Volume 184 — Illinois Appellate Court Reports

<p>1. Corporations, § 326*—how powers are determined. The powers of a corporation organized under a general statute must be determined from its charter alone.</p> <p>2. Insurance, § 815*—when affianced wife is not a dependent. Where the charter of a fraternal benefit society declares the objects of the corporation to be to benefit the widows, orphans and dependents of deceased members thereof and to establish a fund to pay benefits to the family or dependents of a member, an affianced wife is not a dependent.</p> <p>3. Insurance, § 810*—what beneficiaries included within term devisee. The term “devisee” in the Incorporation Act of 1872, J. & A. ¶ 2449, is capable of including anybody so long as he or she is designated in the benefit certificate of a fraternal beneficial society if the charter is broad enough to include such person, and where sufficiently broad an affianced wife of a member is eligible as a beneficiary.</p> <p>4. Insurance, § 747*—when amendment to charter gives no right to designate affiancee beneficiary. Where the charter of a fraternal benefit society declares it to be the object of the corporation to benefit the widows, orphans and dependents of deceased members, and is subsequently amended so as to include husbands as eligible beneficiaries, there is' no such alteration of its charter as to give it the right to authorize members to designate an affianced wife as a beneficiary.</p> <p>5. Insurance, § 758*—when insured not bound by own construction of charter. Where the charter of a fraternal benefit society declares its purpose to be to benefit widows, orphans and dependents of deceased members, a construction and interpretation of the charter by the society as giving the right to authorize members to designate an affianced wife as a beneficiary is the basis of an ultra vires act and is not binding on the society.</p> <p>6. Insurance, § 758*—when not estopped to deny eligibility of beneficiary. A fraternal benefit society construing and interpreting its charter, which declares its purpose to be to benefit widows, orphans and dependents of deceased members, as giving the right to authorize members to designate an affianced wife as a beneficiary, is not estopped to deny the eligibility of an affianced wife as a beneficiary.</p> <p>7. Insurance, § 815*—when charter limits power to designate beneficiary. Where a fraternal benefit society is incorporated under the Incorporation Act of 1872, J. & A. ¶¶ 2418 et seq., and its charter limits the beneficiaries of deceased members to their widows, orphans and dependents, which is narrower than the limits of the statute, the powers must be determined from the charter; it has no power to enact a by-law providing for benefits to an affianced wife and an affianced wife is not eligible as a beneficiary.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final.)</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 822*—when beneficiary has a vested right entitled to protection in equity. A beneficiary acquires a vested right in insurance which equity will protect if such beneficiary assists in paying the assessments or premiums under an agreement by which the proceeds of the insurance are to be paid to the beneficiary.</p> <p>2. Insurance, § 825*—when member not entitled to change designation of beneficiary. Where a certificate is taken out for the benefit of a person named therein and delivered to such person in consideration of an agreement by the beneficiary which has been fully performed, the member is not entitled to a change of beneficiary without the beneficiary’s consent.</p> <p>3. Insurance, § 825*—by-laws of mutual benefit association as affecting right to change beneficiary. Provision in by-laws of a mutual benefit association that a change of beneficiary may be made at any time, without the consent of any existing beneficiary, has no application to a case where the beneficiary has acquired rights in and under the certificate for a valuable consideration.</p> <p>4. Insurance, § 503*—when vested rights of beneficiary protected in equity. The principle that vested rights may be acquired in mutual benefit insurance which courts of equity will enforce applies likewise to life insurance policies.</p> <p>5. Insurance, § 822*—assignability of benefit certificate. While a benefit certificate is not assignable at law, all beneficial interest therein may be transferred in equity; and equitable rights may be acquired in a benefit certificate which will be enforced in equity.</p> <p>6. Witnesses, § 155*—when wife is competent concerning transactions regarding certificate of insurance. As against the claim of another to the proceeds of insurance as beneficiary, the wife of the member originally designated in the benefit certificate is incompetent to testify to any admissions or conversations of her husband relative to transactions concerning the certificate; but she is competent to testify to transactions relating to the certificate, such as the delivery of the certificate to her by her husband, the keeping of the certificate, the payment of dues and assessments by her with her own money, and the disappearance of the certificate while she was absent from home.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles E. Jennings, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. Virgil W. Mills, Judge, presiding.</p>

<p>1. Evidence, § 105*—when efforts to suppress testimony admissible. All efforts to suppress material testimony made by a party or his authorized agent is admissible to show an implied admission that he has no right to recover if the case was tried on the evidence In the case as it exists, and that it is not sufficient to entitle him to recover unless he is aided by suppressing evidence or the fabrication of more evidence.</p> <p>2. Appeal and error, § 1777*—when exclusion of evidence of subornation of witness reversible error. In an action for personal injuries resulting from a collision, refusal of court to permit a witness for the defendant, who was in the employ of the defendant at the time of the collision, to answer a question with reference to a conversation had between himself and the plaintiff and an attorney for the plaintiff, held reversible error, where on behalf of the defendant it was stated that the purpose of the question was to show that plaintiff and his attorney made a proposition to the witness “to stay away from the trial, offering to make it right if he would not appear and testify on behalf of the defendant.”</p>

<p>Master and servant, § 703*—when evidence insufficient to show negligence of telephone company in maintaining safe switchboard for operator. In an action for injuries sustained by a telephone operator, alleged to have been caused by the negligence of the telephone company in permitting a powerful current of electricity to pass through the wires and in maintaining wires and attachments not insulated, plaintiff’s evidence held insufficient to prove the allegations of negligence.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.</p>

<p>1. Attachment, § 246*—when verdict may he directed for defendant upon the attachment issue. In attachment proceeding evidence that defendant withdrew his bank balance and tried to collect other moneys from those who held it subsequent to the dismissal of a prior attachment suit, is not sufficient evidence of itself, to give rise to any legitimate inference of fraud, concealment, etc., and direction of a verdict for defendant held proper.</p> <p>2. Municipal court of Chicago, § 30*—when refusal of requested instructions not error. Refusal of requested instructions which so far as they were material and correct were covered by the oral charge of the court, held not error.</p> <p>3. Municipal court of Chicago, § 26*—when document is sufficient as a statement of facts or stenographic report. A document purporting to be a correct statement by the judge of “matters pertaining to proceedings at the trial” which “do not otherwise so fully appear of record,” including a transcript of all the evidence, the rulings of the court upon the admissibility of evidence the instructions of the court, the objections made and a statement of the court’s rulings upon these matters and upon the motion for a new trial and in entering judgment, held sufficient compliance with Municipal Court Act, § 23, J. & A. j[ 3336, requiring a statement of facts or a stenographic report.</p> <p>4. Municipal court of Chicago, § 26*—when certificate of trial judge to statement of facts conclusive. A judge’s certificate to a document purporting to be a statement of facts showing on its face that it was presented to the judge who tried the case for signing and filing at the proper time, and that it was in fact signed by him as of the date it was presented, cannot be contradicted by another certificate made by another judge that it was presented to him for signing and filing on the same day.</p> <p>5. Municipal court of Chicago, § 26*—when presumed that certificate of statement of facts was signed in apt time. Where nothing affirmatively appears to the contrary it will be presumed that the trial court signed the certificate to the statement of facts in apt time.</p>

<p>Abstract of the Decision.</p> <p>1. Mandamus, § 82*—when proper to compel collection of special assessment. A writ of mandamus may be resorted to, to compel a village to proceed to enforce the collection of a special assessment if it has failed to discharge its duty in that respect.</p> <p>2. Mandamus, § 143*—sufficiency of petition. Allegations of petition for mandamus held to sufficiently show, at least as against a general demurrer, such a state of facts as to entitle petitioner to a writ commanding a village to take necessary steps to put into collection a special assesment.</p> <p>3. Mandamus, § 173*—form, of judgment. Judgment that a writ of mandamus “do issue herein,” etc., held not defective for not specifying what respondents are to do where the prayer of the petition is clear and specific.</p> <p>4. Mandamus, § 172*—what relief warranted by petition. Allegations of a petition for mandamus to compel a village to put into collection a special assessment for paving work done, held not to warrant court in directing respondents to issue vouchers to petitioner.</p> <p>5. Municipal corporations, § 377*—when village estopped to assert informality of contract for improvement. Village authorities accepting work done by contractor in laying sidewalks in accordance with an ordinance, and under the superintendence of agents for the village, are estopped from setting up the irregular manner in which the contract was entered into as a defense to a petition for mandamus to compel the village to put into collection a special assessment.</p>

<p>Abstract of the Decision.</p> <p>1. Libel and slander, § 140*—requisites of pleadings in justification. In an action for libel, a plea or notice justifying the words as true must aver the truth of the very charge.</p> <p>2. c. Libel and slander, § 123*—matters provable under the issues. In an action for libel where defendant pleads only the general issue and gives notice of special matters, testimony offered by defendant as to the acts, conduct and language of plaintiff not mentioned in the notice of special matters is not admissible.</p> <p>3. Libel and slander, § 143*—when evidence of character of plaintiff admissible. In an action for libel, evidence of general bad reputation of plaintiff is admissible under the general issue in mitigation of damages, but it is a general rule that the character of a party cannot be impeached by proof of special acts.</p> <p>4. Libel and slander, § 174*—when admission of evidence of conduct of plaintiff is error. Permitting a witness for defendant to testify to disgraceful acts and conduct on the part of plaintiff occurring more than two years after the publication of the alleged libel, held error.</p> <p>5. Libel and slander, § 123*—when matters occurring after the publication inadmissible. Evidence of facts occurring more than two years after the publication of the alleged libel does not tend to show the truth of the publication nor is it admissible in mitigation of damages.</p> <p>6. Libel and slander, § 146*—when proof of the truth of the publication insufficient. In an action for libel, where the principal charge in the publication was that plaintiff was a boy disguised as a girl, proof that plaintiff was masculine in her behavior and guilty of acts indicating an undue afiection for women, held not to amount to proof of the truth of the publication.</p> <p>1. Libel and slander, § 160*—questions for court. The purport of the publication is a question of law for the court.</p> <p>8. Witnesses, § 210*—form of questions on cross-examination. It is the province of counsel on cross-examination to ask questions, not to state facts. A question so framed that the answer “No sir” would deny only a part of a question is improper.</p> <p>9. Witnesses, § 210*—what questions on cross-examinations are improper. In an action for libel, question asked of plaintiff on cross-examination concerning whether plaintiff’s mother had been married eight times, held improper.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding.</p>

<p>1. Quo warranto, § 1*—nature of remedy. The office of an information in the nature of a quo warranto is not to tender any issue of fact, but simply to call upon the defendant, in general terms, to show by what warrant the office or privilege is held and exercised.</p> <p>2. Quo warranto, § 45*—sufficiency of plea. The respondent, by his plea, must either disclaim or justify. If he seeks to justify he must do so fully and specifically; must show upon the face of his plea such facts as, if true, will vest in him the legal title to the office.</p> <p>3. Quo warranto, § 54*—burden of proof. The burden of proving his title rests on the respondent, and if he fails to establish his title by proof, the State is entitled to judgment against him.</p> <p>4. Quo warranto, § 56*—when People entitled to judgment. In a quo warranto proceeding where respondents attempt to justify by a plea which is traversed by a replication, failure of respondents to offer evidence in support of their plea entitles the People to a judgment against them.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.</p>

<p>Error to the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Henry C. Beieler, Judge, presiding.</p>

