Volume 186 — Illinois Appellate Court Reports

<p>1. Insurance, § 793*—when provision in by-laws for suspension of member for failure to pay monthly assessments is waived. Bylaws of a mutual benefit association providing for suspension of a member on Ms failure to pay any monthly assessment, held waived where a member who fell behind in the payment of two monthly assessments had been allowed for nine years to make his payments quarterly and had received notice from the collector to pay the assessments due by the first of the following month, and on payment being offered it appeared that the association refused to .accept the same because he was sick.</p> <p>2. Contracts, § 331*—necessity of notice after waiver of strict performance as to time of payment. Where strict and exact performance in the matter of payments on a contract at the exact times therein specified have been waived for a portion of the time of such contract, and such delayed payments have been accepted without complaint for a considerable time, reasonable notice thereafter of an intention to return to the strict and exact terms of the contract must he given before a forfeiture or rescission thereof can he declared in law by either party.</p> <p>3. Insurance. § 797*—power of agents of benefit society to waive provisions of contract. A restriction upon the power of an agent of a benefit society to waive any conditions of the contract, or upon the manner of their waiver, is a condition which may itself he waived.</p> <p>4. Insurance, § 798*—authority of persons designated to malee icottections to waive provisions regarding payment of assessments-. lit is not within the power of a mutual benefit association to defeat .the legal defense of waiver of the provisions of its contracts in the matter of collecting assessments, by declaring that its collector and the subordinate council, whom it has designated to make such collections, are not its agents, or that they have no power to waive for it the provisions of the contract with reference to the payment of assessments.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 936*—sufficiency of evidence for amendment of record. Where an order of court amending any record is resisted it cannot he legally made upon parol evidence, but only upon sufficient evidence appearing by some memorandum, minute or note of the judge, or something appearing in the record or files of the court to show the facts in respect of which the amendment is sought to he made. No record can be made or determined from the memory of witnesses or the personal recollections of the judge himself.</p> <p>2. Appeal and error, § 1318*—when order denying amendment of MU of exceptions presumed supported 6y the evidence. Where a party seeks to question the correctness of an order of the trial court in allowing or. denying a motion to amend a bill of exceptions, he must show by a bill of exceptions the evidence upon which the court acted. In the absence of such showing it will be presumed that the court’s order was supported by the evidence.</p> <p>3. Appeal and ebbob, § 936*—when record does not show error of court in refusing to amend hill of exceptions. Refusal of trial court to enter a nunc pro tunc order for the amendment of a bill of exceptions by having certain affidavits made on behalf of plaintiffs in error in support of their motion for a new trial made a part thereof, held not error where there were no minutes of the trial judge introduced in evidence and incorporated in the record and no proper evidence in the record that the affidavits were ever read to the court or presented to him for consideration on the motion for a new trial or otherwise, although there was a recital in the record “that it appeared to the court from an examination of his minutes” that the said affidavits were read to the court during the argument of the motion for a new trial, but such recitals being insufficient as not being a recital of the evidentiary facts.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding.</p>

<p>1. Corporations, § 683*—necessity of foreign corporations re-qualifying under the Act of 1905. A foreign corporation having qualified in 1897 to do business in this State, held not required to requalify under the Act of 1905, J. & A. 1T 2525.</p> <p>2. Corporations, § 661*—when defenses of want of corporate existence or abuse of powers of foreign corporation not available. Where a foreign corporation organized to construct buildings, to do general contracting and building business, and to do a general collection business and authorized to do business in this State, sues a tenant for rep.t, the action cannot be defeated by a defense of the tenant that the corporation has no corporate existence or that it has abused its rights by acquiring more real estate than it actually needs to carry on its business, since such questions can only be raised by the State in a direct proceeding by quo warranto.</p> <p>3. Judgment, § 519*—matters of which a judgment in forcible entry is res adjudicata. A judgment in favor of a foreign corporation in a suit by it in forcible detainer is res adjudicata on all defenses which could have been made in the case, including the questions of the validity of the lease, the right of the corporation to make the lease and the right of the corporation to sue for possession and recover thereunder.</p> <p>4. Landlord and tenant, § 504*—liability of tenant on covenants in lease after recovery in forcible detainer. Under a provision in a lease that the lessor in default of payment of the rent may take possession either by forcible detainer or otherwise, without the same working a forfeiture of the rents to be paid and the covenants to be performed during the full term of the lease, held that the lessor recovering a judgment in forcible detainer could thereafter sue and recover under various covenants in the lease.</p>

