Volume 183 — Illinois Appellate Court Reports

<p>1. Assignments, § 36*—when evidence sufficient to show transfer of title to funds in hank. On bill in equity by a conservator to recover money deposited in bank by ward before becoming insane and withheld by bank because the deposits were claimed by another, evidence held, to show that the ward had transferred the title to the deposits to such person in consideration for services rendered.</p> <p>2. Assignments, § 37*—when possession of pass hook evidence of ownership of deposit. Possession by a person of a depositor’s savings pass book is evidence tending to show that it was delivered to him and that he owns the fund.</p> <p>3. Insane persons, § 76*—necessity of amendment of pleadings in suit hy conservator when ward dies before hearing. On bill by conservator when ward dies testate before the hearing, and such conservator is executor of the will, there should be a supplement or an amendment both to the bill and to the cross-bill setting up the death of the ward and the appointment and qualification of the conservator as executor and that he thereby became the representative of the ward’s personal estate.</p> <p>4. Equity, § 242*—when leave to amend pleadings, not an amendment. The rule at law that leave to amend does net constitute an amendment applies in equity.</p> <p>5. Appeal and error, § 1079*—when appellee cannot complain of decree. A bank made a defendant in a bill to recover money deposited with it cannot complain that it is not sufficiently protected by the decree where it failed to file a cross-bill of interpleader and has not assigned cross-errors.</p> <p>6. Appeal and error, § 1488*—when errors in admission or exclusion of evidence, harmless. Errors in rulings upon the admission or exclusion of evidence on the hearing of a chancery case are unimportant when there is competent evidence in the record sufficient to support the decree. In such case the presumption is that the chancellor in rendering the decree will only regard that which is legal and competent and will disregard all that is immaterial and incompetent.</p> <p>7. Appeal and error, § 1677*—whew failure to amend pleadings, waived. Failure to amend pleadings to show that complainant is made executor is waived where question is not raised in trial court and both parties are at fault.</p> <p>8. Appeal and error, § 1078*—necessity of cross-errors. A ruling denying relief prayed in appellee’s cross-bill cannot he considered when no cross-errors assigned.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Robebt W. Olmsted, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Mortgages, § 607*—Who entitled to possession dwring period of redemption. The possession of the premises and rents, issues and profits thereof after a sale on foreclosure and until the time of redemption expires belong to the owner of the equity of redemption.</p> <p>2. Mortgages, § 514*—object of a receiver for rents in foreclosure proceeding. The sole object of a receiver after foreclosure sale is to apply the rents to the payment of any deficiency left after the sale, if the mortgage or the trust deed creates a lien upon such rents.</p> <p>3. Mortgages, § 519*—when necessity for a receiver in foreclosure proceeding ceases. Where the foreclosure sale satisfies the debt and costs, no further occasion for a receiver remains.</p> <p>4. Mortgages, § 546*—who entitled to rents collected by receiver in foreclosure proceedings. Rents collected by a receiver and not needed to pay any deficiency after foreclosure sale belong exclusively to the owner of the equity of redemption though the mortgage or trust deed contains a provision that the rents or income accruing during the period of redemption shall go to the person entitled to a deed under the certificate of sale.</p> <p>5. Mortgages, § 546*—when receiver cannot purchase outstanding title and claim rents. In a proceeding to foreclose a trust deed, a person occupying the position of receiver and agent for the owners cannot buy an outstanding title and set up a claim for rents as against his principals.</p> <p>6. Mortgages, § 662*—who not entitled to solicitor’s fees. Trustee and complainant acting as solicitor in proceeding to foreclose trust deed, not entitled to an allowance for solicitor’s fees.</p> <p>7. Landlord and tenant, § 123*—when conveyance of fee passes rents. Sale of the fee carries with it rents to fall due or that may subsequently accrue under any lease, unless reserved, but not rents already accrued.</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>

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

<p>1. Vendor and purchaser, § 40*—when owner bound by representations of agent. An owner who by his conduct knowingly leads his agent to represent to the purchaser that the description in the abstract furnished covered the property to be sold, held bound by such representations.</p> <p>2. Principal and agent, § 119*—when principal bound by representations of agent. An attorney, furnished by owner with abstracts of title to the property to be sold, and told by the owner that the description covers the property, is sufficiently the agent of the owner' to convey such information to the purchaser, and the owner is bound by such repetition of the statement to the purchaser.</p>

<p>Executors and administrators, § 529*—when executor cannot he charged with assets unaccounted for. On appeal from an order of the Circuit Court failing to charge an executor with an inventory of $2,300 claimed by beneficiaries under the will as having been invested by testator in city improvement bonds, evidence held .insufficient to show that the executor ever knew what disposition was made of bonds or that he ever appropriated the same to his own use.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 86*—care required on approaching vehicles parallel with track. Prudence may or may not require that a signal should be given on approaching a vehicle from the rear.</p> <p>2. Street railroads, § 86*—when not liable for collision. Street car company held not liable for injuries sustained by the driver of a horse and wagon resulting from a collision, where the driver of the wagon was going in the same direction as the street car and attempted to cross the track without looking back and the evidence showing that the street car was funning at slackened speed but could not have been stopped in time to avoid the collision.</p> <p>3. Street railroads, § 86*—right of driver of street ear to assume that vehicle will not cross track. A driver of a street car is not bound, in the absence of anything to warn him, to assume that the driver of a vehicle will turn and cross the tracks ahead of him.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 202*—when statute prohibits misrepresentation of terms of policy. R S. oh. 73, § 208n, J. & A. If 6510, prohibiting agents and officers of life insurance companies from misrepresenting the terms of the policy, held not to include misrepresentations by oral statements.</p> <p>2. Insurance, § 195*—when insured may rescind. To entitle insured to a rescission of the contract of insurance he must notify the company within a reasonable time of his election to disaffirm the contract, and when the facts are undisputed the question of reasonable time is one of law for the court.</p> <p>3. Insurance, § 195*—when notice to rescind not given within a reasonable time. Insured failing to give notice of his intention to disaffirm the contract of insurance, on the ground that agent misrepresented the terms of the policy, until more than three months after reading the policy, held not to give notice within a reasonable time.</p> <p>4. Insurance, § 195*—when misrepresentation of an agent no ground for rescission. A representation of an agent as to the value of the policy to be delivered is a mere expression of opinion or trade talk.</p> <p>5. Appeal and error, § 1453*—when ruling requiring bill of particulars, harmless. Error of court in requiring appellant to file a hill of particulars cannot be complained of where he was not precluded from offering competent evidence by any restriction in such bill of particulars.</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1913.</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 Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Insubance, § 667*—sufficiency of evidence as to cause of death. In an action on an insurance policy payable to beneficiary of insured in case of his death “resulting directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means,” a verdict of the jury on conflicting evidence finding that deceased died of diabetes caused by an accidental injury, held sustained by the evidence.</p>

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

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

<p>1. Insurance, § 150*—when payment of premium to broker is payment to insurer. Where' an insurance company delivers its policy to the insured through brokers to whom the insured pays the premium, the company is liable on the policy though it does not receive the premium paid, where the facts show that it clothed such brokers with apparent authority to receive the premium from the insured.</p> <p>2. Insurance, § 187*—what essential to enable insurer to cancel policy. Notice to insured of the cancellation of a policy within five days without returning the unearned premium, held ineffective.</p>

<p>1. Evidence, § 345*—when separate parol agreement may be shown. A separate parol agreement as to matters not inconsistent with the terms or legal effect of the written agreement, and on which it is silent, may he shown where it appears that the written instrument was not intended to he a complete and final statement of the whole transaction between the parties.</p> <p>2. Evidence, § 345*—when prior verbal agreement is admissible. Proof of a verbal arrangement between the parties prior to the execution of a contract for the sale of land is admissible as explaining what was meant by numerous promises to pay interest made after the deed was delivered.</p> <p>3. Instructions, § 137*—when requested instructions properly refused. Requested instructions which do not take into consideration the proof of essential matters may be properly refused.</p> <p>4. Appeal and error, § 1489*—when error in admitting testimony will not reverse. Error of court in permitting a party to testify as to what was meant by the terms of a certain agreement, held not reversible error where his answer was what the court and jury must have understood from other evidence.</p>

<p>1. Release, § 8*—when resort to equity necessary to avoid fraudulent release. Where there is fraud in the execution of a release, such as misreading it or substituting one paper for another, or any like trick, recovery can be had on the instrument at law, notwithstanding the release; but where the signature is not obtained by fraud, resort must be had to equity to avoid the release.</p> <p>2. Insurance, § 852*—when by-law of benefit society no bar to suit to set aside a fraudulent release. A by-law of an association depriving the beneficiary of the right to maintain an action to set aside a compromise unless written revocation is made and money refunded within ten days after the compromise was made, held, no bar to an action to set aside a release obtained from beneficiary by fraud.</p> <p>3. Insurance, § 911*—when payment should be ordered according to terms of benefit certificate. On bill to set aside a release obtained from beneficiary by fraud, a decree permitting recovery of the benefits should order payments payable in instalments when so provided by the certificate.</p> <p>4. Insurrance, § 907*—when proofs of death insufficient to show date of inception of disease. Proof of death stating that deceased member had taken sick on or about a certain date and that the cause of death is said to be cancer, held not to state that deceased had cancer on said date.</p> <p>5. Insurance, § 887*—when written report of an investigation bureau, incompetent. A report of an inspection bureau obtained at the request of the order concerning statements of the doctor who treated the deceased member as to length of time cancer existed, held incompetent.</p> <p>6. Insurance, § 852*—when evidence sufficient to prove release from beneficiary was obtained by fraud. Evidence held sufficient to show that a written release by beneficiary of all claims against the society was procured by fraud on the part of an adjuster for the benefit society.</p> <p>7. Appeal and error, § 361*—when defense that suit was premature, waived. Objection that suit was prematurely brought cannot be urged for the first time on appeal.</p> <p>8. Appeal and error, § 361*—when grounds of defense waived. Decree granting recovery on a benefit certificate, without deducting certain assessments as provided by by-laws of society; cannot be complained of where such by-law was not pleaded as a defense and no objection was made which raised the question below.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1913.</p>