<p>1. Railroads, § 874*—when evidence insufficient to negligence in maintaining defective gate at farm crossing. In an action against a railroad company to recover the value of a bull killed on the defendant’s right of way, alleged to have been caused by failure of defendant to maintain a sufficient gate at a farm crossing in compliance with the Act of 1874, J. & A. 8811, the evidence held insufficient to sustain a judgment for plaintiff, where it appeared that the bull escaped to railroad track by lifting the hinge end of the gate so as to sever its connection with post, the evidence also showing that the gate with its fastenings was standard in make.</p> <p>2. Railroads, § 292*—sufficiency of fence. Act of 1874, J. & A. ¶ 8811, requiring railroads to erect and maintain a suitable and sufficient fence, does not require such a fence as will withstand breachy cattle, nor does it require gates at farm crossings to be fastened so that it would be impossible for stock to open them.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.</p>

<p>1. Corporations, § 755*—when service upon a sales agent of nonresident corporation is sufficient. In an action against a nonresident corporation engaged in the selling of motor cars in this State, service upon a sales agent appointed by a general agent and recognized by the corporation as such agent, held sufficient under R. S. c. 110, § 8, J. & A. ¶ 8545.</p> <p>2. Appeal and error, § 1332*—conclusiveness of default judgment. On appeal from a decree dismissing a bill to set aside a default judgment and to enjoin its collection, it cannot be urged that there was no legal liability or consideration upon which to base the judgment, where the question was to some extent inquired into when the default was taken and on one of the issues made by the hill and answer the master found the amount of the judgment was due and the court approved the master’s finding.</p>

<p>Error to the Circuit Court of Champaign county; the Hon. Solon Philbriok, Judge, presiding.</p> <p>Certiorari granted by Supreme Court.</p>

<p>1. Damages, § 207*—when instruction misleading. In an action for personal injuries, an instruction relating to assessment of damages which closes with a statement to the effect that it is not necessary for any witness to express an opinion as to the amount of damages claimed in the declaration, held misleading and erroneous.</p> <p>2. Damages, § 42*—when expert evidence as to effect of injury improper. In an action for personal injuries, opinions of medical experts as to the effect of injury on plaintiff’s life, held improper under the circumstances of the case.</p> <p>3. Damages, § 42*—consequential damages. Consequences which are contingent, speculative or merely possible are not proper to be considered in ascertaining damages. To entitle plaintiff to recover present damages for apprehended future consequences there must be such a degree of probability of their occurring as amounts to a reasonable certainty.</p> <p>4. Evidence, § 444*—when opinion of medical expert incompetent. Expert evidence which is a result of personal examination made during the trial, based in part upon subjective symptoms, is incompetent.</p>

<p>1. Electricity, § 27*—when verdict against telephone company not sustained by the evidence. In an action against an electric light company and a telephone company for the death of plaintiff’s intestate, alleged to have been caused by an electric light current while acting as a city electric light trimmer, a verdict in favor of the plaintiff against the telephone company held manifestly against the weight of the evidence in that the evidence failed to show that the telephone wire which fell on the electric light wire and made the current belonged to the defendant telphone company.</p> <p>2. Appeal and error, § 1793*—joint judgment. Where a joint judgment against two defendants is erroneous as to one defendant, it will be reversed as to both.</p>

<p>1. Mines and minerals, § 91*—when mine examiner cannot recover for injuries resulting from failure to close cross-cuts. In an action by an assistant mine examiner to recover for injuries resulting from an explosion of accumulated gases while engaged in examining a mine, alleged to have been caused by wilful failure of mine owner to comply with section 14 of Miners’ Act, J. & A. If 7488, requiring certain cross-cuts to be closed, held that trial court erred in refusing to direct a verdict for defendant for the reason that the declaration was based solely on a statute which the evidence shows was inapplicable to plaintiff in his employment, and even under allegations of neglect of a common law duty to plaintiff held that plaintiff would not be entitled to recover under evidence showing that plaintiff was inexcusably careless in making an examination of the mine with an open lamp.</p> <p>2. Mines and minerals, § 82*—persons entitled to protection under the provisions of the Miners’ Act. Person employed as mine examiner under section 21 of Miners’ Act, J. & A. ¶ 7495, does not come within the class entitled to protection under the provisions of section 14 of the Miners’ Act, J. & A. ¶ 7488.</p> <p>3. Mines and minerals, § 82*—“operative miners” within meaning of constitution. Mine examiner is not an “operative miner” within the meaning of the constitutional provision, requiring “the legislature to pass such laws as may0 he necessary for the protection of operative miners.”</p>

<p>1. Railroads, § 941*—when instruction as to origin of fire erroneous. In an action against a railroad company for1 damages by fire alleged to have been caused by sparks and cinders being thrown upon plaintiff’s building by defendant’s locomotive, an instruction on question of the origin of the fire, which in effect states that plaintiff is entitled to a verdict if it furnished more evidence on that point than defendant, held inaccurrate and misleading.</p> <p>2. Railroads, § 943*—when verdict for damages resulting from railroad fire excessive. In an action for damages resulting from loss of plaintiff’s mill and machinery therein resulting from emitting of sparks and cinders of defendant’s locomotive, a verdict and judgment for plaintiff for $16,000 held excessive, where the evidence shows that plaintiff purchased the mill and machinery and lot for $15,000 and the machinery was out of date and the business of conducting the mill had run down and was unprofitable.</p> <p>3. Railroads, § 919*—burden of proving origin of fire. In an action against a railroad for loss of a building by fire alleged to have been caused by sparks from defendant’s locomotive, it is incumbent upon the plaintiff to furnish evidence sufficient to establish to the satisfaction of a reasonable mind the fact that the engine did throw sparks and cinders that started the fire.</p> <p>4. Jury, § 80*—questions which may be propounded to jurors. In an action against a railroad company for loss of a building by fire caused by sparks from defendant’s locomotive, held error for trial court to refuse to permit defendant on examination of jurors to ask the jurors if they were acquainted with the officers of, had stock in, or were agents of, or had any connection with certain insurance companies which were beneficiaries in the suit.</p>

<p>1. Executors and administrators, § 269*—when receipt for advancement not evidence of settlement for labor and services performed for deceased. In a proceeding to have certain notes, executed hy deceased,to her son, allowed as claims against the estate of deceased, the son’s receipt for an advancement whigh stated that interest thereon would not he charged, held not evidence that the parties understood the remission of interest to he in settlement for labor and services performed by the son, so as to show that a note executed by deceased therefor two and one-half years thereafter was without consideration.</p> <p>2. Executors and administrators, § 270*—when evidence insufficient to show consideration for promissory note executed by deceased. Judgment of Circuit Court, on appeal from Probate Court, allowing notes given by deceased to claimant as claims against the estate, affirmed on condition of remittitur of a portion of the amount of one of the notes, there being no evidence to show the sufficiency of the consideration therefor and it appearing that the note representing such portion was clearly a gift without consideration.</p>

<p>1. Arbitration and award, § 81*—when findings of trial court setting aside an award sustained by the evidence. On bill to set aside an award in an accounting between partners, findings of trial court as to the award being erroneous and as to the different amounts due the various partners, held sustained by the evidence.</p> <p>2. Arbitration and award, § 76*—when whole award will not he set aside. On bill to set aside an award, it is not the duty of the court to set aside the whole award when any item in the award is a result of fraud, there being no allegations of fraud applicable to or affecting the whole award.</p> <p>3. Arbitration and award, § 74*—sufficiency of decree setting aside an award in part. A decree setting aside an award in part, under a prayer for general relief should make all proper corrections of the award and should direct the enforcement of the award as amended by it, and provide for the payment of the various sums to whom they are due and make its decree final as to all matters involved.</p> <p>4. Arbitration and award, § 81*—when allowance of salary to partner on bill to set aside award not error. On bill to set aside an award made in an accounting between partners, an allowance to a partner of a certain sum as salary during the partnership, held not error, there being no allegation in the bill as to fraud, irregularity or illegality on the question of the • salary item, and no error is assigned upon the record as to such item.</p>

<p>1. Mortgages, § 32*—when evidence sufficient to show deed, was intended as a mortgage. On bill filed to have certain deeds and assignments, absolute in form, declared to be in the nature of a mortgage and for an accounting, findings of trial court that certain transfers were intended as security in the nature of a mortgage and that others were gifts in the nature of family settlements, held sustained by the evidence.</p> <p>2. Frauds, statute of, § 48*—when parol agreement sufficient to show absolute deed a mortgage. To prove that an absolute deed is in the nature of a mortgage, a parol agreement is sufficient when it is established to the satisfaction of the court to take the case out of the statute of frauds.</p>

<p>1. Death, § 48*—admissibility of evidence. In an action by widow to recover for the death of her husband, permitting plaintiff to prove that she had no means of support other than that furnished by her deceased husband, held error. The limit of inquiry along this line is as to the earning capacity of the deceased and his contribution to the support of his family.</p> <p>2. Death, § 73*—when instruction not based on evidence erroneous. In an action against a railroad company to recover damages for the death of a fireman, an instruction permitting recovery for negligence of the engineer held improper where there was no proof upon which to base the conclusion that engineer acted improperly in the operation of the engine or that his conduct in anyway contributed to the death of plaintiff's intestate.</p> <p>3. Death, § 73*—when instruction ashing jury to consider all the evidence improper. In an action for death, an instruction given for plaintiff held objectionable in asking the jury to consider, in determining as to the measure of damages, all the evidence, there being improper evidence admitted on the part of the plaintiff.</p> <p>4. Death, § 73*—when requested instruction improperly refused. In an action against a railroad company for death of a fireman occasioned by derailment, a requested instruction for defendant that, “If, from the evidence in this case, you are unable to say, under your oaths as jurors, what caused the derailment of the engine, then the court instructs you to find the defendant not guilty,” held improperly refused.</p> <p>5. Death, § 73*—when refusal of requested instruction is error. In an action for death, refusal of a requested instruction on question of proof of the cause of the injury and defendant’s negligence, held error.</p> <p>6. Trial, § 233*—when error to permit jury to take pleadings to the jury room. In an action for death, held error to permit certain counts of the declaration to he taken hy the jury to the jury room without some explanation or instruction where there is no proof to support the theory of such counts. As a general rule, where any of the pleadings are permitted to go to the jury the whole of the pleadings should go.</p>

<p>1. Municipal corporations, § 1173*—when duty of city council to pass appropriation and tax levy ordinance to maintain free library. Under section 1 of Act of 1872, J. & A. If 7074, authorizing cities, incorporated towns and townships to establish and maintain free public libraries and reading rooms, where a city council passes an ordinance providing for the establishment and maintenance of such a library and by resolution accepts a donation for the erection thereof, held that the council by adopting such ordinance and resolution elected to come under the provisions of the statute and could not, on its own motion, refuse to pass appropriation and tax levy ordinances to maintain the library.</p> <p>2. Mandamus, § 148*—when petition to compel city officials to pass appropriation ordinance and malee levy for city library sufficient. Petition filed by members of a city library board for the issuance of a writ of mandamus to compel the mayor and city council to pass an appropriation ordinance, and to levy, in the tax levy ordinance, the sum of one and two-tenths mills on the dollar of the taxable property of the city, held to state facts showing a clear right to demand the issuance of the writ.</p> <p>3. Statutes, § 225*—word “may” construed. The word “may” in a statute will be construed to mean “shall” whenever the rights of the public or of third persons depend upon the exercise of the power or the performance of a duty to which it refers, and such is its meaning in all cases where the public rights or interests are concerned. The term “public” does not necessarily mean all the inhabitants of a State, but may properly be applied either to the inhabitants of a State, a county or a community.</p> <p>4. Statutes, § 225*—when word “may” means “shall.” The word “may” in section 1 of the Act of 1872, J & A. ¶ 7074, wherein it says “The city council * * * shall have power to establish and maintain a public library * * * and may levy a tax, etc.,” held to mean “shall.”</p>

