection for failure of court to appoint a guardian ad litem cannot be considered when record does not show that appellant was injured thereby.</p> <p>4. Appeal and ebbob, § 1207*—when appellant cannot assign error that appellees were not represented by guardian ad litem. Rule that adult parties cannot invoke the infancy of another party not represented by guardian ad litem to set aside a decree as to them- . selves applies where the appellant participated in the hearing and there was no evidence introduced to support his case.</p> <p>5. Appeal and ebbob, § 1016*—when objection to manner of giving instructions, not presented. Objection that court instructed the jury orally, not presented for review when the abstract does not furnish any information with reference thereto.</p> <p>6. Appeal and ebbob, § 1316*—presumption as to instructions. Instructions will be presumed to have been given in proper form and manner.</p> <p>7. Appeal and ebbob, § 365*—when objection for laeh of proper issues, not preserved. Objection for lack of proper issues on bill to contest a will cannot be first urged on appeal.</p> <p>8. Appeal and ebbob, § 711*—when error in forcing case to trial, not shown by the record. Error of court in forcing case to trial in the absence of leading counsel is not shown when the record shows that solicitor of record was present at the trial and no request was made for postponement of trial.</p> <p>9. Appeal and ebbob, § 1437*—when ruling denying application for change of venue, harmless. Ruling of court denying an application for change of venue held harmless when following a ruling denying leave to withdraw the application.</p> <p>10. Venue, § 12*—when consent of coparties necessary for change of. An application by one complainant for a change of venue is properly denied when not joined in or consented to by the other complainants.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbatjgh, Judge, presiding. Heard in this court at the April term, 1913. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Death, § 66*—calculation of damages to mother. Jury in calculating the damages with reference to the loss sustained by the mother of the deceased may take into consideration a reasonable expectation of pecuniary benefit from the continuance of his life, as of grace or favor, if not of right.</p> <p>2. Death, § 45*—when evidence that other men were hilled admissible. Evidence that the falling of pipes which killed deceased killed other men at the same instant and that the body of one of the men had to be cut to remove the pipe, held, admissible as part of the res gestae and because it served to show the weight and force with which the pipes struck deceased.</p> <p>3. Master and servant, § 378*—when servant does not assume the rish. Servant lowered on an open platform in the shaft of a mine to remove iron pipes, held, not to assume the risk of being injured by them falling upon him when he did not know how the pipes were to be removed before being lowered.</p> <p>4. Master and servant, § 626*—evidence admissible to show master was warned of unsafe method of worh. Testimony of a witness that he told the foreman who had charge of the work that his plan was unsafe, held, competent to show that the master was warned of the danger before the work began.</p> <p>5. Master and servant, § 627*—when opinions as to manner of doing worh inadmissible. Foreman of defendant cannot testify to his opinion whether the manner of doing the work was a safe and proper way when it is not shown that he had previous experience in doing such work.</p> <p>6. Judgments, § 445*—when suit under Mines and Miners’ Act no bar for wrongful death. Judgment in favor of defendant in an action by the mother of the deceased under Mines and Miners’ Act, no bar to an action by administrator for wrongful death under K. S. ch. 70, J. & A. jf 6185.</p> <p>7. Appeal and error, § 1514*—when improper remark of counsel not reversible error. Improper remark of counsel in argument to the jury, interrupted before completed, held, not reversible error where objection was sustained and counsel withdrew the remark.</p>

<p>Error to the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>1. Attorney and client, § 13*—method of serving notice to establish attorney’s lien. Notice required to be. given by statute, to enable an attorney to acquire a lien on his client’s cause of action, may be served by mail.</p> <p>2. Attorney and client, § 113*—when employment contract by minor, valid. A contract by a minor or by his next friend employing an attorney to prosecute a suit for the minor and to pay him a reasonable compensation fee is valid.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Charles Whitney, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1913.</p>