<p>Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding.</p>

<p>1. Master and servant, § 689*—when evidence insufficient to sustain recovery under Federal Safety Appliance Act. In. an action against a railroad company for damages on account of injuries sustained by a switchman while uncoupling cars alleged to have been caused by the negligence of the company in hauling and using a car with a coupler in a defective condition, in violation of the Federal Safety Appliance Act, held that a recovery for plaintiff was not sustained by the evidence, the evidence being insufficient to show that the appliance was defective, or to show that plaintiff was injured in the act of uncoupling the cars, or to show that a failure of defendant to comply with the statute was the proximate cause of the injury.</p> <p>2. Appeal and error, § 1300*—when presumptions not applied to matters not proved. Any essential matter of fact not inferable from the entire evidence will not be supplied from presumption, thus no presumption follows from the use of a model at the trial, not put in evidence.</p> <p>3. Master and servant, § 98*—when master not liable under Federal Employers’ Liability Act. The Federal Employers’ Liability Act is not aimed at the dangers incident to preventing the recoupling of cars about to be “kicked.”</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding.</p>

<p>1. Insurance, § 67*—when recovery from broker for breach of agreement to procure insurance in certain companies not warranted. In an action by several plaintiffs to recover a sum alleged to have been paid by plaintiffs to the defendant as part of the premiums due on certain fire insurance, it was alleged that the defendant agreed to procure the insurance for plaintiffs in certain companies but that it procured the insurance in such companies and another company in violation of the agreement. Held that a judgment for plaintiffs could not be sustained, it appearing that a certain brokerage company to whom the money was paid was the agent of the plaintiffs to procure the insurance and that such company prior to the time the policies were issued, and prior to the time the premium was paid, was informed of the names of the companies that had issued the insurance.</p> <p>2. Insurance, § 49*—when proposition of law that broker acts as agent for assured is correct. In an action against an insurance broker to recover premiums paid where the broker procured insurance in companies not authorized by his principal, the following proposition of law was held to be a correct statement and applicable to the case: “The court holds as a proposition of law, that where a person or a corporation authorizes a broker to secure insnrance, that in procuring such insurance the broker is the agent of the assured; and if a binder is issued upon such application, and prior to the time that the policies are issued, and prior to the «time that the premium or any part thereof is paid, the broker is informed of the names of the companies that have issued the binder and that are thereafter to issue the policies, then the knowledge of the broker as to the names of such companies is the knowledge of the assured.”</p>

<p>Abstract of the Decision.</p> <p>1. Municipal corporations, § 1007*—when city liable for injuries resulting from hole in sidewalk. In an action against a City for personal injuries resulting from plaintiff stepping into a hole in a sidewalk at the time a trap door was in course of construction, a verdict for plaintiff held sustained by the evidence.</p> <p>2. Trial, § 276*—when special interrogatories may be refused. Refusal of court to submit to jury special interrogatories which do not relate to an ultimate fact, and the most that can he said of them is that they relate merely to facts that possibly might tend, more or less, to establish the ultimate facts upon which the rights of the parties depend, held not error.</p> <p>3. Damages, § 110*—when verdict for pergonal injuries not excessive. A verdict of $5,950 for personal injuries held not excessive, it appearing that the plaintiffs hip was broken and the femur fractured and there was evidence tending to show that the injuries will be permanent and that she will never be able to walk without the aid of crutches.</p> <p>4. Appeal and ebbob, § 1561*-—when refusal of requested instructions not error. Refusal of requested instruction covered by other instructions held not error.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Robebt H. Scott, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Insurance, § 131*-—property covered by insurance policy. ¡Where a fire policy described the property insured as being “on stock of merchandise consisting chiefly of ladies’ suits, skirts and 'jackets, manufactured and in the process of manufacture, and all the materials used in the manufacture of the same, their own or held by them in trust, or on commission,” held that the policy covered furs and skins not owned by the insured but held by him “on memorandum,” to be sold in the name of the owner, though the insured’s compensation for selling them was fixed at a certain proportion of the profits.</p> <p>2. Insurance, § 218*—when printed condition in policy qualified by special provision. A general printed condition in a fire insurance policy which stated: “This policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership,” held qualified by a special provision covering property held by the insured “in trust or on commission.”</p> <p>3. Insurance, § 669*—when amount recovered on fire policy not sustained by the evidence. In an action on a fire insurance policy, a verdict for the plaintiff held to be against the weight of the evidence as to the amount of loss sustained, it appearing that the amount of loss as stated in plaintiff’s proof of loss and in the appraisers’ report was excessive and that the jury may have acted upon the erroneous assumption that the report of appraisers was conclusive.</p>