<p>1. Insurance, § 120*—when policy construed in favor of insured. Where clauses in an insurance policy are susceptible of two constructions, in conflict, the one most favorable to the insured will he adopted by the courts.</p> <p>2. Insurance. § 219*—when provision in policy against foreclosure proceedings withbut consent of insurer inoperative. A provision in a policy of fire insurance that the policy shall be null and void if foreclosure proceedings are commenced without the consent of the insurance company, held, to be inoperative as between insurer and the mortgagee where a mortgage clause is attached to the policy making the loss payable to the mortgagee, the mortgage containing a clause giving mortgagee' the right to foreclose in case of default in the payment of interest, which the insurer must have known when attaching the mortgage clause to the policy, and to require mortgagee to obtain the consent of the insurer would in effect destroy the purpose of the mortgage clause.</p> <p>3. Insurance, § 456*—denial of liability as loaiving proof of loss. Insurance company refusing to pay a loss on the ground of its nonliability in any event cannot insist, in defense of an action for the insurance, that the preliminary proof of loss was not made or was insufficient.</p> <p>4. Insurance, § 674*—propositions of law. Propositions of law concerning the effect of a mortgage clause attached to a fire insurance policy containing a clause against foreclosure proceedings with the consent of the insurer, and as to what constitutes a «waiver of preliminary proof of loss, held to be properly held as law by the trial court.</p>

<p>Appeal from the County Court of Shelby county; the Hon. J. K. P. Grider, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. James C. McBride, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cass county; the Hon. Albert Akebs, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Greene county; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>1. Indemnity, § 23*—sufficiency of declaration in action on indemnity policy. In an action on an employer’s indemnity policy, declaration alleging that plaintiff, the employer, sustained loss by being required to pay a judgment recovered against him in an action for the death of an employe, and that the death of such employe was caused by a certain coal bunker, then being installed in plaintiff’s plant, falling upon him, held sufficient on general demurrer.</p> <p>2. Indemnity, § 23*—when special pleas in action on indemnity policy demurrable. In an action on an employer’s indemnity policy to recover loss sustained by plaintiff on account of being compelled to pay for the death of an employe, a demurrer to defendant’s special pleas setting up that such employe was killed by the falling of coal hunkers then being installed in plaintiff’s plant, which bunkers were not repairs or renewals of bunkers theretofore existing in said plant, held properly sustained.</p> <p>3. Indemnity. § 8*—indemnity policy construed. Where the employment specified in an indemnity policy is “manual classification of work operating and maintenance of electric plant and distributing system, including ordinary repairs and renewals, etc.,” the words “ordinary repairs and renewals” may be construed to allow employer to attach labor saving machinery to his plant to assist in getting coal to its furnaces.</p> <p>4. Indemnity, § 24*—admissibility of evidence. In an action on an employer’s indemnity policy, evidence offered by defendant tending to the kind and character of coal bunkers being installed in plaintiff’s plant at the time of the accident to an employe, held properly refused.</p> <p>5. Indemnity, § 26*—computation of interest. In an action on a policy of indemnity against loss under the Employer’s Liability Act, a judgment entered against the indemnity company allowing interest to be computed on the time intervening between the time verdict was returned and the judgment was entered against the employer in an action against him for the death of his employe, held error, but not reversible error, and the judgment was affirmed on condition of remittitur as to such amount.</p> <p>6. Interest, § 33*—when attaches to judgments. Under R. S. c. 74, § 3, relating to interest, J. & A. ¶ 6692, interest cannot attach until the judgment is rendered.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholeield, Judge, presiding.</p> <p>Certiorari granted by Supreme Court.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. Jambs C. McBride, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.</p>

<p>1. Municipal corporations, § 948*—liability for acts of officers and employes. Quasi corporations, such as counties, towns, school districts, hospitals and other institutions of like character, cannot be held responsible in damages for the negligence of their officers or employes, unless by statutory enactment.</p> <p>2. Agriculture, § ,3*—when State Board of Agriculture not liable for personal injuries sustained by guest at State fair. In an action against the State Board of Agriculture to recover for injuries sustained by plaintiff on account of the collapse of certain bleachers at the State fair conducted by defendant, a general demurrer to the declaration held properly sustained, the defendant not being liable for the negligence of its officers and employes.</p> <p>3. Agriculture, § 3*—Liability of State Board of Agriculture for negligence of officers and employes. State Board of Agriculture is one branch or arm of the State government, and though the statute creating it provides it may sue and be sued, it is not liable for the negligence of its officers and employes.</p>

<p>Abstract of the Decision.</p> <p>Set-off and recoupment, § 6*—when officer of a lodge entitled to set-off for amount paid for rent of huilding. Where an officer of a lodge leased a building and paid the rent as it became due, sometimes out of money belonging to the lodge and at other times out of his own money, in which case he had presented bills therefor which were approved and allowed, and such arrangement continued for some time without objection by the lodge, and later such officer leased the building from the owner in his own name, notifying the lodge that it could use the building as it always had and that he was to receive the same rent as formerly, held in an action against him by the lodge for certain money collected from subtenants that he was entitled to a set-off for the amount he had paid for rent from his own money, it appearing that he had acted in good faith in paying the rent and fully expected to be reimbursed as he previously had and that there was an implied obligation on the part of the lodge to give him credit for such amount for the reason that the lodge had received the use of the building and the services of the officer in like capacity for years without objection.</p>

<p>1. Carriers, § 30*—Carmack amendment to Interstate Commerce Act as affecting liability of carriers in interstate shipments. Under the Carmack Amendment to Interstate Commerce Act it became the duty of interstate carriers to fix, publish and file with the Interstate Commerce Commission all rates for interstate shipment, and it would seem that it was the manifest intention of congress to take possession of the subject of liability of a carrier under contracts of interstate shipments and to supersede all State regulations in reference to that subject.</p> <p>2. Carriers, § 158*—contract limiting liability as affected by the Carmack Amendment to Interstate Commerce Act. Under the provisions of the Carmack Amendment of the Interstate Commerce Act the limited liability contract agreeing to a valuation of the property in transportation is valid, and the shipper is conclusively presumed to know the terms of the bill of lading and the published rate filed with the Interstate Commerce Commission.</p> <p>3. Carriers, § 239*—when limitation of liability in contract for interstate shipment of live stock governs. In an action against a railroad company to recover for the loss of a race horse shipped over defendant’s road from a point in another State to a point in this State under a contract of shipment limiting defendant’s liability to one hundred dollars, held that a judgment in favor of plaintiff for one thousand two hundred dollars could not be sustained for such amount, and judgment was affirmed in the sum of one hundred dollars on condition of remittitur.</p> <p>4. Carriers, § 241*—when indorsement on receipted freight hill extends time for filing claim for loss. Where a contract for shipment of live stock provides that notice of loss shall be filed with railroad’s claim agent within five days after removal of stock from the car, and was signed by the shipper’s agent, who could neither read nor write, and the shipper had no knowledge of such limitation until after he had received the property and paid the freight bill, held that an indorsement by the company’s agent on the receipted freight bill delivered to shipper, granting four months within which to file claim extended the time within which to file claim.</p> <p>5. Carriers, § 31*—when extension of time for filing claim for loss not a violation of Interstate Commerce rules. The power of a railroad company to extend the time of presenting claim for loss by making an indorsement on a receipted freight bill delivered to shipper, held not a violation of the Interstate Commerce Commission rules and regulations.</p>

<p>1. Railroads, § 641*—when liable for death of street car conductor resulting from, backing trains at crossing. In an action against a railroad company to recover damages for the death of a street car conductor at a railroad crossing caused by a street car being struck by an approaching train of cars being switched by defendant while the conductor had gone upon the railroad, tracks to flag the crossing, the declaration alleging that defendant was negligent in backing a string of cars without lights on the hindmost car, in not providing s-uch car with sufficient brakes in the care of a brakeman and in backing such train at a dangerous rate of speed, held that a verdict in favor of plaintiff would be sustained upon remittitur.</p> <p>2. Railroads, § 752*—when due care on part of street car cortr ductor in leaving street car to flag railroad crossing question for jury. In an action against a railroad company for the death of a street car conductor caused by a street car being, struck by an approaching train of cars being switched by defendant at a railroad crossing, when street car conductor had gone upon the tracks to flag the crossing, held that the question of due care upon the part of the conductor was a question for the jury.</p> <p>3. Death, § 71*—when due care on the part of deceased becomes a question of law. In an action for death, the question of due care on the part of the deceased becomes a question of law only where there is no conflict in the evidence, and the evidence is such that the minds of all reasonable men must arrive at but one conclusion.</p> <p>' 4. Railroads, § 651*—when failure of street car conductor to discover approaching train at railroad crossing not negligencd per se. Failure of street car conductor to discover the approach of a string of railroad cars at a railroad crossing, when he goes upon the railroad tracks to flag the crossing in compliance with the rules of the street car company and a city ordinance, held not contributory negligence per se.</p> <p>5. Death, § 67*—when recovery for death excessive. Verdict, for ten thousand dollars for death of a street railway conductor held excessive, and judgment affirmed on condition of remittitur of three thousand dollars.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Greene county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Bonds, § 34*—when plea of nil debet not proper. Nil debet is not a good plea in an action of debt on a penal bond which recites on its face an acknowledgment of the debt, and a demurrer tc such plea is properly sustained.</p> <p>2. Corporations, § 506*—nature of plea of ultra vires. The plea of ultra vires is a denial of the power and authority of the pleader to do and perform acts with which it is sought to be charged.</p> <p>3. Intoxicating liquobs, § 57*—when plea of ' ultra vires by surety in action on dramshop keeper’s bond demurrable. In an action on a bond given by a dramshop keeper under R. S. c. 43, § 5, J. & A. If 4604, a plea of ultra vires by one of the sureties, a brewing corporation, engaged in manufacturing and selling beer, denying it had authority under its charter to become surety on the bond, held demurrable, the plea not showing that it did not have general authority to perform all acts in providing for the sale of its products.</p> <p>4. Intoxicating liquobs, § 57*—when plea by surety in action on dramshop keeper’s bond demurrable. In an action on a bond given by a dramshop keeper to procure a license, there having been a judgment previously recovered against the dramshop keeper for the wrongful sale of liquor to plaintiff’s husband, a demurrer to a plea denying the sale of liquor to plaintiff’s husband, and denying that plaintiff was injured in her means of support thereby, held properly sustained.</p> <p>5. Intoxicating liquobs, § 57*—conclusiveness of prior judgment against dramshop keeper in action on dramshop keeper’s bond. In an action on a bond given by a dramshop keeper to procure his license, a judgment recovered against the dramshop keeper for damages resulting to plaintiff from the wrongful sale of liquor to plaintiff’s husband is conclusive that the sales were made, that they were wrongful and that plaintiff was damaged by reason thereof.</p> <p>6. Intoxicating liquors, § 57*—when evidence offered in action on bond insufficient to show vindictive damages were recovered in prior action against dramshop keeper. In an action on a dramshop keeper’s bond, where a judgment had been previously recovered against the dramshop keeper for wrongfully selling liquors to plaintiff’s husband, and such judgment remained unpaid, action of court in sustaining objection to the introduction in evidence of the stenographer’s report of the evidence in the former suit, to prove that a verdict was rendered in that case for vindictive as well as actual damages, held not error, such evidence being insufficient to prove that vindictive damages were included in the verdict, and the amount of the verdict not justifying such contention.</p> <p>7. Intoxicating liquors, § 57*—when charter of surety inadmissible in suit on dramshop keeper's bond. In an action on a dram-shop keeper’s bond, an objection to introduction in evidence of the charter of a brewing corporation, one of the sureties, to show it had no authority to execute the bond, held properly sustained.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. James C. McBride, Judge, presiding.</p>