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

<p>Municipal Court of Chicago, § 19*—when judgment for portion of demand in dispute may he entered. Where an affidavit of defense in the Municipal Court of Chicago is to a portion of plaintiff’s demand and a judgment is entered for the portion admitted to be due, under rule 17 of the Municipal Court, which contains in substance the provisions of the amended section 55 of the Practice Act of 1907, J. & A. IT 8592, such judgment does not preclude entering a judgment for the portion of demand in dispute.</p>

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

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

<p>1. Appeal and error, § 1197*—questions not reviewable on appeal from a final decree. While an appeal from a final decree in equity ordinarily brings up the whole case on its merits, including interlocutory orders connected with the decree, such an appeal does not bring up a question which was definitely adjudicated and disposed .of prior to the time of making such decree.</p> <p>2. Appeal and error, § 1199*—when error in dismissing cross-bill not reviewable on appeal from final decree. An appeal from a decree of foreclosure only, does not bring up for review a prior order dismissing a cross-hill.</p>

<p>1. Injunction, § 155*—when improper to temporarily enjoin exchange from blacklisting member. Where a live stock exchange suspends a member on his failure to reimburse a nonmember for the conversion of hogs, it is improper to temporarily enjoin the exchange from maintaining a boycott or blacklist against the member where the injunctional order states that it does not find whether or not the defendants have been guilty of the acts enjoined and the allegations of the bill are fully answered by affidavits.</p> <p>2. Boabds on tbade and exchanges, § 18*—how notice to appear at meeting to answer charges is construed. A notice by a live stock exchange to a member to appear at a meeting on January 3, 1912, to answer a charge of violating the rules, will be regarded as a notice to appear on such day in the year 1913 where the controversy did not begin until October, 1912.</p>

<p>1. Street railroads, § 24*—no common law duty to repair holes between trades. A street railway company owes no common law duty to a wagon driver to repair holes in the street between the tracks not due to the operation of the railway itself.</p> <p>2. Street railroads, § 15*—when incorporating statute subjects company to ordinance obligations. The Act of February 14, 1859, incorporating the Chicago City Railway Company, subjects it to all the obligations imposed on the beneficiaries under Chicago ordinance of 1858, authorizing the construction of certain railways.</p> <p>3. Street railroads, § 45*—when prima facie case of burden to repair is established. In an action against the Chicago City Railway for failure to repair a hole between its tracks, the company claimed there was no showing that Chicago ordinance of 1858, authorizing construction, was in force after its limitation or that the council had not elected to purchase the railway, that the scene of accident was within limits of Chicago in 1858, or that the railway was built under the ordinance. The Act of 1859 incorporated defendant and it was stipulated that defendant was operating a railway at the site of and at the time of the accident. Held, the ordinance, the Act and the stipulation taken together make a prima facie case that the burden to repair at the site of the accident rested upon defendant.</p> <p>4. Street railroads, § 45*—when estopped to repudiate ordinance obligations. An electric street railway company enjoying the privileges of the Chicago ordinance of 1858, authorizing construction and operation, cannot contend that as the ordinance requires cars to be operated with animal power it must be presumed that its operation at the place where there was a hole between its tracks could not be under the ordinance, nor the conditions of the ordinance binding upon it.</p> <p>5. Street railroads, § 44*—duty to repair imposed by ordinance. The Chicago City Railway Company cannot contend that Chicago ordinance of 1858 imposed no duty in the absence of an order of the council, to repair between its tracks a hole made by a contractor under express municipal authority, as section 7 of the ordinance imposed a present unconditional duty on it, and Municipal Code of 1905, § 1945, is an order concerning repairs- within the ordinance.</p> <p>6. Negligence, § 128*—when defective declaration is cured by verdict. Where a declaration against a contractor for failure to refill a trench in a street properly is construed by the parties on the trial as sufficiently alleging that the hole was made by the defendant, the failure to aver that the hole was so made is cured by the verdict.</p> <p>7. Negligence, § 187*—duty to refill trench in street properly. In an action against a construction company for an injury alleged to have been caused by its failure to fill a trench in a street properly, it cannot contend it was not liable for failure to maintain the street where instructions stated it was not its duty to maintain the street, but the question was whether it had been negligent in refilling in the first instance.</p> <p>8. Negligence, § 198*—when contributory negligence in passing over track is for jury. In an action against a construction company for not filling a trench on a street properly, contributoi y negligence of a wagon driver in passing over the depression, under conflicting contentions whether it was latent or patent, is a proper question for the jury.</p> <p>9. Street . bailboads, § 45*—when question whether depression was between tracks is for jury. Where, in an action against a street railway and a contracting company for injuries sustained by a depression in the street, it is doubtful whether the depression was between the railway tracks, such doubt is a question for the jury to resolve.</p> <p>10. Street railroads, § 45*—when instruction taking from jury question of expiration of ordinance is harmless. In an action against a street railway company, an instruction taking away from the jury, by the use of the present instead of the past tense, the question whether an ordinance requiring repairs had expired is harmless where the ordinance had not expired.</p> <p>11. Negligence, § 234*—when erroneous instruction on right to presume safety is cured. An instruction erroneously stating that plaintiff had a right to presume a street was safe for travel is cured by a statement, made a prerequisite, that plaintiff must have been in the exercise of ordinary care, and is not misleading.</p> <p>12. Instructions, § 151*—may be refused when covered by those given. Inaccuracy in giving an instruction is harmless where the other instructions and the evidence render it improbable that the jury were misled.</p> <p>13. Negligence, § 213*—when instruction is misleading. An instruction that a defendant is .not liable if a refilled trench in a street was left in a safe condition and subsequently became unsafe, is misleading, where it is material as to how soon a depression appeared and to what extent.</p> <p>14. Instructions, § 42*—when improper to state instructions are the only law. It is proper to instruct that the jury should be governed as to the law of the case entirely by the instructions of the court, but it is improper to state that the jury “should consider that only as law which has been given by the court in the instructions.”</p> <p>15. Appeal and error, § 1095*—when statement in brief of defendant is not binding on codefendant. Where in an action against a street railway and a contracting company, it is maintained a depression in the street was between the tracks of the railway company, a statement to such effect in the contractor’s brief is not binding upon the railway company.</p> <p>16. Appeal and error, § 1793*—erroneous judgment as to one of two joint defendants is erroneous as to both. A monetary judgment for a wagon driver against a street railway company and a construction company is a unit as to both defendants, and is erroneous as to both if erroneous as to one:</p> <p>17. Appeal and error, § 1769*—when remittitur required as condition of affirmance. Where the trial court has required a remittitur of two thousand five hundred dollars from a verdict of eight thousand five hundred dollars in a personal injury case, if the Appellate Court is of the opinion that the amount is still excessive it may require a reduction to four-thousand dollars as a condition for affirmance.</p>

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

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

<p>1. Damages, § 251*—right of trial court to order a remittitur. Unless a party in whose favor a verdict of a jury is rendered moves to remit therefrom, or consents thereto, the trial court can only grant a new trial or enter judgment on the verdict; the court cannot of its own motion order a remittitur. _</p> <p>2. Judgment, § 629*—when payment to cleric of court does not preclude rights of party recovering judgment. Payment of the judgment and costs by the defendant to the clerk of the court cannot without plaintiff’s acceptance thereof, defeat his rights in the case.</p> <p>3. Appeal and error, § 1782*—when compelling remittitur, reversible error. Action of trial court in entering an order of remittitur on its own motion, held, reversible error.</p> <p>4. Appeal and error, § 897*—when evidence must be presented in transcript. Where the evidence is in no form presented in the transcript of record, the merits of the case cannot be considered.</p>

<p>1. Insurance, § 855*—when society estopped to set up its laws as a defense. In.an action to recover on a certificate of membership in a beneficiary society wrongfully withheld from the member during his lifetime, society held estopped to set up as a defense that the laws of the society provide that an applicant shall not be considered a member until after he is in possession of the membership certificate.</p> <p>2. Insurance, § 851*—when beneficiary may invoke aid of equity to recover on a certificate wrongfully withheld. Where a benefit certificate has been wrongfully withheld from member during his life time, the beneficiaries may invoke the aid of equity to adjust the controversy by final decree,</p> <p>3. Infants, § 34*—authority of next friend to collect judgment. The prosecution of a suit for infants may be undertaken and conducted by a next friend, but he is not authorized to collect the judgment.</p>

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

<p>1. Descent and distribution, § 3*—property descends by statute. The right to take property by will or descent is statutory in Illinois.</p> <p>2. Taxation, § 677*—nature of inheritance tax. An inheritance tax is not a tax upon property, but is an excise tax or duty upon the privilege of taking property by will or descent.</p> <p>3. Taxation, § 677*—inheritance tax reserves portion of premises to State. That a portion of premises is reserved to the State by terming it an inheritance tax does not alter the fact that such tax is a reservation to the State of a portion of the premises.</p> <p>4. Landlord and tenant, § 199*—when lessee is not liable for inheritance tax. Where a lessee covenants to pay as additional rent all taxes and charges of every nature which the lessor shall be required to pay by reason of or on account of his interest in the land, but does not covenant to indemnify the lessor for such portion of the premises as the State may see fit to reserve to itself, on the death of the lessor the lessee is not liable for the inheritance tax on the premises.</p>