<p>1. Appeal and erbob, § 113*—when appeal may be dismissed for failure of one defendant to sign appeal bond. Where the record does not show that all the persons who joined in a prayer for an appeal signed the appeal bond, the appeal may be dismissed.</p> <p>2. Appeal and error, § 936*—when amendment of record unauthorised. At a subsequent term, an order of the trial court amending a previous order nunc pro tunc so as to show that an appeal was separately prayed, held to be of no force and effect where the minutes, files, records or papers offered in evidence did not prove or tend to prove that the record of the previous order was incorrect.</p> <p>3. Appeal and erbob, § 936*—when recital in a bill of exceptions no basis for amendment of record. A court at a subsequent term cannot change, amend or correct an order entered of record and which is required by statute to be entered of record, by a mere recital in a bill of exceptions.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Munichpad Court of Chicago, § 13a*—when proof limited to claim as made. In an action of the fourth class in the Municipal court a party is limited in his evidence to his claim as made, or as amended.</p> <p>2. Fraud, § 115*—when judgment for plaintiff not sustained 6y proof of fraudulent representations. In an action of the fourth class in the Municipal Court, where the gist of plaintiff’s claim was that because of false and fraudulent representations plaintiff was induced to part with a certain sum for which he never received any consideration, by reason of which he was damaged, held that a judgment for plaintiff could not be sustained for the reason that there was no sufficient proof of the alleged false and fraudulent representations.</p> <p>3. Judgment, § 187*—when judgment against “the defendant” in action against two defendants cannot he sustained. In an action of tort against two defendants, tried by the court without a jury, where the finding of the court as recorded is against “the defendant,” without naming him, a judgment on such finding cannot be sustained, since it is uncertain which one of the defendants was found guilty and against which one the judgment was rendered.</p>

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

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

<p>1. Carriers, § 324*—when railway mail cleric not a passenger. In an action against a railroad company for the wrongful death of a railway mail clerk, where the deceased was killed by being crushed between the mail car and a concrete abutment at the side of the track when he attempted to hoard the car while it was being switched at the depot grounds, held that there was no evidence to show that deceased was a passenger on defendant’s car and that a direction of a verdict for defendant was proper.</p> <p>2. Carriers, § 324*—rule as to railway mail clerics becoming passengers. The rule as to a railway mail clerk becoming a passenger on a car, where his duty requires him to work, is the same as that applicable to a person who intends to become a passenger on a railway train.</p>

<p>1. Witnesses, § 48*—when objection to competency insufficient. Where plaintiffs wife is competent to testify to certain facts, an objection by defendant that she was “absolutely incompetent” may be properly overruled.</p> <p>2. Witnesses, § 33*—when wife competent to testify on account of the necessity of the case. Where a wife had the custody and control of an automobile of her husband when it was struck by another automobile, and no witness of the occurrence knew the wife by sight, or knew who was the owner of the automobile which was struck, in a suit by the husband for damages to his automobile caused by the collision held that the wife, from the necessity of the case under a rule of the common law, was competent to testify that she was driving the automobile which was struck.</p> <p>3. Witnesses, § 33*—matters of which wife is incompetent to testify. In an action for damages to plaintiffs automobile caused by a collision with defendant’s automobile, where at the time of the accident plaintiffs automobile was in the custody of plaintiff’s wife alone, held that the wife was incompetent to testify to an interview with a claim agent of the defendant, in the presence of her husband and another.</p> <p>4. Witnesses, § 42*—when wife incompetent to testify as agent of husband. A wife is not a competent witness for her husband under the provision of the statute that she may tstify for her husband in matters of business transactions conducted by her as agent of the husband, where her testimony does not relate to any business transaction had or conducted by her as agent for her husband.</p>