<p>1. Mines and minerals, § 153*—when defendant entitled to contradict evidence introduced by plaintiff without objection. In an action against a mining company for injuries sustained by plaintiff while employed as a motorman on a haulage motor used for moving cars in defendant’s mine, the declaration alleging that the injury resulted from a derailment on account of the defective condition of the tracks, held that where plaintiff is permitted, without objection, to show that a tie at or near the place of the accident was removed and replaced with a new one after the time of the injury, a refusal by the court to permit defendant to show under what circumstances the tie was removed is error.</p> <p>2. Mines and minerals, § 182*—questions for jury. In an action for personal injuries sustained by plaintiff by reason of the derailment of a car in a mine, alleged to have been caused by defective tracks, whether the derailment was caused by the defective condition of the track and what caused the derailment,. held to be questions for the jury, where the evidence is conflicting.</p> <p>3. Mines and minerals, § 192*—when instruction ignoring question whether injury was caused by fellow-servant erroneous. In an action for personal injuries in a mine, based on a common law count in the declaration, the giving of an instruction directing a verdict for plaintiff upon the finding of the circumstances recited in the instruction without requiring the jury to determine whether the accident was caused by the negligence of a fellow-servant, held error.</p> <p>4. Instructions, § 131*—when erroneous for ignoring essential elements. An instruction which directs a verdict for plaintiff must include all the elements necessary to be found by the jury.</p> <p>5. Damages, § 115*—when verdict for personal injuries excessive. A verdict for plaintiff for $3,400 for injury to his limb not such as will be of any serious damage, held excessive, the expense for a physician and otherwise amounting to $400, his earning capacity at the time of the injury being $2.92% per day, and since the injury has been earning a greater sum.</p>

<p>1. Sales, § 283*—questions for jury. In an action for breach of warranty in the sale of a team of horses, the questions whether a warranty was made, or if made whether the buyer relied upon the warranty in making the purchase, or relied on his own test of the horses, are for the jury.</p> <p>2. Sales, § 352*—when buyer not entitled to recover money paid for breach of warranty. In an action for the breach of a warranty of a team of horses and for a return of the purchase price, where the horses were purchased as a team, and no specific price paid for either horse, the buyer being unable to return the team by reason of the death of one of the horses cannot recover the purchase price paid, but must recover if at all on the breach of the warranty, if one was made and proved.</p> <p>3. Sales, § 402*—when instruction as to measure of damages for breach of warranty erroneous. Instruction as to measure of damages in an action for breach of a warranty in the sale of a team of horses, held erroneous.</p> <p>4. Sales, § 392*—when seller's ignorance does not defeat recovery for breach of warranty. In an action for the breach of warranty of the soundness of a team of horses, the seller cannot defeat recovery for breach of warrant by showing that he did not know the condition of the horses at the time of the warranty.</p> <p>5. Instructions, § 88*—preponderance of the evidence. Instruction as to the manner of deiermining wherein the preponderance of the evidence lies, held misleading.</p> <p>6. Appeal and error, § 1561*—when refusal of requested instruction harmless. Refusal of requested instruction fully covered by other instructions given is not error.</p> <p>7. Appeal and error, § 1833*—when special pleas filed after remandment of cause demurrable. After reversal by the Appellate Court of a former judgment and the reinstating of the cause in the trial court, special pleas filed by defendant setting up the judgment of Appellate Court and presenting as an issue of fact what was determined by such court on its former hearing, held demurrable.</p> <p>8. Appeal and error, § 1514*—when improper remarles of counsel prejudicial. Inflammatory and improper statements made by counsel in his argument to the jury, among them being a statement that he did not care what the Appellate Court said in its opinion on a prior appeal in the cause, held prejudicial.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.</p>

<p>1. Gaming, § 39*—when special plea and cross-bill in action to subject property used for gambling to payment of judgment recovered for money lost demurrable. On bill filed against the owner of a gambling house to subject the premises to the payment of a judgment recovered by complainant against a third person for money lost at gambling on the premises, held that the defendant could make a complete and ample defense against the judgment upon his answer, and that the action of the court in sustaining a demurrer to a special plea and a cross-bill alleging that the judgment was obtained by fraud and collusion between' the complainant and such third party, held proper.</p> <p>2. Gaming, § 43*—when evidence sufficient to sustain decree subjecting gambling premises to payment of a judgment recovered for money lost thereon. On bill filed against the owner of a premises to subject the premises to the payment of a judgment recovered by complainant against a third party for money lost at gambling on the premises, the bill alleging that the loss at gaming occurred on the premises belonging to defendant, and that defendant knowingly permitted gambling to be conducted on the premises, held that to entitle the complainant to the relief prayed it was necessary for him to prove the allegations of the bill, and the findings of a decree awarding the relief prayed held sustained by the evidence.</p> <p>3. Judgment, § 394*—when conclusive against collateral attach. On bill filed against the owner of a gambling house to subject the premises to the payment of a judgment formerly recovered by complainant against a third party for money lost at.gambling on the premises, the judgment having been rendered by a court of competent jurisdiction and not having been appealed from, set aside or vacated, is conclusive and cannot be collaterally attacked by the defendant.</p> <p>4. Equity, § 379*—conclusiveness of verdict of jury when submission is discretionary. It is a familiar rule in chancery that the chancellor may present an issue of fact to a jury for its determination, but unless such is required by law to be submitted to a jury the finding of the jury is merely directory and is not conclusive, and the chancellor upon final hearing may follow that verdict or entirely disregard it.</p> <p>5. Appeal and error, § 1528*—when error in instructions in a chancery case will not reverse. Upon the submission to the jury of an issue in a chancery case it cannot be assigned as error that the chancellor erred in its instructions to the jury, when the submission is discretionary with the chancellor.</p>

<p>1. Appeal and error, § 1361*—when not error to permit filing of additional pleas at time of trial. In an action on a guaranty contract, held not error for court to permit the defendant to file a plea of non est factum after the trial had begun, where the request to file such plea was not made until after plaintiff, by leave of court, had filed an additional count to his declaration.</p> <p>2. Appeal and error, § 1361*—when not error to permit defendant to file additional pleas. The right to file additional pleas is a matter in the discretion of the trial court, and unless the court has abused this discretion it is not error to permit such pleas to be filed.</p> <p>3. Guaranty, § 22*—what questions relating to alteration of contract are for court and jury. In an action on a guaranty contract, where the defense is that there was a material alteration of the contract by ■ the attachment of a rider thereto after the contract was signed by the defendants, held on conflicting evidence that the question whether a rider was attached before or after the contract was signed was for the jury, but the question whether the attachment of the rider after the contract was signed was such a material alteration as will avoid the contract is for the court.</p> <p>4. Guaranty, § 37*—when instruction erroneous as submitting a question of law. In an action on a guaranty contract, where the defense is that there was a material alteration of the contract by the attachment of a rider thereto and also the filling in of blanks in the contract after it was signed by the defendants, an instruction submitting to the jury the question whether there was an alteration of the contract, held erroneous as submitting to the jury a question of law, where under the instruction, the jury might have determined that the filling in of the blanks constituted a material alteration.</p> <p>5. Guaranty, § 22*—when filling in blanks not an alteration of contract. Where a party signs a contract of guaranty in blank and delivers it, the party to whom it is delivered has the right to fill in the blanks, and by so doing he does not alter the contract if he filled the blanks in accordance with the agreement of the parties.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 705*—when plea of failure of consideration for reinsurance contract demurrable. In an action to recover on a fire insurance policy, the contract being an agreement to reinsure the risks of another company, with conditions requiring the policy holder to assign to the defendant whatever claim he might have against such other company for unearned premiums and pay the balance in cash, action of court in sustaining demurrers to defendant’s pleas of failure of consideration setting up that the agreement on the part of plaintiff to assign his claim against the former company without in any way averring that no assignment of the claim was made, held not error.</p> <p>2. Witnesses, § 298*—when character evidence as to reputation for truth and veracity not too remote to impeach witness. To impeach the character of witnesses for their truth and veracity, evidence offered to show their reputation at a place where they resided two years prior to the time of the facts involved in controversy, held admissible, and action of court in sustaining an objection to such evidence because too remote, held error, though not prejudicial error.</p> <p>3. Appeal and error, § 1455*—when error in sustaining demurrer to plea cannot he complained of. Defendant cannot complain that trial court improperly sustained a demurrer to his plea where he was permitted upon the trial to introduce evidence which could only have been proper under his plea.</p>

<p>Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.</p>

<p>Libel and slander, § 100*—when declaration avers defamation actionable per se. In an action for slander, a declaration charging that defendant spoke and published concerning plaintiff that he with others had sworn to a lie, had sworn falsely and that affidavit is false, held, to aver language actionable per se under R. S. c. 126, J. & A. ¶ 10576, without averring that the statements were made of and concerning any judicial proceeding or of and concerning any action, time or place or regarding any matter which required that an affidavit should he made by the plaintiff.</p>

<p>1. Bills and notes, § 451*—when finding of jury on question of payment of promissory note sustained by the evidence. In an action on a promissory note and to have the same allowed against the estate of the deceased maker, the evidence being conflicting on the question whether the note had been paid by the deceased, held, that a verdict in favor of plaintiff was not manifestly against the weight of the evidence, and that the evidence was sufficient to sustain the verdict.</p> <p>2. Bills and notes, § 426*—what evidence inadmissible to show payment. In an action on a promissory note and to have the same allowed as a claim against the estate of the maker, evidence offered by defendant that plaintiff was present in a proceeding to have a conservator appointed for the maker, prior to his death, and did not dispute testimony that the maker was not at that time indebted to any one, held, inadmissible as a circumstance tending to show that plaintiff’s note had been paid, the plaintiff not being a party to that proceeding and not required to dispute the testimony offered to protect his claim.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholeield, Judge, presiding.</p>

<p>1. Municipal corporations, § 993*—duty to keep sidewalk free from obstruction. It is the duty of a city to keep and maintain its sidewalks free from obstruction and dangerous places for their entire width for the use of pedestrians while in the exercise of due care and caution.</p> <p>2. Municipal corporations, § 1098*—when evidence sufficient to sustain verdict for injuries to pedestrian resulting from falling over obstruction on sidewalk. In an action against a city to recover for personal injuries sustained by plaintiff by falling over an obstruction on a sidewalk in front of a grocery store, evidence held sufficient to sustain a verdict for the plaintiff, where the evidence shows that the obstruction was placed upon the sidewalk by the* keeper of the store and the city had permitted the obstruction for a sufficient length of time to be charged with notice thereof.</p> <p>3. Municipal corporations, § 1053*—care required of persons using street with knowledge- of obstructions. In an action against a city to recover for personal injuries sustained by a woman falling over an obstruction on a sidewalk, held that although plaintiff may have known of the existence of the obstruction in the street it was not negligence per se for her to use the street or to attempt to pass the obstruction, that the law only required of her that she use such due care and caution as would be commensurate with her knowledge of the conditions and surroundings existing at the time, and that whether she did use such care and caution is wholly a question for the jury.</p> <p>4. Appeal and error, § 1561*—when refusal of requested instructions not error. Not error for court to refuse a requested instruction fully covered by others given, though such instruction contains a correct proposition of law.</p> <p>5. Appeal and error, § 1623*—when error in the exclusion of evidence harmless. Appellant cannot complain of error of trial court in sustaining objections to evidence offered by it where such evidence was permitted to go to the jury at other times.</p>

<p>1. Appeal and error, § 1810*—when Appellate Court may enter final judgment. Where the cause was heard by the trial court, the jury having been waived, the Appellate Court is empowered to render final judgment without remanding the cause.</p> <p>2. Attachment, § 312*—when finding of trial court as to ownership of property not sustained by the evidence. In an attachment proceeding in which the wife of the. attachment defendant inter-pleaded claiming ownership of the property, a finding by the trial court of property in the attachment defendant held not warranted by the evidence, it appearing, that the property was purchased by the wife with her own money, that the property was in her possession at the time of the levy, that the wife was not liable on the indebtedness for which the attachment suit was brought, and that the Appellate Court on a former appeal of the cause found that the property belonged to her on substantially the same record as upon the present appeal, so far as the evidence is concerned.</p>