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

<p>1. Municipal corporations, § 83*—penal ordinances are strictly construed. Penal ordinances must be strictly construed and a penalty will not be imposed unless a defendant is clearly within the terms of the ordinance.</p> <p>2. Statutes, § 198*—how construed. In ascertaining the legislative intent in statutes or ordinances they will receive that meaning which the ordinary reading of the language warrants, words not technical being taken in their ordinary, familiar acceptation with regard to their general and popular use.</p> <p>3. Elevated railroads, § 5*—how ordinance requiring heated cars is construed. Since the specific language of the Municipal Code of Chicago of 1911, § 2210, requiring a certain average temperature to be maintained in street railway cars, does not indicate its application to elevated railroads, resort must be had to a construction of the section.</p> <p>4. Elevated railroads, § 5*—when not required to heat car. The Municipal Code of Chicago of 1911, § 2210, requiring street railway cars to be maintained at a certain temperature, does not apply to cars of elevated railroads.</p> <p>5. Elevated railroads, § 1*—distinction from street railway. One of the principal distinctions between elevated street railroads in cities and street railways is in their power to condemn property.</p>

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

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

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

<p>Error to the Municipal Court of Chicago; the Hon. Rufus J. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

<p>1. Building restrictions and regulations, § 1*—what constitutes a block. Where a city ordinance provides that no garage shall be built on a street where a certain per cent, of the buildings on both sides of the block are residences, a “block” is construed not to extend between two streets that completely cross the street in question, but to stop at a street running into it though not across it.</p> <p>2. Building restrictions and regulations, § 1*—how consent to building of garage is determined. Where a city ordinance provides that no garage shall be built on a street where a certain per cent, of buildings are residences unless certain frontage consents are obtained, the ruins left by a building destroyed by fire are not to be counted at all, a structure divided by frame partitions into three small shops is to be counted as one business building, a structure having two street numbers may be counted as one residence building, and a building at a corner having shops on the street level with their entrances on another street, but its main entrance on the street in question, may be counted as a fiat building on the street in question.</p> <p>3. Building restrictions and regulations, § 1*—when court buildings are to be considered in determining frontage consents. Where a city ordinance requires a certain frontage consent to building a garage on a street having a certain per cent, of residences, and a court, extending from the street, is a front yard for residents, used in common for light and air, and egress and ingress to the street, two court buildings abutting on the street and two buildings at the rear of the court and facing the street are to be counted.</p> <p>4. Building restrictions and regulations, § 1*—no estoppel from permit issued without authority. Where a commissioner of buildings issued a permit for the erection of a garage and withdrew the permit after the owner had done preliminary erection work, the owner not being entitled to a permit without having frontage consents, the city is not estopped from interfering with the erection.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence, § 331*—receipt may be explained by parol evidence. Where a voucher and receipt, reciting a payment in full, is a receipted bill or statement of account, oral evidence as to the circumstances under which the voucher and receipt was given is admissible for the purpose of showing the real intention of the parties and that the money was not-received.</p> <p>2. Payment, § 37*-—when instruction is misleading. An instruction referring to the giving of notes or a receipt as though it were claimed by defendant that the receipt was given and the notes accepted “in full settlement of the debt in controversy” is misleading when the debt in controversy had no existence at such time.</p> <p>3. Payment, § 36*—when instruction is confusing. An instruction to find for the plaintiff if defendant had not paid for a part of the work, and further if a receipt was given for notes ip payment which were not paid is misleading and confusing where there is no claim that the notes were paid but it is claimed that the debt was paid by a third party.</p> <p>4. Instructions, § 87*—weight of evidence. An instruction requiring a defendant to “satisfy” the jury by a fair preponderance of evidence as to a certain payment requires an improper degree of proof.</p> <p>5. Appeal and error, § 1639*—when improper instruction is not cured. An instruction improperly requiring defendant to “satisfy” the jury as to a certain payment is not harmless where there is no other language which can be construed as correcting or explaining the statement.</p> <p>6. Appeal and error, § 1526*—improper instruction not harmless where verdict may not be proper. Error in instructions cannot be considered harmless on the grounds that the merits of the controversy are with the appellee where there is evidence which, if believed by the jury, would have justified a different verdict.</p> <p>7. Interest, § 24*—payment vexatiously delayed. Where plaintiff is advised before signing a contract that defendant would not make a certain payment, the mere fact that defendant contested the claim to such payment does not constitute an unreasonable or vexatious delay, justifying an allowance of interest.</p>

<p>1. Municipal corporations, § 403*—when costs of an improvement cannot be paid out of general funds. Under a statute making it the duty of a village to levy and collect a special assessment to defray the cost of making an improvement described in the ordinance and contract, the performance of that duty may be compelled by mandamus, but there is no liability on the part of the village to pay such cost out of its general funds in case of any deficiency in the special assessment funds.</p> <p>2. Municipal corporations, § 404*.—retroactive effect of section S6 of Local Improvement Act. Section 86 of the Local Improvement Act as amended in 1901, J. & A., If 1479, which provides that if from any cause an instalment against which a special assessment bond is issued has not sufficient money to its credit to pay the bond, the whole assessment, or any instalment thereof, may be applied towards such payment, held not to apply to assessments levied and bonds issued under prior acts.</p> <p>3. Municipal corporations, § 404*—-when not liable for failure to collect delinquent special assessments in cash. A village cannot be made liable to pay out of 9ther instalments special assessment improvement bonds issued against delinquent assessment instalments merely because of its failure to collect in cash the amount of such delinquent instalments. The village performs its full duty in the collection of delinquent assessments when it receives and tenders the tax titles obtained by it.</p> <p>4. Municipal corporations, § 404*—when liable for diverting special assessment funds. Where a village wrongfully diverts any of a special assessment fund, or uses it to pay claims not legally chargeable against the fund, the village is liable in assumpsit, to the extent of such wrongful use or payments, to the person to whom the moneys so used were rightfully due.</p> <p>5. Municipal corporations, § 404*—when liability of village on improvement contract becomes merged in improvement bonds. Where a contractor for a village improvement accepts in full payment of his demand for work under his contract special assessment improvement bonds payable solely out of certain specific instalments of the assessments when collected, the liability of the village upon the contract becomes merged in the specific liability evidenced by the bonds.</p>

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

<p>1. Municipal court of Chicago, § 26*—judge who must authenticate stenographic report. By analogy with Practice Act, § 81, J. & A., if 8618, application to have the stenographic report of the proceedings at the trial of a cause in the Municipal Court of Chicago signed and filed must be made to the judge who entered the judgment, unless he is sick, dead or otherwise disabled.</p> <p>2. Municipal court of Chicago, § 26*—when judge is not disabled from authenticating stenographic report. That the judge who entered a judgment in the Municipal Court of Chicago is presiding in another branch of the court at the time of an application to have the stenographic report of proceedings authenticated is not such disability as is contemplated by the Practice Act, § 81, J. & A., If 8618, as would excuse not making the application to him.</p> <p>3. Municipal court of Chicago, § 29*—judicial notice not taken of rules of court. The Appellate Court cannot take judicial notice of the rules of the Municipal Court of Chicago.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. William E. Dever, 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. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Abstract of the Decision.</p> <p>1. Costs, § 64*—decree construed as to award of solicitors’ fees. A decree in a proceeding to confirm a settlement made between the parties in a will contest, construed as awarding solicitors’ fees directly to the solicitors.</p> <p>2. Costs. § 64*—when decree awarding solicitors’ fees not subject to collateral attack. Attorneys accepting an allowance of solicitors’ fees and giving a receipt therefor cannot be heard to say in a collateral proceeding that the decree was erroneous in awarding same to the solicitors instead of to the parties.</p> <p>3. Costs, § 64*-—when an order .for solicitors may direct payment to solicitors directly. Decree in a chancery proceeding to confirm a settlement of an estate by the parties to a suit in a will contest may award solicitors’ fees payable directly to the solicitors of the complainants from the fund, where the services of the solicitors were for the benefit of the fund and all parties in interest.</p> <p>4. Appeal and error, § 487*—when objection to special interrogatories not preserved. Objection to action of court in submitting interrogatories to the jury, not preserved for review unless urged in the trial court.</p> <p>5. Appeal and error, § 1521*—when submission of special interrogatories harmless. Error of court in submitting special interrogatories to the jury on immaterial facts, held not cause for reversal.</p> <p>6. Appeal and error, § 499*—when objection to allowance of solicitors’ fees must be urged. In an action by an attorney for his share of solicitors’ fees awarded by a decree, objection that plaintiff had from time to time been paid for services under a contract and should not be entitled in equity to additional pay from other persons with whom he had no contractual relations, merely because those persons happened to be benefited thereby, must be urged in the chancery court at the time the allowances were made.</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 October 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 March term, 1912.</p>

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

<p>1. Injunction, § 156*—test in determining propriety of holding property in statu quo. The chief, if not the controlling question on a bill for a temporary injunction to hold the property in statu quo until the rights of the parties have been adjudicated, is the relative inconvenience to the parties that will result from the granting or refusal to grant the injunction.</p> <p>2. Injunction, § 156*—when property will he ordered held in statu quo. Although there may be serious doubts as to who should prevail on the merits on a bill to enforce a contract of sale of an heir’s interest in an estate, a temporary injunction may be issued requiring the property to remain in statu quo, where complainant would have a barren victory if the stocks and securities were put beyond the reach of the court and defendant has no personal interest or claim' in the property.</p> <p>3. Injunction, § 159*—when clear right to permanent injunction need not he shown by hill. A bill need not show a clear right to a permanent injunction where a temporary injunction is prayed for in order to conserve the rights of the complainant pending the litigation.</p> <p>4. Injunction, § 159*—when sufficiency of hill can he tested only hy demurrer. The question of the sufficiency of a bill to warrant an order for a temporary injunction to preserve a status quo pending the determination of the rights can be tested only as on a general demurrer, and must be held sufficient if it shows a right to the relief prayed for.</p> <p>5. Injunction, § 159*—when hill for temporary injunction is sufficient. A bill held sufficient to warrant the ordering of a temporary injunction requiring the parties to keep the property in statu quo until the determination of the merits of the controversy.</p>