<p>1. Libel and slander, § 27*—when publication constitutes a libel. A malicious publication expressed in printing or writing tending to injure the reputation of a person and expose him to public hatred, contempt or ridicule is a libel.</p> <p>2. Libel and slander, § 56*—when publications concerning a member of a Union are but conditionally privileged and actionable per se. In an action for libel, a declaration in the first two counts alleged the defendants maliciously published a printed circular purporting to be a statement of an association of the members of a certain Union, of which plaintiff was a member, to the members of the Union, that plaintiff had “been conniving with the proprietors of the Drover’s Journal for the purpose of interfering with and controlling certain of our Union’s activities and defeating its will and beneficial aims, and also for the purpose of depriving certain members of said Union of their means of gaining a livelihood;” and a third count of the declaration alleged that defendants published a printed circular, signed by one of the defendants, as follows: “Self-serving Trade Unionism. The above caption applies particularly to A. B. Adair. * * * Andy Adair has been the nigger in the woodpile for fifteen years or more. * * * Adair’s Italian hand is seen. Had Adair not been Adair I now would be at work in the Drover’s Journal office.” Held, that the publications were not absolutely privileged, that if privileged they were only conditionally privileged, and that the publications were each per se actionable.</p> <p>3. Libel and slander, § 90*—sufficiency of averments as to malice when publication is conditionally privileged. Where a publication alleged to be libelous is only conditionally privileged, it is not necessary to aver in the declaration the facts constituting malice, it is enough to allege that the writing was maliciously published; but it is not necessary to use the word “maliciously,” for the word “falsely” alone is sufficiently expressive of a malicious intent.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.</p>

<p>1. Wills, § 435*—when allowance to complainant of attorneys’ fees on hill to construe a will improper. Where on a bill filed to construe a will the chancellor allowed the complainant a certain amount as attorneys’ fees, held that the provisions of the will were not ambiguous and uncertain so as to justify an allowance of attorneys’ fees.</p> <p>2. Wills, § 436*-—lohen finding that wife of heir was living'harmoniously with him at time of his death sustained hy the evidence. On bill to construe a will providing that in case of death of one of the heirs the widow of such heir should become entitled to a certain amount of a trust fund in case she was living harmoniously with him at the time of his death, a finding that they were so living together held sustained by the evidence, there being evidence that they lived together for three months and no evidence in the record tending to show that they ever ceased to live together or that they ever lived together otherwise than harmoniously.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.</p>

<p>1. Insurance, § 194*—when acceptance of worthless certificate of deposit in payment of a single premium policy does not entitle insurer to cancellation of policy. On bill filed by a life insurance company to cancel a policy of life insurance executed and delivered to defendant on application for a single premium policy, it was alleged that the policy was void because there was no payment of the premium, that a certain certificate of deposit given in payment for the premium was worthless for the reason that the bank was insolvent, and that defendant knew of the bank’s insolvency and complainant did not, held that a decree, dismissing the bill for want of equity, finding that the certificate of deposit was accepted as payment in full of the premium was proper, it appearing from the circumstances attending the transaction that the certificate was taken as a “settlement” or “payment” or "exchange” for the policy and there being no sufficient proof that defendant had knowledge of the bank’s insolvency.</p> <p>2. Payment, § 7*—determination whether taking of certificate of deposit constitutes absolute payment. Whether the taking of certificate of deposit of a bank in payment of a premium on a life insurance policy is an absolute or a conditional payment may be established not only by express words but by reasonable implication from the attendant circumstances.</p>