<p>Corporations, § 487*—who are agents of a railroad company upon •whom process may he served. Under the statute permitting a railroad company to he sued in any county through which it operates a line of railroad, or where it maintains an office, or has an agent for the transaction of its business, the fact that agents of railroad companies other than the one against which suit is brought sell tickets by which persons may travel over the defendant company’s line does not constitute them agents of the latter company so that process may be served upon them.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appealed from the Circuit Court of Vermilion county; the Hon. William B. Sciiolpield, Judge, presiding.</p>

<p>Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochran, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochean, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. William G. Cochran, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final.)</p>

<p>Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Partition, § 119*—when hill insufficient to entitle complainant to solicitor’s fees. In a partition proceeding where the original hill did not properly set forth the interest of the parties and omitted a necessary party, and it was only after answer was filed that the bill properly set forth the interest of all the owners, held that it was necessary for defendant to -employ counsel, and a decree awarding complainant solicitor’s fees was reversed.</p> <p>2. Partition, § 119*—sufficiency of Mil to entitle complainant to solicitor’s fees. Solicitor’s fees will not be taxed against defendants in partition, where the original bill omitted necessary parties making it necessary for defendants to employ counsel to protect their interests. The bill should be so accurate that the parties defendant can safely allow a default to be taken against them.</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. Harry M. Waggoner, Judge, presiding.</p>

<p>1. Intoxicating liquors, § 251*—when instruction in words of statute misleading on question of damages. In an action by a widow under section 9 of Dramshop Act, J & A. H 4609, to recover damages for loss of means of support by death of her husband alleged to have been caused by the sale of intoxicating liquors by the defendants, an instruction given for plaintiff setting out a portion of the statute held misleading as permitting plaintiff to recover all damages sustained, there being no instruction given limiting plaintiff’s recovery to the loss to her means of support or informing the jury what was the proper measure of damages in the case.</p> <p>2. Intoxicating liquors, § 245*—when verdict for loss of widow’s means of support is excessive. Verdict for five thousand dollars for loss of widow’s means of support resulting from death of husband caused by sale of intoxicating liquors, held excessive, the evidence showing that the deceased was a tenant farmer, selling some years about twelve hundred dollars of produce from his farm, and when not occupied with farm work doing teaming at three dollars per day for himself and team.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. Aebebt M. Rose, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Douglas county; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>Appeal from the County "Court of Macon county; the Hon. James A. McComas, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. Jambs C. McBride, Judge, presiding.</p>

<p>1. Physicians and surgeons, § 21*—admissibility of evidence, In an action against a physician and surgeon to recover damages for malpractice, on account of failure of. defendant to properly reduce a dislocated hip for plaintiff, refusal of trial court to permit plaintiff to show that an X-ray photograph was taken of the joint and that he made unsuccessful efforts to get the X-ray plates, held not error, it appearing defendant had nothing to do with the taking of the photographs and never had possession of them.</p> <p>2. Physicians and surgeons, § 23*—when instructions for defendant in action for malpractice erroneous and misleading. In an action to recover damages for malpractice, an instruction given for defendant defining ordinary care and skill required of physicians and surgeons as being “that care and skill exercised by physicians and surgeons in this locality and of the school of which defendant belongs,” held erroneous and misleading because of the insertion of the words “and of the school of which defendant belongs” and also erroneous because there was no evidence as to what school the defendant belongs, except that he was a graduate of a certain school.</p> <p>3. Physicians and surgeons, § 1162*—degree of professional shill and care required. The law requires that a physician and surgeon use that degree of professional knowledge, skill and care which the average physician and surgeon in good practice would ordinarily bring to a similar case under like circumstances in that locality.</p> <p>4. Physicians and surgeons, § 23*—when instruction erroneous. An instruction in an action for malpractice, particularly directing the attention of the jury to the testimony introduced and then proceeding with an argument, held erroneous.</p> <p>5. Instructions, § 80*—when repetition of same proposition in different instructions prejudicial. Repeating the same propositions in different instructions and emphasizing points by repetition tends to' prejudice the rights of litigants and has frequently been condemned.</p> <p>6. Appeal and error, § 1514*—when remarh of counsel in his closing argument improper. In an action against a physician to recover damages for malpractice, a remark of counsel for defendant in his closing argument asking plaintiff why he did not sue another physician who assisted defendant in treating the plaintiff, held improper, and that court properly sustained objection thereto.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholfield, Judge, presiding.</p>

<p>1. Attorney and client, § 138*—when, attorney not entitled to a statutory lien on judgment recovered in favor of his client. Under paragraph. 55 of the Lien Act (Hurd’s St. 1911, p. 1489, J. & A. ¶ 611) an attorney is not entitled to a lien for his fees on a judgment recovered by his client, where the judgment was paid to his client several hours before he notified the debtor of his claim for a lien on the judgment.</p> <p>2. Attobney and client, § 138*—when attorney not entitled to an equitable lien on judgment for his fees. An attorney is not entitled to an equitable lien on a judgment recovered in favor of his client where the judgment was paid to his client or to some person authorized to collect the same before he notified the judgment debtor of claim for lien in accordance with paragraph 55 of the Lien Act (Hurd’s St. 1911, p. 1489, J. & A. ¶ 611.)</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Telegraphs and telephones, § 4*—when ordinance granting privilege is subject to ordinance in force requiring remuneration for poles in street. An ordinance granted to certain persons, to be known as a certain company, the right to construct and operate a telephone and telegraph system in consideration that the company would furnish the city officials and the police and five departments with free telephone service, and allow it the use of its poles for a police and fire alarm system. This ordinance provided that the rights granted should be subject to all general ordinances then in force, and there was a general ordinance in force requiring owners of poles in streets and alleys of city to pay an annual license of one dollar per pole as a remuneration to the city for the use of the streets and alleys. Held, in an action by the city against the assignee of the grantee company to recover the license fee for its poles that the assignee was liable therefor, that the court erred in overruling a demurrer to defendant’s pleas setting up that the ordinance granting the privilege to its assignor did not require the payment of the license, and that the court erred in sustaining a demurrer to a replication pleading estoppel to other pleas which set up that the defendant had rendered to the city telephone service equal to the value of the use of the street for its poles, and that the ordinance requiring the, license was unreasonable.</p> <p>2. Telegbaphs and telephones, § 7*—conclusiveness of acceptance 'of ordinance granting privilege. Where a privilege is granted to a company by ordinance to construct and operate a telephone and telegraph system, the ordinance to be null and void if not accepted in writing and the construction of such system begun within a certain time, the reasonableness of the grant is for the parties to decide, and if the company accepts the ordinance neither it nor its assignee may be permitted to repudiate any of its terms and conditions that are not contrary to public policy or prohibited by statute.</p>

<p>Appeal from the Circuit Court of Macoupin county; the Hon. James A. Cbeighton, Judge, presiding.</p>

<p>1. Railroads, § 921*—when evidence to show cause of fire too remote. In an action against a railroad company for setting fire to plaintiff’s buildings alleged to have been caused by sparks thrown from, defendant’s locomotive, evidence that tramps were seen on railroad track about two miles from the place of the fire about three hours before the fire and evidence that one of the buildings had been on fire about five years before, held inadmissible because too remote and not tending to show that the fire was not started by defendant’s locomotive.</p> <p>2. Railroads, § 921*—when evidence of condition of engine after setting of fire inadmissible. In an action against a railroad company for setting fires by sparks thrown from its locomotive, it is proper to show the condition of the engine immediately after the fire started, but evidence that the engine was being repaired a week after the starting of the fire is incompetent.</p> <p>3. Witnesses, § 283*—matters to which witness may he cross-examined for purpose of impeachment. In an action against a railroad company for setting fire to a building by sparks thrown from its locomotive, where the engineer after testifying to the condition of the spark arrester was asked on cross-examination, for the purpose of laying a foundation for his impeachment, if he had not told a person about a week after the fire that he had asked the company to repair the engine before the fire and that it was then in the shops for repair, held that an objection to the question should have been sustained for the reason it sought to impeach him on irrelevant and immaterial matters.</p> <p>4. Witnesses, § 279*—when variant statements inadmissible for purpose of impeachment. Variant statements in order to be admissible for purposes of impeachment must he relevant to the matter in issue.</p> <p>5. Railroads, § 941*—when instruction as to evidence required to overcome presumption of negligence in setting fires erroneous. An instruction given for plaintiff that the law presumes a railroad company guilty of negligence on proof that a fire was communicated to plaintiff’s property by the company’s engine and that the verdict should be for plaintiff “unless this presumption is overcome by the evidence,” held to place a greater burden on defendant than the law requires, and that the instruction should have been “unless this presumption has been rebutted or overcome by the evidence.”</p> <p>6. Railroads, § 941*—when instruction as to evidence required to overcome plaintiff’s prima facie case for setting fires erroneous. An instruction requiring plaintiff’s prima fade case made by proof of the communication of the fire by defendant’s engine to be overcome by a preponderance of the evidence, held erroneous, for the reason that it requires defendant to introduce more evidence than would neutralize or rebut the presumption.</p>