<p>1. Eminent domain, § 262*—how extent of right in easement acquired is measured. Where an elevated railroad company acquires an easement in land condemned by it for right of way purposes, the extent of its rights in the easement is to be measured by the compensation paid therefor and by the purposes and uses to which it may be legitimately put as and for its right of way.</p> <p>2. Eminent domain, § 262*—purposes for which elevated railroad company may enter upon its easements. An elevated railroad company acquiring an easement in land condemned by it for right of way purposes may enter upon every portion of the way at all times for the purpose of inspecting and repairing its elevated structure and the supports, and may perform such work thereon as may he reasonably necessary and expedient to conserve its structural equipment and to provide for the comfort and convenience of its passengers and safety of its employes.</p> <p>3. Eminent domain, § 262*—when elevated railroad company may enter and pave easement. An elevated railroad company acquiring an easement in land condemned by it for right of way purposes may enter upon and pave the way, where such pavement is beneficial to the company, without answering in trespass to the owner of the fee.</p> <p>4. Elevated railroads, § 4*—when instructions as to use of property are not harmful to owner of fee. Where an elevated railroad company enters upon an easement acquired by condemnation for right of way purposes and paves the way, in trespass against it by the owner of the fee, it appearing that the company had a right to pave, instructions that the presence of the elevated structure and operation constitute possession and the fact that they did not use all the land condemned does not give the owner any right to use it, are not harmful to the plaintiff.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, 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>Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Abstract of the Decision.</p> <p>1. Mechanics’ liens, § 167*—jurisdiction of Municipal Court. The only action on a subcontractor’s claim for a mechanics’ lien cognizable in the Municipal Court of Chicago is an action at law in assumpsit jointly against the owner and contractor under the Mechanics’ Liens Act, § 28, J. & A., jj 7166.</p> <p>• 2. Mechanics’ liens, § 171*—when process must he served on contractor. A subcontractor suing an owner and contractor under the Mechanics’ Liens Act, § 28, J. & A., j[ 7166, is not entitled to a judgment against the contractor not served by process or publication.</p> <p>3. Mechanics’ liens, § 202*—when judgment must he against owner and contractor jointly. In a subcontractor’s action in assumpsit under the Mechanics’ Liens Act, § 28, J. & A., T 7166, against the owner and contractor, the judgment must be against the owner and contractor jointly for the whole sum due the subcontractor from the contractor, but can only be enforced against the owner to the extent of his liability under the act, and the judgment should find and recite the amount and date of the. subcontractor’s lien.</p> <p>4. Mechanics’ liens, § 202*—when judgment may he rendered against contractor. Where in a subcontractor’s action in assumpsit under the Mechanics’ Liens Act, § 28, J. & A., If 7166, against the owner and contractor, no lien is established against the owner, judgment may he rendered against the contractor.</p> <p>5. Process, § 2*—party served with, summons must he made defendant. Serving a summons on a party without making him a party defendant to the suit does not make him a party defendant.</p>

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

<p>Evidence, § 63*—when value cannot he proved hy impeaching statement. Where in an action by a vendee of land against the vendor to recover for a breach of a contract to sell and convey, a witness for. plaintiff testifies that the value of the property was a certain amount and on cross-examination admits that prior statements as to value were untrue and that plaintiff did not have a certain offer for the property, a written statement signed by the witness, offered on rebuttal, that a third person stated he would buy the property of plaintiff for a certain amount if plaintiff had title, but would not do so inasmuch as plaintiff did not have title, is inadmissible to prove value or to impeach the witness, and, further, is hearsay.</p>

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

<p>1. Accounts, § 19*—when sustaining demurrer to till for an accounting not an atuse of trial court’s discretion. On bill in equity for a discovery and an accounting of amount due on a Tontine policy of insurance alleging that the accounts are intricate and complicated, requiring the skill of an expert accountant to audit them, action of court in sustaining a demurrer to the bill on ground that there is an adequate remedy at law held not an abuse of discretion, there being no specific or definite allegations of fraud nor of inequitable distribution or disposition of the assets involved in the contract between the complainant and the insurance company, and the bill not being strictly a bill for discovery.</p> <p>2. Trusts, § 263*—when till does not lie to compel accounting of amount due on insurance policy. A life insurance society is not a trustee of a tontine fund so that the insured may maintain a bill in equity to compel an accounting for its administration on the theory of a trust relation existing between the company and the policy holders.</p> <p>3. Discovery, § 7*—sufficiency of till. A bill is not strictly and merely a bill for discovery where it waives an answer under oath.</p> <p>4. Production of books and papers, § 3*—proceedings in which production may te required. In actions at law as well as in equity, the parties may, upon motion, be required to produce books and writings in their possession or power which contain evidence pertinent to the issue.</p>

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

<p>Abstract of the Decision.</p> <p>Brokers, § 48*—when principal effecting sale is liable for commissions. A broker secured a purchaser and the owner not agreeing to the purchase price in the contract of sale prepared by the broker refused to sign the contract and terminated the negotiations. The owner subsequently sought out the purchaser and made a similar contract with him in a third person’s name, providing for the repudiated purchase price. The third person then assigned the contract to the purchaser. Held, the owner was liable to his broker for commissions.</p>

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

<p>1. Injunction, § 67*—when negative covenants will not he enforced. In the absence of special circumstances, a contract which equity will not interfere directly to enforce by a decree for specific performance, it will not interfere -to enforce by the coercion of an injunction against its violation.</p> <p>2. Injunction, § 75*—enumeration of cases of enforcement of negative covenants. Where the remedy at law for a breach of a contract is plainly inadequate because the defendant is an assignee or is insolvent, or where there are personal services involved which are unprocurable from persons other than the defendant, or where, after a sale of business good-will, a valid negative covenant in restraint of trade can be specifically enforced by injunction and the damages are presumed irreparable and unascertainable, or where the covenant is one connected with the conveyance in fee, for life or for years, of real estate, express negative covenants may be enforced.</p> <p>3. Injunction, § 75*—when negative covenant not enforced. A violation of an express covenant in contract between a saloon keeper and a brewery not to purchase any beer from any other party than the brewery will not be prohibited by an injunction where the contract further provides for liquidated damages in case default shall be made in its observance.</p>

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

<p>. 1. Evidence, § 7*—when judicial notice taken of foreign laws. In an action on a foreign judgment of a justice of the peace, judicial notice will be taken of the laws of the State as far as it may be necessary to ascertain the faith and credit to be given to the judgment.</p> <p>2. Judgment, § 669*—what shows jurisdiction. Where in an action on a foreign judgment of a justice of the peace the record of the justice’s suit shows that the defendant’s attorneys entered an unqualified appearance, but that the defendant was not summoned, there being no evidence that the attorneys had no authority, their appearance gave the justice jurisdiction.</p> <p>3. Judgments, § 670*—when continuance of jurisdiction presumed. Where in an action on a foreign judgment of a justice of the peace it appears that the justice had jurisdiction of the subject-matter and parties, he will be considered to have had such jurisdiction up to and at the time of entering judgment, unless it be shown that in some manner he lost jurisdiction before the entry of the judgment.</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, 1912.</p>

<p>1. Indemnity, § 11*—when conditions in policy for indemnity insurance waived. Where a casualty company after being notified pursuant to the terms of the policy takes charge of and conducts the defense of the assured, when it knows, or in the exercise of ordinary diligence should have known that the case was not covered by the policy, it waives the condition of the policy.</p> <p>2. Limitation of actions, § 66*—when amended declaration sets up no new cause of action.. The amended declaration in an action on an indemnity insurance policy does not set up a new and different cause of action than that stated in the original declaration where the difference is only as to the dates stated in describing the policy sued upon which dates are merely descriptive of the policy and are laid under a videlicet.</p> <p>3. Pleading, § 432*—use of videlicet. The use of a videlicet is to avoid a variance and to avoid a positive averment which must be' strictly proved.</p> <p>4. Limitation of actions, § 66*—amended declaration filed after statute has- run. An action on a policy of indemnity insurance which provides that action thereon shall be brought within ninety days after the payment of loss or expense by the insured is not barred where the original declaration is filed within the ninety day period, though an amended declaration is filed after the period has elapsed, where the two declarations set up the same cause of action.</p>

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

<p>Abstract of the Decision.</p> <p>Mechanics’ men, §• 24*—necessity that material be retained in the building. A subcontractor furnishing lumber to a contractor who uses it exclusively in the construction of moulds and forms for the erection of concrete foundations, removing the lumber after the concrete hardens, and none of it becoming part of the building, is not entitled to a mechanic’s lien against the owner.</p>

<p>1. Municipal court of Chicago, § 28*—when propositions of law are not necessary to a review. In an action in the Municipal Court of Chicago, propositions of Jaw neéd not be submitted in order to save questions of law for review.</p> <p>2. Sales, § 331*—when purchase price not recoverable on countermanded order. Where on an executory contract of the sale of standard goods having a market value, the title, not passing, the buyer countermands the order before anything was done thereunder by the seller, the seller electing to keep the contract alive cannot tender the goods at the time for delivery and upon their rejection recover the purchase price therefor.</p>

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

<p>1. Carriers, § 329*—when person alighting is still a passenger. Where a passenger in attempting to alight from a street car has one foot on the step of the car and has hold of an iron attached to the car to assist in alighting, he is still a passenger.</p> <p>2. Carriers, § 480*—when question of negligence in suddenly starting cars, is for jury. Where a street car suddenly starts forward before a passenger alights, the question whether street car company was guilty of negligence in so starting the car is a question for the. jury.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