<p>1. Municipal Court of Chicago, § 13*—when form, of statement of claim not irremediable. In an action brought in the Municipal Court on a statement of claim for goods “sold and delivered,” where it appeared before the actual trial that the suit was based on a del credere agency contract, held that the difference between a liability on del credere agency and on a direct purchase was not so great that under the reformed and summary practice in the Municipal Court a mistake in the form of the “statement” was irremediable.</p> <p>2. Contracts, § 377*—when testimony as to admissions of deponent in unfiled deposition admissible to construe contract. In an action by a coal company for coal sold and delivered to another coal company, where a contract between the parties was ambiguous as to whether it was a contract for the purchase and sale of coal or a del credere agency contract, and the court refused to require the plaintiff to file a deposition of the president of the plaintiff Company, held that the court erred in ruling that the defendant could not prove anything in the nature of an admission made by such officer of the plaintiff Company concerning the intention and meaning of the contract which could be proved by a witness who heard them made.</p> <p>3. Contracts, § 12*—when not wanting in mutuality. A contract between a coal company and another coal company in which the former agreed to furnish the latter with coal, held not wanting in mutuality.</p> <p>4. Depositions, § 28*—when party denied right to have deposition filed may introduce evidence of deponent’s admissions. Where the court refuses to require a deposition of a person to he filed or to allow a carbon copy thereof to be read, a ruling that in consequence thereof no oral testimony could he heard of anything which such person said while giving such deposition and which was made a part of the deposition, held erroneous.</p> <p>5. Factors, § 26*—when exclusion of evidence of damages ta factor’s business is error. In an action by a coal company against another coal company where the contract between the parties was held to constitute a del credere agency, action of the trial court in striking out and refusing all evidence to support a counterclaim alleging damages to defendant’s business by reason of the defaults of plaintiff in furnishing coal, held reversible error.</p> <p>6. Factors, § 26*—elements of damages provable on counterclaim for breach of contract by principal to furnish coal. In an action to recover for coal sold and delivered where the agreement constitutes a del credere agency, certain elements of damages held proper to prove on a claim of set-off.</p> <p>7. Customs and usages, § 17*—when evidence of custom competent in construing contract. Where a contract for the sale and delivery of coal exempts the seller from liability to furnish coal from lack of “car supply,” evidence of a custom of the coal district involved in the transactions concerning the furnishing of cars, held competent to aid in construing the contract.</p> <p>8. Trial, § 53*—right to open and close. Refusal of court to allow the defendant to open and close the case, held too technical and immaterial to warrant a reversal, even if it was error.</p>

<p>Abstract of the Decision.</p> <p>Municipal Court of Chicago, § 13*—when statement of claim too vague to state a cause of action. A statement of claim as follows: “Plaintiff’s claim is upon the contract hereto attached for money had and received by defendant, to-wit, $1000, received by defendant as one of the heirs of John J. Vreeland, deceased, by virtue of a settlement of the suit to contest John J. Vreeland’s will; said sum is one-sixth of the amount received by defendant,” held too vague to state a cause of action, in that it did not aver from whom defendant received the money or why and when it was received, and there was no intervening connection between it and the contract.</p>

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

<p>Error to the Superior Court of Cook county; the Hon. Arthub H. CHETLAirr, Judge, presiding.</p>

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

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

<p>Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 738*—when judgment for damages to automobile cannot be sustained. In an action against a railroad company for damages to plaintiff’s automobile by being struck by an engine at a street crossing, the evidence showed that servants of plaintiff attempted to drive the automobile over the crossing on a dark night without looking to see if a train was approaching and that there was nothing to prevent them from seeing the approaching locomotive with its headlight burning had they looked. Held that a judgment for plaintiff could not be sustained for the reason that plaintiff, through his agents, was guilty of contributory negligence.</p> <p>2. Railroads, § 668*—when driver of automobile approaching railroad crossing guilty of contributory negligence. A person driving an automobile on a dark night upon a railroad track, where it is known that trains are frequently passing, without the slightest concern whether or not a train is approaching is guilty of contributory negligence barring a recovery.</p>

<p>1. Vendor and purchaser, § 260*—when right to vendors lien is waived. Where a vendor accepts a promissory note of a third person as part of the purchase money, the right to a vendor’s lien is waived.</p> <p>2. Vendor and purchaser, § 273*—when evidence insitfficient to show right to vendor’s lien. On bill filed for a vendor’s lien upon certain real estate sold by complainants to defendants, complainants alleged that a certain paper was handed them by the defendants with the understanding that it meant that the unpaid balance of the purchase money would be paid in cash in a few days but that complainants afterward ascertained that it was a promissory note of a third party who was insolvent. Held that the evidence was insufficient to show, that complainants were entitled to a vendor’s lien, that by accepting the note for the unpaid balance they waived the right to such lien, and that the claim that they understood the paper to be an assurance that they would receive the balance of the purchase money in cash in a few days was inconsistent with their conduct after the transfer was made.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest and Hon. Frank D. Ramsay, Judges, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. False pretenses, § 40*—when instruction in prosecution for conspiracy to obtain money by false pretenses erroneous. In an action against a defendant indicted for a conspiracy to obtain money by false pretenses, and instruction telling the jury what was sufficient to sustain a charge of conspiracy and entirely omitting the element of false pretenses, held erroneous.</p> <p>2. Criminal law, § 293*—when instruction as to proof of guilt erroneous. An instruction after stating the rule of law that defendant is presumed to be innocent until a verdict is reached finding him guilty, further said: “This rule of law is not meant to prevent you from being convinced, of the guilt of the defendant at any time during the trial when the evidence, if any, is sufficient to so convince you of his guilt, and if you are convinced by the evidence at any time during the trial of the guilt of the defendant in manner and form as charged in the indictment, beyond a reasonable- doubt, and there is no other subsequent evidence which raises in your mind a reasonable doubt of the guilt of the defendant, and you remain so convinced until all of the evidence is in, then you should find the defendant guilty,” held erroneous and injurious to the defendant.</p> <p>3. Cbimihal law, § 305*—when instruction as to contradiction of defendant’s testimony by other xoitnesses erroneous. An instruction that the jury may take into consideration the fact, if such is a fact, that defendant has been contradicted by other witnesses, held erroneous as not being made to apply to other witnesses who were contradicted.</p> <p>4. Cbimlnal law, § 309*—when instruction on reasonable doubt improver. An instruction given for the People, relating to the subject of reasonable doubt, was a stock instruction often approved, except that there was inserted therein the following: “To acquit under the influence of doubts unreasonably created from whatever cause is a virtual violation of the juror’s oath, and an offense of great magnitude against the interests of society,” held improper as being an effort to frighten or drive the jury to a conviction.</p>