<p>Error to the Circuit Court of Greene county; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Courts, § 33*—rule of Appellate Court as to sufficiency of abstract of record construed. Rule 19 of the Appellate Court of the First District, requiring a party bringing a cause to that court to furnish a complete abstract or abridgment of the record and requiring that the abstract shall be sufficient to fully present every error and exception relied on, does not require the production of the record in haec verba, nor authorize a mere index of the record, but requires that the substance of the record must be given in as few words as will convey to the court all the facts necessary for it to know in order to determine the merits of the errors complained of.</p> <p>2. Appeal and error, § 866*—sufficiency of abstract of record. An abstract of record which is no more than an index from which ' it cannot be gathered what issues were formed and tried, and wherein it is more than an index it is in most cases an unabbreviated copy of the record, is insufficient.</p> <p>3. Appeal and error, § 867*—manner in which bill of exceptions should appear in abstract. Where a bill of exceptions is a part of the record there should be something in the abstract to indicate where it begins and ends. There should be a certificate of the trial judge at the end and not in the middle of the bill of exceptions, and it should so appear in the abstract.</p> <p>4. Appeal and eror, § 867*—order of arranging matter in the abstract. Matter as it appears in the record should appear in the same order in the abstract.</p> <p>5. Appeal and error, § 1306*—when presumed that replication was filed. Where no replication to a plea is preserved in the record, it may be presumed that a general replication was filed where the record recites that “issue being joined a trial by jury is waived and cause is submitted to the court for trial without the intervention of a jury.”</p> <p>6. Appeal and error, § 1000*—when error in refusing admission of evidence not presented for review. Error of court in refusing admission of evidence not presented for review where there is nothing in the bill of exceptions to show that the court excluded the evidence.</p> <p>7. Replevin, § 124*—when evidence insufficient to show plaintiffs title to the property. In replevin to recover two wagons levied upon by the defendant, an officer, under an execution on a judgment against a third party, the plaintiff claiming ownership of the property as a purchaser at a mortgagee’s sale, a judgment in favor of defendant held sustained by the evidence, it appearing from the record that such third party had been owner of the property and up to the time of the levy had possession thereof, and there being no evidence tending to show that such party had ever parted with his title or possession.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1290*—presumption as to regularity of proceedings in Circuit Court. When a Circuit Court is shown to have jurisdiction of the subject-matter and the parties, all presumptions are indulged in, in favor of the regularity of all subsequent proceedings up to and including the final judgment, and will prevail until the irregularity of the same is affirmatively shown.</p> <p>2. Appeal and error, § 1009*—when question of sufficiency of service of notice to place cause on short cause calendar not reviewable. On appeal from an order of the Circuit Court dismissing a cause for want of prosecution, it appearing that the court had jurisdiction of the parties and subject-matter, held that the plaintiff cannot urge that the^court did not have jurisdiction for the reason that a notice was improperly served on plaintiff of the filing of an affidavit under section 27 of the Practice Act, J. & A. ¶ 8564, for placing the cause on the short cause calendar, where the record does not affirmatively show that such notice was all the notice given plaintiff, nor show that the cause was disposed of on the short cause calendar.</p> <p>3. Appeal and error, § 1313*—when presumed that proper notice was served to place cause on short cause calendar. On appeal from an order dismissing a cause for want of prosecution where it is conceded that the cause was placed upon the short cause calendar at the instance of the defendant and the cause was disposed of on the short cause calendar, plaintiff cannot urge that the court did not have jurisdiction for insufficiency of the service of a notice on plaintiff of the filing of an affidavit under section 27 of the Practice Act, J. & A. ¶ 8564, for placing the cause on the short cause calendar, where the record does not affirmatively show that that notice was all the notice given plaintiff, since in such case it will be presumed that other proof of a proper service of such notice was presented to the court.</p> <p>4. Appeal and error, § 842*—effect when bill of exceptions not signed by proper judge. Recitals in a bill of exceptions cannot be considered when signed by a judge who did not try the case, where there is nothing in the record to show that the judge who tried the case was by reason of death, sickness or other disability unable to sign it.</p> <p>5. Appeal and error, § 843*—what constitutes disability of trial judge to sign bill of exceptions. The fact that the trial judge was not sitting within the jurisdiction at the time the bill of exceptions was signed is no disability rendering him unable to allow and sign a bill of exceptions.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Fbedebick L. Fake, Jb., Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Negligence, § 49*—proximate cause. In order to charge a person with the consequences of his own act it is not necessary that he must have foreseen the precise form in which- the injury occurred. If when the injury occurs it appears that it was a natural and probable consequence of his negligence, it is sufficient to warrant a recovery.</p> <p>2. Negligence, § 53*—when the negligent act or omission is the proximate cause. While the negligent act or omission must be one of the essential causes producing the injury, it need not be the sole cause nor the nearest cause. If it concurs with the other cause, such as an accident or the negligent act of a third person, which in combination with it causes the injury, it is sufficient.</p> <p>3. Negligence, § 191*—when questions of negligence and proximate cause are for the jury. Where reasonable men acting within the limits prescribed by law might reach different conclusions, or different inferences could reasonably be drawn from the admitted or established facts, the question of negligence, contributory negligence and proximate cause are questions of fact for the jury.</p> <p>4. Trial, § 216*—right to consider weight of evidence in passing on motion for a peremptory instruction. In passing upon a motion for a peremptory instruction it is not within the province of the trial court to weigh the evidence, and the question of the preponderance of the evidence does not arise. The question whether the verdict is against the manifest weight of the evidence is one to be passed upon by the trial court upon a motion for a new trial; and in the event that such motion is overruled and judgment entered, it is for the Appellate Court upon error assigned.</p> <p>5. Trial, § 195*—rule in passing on motion for a peremptory instruction where there is some evidence to sustain recovery. The rule of law is settled in this State that if there is any evidence in the record from which, standing alone, the jury could without acting unreasonably in the eye of the law find that all the material allegations of the declaration had been proved, the case should be submitted to the jury.</p> <p>6. Street railroads, § 44*—when question whether street railway and city are guilty of negligence in maintaining a temporary track in street is for jury. In an action for injuries resulting from a temporary street car track placed on the surface of the street near the curb to permit of a reconstruction of other tracks near the center of the street, the mere fact that such temporary track was constructed and laid in the usual manner throughout the city does not absolve the street railroad company and city from negligence, either in permitting such track to be maintained in the street an unreasonable length of time or in permitting said track to remain in the street and be used for the operation of cars after the new permanent tracks were completed and ready for use.</p> <p>•7. Street railroads, § 45*—when giving of peremptory instruction to find for defendants is error. A teamster for a liquor company while making deliveries to a retail customer made an attempt to stop his team after it became frightened and in doing so stumbled against the rails and ties of a temporary street railway track constructed on the surface of the street with openings between the ties. and fell and his wagon passed over him causing his death. In an action against the street railway company and the city to recover damages for his death, charging the railway company with negligence in constructing and maintaining such track, and charging the city with negligence in maintaining the street in unsafe condition and in permitting the railway company to construct and maintain such track, and charging both defendants with negligence in failing to remove such track in a reasonable time after the completion of the work of track reconstruction, held that the question of defendants’ negligence was a question for the jury and that trial court erred in giving a peremptory instruction to find for defendants.</p> <p>8. Street railroads, § 45*—when question of contributory negligence is for the fury. In an action against a street railroad company and a city to recover damages for the death of a teamster caused by stumbling against a temporary street car track when attempting to stop his team, held that the question whether the teamster was guilty of contributory negligence in permitting his fourteen-year-old son to drive the team around in the street was for the jury.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

<p>Error to the Superior Court of Cook county; the Hon. Geobqe W. Patton, Judge, presiding.</p>

<p>1. Drainage, § 56*—when officers of district jointly liable for misapplication of money raised to pay bonds. The treasurer of a drainage district and the drainage commissioners are jointly liable in an action for money had and received brought by holder of bonds issued by the drainage district under R. S. 1911, p. 943, J. & A. ¶ 4340, to recover the face value of the bonds and interest thereon for the misapplication of taxes levied and collected for the payment of such bonds, where the treasurer upon orders of the commissioners paid out such fund for purposes other than the payment of the bonds.</p> <p>2. Drainage, § 54*—when treasurer of district personally liable for. misapplication of funds. Instalments of taxes levied and collected by the drainage commissioners to pay bonds issued by the district are trust funds to be used in the payment of the bonds only, and the treasurer of the drainage district is personally liable for misapplying such funds, though he paid them out on orders of the drainage commissioners.</p> <p>3. Drainage, § 56*—liability of district for misapplication of funds raised to pay bonds. Where officers of a drainage district misapply funds collected to meet payment of bonds issued by the district, the district is not liable for any part of its funds so misapplied. For such funds the bondholders must look solely to the officers who misappropriated them.</p> <p>4. Drainage, § 128*—power to levy an assessment for misapplied funds. Where funds levied and collected for the payment of bonds issued by a drainage district have been misapplied, no second assessment can be levied and collected to pay the same. A second assessment cannot be levied to meet a past indebtedness.</p> <p>5. Drainage, § 164*—when officers of district misapplying illegal taxes collected not liable to refund to taxpayers. Officers of a drainage district misapplying funds raised by an illegal assessment are not liable to the taxpayers to refund the same where the taxpayers voluntarily paid such taxes with full knowledge of all the facts concerning them.</p> <p>6. Actions, § 15*—when demand not necessary before suit. Demand before suit not necessary to maintenance of an action against officers of a drainage district for misapplication of taxes levied and collected to pay bonds issued by the district.</p> <p>7. Assumpsit, action of, § 44*—nature of action for money had and received. Action for money had and received for the use of plaintiff is an equitable action and lies for money had and received by the defendant which in equity and good conscience he should not retain. The law in such case implies a promise to pay although there is no privity between the parties. The alleged contract is fictitious and the right to recover is governed by principles in equity.</p> <p>8. Assumpsit, action of, § 53*—when lies against a person receiving money for the use of another. Where a party receives money for a particular purpose and fails to apply it to that purpose, he is liable in assumpsit for money had and received to the person to whom the money should have been paid.</p> <p>9. Officers, § 52*—when public officer cannot attack validity of bonds in action for misapplication of funds raised to pay the bonds. In an action against the officers of a drainage district to recover against them personally for misapplying funds raised to pay bonds, the officers cannot avoid their liability by alleging and proving the illegality of the bonds.</p> <p>10. Officers, § 54*-—when public officers personally liable for failure to perform duties. Where public officers fail to perform a public duty and thereby cause an injury special and peculiar to such individual, an action will lie against them personally; and if the injury is caused by the joint action of the officers, a joint action may be maintained either in the case of a breach of a contract express or implied or in the violation of a duty whereby a tortious injury is inflicted.</p> <p>11. Appeal and error, § 1672*—when objection for misjoinder of counts is waived. Objection that a special count in a declaration is in tort and that such count cannot be joined with the common counts or any count in assumpsit is waived where such objection does not appear to have been urged in the trial court and the general issue in assumpsit was pleaded to such plea.</p>

<p>1. Landlord and tenant, § 470*—when equity will relieve against forfeiture for nonpayment of rent. One of the familiar instances of equitable relief is its prevention of a landlord’s attempted termination of a lease for the nonpayment of rent. Equity will relieve in such cases where compensation can he made and money and interest are compensation, and such relief will be afforded although the lessor may in ejectment have recovered the possession of the premises.</p> <p>2. Landlord and tenant, § 504*—when judgment entered against tenant for possession does not conclude him from relief in equity. In an action of ejectment or the statutory action of unlawful detainer the right of possession alone is involved, and the judgment in such action does not conclude the lessee from relief in equity.</p> <p>3. Landlord and tenant, § 471*—when injunction will issue to restrain enforcement of forfeiture for nonpayment of rent. On bill for relief against a forfeiture for nonpayment of rent, if there is no special reason to the contrary, an injunction thereupon goes to restrain further steps to enforce the forfeiture.</p> <p>4. Landlord and tenant, § 471*—what essential on hill for relief against forfeiture for nonpayment of rent. On bill in equity for relief against a forfeiture for nonpayment of rent, all arrears of rent, interest and costs must be paid or tendered.</p> <p>5. Landlord and tenant, § 119*—effect of assignment of lease or alienation of the premises. The right of a lessee is not affected by the lessor’s assignment of the lease and alienation of the premises; the alienee succeeds to the right accruing subsequent to the alienation but is subject to all the rights and equities of the lessee against the lessor.</p> <p>6. Landlord and tenant, § 123*—when payment of rent in advance is good as against subsequent assignee of lessor. An advancement by the lessee for a term of years to the lessor of a certain sum under an agreement that the amount so advanced should apply on the last year’s rent is a good payment of that year’s rent as against an assignee of the lessor who took the assignment while the lessee was in open possession.</p> <p>7. Landlord and tenant, § 51*—when antecedent parol agreement admissible. On bill filed by a lessee against the assignee of the lessor to redeem from a forfeiture for the nonpayment of rent, evidence showing that the lessor orally agreed before the execution of the lease that in case the lessee and others should be required to pay a certain promissory note given by them to the lessor to enable him to raise money for a building, the amount so paid should apply on the rent thereafter accruing, held admissible as being an antecedent parol agreement collateral to the lease.</p> <p>8. Evidence, § 350*—when proof of oral separate agreement not a violation of parol evidence rule. The rule that parol evidence is inadmissible to vary the terms of a written instrument is not violated by allowing testimony of a distinct, valid, collateral, contemporaneous or antecedent agreement between the parties which was not reduced to writing where the same is not in conflict with the terms of the written instrument.</p> <p>9. Notice, § 17*—when assignee of lessor charged with notice of tenant’s rights. Assignee of lessor takes subject to the rights of the lessee where the lessee was in actual and visible possession at and before the time of the assignment of the lease, such possession being constructive notice to him of whatever rights the possessor then had in the premises.</p> <p>10. Appear and error, § 866*—when abstract of record insufficient. A printed copy of the record is in no sense an abstract of the record.</p> <p>11. Costs, § 74*—when appellant will not be allowed costs for printing abstract not conforming to rules of court. Where what is called an abstract of the record is a copy of the record and in no sense an abstract thereof, appellant will not be allowed costs for printing same.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 313*—when employe riding on pass is a passenger for hire. An employe of a railroad company riding on a coupon pass to and from his place of work, held a passenger for hire and for a consideration, the consideration being that the company was enabled to draw its employes from a larger body subject only to the expense of their transportation.</p> <p>2. Cashiers, § 305*—when exemption from liability on back of pass is invalid. The law of Illinois renders invalid as against a passenger for hire or consideration an exemption or waiver and release of liability for negligence which appears on the back of. a pass in these words: “By the acceptance and use of this ticket any and all claims on this company, whether due to negligence of its agents or otherwise, for injury to the person * * * of the holder are waived and released.”</p> <p>3. Instructions, § 88*—when giving of instruction as to preponderance of evidence not reversible error. The giving of an instruction on what the jury may consider in determining the preponderance of the evidence, the language thereof being identical with a similar instruction passed upon by the Supreme Court in Beering v. Bareak, 227 Ill. 71, held not of itself ground for reversal.</p> <p>4. Appeal and error, § 438*—when objection for variance not preserved for review. Objection for variance between the declaration and the proof cannot be considered on review when not made the subject of objection or comment in the court below.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Cottbell, Judge, presiding.</p> <p>Certiorari granted by Supreme Court.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry L. Persons, Judge, presiding.</p> <p>Certiorari granted by Supreme Court.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.</p>