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

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

<p>Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Mines and Minerals, § 179*—when recovery for death of employe not sustained, by the evidence. In an action for death of a shot firer while employed in defendant’s mine, alleged to have resulted from his being overcome by bad air, evidence held insufficient to support a verdict for plaintiff on the theory that death resulted from being overcome before he could escape from the room after lighting the fuse.</p>

<p>1. Corporations, § 331*—duty not to discriminate in service. It is the duty of a public service corporation to furnish its commodity or service without arbitrary discriminations.</p> <p>2. Gas, § 8*—duty not to discriminate. The business of a gas company furnishing gas to domestic consumers and manufacturers is one impressed with a public interest, and it must serve all who apply upon equal terms and at reasonable rates.</p> <p>3. Gas, § 8*—when duty to supply is within corporate duties. The undertaking of a gas company to supply a manufacturer with gas for its boilers without detriment or inconvenience to the company’s domestic consumers is within its common law duties.</p> <p>4. Injunction, § 72*—when shutting off water will he enjoined. Injunction will lie to restrain persons engaged in a public service from shutting off water in violation of its contract where it would result in great injury to the consumer, and the injunction will not be denied because the ultimate effect of it would be to compel the company to comply with its contract.</p> <p>5. Estoppel, § 53*—when gas company cannot repudiate direction to buy coal. A gas company not obligated by contract to furnish coal to supply boilers where there is an insufficient supply of gas, voluntarily directed the owner of the boilers to purchase coal at its expense and the owner did so in reliance upon such direction, held, that the company is estopped from repudiating its liability for the sum paid for coal.</p> <p>6. Injunction, § 177*—when hill against gas company is sufficient. The averments of a bill for an injunction by a manufacturer that a gas company contracted to supply gas for boilers, that by reason of an insufficient supply complainant was directed to purchase coal at defendant’s expense and deducted the sum so paid from the contract charge, that it was ready to pay the balance due, that defendant threatened to cut off the supply on the false assumption of nonpayment of its bill, and that serious injury would result therefrom, justify enjoining defendant from shutting off such supply of gas as it must give, and the bill is not demurrable.</p>

<p>Appeal and error, § 1789*—when reversal made in compliance with directions of Supreme Court. Where the Supreme Court determined it was error for the Appellate Court to reverse and remand a case with directions and remanded the case to such court with certain general directions, the Appellate Court readopted its former opinion but reversed without remanding and made a finding of facts.</p>

<p>1. Adjoining landowners, § 1*—when reservation of lateral support not implied in deed. Where the owner of a building and land sells the unimproved land adjoining the building and conveys it by deed without any reservation, there is no implied reservation of lateral support to the building in favor of the grantor.</p> <p>2. Adjoining landowners, § 1*—when negligence in constructing building is for jury. Where in an action by an owner of a building against an adjoining owner for erecting a building that in settling disturbed the lateral support of plaintiff’s building, causing damage to the same, there is evidence of negligence in placing an elevator of great weight upon a mattress foundation, that defendant knew its building would be liable to sink hut expected the sinking to be uniform, which was not the result, and that reasonable prudence would have caused the foundation to be placed upon piling, the question of negligence in construction is. for the jury.</p> <p>3. Master and servant, § 854*—when employer liable for worlc of independent contractor. Where a building is injured by. an adjoining landowner disturbing the lateral support in erecting a building, and the plans and specifications, though prepared by an independent contractor, were adopted by the landowner, and the contractor was compelled to use them in erecting the building, if the negligence causing injury is not in the workmanship or the materials furnished by the contractor hut in the plans and specifications, and the injury resulted directly from the acts called for or rendered necessary by the contract and not from collateral acts, the employer of the contractor is liable.</p> <p>4. Master and servant, § 866*—when reputation of independent contractor may not be shown. In an action by the owner of a building for damages sustained by the erection of a building by an adjoining landowner evidence is inadmissible that defendant investigated the standing, experience and reputation of its independent contractor who erected the building.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>1. Waters and water courses, § 45*—when water company liable for injuries resulting from defective meter box. In an action for personal injuries sustained by plaintiff resulting from a defective covering over a water meter box located in a sidewalk and belonging to defendant, a City Water Company, a verdict for plain tiff held sustained by the evidence.</p> <p>2. Damages, § 208*—when instruction does not submit question of law. Instruction directing the jury in estimating damages to take into consideration the elements of damages that “are within the allegations of the declaration,” held not to submit questions of law.</p> <p>3. Damages, § 211*—when instruction as to effect of injury on ability to perform duties not vicious. Instruction directing the jury to assess damages for the effect that the “said injury has had and will have upon her ability to perform her usual duties,” held not vicious for failing to specify the duties referred to.</p> <p>4. Damages, § 193*—when instruction as to failure of plaintiff to exhibit injury improper. In an action for personal injuries, defendant is not entitled to an instruction that failure of plaintiff to exhibit her injury to the jury should be taken as a circumstance against her.</p> <p>5. Damages, § 193*—when instruction not improper. An instruction authorizing the jury “to fix such damages, if any, from a preponderance of the evidence, guided by his experience in the everyday affairs of life,” held not improper.</p> <p>6. Damages, § 122*—when verdict for injury to leg not excessive. Verdict for one thousand dollars for injuries to leg, which developed into a running sore which continued from the time of the injury up to the time of the trial, preventing plaintiff from attending to her usual duties as housekeeper, the injury also causing her to suffer much pain at times, held not excessive. "</p> <p>7. Damages, § 168*—exhibition of injuries. Plaintiff in an action for personal injuries is not required to submit to a physical examination of his or her injuries.</p>

<p>Appeal from the Circuit Court of Perry county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Death, § 63*—when damage must be shown. In order that a mother not living with a son may obtain more than merely nominal damages, in an action for damages sustained by her son’s death, it is necessary to show pecuniary interest in the continuance of the life of the deceased.</p> <p>2. Death, § 42*—material averment of damage must be proved In an action for death by wrongful act, an averment in the declaration that the deceased contributed to the support of his mother during his lifetime is material and must he proved by competent testimony.</p> <p>3. Evidence, § 224*—when based on hearsay is improper. Testimony based upon hearsay statements is improper.</p> <p>4. Evidence, § 224*—when hearsay. In an action for wrongful death, testimony of witnesses that deceased stated he was going to send money to his mother is hearsay.</p> <p>5. Evidence, § 224*—when not hearsay. In an action for wrongful death, testimony of a witness that he gave deceased’s mother money that deceased sent her is not hearsay.</p> <p>6. Death, § 48*—when evidence to show damage is inadmissible. In an action for wrongful death, receipts reciting that money was received from deceased to be remitted to his brother-in-law and that a bank money order was mailed to such person are incompetent for the purpose of showing a payment to deceased’s mother and also as being based on hearsay and where there is no further evidence that the money was paid to the mother of deceased other than to deceased’s declarations that he was going to send money to his mother.</p>

<p>1. Pleading, § 89*—what- constitutes a plea. An instrument to constitute a plea must purport to answer the allegations of the declaration, must set forth a proper formal commencement and must have a proper conclusion, either with a verification or to the country.</p> <p>2. Pleading, § 321*—what not verified plea. An affidavit by defendants denying liability and that they were partners, not purporting in its commencement to be a plea and not concluding with a verification or to the country, is not a verified plea in bar under the Practice Act, § 54, J. & A. If 8591.</p> <p>3. Assumpsit, action of, § 89*—when recovery sustained on conflicting evidence. Defendants received money from plaintiffs for deposit in their private bank and claimed to have purchased foreign drafts for plaintiffs, to have sold them groceries and that indebtedness existed for rent and on a promissory note. Plaintiffs contended that the deposits had no connection with defendant’s claim, that money was furnished for the drafts, that the running account was paid and that the alleged note was a receipt. Held, a verdict in assumpsit for plaintiffs was not against the weight of the evidence.</p> <p>4. Evidence, § 253*—when translation is inadmissible. A written translation of books of account may be excluded where the books were offered in evidence and were translated from the witness stand by an interpreter.</p> <p>5. Instructions, § 94*—disregard of false testimony. It is not reversible error to give an instruction that if any witness has wilfully testified falsely to any material fact his testimony may be disregarded except in so far as he may be corroborated by other testimony in the case, without also adding corroboration by “facts and circumstances.”</p> <p>6. Instructions, § 85*—when improper on burden of proof. Defendant’s instructions as to effect on burden of proof of a sworn plea denying partnership may be refused where the purported plea is not a plea in fact.</p>

<p>1. Trial, § 216.*—how motion for directed verdict is determined. In passing upon a motion to direct a verdict the court cannot weigh the evidence, and can only look to it to see if with every reasonable intendment it tends to support plaintiff’s claim.</p> <p>2. Trial, § 195*—when improper to direct a verdict. In an action by a landowner against a city for depositing sewerage upon his land, failure to prove a measure of damages will not justify a peremptory instruction where the plaintiff was entitled to some damages, although it may be only nominal damages.</p> <p>3. Contracts, § 205*—when construction is question of fact. Where in the construction of a contract a legal principle is not involved hut simply a determination as to whether facts offered in evidence come within the provision of the contract legally construed, such construction is a question of fact for the jury.</p> <p>4. Deeds, § 97*—when construction is question of fact. Where an owner of land sells to a city a right of way for sewer purposes and the deed provides for the maintenance of a sewer of “sufficient capacity so as to conduct all the ordinary dry weather sewerage coming through said sewer districts,” and afterwards sues the city for depositing sewerage on his land by an overflow, the court may determine what is “ordinary dry weather sewerage;” but it is for the jury to determine whether the sewer was sufficient capacity to carry qfi: or did carry off such sewerage as was usual or might be anticipated in dry weather, and also whether the sewer had been negligently placed and that by reason thereof the sewerage passed out through the joints of the pipes and percolated through the land.</p>