<p>Error to the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding.</p>

<p>Mortgages, § 409*—when defense of fraud and want of consideration not sustained hy the evidence. On bill to foreclose a mortgage given by the defendants to the complainant in a transaction for an exchange of lands, the defendants filed an answer setting up fraud and want of consideration and claimed that the mortgage was executed for a loan, while the complainant claimed that it was executed as part of the consideration for the trade. Held that a decree of foreclosure was sustained by the evidence, there being no evidence of fraud and it appearing from the contract for the exchange that the mortgage entered into the consideration for the trade.</p>

<p>1. Guardian and ward, § 76*—when estate of conservator not entitled to compensation for care and support of ward. Where an executor filed a report concerning the condition of accounts of the deceased as conservator of his feeble-minded stepdaughter and the report sought to charge the estate of the ward with board and clothing, care and doctor bills while she was living with the deceased, held that a judgment disallowing such charges was proper, it appearing that the ward did much of the housework and there was no evidence to show that deceased ever intended to charge her for care and support.</p> <p>2. Contracts, § 25*—obligation to pay for services and support of person living in family relation. Where a person lives in the family as if a member thereof and renders services and receives support, the services and support are all contributions to the family relation, and neither party can recover from the other therefor unless there was an express contract that compensation should be paid, or unless the circumstances are such that it will be a reasonable inference therefrom that a contract did exist or that compensation was mutually intended.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. Fbank D. Ramsay, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbatjgh, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.</p>

<p>1. Courts, § 121*—when both parties cannot appeal to different courts. Where each party is entitled to an appeal and there are different courts to which the appeal might be taken, the party who first perfects the appeal to a particular court thereby carries the entire case to that court, and the other party, if he appeals, must then appeal to same court.</p> <p>2. Justices oe the peace, § 174*—what court has jurisdiction where both parties appeal to different courts. Where the plaintiff in a suit before a justice of the peace recovered a judgment for all he asked and all the justice could give him, and a judgment for all the costs, and perfected an appeal to a city court and the defendant subsequently perfected an appeal to the Circuit Court, held that the plaintiff had no appealable interest entitling him to an appeal to any court, and that the only appeal which conferred jurisdiction was the appeal to the Circuit Court by the defendant.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 50*—what constitutes a good consideration for a note. Where a person having certain property in his possession gives his promissory note to another in settlement of a- claim of the latter that a third person’s interest in the property had been assigned to him to settle a balance due on a certain chattel mortgage, held that there was a good consideration for the note if the claim was true.</p> <p>2. Bills and notes, § 420*—when exclusion of letter is error. In an action on a promissory note, where the defense was want of consideration, exclusion of a letter offered by plaintiff to show that plaintiff was owner of certain property for which the note was given, held error where the only specific objection to its admission was that it was not written by a party to the suit.</p>