<p>1. Contracts, § 153*—when agreement not to sell products of sand and gravel pits not in unreasonable restraint of trade. Where a contract grants the exclusive right to excavate and remove sand and gravel from a tract of land for a certain period, and in consideration for the privilege granted the grantee agreed to make certain payments in money, to deliver to the grantor not to exceed twenty-five carloads of the product per day, and not to sell during the contract term any products from any of its pits for use in Cook county, except to the grantor, held that the negative covenant contained therein is not in unreasonable restraint of trade, but that its provisions are reasonable and only in partial restraint, and founded upon a valid consideration.</p> <p>2. Contrasts, § 152*—when negative covenant in partial restraint of trade not invalid. Where the restriction of a negative covenant is partial, reasonable and calculated to foster the business of the covenantee, rather than to destroy competition, it cannot he held to he in violation of the Federal or State statutes, or against public policy, and therefore void.</p> <p>3. Contracts, § 329*—-when breach of contract waived. A party to a contract waives a breach thereof by the other party where he makes no attempt to rescind therefor but avails himself of its benefits long after the breach was committed.</p> <p>4. Injunction, § 75*—when lies to enforce negative covenant though remedy at law. The right to an injunction for the enforcement of a negative covenant in a contract does not depend on the question whether complainant has an action at law or not to recover damages.</p> <p>5. Injunction, § 75*—when violation of negative covenant may be enjoined. Equity may interfere to restrain the violation of a negative provision in a contract although it cannot enforce the affirmative one where the negative and affirmative provisions are entirely separate and distinct.</p> <p>6. Assignments, § 22*—when assignment of rights under a contract operates to establish privity of estate. Where a contract grants an exclusive privilege to take sand and gravel from certain land for a term of years and the grantee assigns his entire term leaving no reversionary right, there is a privity of estate .between the assignee and the original grantor.</p> <p>7. Assignments, § 25*—when assignee of rights under a contract takes with notice of liabilities. Where a contract grants a company a privilege of taking sand and gravel from certain premises and such company assigns all its interest thereunder to another company, the latter company will be charged with knowledge of the duties and liabilities of the former company under the contract where both companies had substantially the same persons as officers, each company occupying the same offices and sharing the same telephone service.</p> <p>8. Licenses, § 29*—when grant of right to take gravel from land not grant of mere personal license. A contract granting the exclusive right to take sand and gravel from certain premises, the right not being limited to any particular piece or section, clearly grants an interest in the land and not a mere personal license.</p>

<p>1. Bankruptcy, § 47*—effect of filing of appeal bond as a supersedeas. A proceeding for the appointment of a receiver under section 3e of the Bankruptcy Act is separate and distinct from a proceeding to adjudicate; so that where an appeal is taken from an order dismissing the petition, the filing of an appeal bond does not operate as a supersedeas so as to prolong the receivership but operates to supersede only the order of dismissal.</p> <p>2. Bankruptcy, § 48*—damages recoverable in action on appeal bond. In an action against a surety on an appeal bond given under section 25 of the Bankruptcy Act on the taking of an appeal from an order dismissing a petition to have plaintiff adjudicated a bankrupt, held error for the court to assess damages based upon proof of the detention of the property by the receiver after the appeal bond was filed and held error for the court to assess other than nominal damages, there being no competent proof of damages and no proof even of the costs incurred in the proceeding for adjudication.</p> <p>2. Appeal and error, § 1810*—when Appellate Court may reverse and enter final judgment. In a case in which the jury was waived, the Appellate Court may not only reverse but may also render final judgment if the law as applied to the facts found by that court necessitates such a judgment, and if it can be ascertained from the facts so found what judgment ought to have been rendered by the court below.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 17*—necessity of written motion to direct verdict. A motion for a directed verdict in the Municipal Court need not he in writing.</p> <p>2. Trover and conversion, § 39*—rollen evidence insufficient to connect defendant with taking of plaintiff’s property. In an action to recover the value of railroad ties alleged to belong to plaintiffs and to have been taken and used by defendant, evidence held insufficient to establish a prima facie case for plaintiffs, it appearing from the evidence that both parties had separate piles of ties at a certain place, and that the ties were distinguished by private marks, but the evidence to connect the defendant with the taking of the ties was largely circumstantial, which considered with other evidence did not fairly tend to show that defendant took the ties.</p> <p>3. Trover and conversion, § 38*—when statement of defendant’s employe inadmissible. In an action to recover the value of railroad ties alleged to have been taken and used by defendant, a statement by an employe of defendant made some two years after the event amounting to an admission that he took the ties, held inadmissible for the reason that it was no part of the res gestae.</p> <p>4. Evidence, § 185*—when declaration of agents not admissible. Rule that declarations of an agent to be admissible must he part of the res gestae applies to corporations who can speak only through agents.</p> <p>5. Appeal and error, § 1467*—when error in admission of incompetent evidence harmless. Whether error was committed in permitting one of plaintiff's witnesses on cross-examination to testify to a certain fact need not he considered where such evidence may well have been excluded in acting on a motion to direct a verdict.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Duane J. Carnes, Judge, presiding.</p> <p>Certiorari granted by Supreme Court.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 686*-—when employer not negligent in providing fireman in hotter room*a safe place to work. In an action by a fireman for injuries sustained by falling in an ash pit beneath defendant’s boilers, the defendant being charged with negligence in not properly guarding the pit as required by section 4 of the Act of 1910 (R. S. ch. 48, ¶ 92, J. & A. ¶ 5389), in permitting the steam to escape in the room and allowing broken windows to permit the cold air to come in contact with the steam so as to cause it to condense, held that the evidence did not show the statute was violated and that the mere escape of steam did not render the boiler room an unsafe place to work.</p> <p>2. Master and servant, § 561*—admissibility of evidence. Under a declaration charging employer with negligence in- allowing steam to escape in the boiler room and in allowing window glass to remain broken so that cold air would cause the steam to rapidly condense, held that testimony as to the breaking of a “T” was erroneously admitted as no mention was made thereof in the declaration.</p> <p>3. Master and servant, § 98*—statute imposing duty to guard hatchways construed. Section 4 of the Act of 1910 providing for the health, safety and comfort of employes (R. S. 1911, ch. 48, ¶ 92, J. & A. ¶ 5389) does not require hatchways to be fenced while in use, in addition to providing a covering therefor when not in use.</p> <p>4. Statutes, § 27*—when defendant not required to plead the exception in a statute. In an action based on section 4 of R. S. ch. 48, 92, J. & A. ¶ 5389, to recover for personal injuries resulting from falling into an open hatchway, defendant is not required to plead specially the exception mentioned in the statute.</p> <p>5. Master and servant, § 302*—when doctrine of assumption of risk inapplicable. Doctrine of assumption of risk is not applicable where there has been a violation of a statute.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.</p>

<p>1. Appeal and error, § 269*—when provisions in decree do not affect its final character. Provisions in a decree for an accounting and reserving jurisdiction for the purpose of enforcing the decree do not affect its final character.</p> <p>2. Equity, § 149*—determination of character of hill. A bill in equity which is in its essence and effect a bill to declare a forfeiture of a lease will be considered as such, though the complainant by ingenious phrasing of the prayer of the bill asks to have the leasehold estate decreed to have been surrendered by operation of law.</p> <p>3. Fobbeitubes, § 6*—enforcement of forfeitures in equity. Equity will not interfere on behalf of a party entitled to a forfeiture to enforce the same, but will leave him to his legal remedy, if any, even though the case might be one in which no equitable relief .would be given to the defaulting party against the forfeiture. The functions of a court of equity are to grant relief against a forfeiture in a proper case, but never to enforce it.</p> <p>4. Landlobd. and tenant, § 415*—effect of attempted assignment of leasehold to nonexisting corporation. Where an attempted assignment of a leasehold by the lessee, with consent of the lessor, to a corporation fails because of the nonexistence of the corporation, such assignment does not amount to a surrender of the leasehold estate by operation of law as between the lessor and lessee, and the lessee in such case holds as a trustee for the stockholders and bondholders of the corporation for the amount paid him for the leasehold by the persons acting in the name of the corporation.</p> <p>5. Landlord and tenant, § 470*—when lessor estopped to insist on forfeiture of lease. On bill in equity to enforce a forfeiture of a lease, alleging that there had been a surrender of the lease by operation of law resulting from an assignment of the lease by the lessee to a corporation not in existence, and that the lessee had made a conveyance without lessors’ consent, subsequent acts and conduct of lessors together with prior adjudications held to estop the lessors to insist upon a forfeiture.</p> <p>6. Trusts, § 4*—when trust created for money paid. Where a person holds an estate for which he has been fully paid by another or others, a trust results for the benefit of those who paid the money.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 87*—when defendant in suit for wages entitled to deduction of credits. In an action for wages a verdict in favor of plaintiff held too large in view of evidence showing that defendant was entitled to certain items as credits, and judgment was affirmed upon condition of remittitur.</p> <p>2. Witnesses, § 33*—competency of plaintiff’s wife to testify. In an action for wages where plaintiff testified that his wife on several occasions collected money for him from the defendant, held not error to permit plaintiff’s wife to testify to a conversation with the defendant concerning plaintiff’s account.</p> <p>3. Appear and error, § 523*—method of making objections to oral instructions. Improper on making objections to oral instructions to divide the oral charge into separate numbered paragraphs.</p>

<p>1. Municipal Court of Chicago, § 16*—-what does not constitute waiver of jury trial. Failure of defendant to file a written demand for a jury trial when he appears to require nonresident plaintiffs to file a bond for costs, held not to waive his right to trial by jury.</p> <p>2. Municipal Court of Chicago, § 16*—-when demand for jury trial may be filed. Defendant sufficiently complies with statute requiring the filing of a written demand for jury trial where he files such demand and pays jury fees when he appears for the first time in answer to plaintiff’s claim upon the merits.</p>