<p>Appeal from the City Court of Bast St. Louis; the Hon. W. -M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Appeal from the Circuit Court of Effingham county; the Hon. Thomas M. Jett, Júdge, presiding. Heard in this court at the March term, 1913.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>1. Mines and minerals, § 121*—when defect is patent. Where a miner, killed by a tub tipping over on striking the edge of an opening in a platform, was a man of mature years and experience and had numerous opportunities in passing up and down the shaft to observe the closeness of the tub to the platform in passing through the hole, such defect is a patent one that the deceased was presumed to know.</p> <p>2. Mines and minerals, § 119*—when servants know of improper order. Where a miner was killed by a descending tub tipping over on striking the edge of a platform at a time when a safety link preventing a hook from slipping from the bail of the tub was not in place, the fact that a workman giving the order to “hoist away” was in the act of taking hold of the hook does not indicate an intention not to hoist until sufficient slack was received to adjust the hook.</p> <p>3. Master and servant, § 304*—when risk of master’s negligence is assumed. The doctrine that a servant does not assume the risk of the master’s negligence may apply if the servant was working under an imperative order of the master with assurance of safety, or if the servant had no knowledge of the conditions, but cannot be invoked where the servant had knowledge of the defects.</p> <p>4. Mines and minerals, § 131*—when contributory negligence not excused by breach of nondelegable duty. That a workman in a mine was a vice principal and has been directed never to send a tub down until it had been fastened properly to a hook and the duty could not be delegated, does not relieve a miner in the tub of contributory negligence in not seeing that a safety link was properly adjusted.</p> <p>5. Mines and minerals, § 114*—who not a vice principal. Where the death of a miner, killed by a descending tub, was caused by a failure to adjust a safety link, generally adjusted at the bottom of the shaft, to prevent a hook from slipping from the bail of the bucket, an employe, having duties to assist in unloading tubs and to do relative work in connection therewith, is not a vice principal when adjusting the hook at the top of the shaft in accordance with directions.</p> <p>6. Mines and minerals, § 135*—when contributory negligence not to adjust hook. A miner killed by a descending tub striking on edge of the opening in a platform, who knew that a safety link, preventing a hook from slipping from a bail of the tub was not in place and of the proximity of the tub to the hole, and that it was a violation of the master’s orders for the men to descend when the link was not adjusted is guilty of contributory negligence where he fails to adjust the link or to make any protest.</p> <p>7. Mines and minerals, § 131*—when risk is assumed. A miner killed by a tub striking a hole in a platform, knowing that a safety link preventing a hook from slipping from bail of the bucket was not in place, and having opportunity to know of the close proximity of the tub to the hole, assumed the risk.</p> <p>8. Master and servant, § 572*—matters servant has burden to prove. Before a servant can recover against his master for injuries sustained from an appliance, the burden is upon him to show that the appliance was defective, that the master had actual or constructive knowledge thereof and that the servant did not know of the defect and had not equal means of knowing with the master.</p>

<p>Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Alteration of instruments, § 22*—when burden is on plaintiff to prove execution. Where it is claimed that certain provisions were inserted in a contract after being signed and the defendant denies under oath the execution of the entire agreement, the burden of proving it to be defendant’s agreement is upon the plaintiff.</p> <p>2. Alteration of instruments, § 20*—evidence sufficient to show part of contract was inserted. Defendant in an action for rent denied the execution of a contract in the form in which it was presented to the jury. The contract appeared as if two separate agreements written on separate sheets of paper had been pasted together, and only the part admitted to have been signed was first filed when the suit was begun. Continuous efforts of plaintiff to rent the property to different persons and other circumstances corroborated defendant’s testimony that a part of the contract was not executed by him. Held, a verdict for plaintiff was against the evidence.</p>

<p>1. Carriers, § 96*—liability for delay in transportation and delivery. A common carrier is not necessarily liable for damages by reason of failure to deliver goods upon schedule or within a reasonable time, unless such failure or delay is caused by the negligence of the carrier.</p> <p>2. Carriers, § 234*—when not liable for delay in carriage of live stoclc. In an action for damages for delay in the transportation and delivery of live stock, an excuse offered that the delay was caused by a heavy snow, held a good defense in the absence of proof that carrier was negligent.</p> <p>3. Carriers, § 96*—duty to deliver within a reasonable time. The duty to deliver within a reasonable time is merely a term engrafted by legal implications upon the promise or duty to deliver generally.</p> <p>4. Carriers, § 96*—excuse for delay. Where the duty to deliver within a reasonable time arises by legal implication, the common carrier stands upon the same ground with other bailees, and may excuse the delay in the delivery of the goods by accident or misfortune, although not inevitable or produced by the act of God. In such emergency the carrier is only required to exercise due care and diligence to guard against delay, and if it occurs without its fault or negligence to omit no reasonable effort to secure the safety of the goods.</p> <p>5. Carriers, § 247*—burden of proving excuse for delay. When unreasonable delay is proved, the burden of proof to excuse the delay is upon the carrier.</p> <p>6. Carriers, § 249*—when question whether facts excuse delay is for the court. As a rule the question whether the delay was excusable is for the jury, but where there is no conflict in the evidence, and no evidence to rebut the excuse for delay .and the excuse offered is sufficient in law, the question whether the facts excuse the delay becomes a question of law for the court.</p> <p>7. Carriers, § 250*—when instructions ignoring excuse for delay erroneous. In an action for delay in the carriage of live stock, instructions not taking into account any legitimate excuse for the delay, held vicious.</p>

<p>Abstract of the Decision.</p> <p>1. Guaranty, § 37*—when instruction as to probative force of contract and signature misleading. In an action against guarantors, an instruction that the contract and the names of the defendants thereon are no evidence of the fact that defendants signed the same, held misleading as tending to wholly deprive plaintiff of the use of the contract, guaranty and names attached thereto as a probative force in establishing that the signatures were genuine.</p> <p>2. Witnesses, § 42*—when wife incompetent.. In a suit against guarantors, the wife of a guarantor held incompetent to testify to matters In which she contradicted her husband and in relation to which she was not properly acting as his agent.</p> <p>3. Evidence, § 450*—when jury may compare signatures. When other writings or signatures admitted to be genuine are already in the case, comparisons may be made by the jury, either with or without experts of such signatures, with, the signature or signatures in question, to assist in determining the genuineness of the latter.</p>

<p>Abstract of the Decision. .</p> <p>1. Judgment, § 150*—grounds for setting aside default, motion to set aside a default judgment properly overruled -sphere the application fails to show what steps were taken hy the defendant in the case, and also omits to state he has a meritorious defense to the action and makes no showing of the-same.</p> <p>2. Judgment, § 132*—discretion of court in setting aside default. An application to set aside a default is addressed to the sound legal discretion of the court.</p> <p>3. Judgment, § 132*—when denial of leave to file amended affidavit to set aside default not an abuse of discretion. Denial of motion for leave to file an amended affidavit in support of a motion to set aside a default and to supply affidavits of merits, held not an abuse of trial court’s discretion.</p>

<p>Appeal from the Circuit Court of Williamson county; the Hon. Albert E. Somers, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>1. Carriers, § 476*—sufficiency of the evidence. In an action for injuries sustained by plaintiff as a passenger at the time of a collision between defendant’s trains, evidence held sufficient to warrant jury in finding that plaintiff was injured at the time and in the manner claimed.</p> <p>2. Carriers, § 473*—when opinion as to extent of injuries not rendered inadmissible. Opinions of physicians that plaintiff’s stunted growth was caused by the injuries found upon her, held not inadmissible because they infer that plaintiff was really injured as claimed.</p> <p>3. Carriers, § 474*—when statement of conductor inadmissible. In an action for injuries to a passenger resulting from a collision, failure to exclude evidence of what the conductor said after the collision held not material error.</p> <p>4. Pleading, § 253*—when declaration may be amended. Where the case is tried as though damages for stunted growth of plaintiff were included in the claim for damages, declaration may be amended after verdict to include such damages.</p> <p>5. Damages, § 213*—when instruction on right to recover for loss of ability to perform usual duties not improper. In an action by a married woman for personal injuries sustained by her .at the time she was under age, an instruction that she may recover for loss of ability to perforin her usual duties held not objectionable for not excluding loss of earnings prior to plaintiff’s majority and since her marriage.</p>