<p>Abstract of the Decision.</p> <p>1. Disorderly house, § 2*—when evidence of general reputation incompetent. On trial of a person for keeping a house of ill fame, testimony of a witness as to the general reputation of defendant’s house for chastity and morals in that community is incompetent.</p> <p>2. Evidence, § 459*—what inadmissible to prove testimony of a deceased witness on former trial. On appeal from a justice of the peace to the Circuit Court, the transcript of the evidence of a witness who testified before the justice and who afterwards died, held improperly admitted.</p> <p>3. Evidence, § 459*—foundation for introduction in evidence of what a witness swore to on former trial. Proof merely that a certain officer who tried to find a witness on subprena failed to find him is insufficient to lay a foundation for the introduction in evidence at the trial on appeal to the Circuit Court of what he swore to before the justice.</p> <p>4. Municipal corporations, § 85*—power to establish rules of evidence. An ordinance declaring that general reputation shall be sufficient to convict a person of keeping a house of ill fame is void. A city cannot establish rules of evidence.</p> <p>5. Appeal and error, § 1561*—where refusal of requested instruction harmless. Refusal of a requested instruction embodied in an instruction given held not error.</p>

<p>1. Landlord and tenant, § 240*—liability of landlord for injuries to servant of tenant resulting from defective premises. A landlord renting an old defective building with no agreement to repair is not liable for injuries resulting to a servant of the tenant from weakness and defects of the building that were as well known to the tenant as to the landlord at the time of the leasing.</p> <p>2. Landlord and tenant, § 240*—when landlord not liable for death of a servant of tenant. The owner of a building is not liable for the death of a servant of his tenant caused by want of repairs if he would not have been liable had the accident happened to the tenant under similar circumstances.</p> <p>3. Landlord and tenant, § 250*—duty of owner to public to Jceep building in repair. The owner of a building owes a duty to the public to keep it in such repair that it will not injure persons rightfully on the premises, but this is to be distinguished from his duty to his tenant.</p> <p>4. Appeal and error, § 1775*—when judgment on proof of immaterial averments of facts cannot be sustained. Neither plaintiff nor defendant is entitled to judgment in his favor on proof of immaterial averments of facts, even after verdict in his favor, however mach such facts may have been contested on the trial.</p>

<p>1. Quo wabbanto, § 57*—when corporate existence of respondent cannot be questioned on review. Where on information in the nature of a quo warranto a telephone company was brought into court by its corporate name, and the company so appeared and pleaded, its corporate existence cannot be questioned in the Appellate Court.</p> <p>2. Quo wabbanto, § 46*—when plea need not allege that respondent’s grantor was a de jure corporation. Where on information in the nature of a quo warranto charging a telephone company with using the streets and alleys without warrant or authority, respondent Company filed pleas alleging it exercised its right as grantee of another corporation, held that it was immaterial whether the pleas alleged that respondent’s grantor was a de jure corporation, that such corporation was not a party to the suit, and the validity of its charter could not be questioned in a collateral proceeding.</p> <p>3. Telegbaphs and telephones, § 7*—when telephone company cannot be ousted of its privilege to use streets and alleys. A corporation duly authorized by its charter to transact a telephone business and having for five years conducted that business in compliance with the terms of an ordinance of a city, with acquiescence of the city authorities, cannot be ousted of its privilege to use the streets and alleys of the city because its grantor may not have been a de jure corporation.</p>

<p>Error to the Circuit Court of Putnam county; the Hon. Theodore N. Green, Judge, presiding.</p>

<p>1. Contribution, § 2*—when special pleas demurrable. In an action for contribution to the payment of a promissory note, special pleas setting up a defense of want of consideration for signing the note held demurrable, for the reason that such defense is admissible under the general issue.</p> <p>2. Bills and notes, § 430*—when proof of oral statements at time of execution inadmissible. In a suit for contribution between signers of a promissory note, where the note was made and paid by the plaintiffs before the Negotiable Instrument Act of 1907 was in force, J. & A. Klf 7640 et seg., the defendant cannot avail himself of proof of oral statements made at the time of its execution that no obligation should be incurred by signing it.</p> <p>3. Principal and surety, § 98*—when defense of want of consideration available in suit for contribution. In an action for contribution between the signers of a promissory note, evidence offered by defendant tending to show either that there was no consideration for the plaintiffs’ undertaking or no consideration for his own signing, held admissible.</p> <p>4. Principal and surety, § 98*—admissibility of evidence in suit for contribution. In an action for contribution between signers of a promissory note where plaintiffs had paid the note, evidence offered by defendant to show that plaintiffs had obtained judgment against the principal debtor for the full amount that they had paid, held properly excluded, there being no offer to show that anything had been realized on the judgment.</p>