<p>1. Attorney and client, § 150*—when evidence shows want of good faith in serving statutory notice for lien. On bill filed by an attorney to enforce a lien for attorney’s fees under Hurd’s R. S. 1912, ch. 82, ¶ 55, J. & A. ¶ 611, a decree dismissing the bill for want of equity on sustaining a plea alleging that complainant’s notice for a lien was not served in good faith, but was served for the purpose of defrauding a creditor of the judgment creditor, held sustained by the evidence.</p> <p>2. Appeal and error, § 1165*—when court may consider only questions parties see fit to present. Where adult litigants are concerned and private rights, only, are involved, the practice considered proper is to decide such questions as they see fit to present.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Execution, § 302*—admissibility of evidence on petition under Insolvent Debtors’ Act for discharge from custody under a capias ad satisfaciendum. On petition to the County Court for a discharge under the Insolvent Debtors’ Act, J. & A. ¶ 6199, where petitioner had been arrested upon a capias ad satisfaciendum issued upon a judgment entered by default against him in an action for slander in which the words alleged to have been uttered were actionable per se, refusal of court to hear evidence dehors the records to prove that the words were not uttered maliciously, held proper for the reason that the question whether malice was the gist of the action must be determined solely from the record of the slander suit.</p> <p>2. Execution, § 295*—when record of action for slander conclusive on petition for discharge under Insolvent Debtors’ Act. Where a default judgment is entered against the defendant in an action for slander for words spoken which are actionable per se, the words spoken are admitted to be false by the default, and that they were maliciously uttered is conclusively presumed from the facts thus admitted and from the absence of any plea of justification or excuse.</p> <p>3. Libel and slander, § 21*—when malice presumed. In an action for slander if the words charged to have been falsely uttered are not actionable per se, it is necessary to prove malice in fact; but if the words spoken are actionable per se then the law conclusively implies malice from the use of such words if false and uttered without legal justification or excuse.</p> <p>4. Libel and slander, § 31*—when imputation of theft actionable per se. The words, “this woman has stolen the watch and chain belonging to my son,” are actionable per se.</p>

<p>1. Bankruptcy, § 59*—when discharge of partnership in bankruptcy releases individual partners. Where a bankruptcy court adjudicated a partnership a bankrupt without adjudicating as bankrupts the individual members thereof or requiring .them to file schedules of their individual property and entered a judgment confirming a composition agreement whereby the partnership creditors were paid seventy-five cents on the dollar, held that not only was the indebtedness of the partnership discharged but the individual partners were also discharged from the payment of such indebtedness, and that the partnership creditors had no right to pursue the adjudicated partners by actions at law or in equity to recover the deficiency upon their claims.</p> <p>2. Bankruptcy, § 54*—conclusiveness of judgment of bankruptcy court. A judgment of a bankruptcy court adjudicating a partnership a bankrupt and confirming a composition agreement without adjudging the members of the partnership individually bankrupt is res adjudicata until reversed in a direct proceeding, and cannot be collaterally attacked as not being a valid discharge of the partnership without an individual adjudication in bankruptcy of the members thereof.</p> <p>3. Bankbuptcy, § 55*—effect of interlocutory order as construing decision of bankruptcy court. On adjudication of a partnership as a bankrupt, an interlocutory order of the bankruptcy court approving a referee’s report recommending that a proviso to the composition agreement should be withdrawn because it deprived creditors of the right to proceed against the individual partners for deficiencies, is not conclusive to show that the court decided that the partners were to remain individually liable.</p> <p>4. Estoppel, § 6*—when acts of parties in bankruptcy do not create an estoppel. Where upon the adjudication of a partnership in bankruptcy the referee’s report recommended that a proviso to the composition agreement should be withdrawn to give partnership creditors the right to proceed against the individual partners for deficiencies, and thg court by an interlocutory order approved such report, held that the fact that the partners withdrew such proviso did not estop them from denying their individual liability for the deficiencies.</p> <p>5. Injunction, § 15*—when issues to restrain suits against partners discharged in bankruptcy. Permanent injunction will issue to restrain partnership creditors from bringing suits against individual copartners released from payment of partnership debts by a discharge of the partnership in bankruptcy.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 289*—-when tenant holding over liable for amount of rent fixed by landlord. Where a tenant occupying premises under a verbal lease, paying rent from month to month, served notice of his intention to vacate at the end of the month and the landlord accepted such notice but offered to permit tenant to hold over a few months at a certain rental payable in advance, held that tenant by holding over for ten days after the time for vacating was liable for a month’s rent at the rate specified by the landlord.</p> <p>2. Landlord and tenant, § 188*—when tenant not entitled to damages for failure of landlord to furnish power. In an action on a verbal lease for rent of space in a building where the tenant claimed damages for failure of landlord to furnish power to run tenant’s machinery, a judgment in favor of landlord disallowing damages held sustained by the evidence, it appearing that the lease only required the landlord to furnish such power as he had and his failure to furnish power resulted from an unavoidable breakdown of the landlord’s power plant which occasioned only temporary cessation of power.</p>

<p>1. Sales, § 141*—basis for determining whether goods equal samples. The condition and quality of goods at the time and place of delivery- to the buyer is the basis for determining whether the goods sold were equal to the samples.</p> <p>2. Sales, § 200*—title to goods when seller is made consignee in bill of lading. Where a shipper of goods makes himself the consignee in the bill of lading, the carrier is but a bailee for the shipper.</p> <p>3. Sales, § 200*—when title to shipment passes, the seller being named in bill of lading as consignee. Where a seller in making a shipment of goods to a buyer has himself named in the bill of lading as consignee, and sends the bill of lading with draft attached to a bank to collect from the buyer, the delivery to the railroad company does not constitute a delivery to the buyer. In such case the seller retains title and control of the property while the goods are in possession of the carrier and the title does not pass nor is there any lawful delivery to the buyer until he pays the draft and receives from the bank the bill of lading.</p> <p>4. Sales, § 352*—when buyer entitled to recover money paid on shipment of frozen eggs unfit for use. A produce company in Boston wired a commission merchant in Chicago to ship a quantity of frozen eggs, the same as samples. The- commission company shipped the eggs from Milwaukee, having the bill of lading name itself as consignee and sent the bill of lading with a draft attached to a bank in Boston for collection. After the produce company paid the draft and freight the eggs were condemned by the government officials as unfit for food. Held, in an action against the commission company by the produce company to recover the amount of the draft and the freight charges paid, alleging a breach of warranty and that the eggs were unfit for use, that plaintiff was entitled to recover, the evidence being, sufficient to show that the eggs were unfit for food and not equal to samples at the time and place of delivery, whether the place of delivery be considered as Boston or Milwaukee.</p> <p>5. Judgment, § 401*—when judgment in rem res adjudicata. Where a consignment of frozen eggs purchased by plaintiff according to sample was seized by the government before delivery to plaintiff as unfit for human consumption, proceedings in rem being commenced by the government in the Federal Court, of which both plaintiff and defendant had notice, and a decree of forfeiture being entered ordering the destruction of the eggs, in an action by the purchaser to recover the purchase price and freight charges paid by him, on the ground of breach of warranty in the sale by sample, the decree in the in rem proceeding is res adjudicata as to both parties as to the condition of the eggs at the time of seizure by the government.</p>

<p>Abstract of the Decision.</p> <p>1. Istructions, § 129*—when instructions directing verdict upon determination of preponderance of the evidence improper. In as action for personal injuries, an instruction given at the instance of defendant in the words: “If the evidence in this case preponderates in favor of the defendant, then your verdict should be not guilty. Or, if the evidence fails to preponderate in favor of plaintiff, the jury should find the defendant not guilty. Or, if the evidence in the case is evenly balanced, the jury should find the defendant not guilty,” held misleading because it does not restrict the evidence referred to, to the issues essential to the maintenance of the action, and also subject to criticism because it too frequently uses words to the effect that the jury should find the defendant not guilty.</p> <p>2. Instructions, § 82*—when instruction as to credibility of testimony of one party improper. Where both plaintiff and defendant testify in the suit, an instruction to consider the interest of the plaintiff in giving credence to her testimony, without any reference to the interest of the defendant, held calculated to impress the jury that the court entertained a special reason for discrediting the testimony of plaintiff.</p> <p>3. Instructions, § 59*—when instruction as to relative rights of defendant and third party misleading. In an action for personal injuries alleged to have resulted from the negligent driving of a wagon, an instruction given for defendant with reference to the relative rights of defendant and the street railway company as to the use of the street at the place of the accident, held, misleading where the street railway is not a party to the action.</p> <p>4. Damages, § 209*—when instruction limiting damages to sum received by plaintiff in consideration of dismissing suit against party made codefendant prejudicial. In an action for personal injuries where the action was originally .commenced against the defendant and a street railway company, but plaintiff in consideration of two hundred dollars entered into a peace covenant as to the railway company and dismissed the action as it only, an instruction given for defendant that the jury must find for defendant in case the damages sustained were not in excess of the two hundred dollars received by plaintiff from the railway company, held erroneous and prejudicial.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Execution, § 302*—when evidence on question of malice for discharge from custody under a ca. sa. On petition filed by a judgment debtor in the County Court under the Insolvent Debtor’s Act, J. & A. ¶ 6199, to be released from custody under a capias ad satisfaciendum issued on a judgment, refusal of court to permit the petitioner to show by evidence that malice was not the gist of the action for the reason that the judgment record was res adjudicata on the question, held proper.</p> <p>2. Execution, § 295*—when record of judgment conclusive on question of malice on petition for discharge from custody under a ca. sa. The record of a judgment in tort recovered against defendant in an action charging defendant with making fraudulent representations that a trust deed was first lien upon real estate described therein to induce the plaintiff to purchase the deed, held res adjudicata on the question whether malice was the gist of the action, it appearing that the jury returned a special finding and the court found that the misrepresentations were made with malicious and fraudulent intent.</p>

<p>1. Quo warranto, § 10*—when special State’s Attorney is incumbent of an office. The appointment by the court of a special State’s Attorney to prosecute, instead of the State’s Attorney, in certain cases authorized by statute, constitutes such appointee the incumbent of an office within the meaning of the Constitution and laws, so that his right and title to the office may be tested in a quo warranto proceeding.</p> <p>2. State’s attorney, § 3*—at whose instance special State’s Attorney may be appointed. The jurisdiction of the court to appoint a special State’s Attorney need not necessarily be invoked at the instance and upon the petition of the State’s Attorney but may be properly invoked by the court on its own motion or upon the petition of a citizen.</p> <p>3. State’s attorney, § 3*—when petition alleges facts sufficient to warrant appointment of special State’s Attorney. A petition for the appointment of a special State’s Attorney to investigate frauds practiced in a general election in which there were different candidates for the office of State’s Attorney, held to state facts to suffi ciently inform the court that the candidate elected was “interested” in the cause or proceeding which was or might be his duty to prosecute and to warrant the appointment of a special State’s Attorney.</p> <p>4. Courts, § 121*—when acquisition of jurisdiction by one judge does not preclude another judge from, assuming jurisdiction. The fact that a judge of the Criminal Court of Cook county had already acquired jurisdiction of the investigation and prosecution of frauds committed in the election of State’s Attorney upon the petition of the State’s Attorney for the appointment of a special State’s Attorney, does not preclude another judge of the same court from assuming jurisdiction to hear and act upon a petition presented to him by other parties for the appointment of a special State’s Attorney to investigate and prosecute election frauds, where the scope of the investigation and prosecution involved in the latter petition is more comprehensive than that involved in the former petition. n</p> <p>5. Judgment, § 250*—amendment of record pending term. At the same term all proceedings rest in the breast of the judge of the court, and he may amend his record according to the facts within his own knowledge.</p> <p>6. Appeal and error, § 936*—when record shows basis for order to file amended petition nunc pro tunc. Where the record shows that a petition for the appointment of a special State’s Attorney was presented to a judge and that the judge assumed jurisdiction of the subject-matter involved and granted leave to file an amended petition and that on the following day, being of the same term of court, the judge directed the amended petition to be filed- nunc pro tunc as of the previous day, held that the record of the proceedings had on the first day, even if based solely upon the facts within the personal knowledge of the judge, imported verity and that such record constituted a sufficient note or memorandum, if any was necessary, upon which to predicate the nunc pro tunc order.</p>