<p>Appeal from the Circuit Count of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 919*—when presumption of negligence from fire is overcome. Proof that a fire causing damage was communicated by the locomotive of a railroad company’s engine raises a prima facie inference of negligence on the part of the company, which can be overcome by proof that the locomotive was equipped with one of the best and most approved spark arresters, that the arrester was, at the time the fire was communicated, in good order and repair, and that the locomotive was being carefully managed at the time by a competent and careful engineer.</p> <p>2. Appeal and error, § 998*—when admission of plat is not presented for review. Error in the admission in evidence of a plat having certain marks and statements thereon cannot be determined where the plat does not appear in the record.</p> <p>3. Railroads, § 921*—when sparh arrester is sufficiently identified. A spark arrester is sufficiently identified to be introduced in evidence in an action for damages caused by fire set by a railroad locomotive, where the engineer and supervisor of appliances testified that no changes had been made in the arrester before examination, and it is also shown that it was the same one brought into court and was in good condition when examined.</p> <p>4. Tbial, § 78*—when rebuttal evidence may be excluded. Testimony offered in rebuttal by a plaintiff in an action for damages caused by fire set by a railroad locomotive, as to the burning, may be refused where the subject matter of the testimony was fully gone into in the case in chief.</p> <p>5. Appeal and ebbob, § 1639*—when omission in instruction is cured. An instruction omitting to state that proof must be made by a preponderance of evidence will -not reverse where the omission could not have misled when all the instructions were considered together.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1913.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Mines and minerals, § 91*—when side of hauling road must be kept clear. Three years before the time of injury to a mule driver a fall of rock and coal occurred in a mine and a temporary track deviating from its former course was built around the pull, so close that there was barely room for a person to pass between a car and the side of an entry, and the defective condition was known to the mine manager. By reason of a deaf mule, the deafness of which was unknown to plaintiff, failing to obey an order at a point of depression, plaintiff was thrown from a car and was injured because of insufficient space on the side of the track. Held, a wilful violation of the Mining Act of 1911, § 15, par. E, J. & A. If 7489, requiring one side of hauling roads to be kept clear, was established.</p> <p>2. Mines and minerals, § 153*—when evidence as to fall of rock is admissible. Where a mule driver is thrown from a car by a deaf mule not obeying an order on passing a depression in a track detouring around a fall and there is evidence that there was a pile of rock and dirt at the place in question, a question “where was the place you fell with reference to that pile of rock and dirt that had fallen there?” is not objectionable, since it is immaterial whether it had fallen there or been deposited by other means.</p> <p>3. Mines and minerals, § 194*-when instruction ignoring statutory count may be refused. Where an action by a mule driver is based upon counts setting up a violation of common law duties and of the Mining Act of 1911, § 15, par. E, J. & A. If 7489, defendant’s instructions directory in form, purporting to cover the entire case but ignoring the statutory count, are properly refused.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1913.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Pleading, § 343*—when copy of instrument sued on need not be filed with declaration. Paragraph 32 of Practice Act, J. & A. ¶ 8569, requiring a copy of the instrument sued on to be filed ten days before the second term of court, does not apply where the instrument sued on has been lost or destroyed by fire.</p> <p>2. Insurance, § 569*—when 'copy of policy need not be filed with declaration. In an action on an insurance policy, a copy of the policy need not be filed with the declaration ten days before the second term of court where the policy was destroyed by fire and was set out in haec verba in the declaration as soon as a copy of it was furnished by the insurance company after demand therefor.</p> <p>3. Insurance, § 552*—jurisdiction of city courts. R. S. c. 110 If 7, J. & A. H 8544, giving courts of record of the county in which plaintiff or complainant resides jurisdiction in actions by individuals against insurance companies, does not deprive city courts of jurisdiction where plaintiff resides and the defendant is served in the city where the court is located.</p> <p>4. Insurance, § 637*-—when proofs of loss with attached Inventory admissible. Proof of loss with attached inventory is admissible in evidence to show that insured had complied with the provisions of the policy in regard to furnishing them, but they are not proper evidence to be considered by the jury in fixing the value of the articles named therein.</p> <p>5. Insurance, § 701*—measure of damages for loss by fire. In an action for fire insurance, the measure of damages is not the original value of the goods insured but the amount or extent of the loss or damage occasioned by the fire.</p> <p>6- Insurance, § 699*—when instruction improperly assumes damages resulted after the fire. Requested instruction informing the jury that they should not award insured damages for injuries to the property resulting from the refusal of a police officer to admit him to the premises for some days after the fire, held properly refused as assuming that there were damages to the property resulting from insured not being permitted to take possession of his property at once after the fire.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal corporations. § 864*—when evidence shows a disturbance of the peace in violation of ordinance. On complaint for violation of a city ordinance by disturbing the peace, evidence held sufficient to warrant a verdict of guilty though defendant claimed to be attempting to separate persons fighting.</p> <p>2. Municipal corporations, § 865*—when instruction properly refused. In an action for disturbance of the peace in violation of a city ordinance, instruction for defendant failing to require the jury to find from a preponderance of the evidence that defendant was attempting to prevent an assault upon another, held properly refused.</p> <p>3. Municipal corporations, § 865*—abstract instructions. Requested instruction telling the jury that a bystander could interfere to prevent an assault, using such force as might be necessary, provided that after the separation he did not follow up either of the parties and assault him, held properly refused as not being applicable to the facts óf the case.</p> <p>4. Appeal and error, § 1101*—effect of failure to file briefs. When appellee fails to file brief within- the time provided by the rules of court, the Appellate Court may reverse the judgment pro forma, unless on an examination of the record it deems it proper to decide the case on its merits.</p>

<p>Appeal from the Circuit Court of Johnson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>1. Quo warranto, § 18*—proper method to attach corporate existence. Quo warranto is a proper proceeding to attack directly the legal existence of a corporation.</p> <p>2. Corporations, § 51*—what sufficient proof of corporate existence. Where the questions of corporate existence is raised collaterally under a plea of nul tiel corporation, plaintiff is not required to prove that it is in all respects a legal corporation, and proof that plaintiff had a de facto existence will be sufficient to maintain the actions until such proof is overcome by the defendant.</p> <p>3. Corporations, § 51*—how corporate existence may he proved,. A plaintiff to meet a plea of nul tiel corporation, the issue so raised being a collateral one, may offer proof that defendant contracted with it as a corporation, and the contract itself is sufficient prima facie evidence to show a de facto corporate existence and such proof must prevail until overcome by evidence of no corporate existence.</p> <p>4. Corporations, § 51*—hoio corporate existence may he proved. Where in an action on a contract note the defendant pleads nul tiel corporation, the introduction in evidence of the note showing a contract in writing to pay plaintiff a sum of money sufficiently proves its corporate existence, and in the absence of any evidence by the defendant it is proper to direct a verdict for the plaintiff.</p>

<p>1. Carriers, § 289*—what care required as to intoxicated passenger. Where a railroad company abandons an intoxicated passenger at a dangerous place on its platform, the degree of the passenger’s incapacity from drunkenness controls the question of due care or negligence of both parties.</p> <p>2. Carriers, § 430*—when intoxication is not contributory negligence. Where a railroad company abandoned a passenger at a dangerous place on its platform while the passenger was in such a mental state of intoxication as to he incapable of caring for himself, the question of contributory negligence is not involved.</p> <p>3. Carriers, § 452*—when declaration for death of intoxicated passenger is sufficient. In an action for the death of an intoxicated passenger from the negligence of a railroad company, a declaration stating in effect that the passenger was, through intoxication, so bereft of reason that he was without intelligence to care for himself and while in that condition and known by defendant to be in that condition was abandoned in a known place of danger, where injury would be likely to result, and that by reason thereof he was killed, states such facts as constitute actionable negligence.</p>

<p>1. Husband and wife, § 18*—what evidence admissible in recovering for necessaries furnished. In an action against a husband’s estate to recover for support and necessaries furnished his wife living apart, a contract in which the husband made certain provisions for his wife while they were living separate and apart is admissible in evidence and evidence is admissible to show whether the provisions had been carried out and what other support had been given her. The claimant’s proof of a failure to provide the necessaries for support of the wife is not limited to showing a failure to provide necessaries up to the agreed amount only, but he may show the husband’s- failure to provide whatever amount was necessary, even though it exceeds the contract sum.</p> <p>2. Husband and wife, § 18*—when no liability for wife’s necessaries. A husband and wife separated and the wife made her home with her daughter and son-in-law and there lived as a member of the family without any express agreement to pay for support and necessaries furnished by the son-in-law, who sued the husband’s estate therefor on his death. The husband by contract provided for the support of his wife and she accepted the same as satisfactory and no one ever made claim against the husband for an additional sum for the support of his wife. Held, a verdict for the estate was proper.</p> <p>3. Appeal and error, § 1531*—when instruction as to contract releasing husband from support is harmless. In an action against a husband’s estate for necessaries furnished his wife, an instruction stating that a contract between husband and wife providing for the wife’s support and releasing the husband from further obligation is binding unless steps were taken to set it aside is harmless, where the questions before the jury were as to the sufficiency of the amount provided in the contract and whether there was any understanding that plaintiff should be paid for furnishing support which was necessary over and above such contract provision.</p> <p>4. Husband and wife, § 14*—when instruction as to necessity of contract to pay for wife’s necessaries is proper. In an action against a husband’s estate to recover for necessaries furnished his wife, an instruction that plaintiff must prove an agreement or understanding, that the wife would pay for the necessaries does not imply that the agreement or understanding would have to be an express one, especially when the whole series of instructions is considered together.</p>

<p>1. Automobiles, § 2*—right in street and mutual duties. Automobiles have no greater right in the streets than other vehicles, and pedestrians and automobile drivers have equal rights in the use of the streets.</p> <p>2. Automobiles, § 2*—precautions to avoid injury to passenger alighting from a street car. Where a driver of an automobile going in the same direction as a street car knows that the car is approaching a street crossing and is slackening its speed, to avoid injuring a passenger alighting from the car, it is the duty of the driver to have his automobile under control, and if necessary to stop it altogether.</p> <p>3. Automobiles, § 2*—when negligent in striding passenger alighting from street ear. An automobile was being driven between a street car track and the curb in the same direction as the car and the driver knew that passengers were let off at a certain street intersection and that the car Was slackening speed on approaching the crossing. In passing the car the automobile was five feet from the side thereof and in going eight miles an hour, without sounding a horn or other signal, struck a passenger who had alighted from the car, the evidence being conflicting whether the car had stopped. Held, the automobile driver was negligent.</p> <p>4. Automobiles, § 3*—when contributory negligence is a question of fact. Where an automobile approaching between the street car tracks and the curb, a street car going in the same direction strikes a passenger who had alighted from the street car without looking backwards, and the evidence is conflicting whether the street car had stopped, the questions of contributory negligence in not looking to see whether an automobile was approaching and the method of getting off of the car are-for the jury.</p>

<p>1. Mortgages, § 697*—when tenant in common may redeem. An owner of an undivided one-half of land joining with her co-tenant in executing a mortgage, and the land being sold en masse in foreclosure, can redeem only by paying the whole of the purchase price and interest and cannot redeem one-half of the land by making a payment.</p> <p>2. Tenancy in common, § 6*—title acquired in redeeming from foreclosure. Where tenants in common, each having an undivided one-half interest in land, join in executing a mortgage, one of them redeeming the whole of the land after a foreclosure sale is restored to her ownership of one-half and has an equitable lien on the other half to enforce contribution from the cotenant.</p> <p>3. Mortgages, § 697*—when right to redeem is not affected by bad faith of tenant in common. Where two cotenants execute a mortgage on their land and the mortgagee furnishes a son of a cotenant the money to purchase the land at the foreclosure sale, who assigned the certificate of purchase to the mortgagee as security for the money, and such secret arrangement between the mother, son and mortgagee, by which mother and son would be gainers at the other cotenant’s expense, is such bad faith as will not operate to defeat redemption by the cotenant.</p> <p>4. Tender, § 4*—sufficiency in equity. The law of tender is less rigid in equity than in law.</p> <p>5. Mortgages, § 712*—when tender to redeem is sufficient. On redemption from a foreclosure sale by one of two tenants in common who joined in the mortgage, a tender is sufficient if an offer to pay the proper amount is made and there is proof of present ability to carry out the offer.</p> <p>6. Mortgages, § 712*—when tender to redeem is sufficient. On a bill to redeem from a foreclosure sale, a tender is sufficient where the mortgagee testified that she went to the office of the purchaser with a representative of the party she was to borrow the redemption money from, who had with him for mortgagor’s use a certified check for the amount required to redeem, offered to pay the amount required and that redemption was refused.</p> <p>7. Mortgages, § 712*—when tender sufficient without counting out money. On a bill to redeem from a foreclosure sale it cannot be contended that the actual money to redeem was not counted out to the purchaser when no objection of that kind was offered when a tender was made.</p>

<p>1. Intoxicating liquors, § 227*—when evidence sufficient to sustain recovery by widow for death of husband. In an action against dramshop keeper hy widow to recover damages on account of the death of her husband, caused by his intoxication which was alleged to have been produced hy sales of liquor to him by defendant, a verdict for plaintiff held sustained hy the evidence.</p> <p>2. Intoxicating liquors, § 245*—when damages for injury to widow’s means of support not excessive. Verdict for five thousand dollars against dramshop keeper for injury to widow’s means of support caused by death of husband resulting from intoxication produced hy defendant, held not excessive,</p> <p>3. Jury, § 48*—when county board may prepare jury list. County board may, during a term of court, meet and prepare a jury list out of which a jury may he selected for use at that term.</p> <p>4. Appeal and error, § 1502*—when irregularity in method of selecting 'jury list not cause for reversal. Irregularity in the method of selecting jury list not cause for reversal where appellant did not exhaust his peremptory challenges and record shows he was satisfied with the jury.</p>

<p>Abstract of the Decision.</p> <p>1. Damages, § 179*—when evidence admissible to show extent of personal injuries. In an action by a married woman for personal injuries, testimony of plaintiff to the effect that she used to have eight hoarders and could do their washing and that she is now unable to her washing, etc., held admissible to show the extent of her injury.</p> <p>2. Husband and wife, § 194*—when instruction as to damages for personal injuries sustained by wife not misleading. In an action by a married woman for personal injuries, an instruction which states that the jury in estimating plaintiff’s damages may consider “the effect of such injuries, if any, upon her ability to perform her usual duties,” held not misleading as allowing recovery for household duties such as a wife usually performs for her husband and family.</p> <p>3. Husband and wife, § 194*—evidence inadmissible in action by wife for personal injuries. In an action by wife for personal injuries, evidence as to her inability to hire her work done held properly excluded.</p> <p>4. Damages, § 132*—when excessive for injury to wrist. Verdict of one thousand five hundred dollars for injury to wrist not of a permanent character, held excessive to the extent of five hundred dollars, and judgment was affirmed on condition of a remittitur of that amount.</p>

<p>Error to the Circuit Court of Clay county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Justices of the peace, § 192*—with whom appeal bond in forcible detainer must be filed. On an appeal by a defendant in forcible detainer, the provisions of the Forcible Detainer Act, J. & A. Ifli 5859, 5860, requiring the amount of an appeal bond to be fixed by the justice of the peace and to be filed with the justice, must be complied with, and it is not sufficient to file the bond with the clerk of the Circuit Court in an amount fixed by the clerk.</p>

<p>1. Trusts, § 96*—when estate given to carry on business. A testator may appoint by will a trustee to continue a business conducted by him at the time of his decease,' may direct what portion of his property is to be so used and may also impress the whole of his estate with the burdens of continuing the business.</p> <p>2. Trusts, § 96*—how extent of estate to be used is determined. Where a testator appoints by will a trustee to continue his business, his intention as to what part or how muct of his estate is to be devoted to such enterprise must be gathered from the will and the intention must be found in the will itself, and when found must, if possible, be given effect.</p> <p>3. Trusts, § 96*—when whole estate is involved. Where a testator by will directs that his business be continued and for such purpose and for the education and support of the widow and children devises all his property to his widow, giving her all powers for the purpose of carrying out the will and providing that on the death or marriage of his wife the property should descend to his heirs, the whole of the testator’s property is involved in the trust and not only the property embarked in the business at the time of the testator’s death.</p> <p>4. Judgment, § 556*—when whole estate is subject to lien. Where a testator by will directs that his business be continued and for such purpose and for the education and support of the widow and children devises all his property to his widow, giving her all powers for the purpose of carrying out the will, and money is borrowed to continue the business by the widow in partnership with sons, and such creditors obtain judgments, equity will decree the judgments to be liens on any of the property.</p>

<p>1. Automobiles, § 2*—precautions required to avoid injuring pedestrian. Where a large number of people are using a city street, a driver of an automobile is required to keep a proper lookout for persons on or about to cross over the street and to keep his machine under such control as to enable him to avoid collision and to stop if necessary to prevent injury.</p> <p>2. Automobiles, § 2*—when chauffeur is negligent. A pedestrian in crossing a street used by many people in a city walked briskly to the center of the street and then started to run the rest of the way and was struck by a powerful, swift moving automobile running at least fifteen miles an hour. The driver was thirty-five or forty feet from plaintiff when he sounded his horn, expecting her to stop in the center of the street, and made no effort to check his speed until within four or five feet of her. Held, thee driver was negligent.</p> <p>3. Automobiles, § 2*—what use of street is proper. The use of a city street by an automobile when operated with due care and caution and not in violation of State and Municipal police regulations is a proper and lawful use.</p> <p>4. Automobiles, § 3*-—when contributory negligence is for the jury. Where a pedestrian in crossing a street in a city used by many people looked but saw no danger, walked briskly to the center of the street and then started to run the rest of the way and was struck by an automobile going fifteen miles an hour, that sounded a horn when thirty-five or forty feet away, expecting plaintiff to stop, but no effort was made to check its speed until four or five feet away, a finding of absence of contributory negligence will be sustained.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 225*—when right to recover for intoxication of husband. In an action by a wife under the Dram-shop Act, § 9, J. & A. j[ 4609, for injury to her person and means of support occasioned by two saloon keepers selling her husband intoxicating liquors, the evidence showed that the husband lost his position by being habitually drunk, failed to support her, struck her when drunk and constantly bought liquors at defendant’s saloon after notice not to sell him. One defendant did not dispute the facts and the other offered evidence that the wife quarreled with her husband and that no sales were made after notice to desist. Held, a verdict for defendants was against the manifest weight of the evidence.</p> <p>2. Intoxicating liquors, ‘§ 249*—when instruction limiting recovery to injury to means of support is misleading. Where a declaration charges and the Dramshop Act, § 9, J. & A. If 4609, authorizes recovery for injuries to the person or property of a wife from the intoxication of her husband, and there is evidence of acts of personal violence by the husband against his wife, an instruction practically limiting a right of recovery to injury to the means of support is misleading.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 703*—presumption arising from excessive speed. In an action for death resulting from being struck by train running at a speed in excess of the rate fixed by law of that place, the injury will be presumed to have resulted from such negligence.</p> <p>2. Railroads, § 768*—when requested instruction on duty to looh and listen properly refused. Instruction informing the jury that unless the evidence showed that the deceased before attempting to cross the track did look and listen for approaching trains she was guilty of contributory negligence, held properly refused where the question whether she did look and listen depends upon facts and circumstances surrounding the person at the time.</p> <p>3. Railroads, § 772*—when instruction on relative weight of positive and negative evidence properly refused. Requested instruction containing the statement that positive evidence as to the fact that the bell was rung or whistle blown is entitled to more weight than negative evidence in relation to the same fact, held properly refused.</p>

<p>1. Street railroads, § 1*—railroads and street railroads defined and distinguished. A street railroad is a railroad laid down on the streets of a town or city for the purpose of carrying passengers from one point of the town or city to another, or to or from its suburbs, while a railroad running across the country from city to city carrying both passengers and freight takes on the character of a commercial railroad and must be deemed as such.</p> <p>2. Railboads, § 283*—duty of an electric railroad to fence. An electric railway organized under the general incorporation act as a street railroad and operating across the country from one town to another is subject to the Act of 1874, J. & A. 1ij[ 8811 et seg., requiring railroads to fence where it is engaged in carrying passengers and freight.</p> <p>3. Railroads, § 821*—when owner not negligent in permitting stock to pasture near unfenced tracks. Fact that owner permitted his cow to pasture adjacent to defendant’s unfenced tracks, held not evidence of contributory negligence causing killing of cow by defendant’s cars where it was duty of railroad company to fence tracks.</p> <p>4. Railroads, $ 890*—when requested instruction on contributory negligence in permitting animals near track, properly refused.' In an action to recover damages and attorney’s fees on account of the killing of a cow while on the tracks of defendant’s electric railroad, an instruction on the question of contributory negligence of plaintiff in permitting his cow to go upon the land adjacent to railroad not fenced, held properly refused where there was no evidence' that plaintiff was guilty of such negligence.</p>