<p>Abstract of the Decision.</p> <p>Attobney and client, § 135*—when evidence insufficient to establish contract for compensation. In an action by an attorney to recover one-half the value of real estate which plaintiff took as devisee in the will of her father, plaintiff claimed he was entitled thereto under an oral contract with defendant that he should receive one-half of defendant’s father’s property he might obtain for her by inducing the father to own that defendant was his child and inducing the father to make a will devising his property to defendant. Held that a verdict for defendant on conflicting evidence whether defendant made such a contract would not be disturbed.</p>

<p>Appeal from the Circuit Court of Whiteside county; the Hon. Fbank D. Ramsay, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>1. Vendor and fubchaser, § 327*—when purchaser entitled to earnest money for failure of vendor to furnish sufficient abstract. In an action against a vendor to recover earnest money paid under a written contract for a conveyance of land in which the vendor agreed to furnish on a certain date a complete abstract of title certified by a competent abstractor, showing a merchantable title in himself, provided if there appeared to be material defects he should have a reasonable time to clear the title and be entitled to prosecute a suit for such purpose if necessary, held that the purchaser was entitled "to recover the earnest money paid with interest, for the reason that the defendant failed to perform the contract by tendering an abstract showing a merchantable title.</p> <p>2. Venue, § 4*—when defendant properly found in county for purpose of process. Where a person in obedience to a subpoena issued in a certain suit goes to a county other than his residence and while there is served with a summons in another case, held that in the absence of fraud, artifice or trick on the part of plaintiff or some one acting for him in order to obtain the service, such person was properly found in such county within the meaning of the statute.</p>

<p>1. Municipal coepobations, § 1098*—when recovery for damages to traction engine resulting from defective bridge is warranted. In an action against a city for injury to a traction engine resulting from a defective bridge, held that the jury were warranted in finding that driving the engine on the bridge was not an extraordinary use of the bridge and that plaintiff was in the exercise of due care in driving his engine upon it.</p> <p>2. Municipal coepobations, § 1071*—when person may assume bridge is reasonably safe. A municipal corporation must keep pace with the reasonable necessities of the public in the various occupations pursued in that locality in the care of its streets and bridges, and a party attempting to cross a bridge has a right to assume that it is reasonably safe for the accommodation of the public at large in the various occupations pursued in the locality where the bridge is situated, in the absence of notice to the contrary or facts sufficient to put him on inquiry.</p> <p>3. Municipal coepobations, § 1100*—when refusal of requested instructions not error. In an action against a city for injury to a traction engine resulting from a defective bridge, refusal of instructions requested by defendant submitting the question of fact whether the load put upon the bridge by plaintiff was unreasonable or extraordinary, held not reversible error where there was no ground for the contention that the load was extraordinary aud unreasonable.</p> <p>4. Municipal coepobations, § 1101*—when instruction as to liability for damages resulting from defective bridge proper. In ani action against a city for injury to a traction engine owing to a defective bridge and instruction given for defendant that the city was bound only to use reasonable care to keep its bridges in a reasonably safe condition for people using them when exercising ordinary care, and if plaintiff did not use reasonable care and prudence in going upon and attempting to cross the bridge he Could not recover, held to fairly inform the jury of the law applicable to the evidence.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Robebt W. Olmsted Judge, presiding.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Carroll county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>Sales, § 352*—when purchaser may recover overpayments resulting from shortage in weights. In an action to recover overpayments made on a carload of junk purchased by plaintiffs of defendants at a certain price a pound, it appeared that an agent of defendants represented in a memorandum that there was a certain number of pounds of different kinds of metal consisting of, brass, copper, white borings, yellow borings, brass and iron, and copper and iron, and that one of the plaintiffs inquired what the white borings were and was told to go to investigate the same at the place they were loaded in the car, which he did, and it appeared that the plaintiffs after receiving the car found there was a shortage in weight on several items and very much less “brass” than the memorandum called for, and a very much greater weight of the item of “brass and iron.” The defense to the action was that defendants did not warrant the brass to be free from iron and that plaintiffs could not recover the shortage because one of them inspected the car. Held, that the inspection was to ascertain what was meant by “white borings,” that the plaintiffs had no opportunity to ascertain the weights of each kind of metals in the car and that a verdict for plaintiffs was proper.</p>

<p>Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Fabrand, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Fareand, Judge, presiding.</p>

<p>1. Biles and notes, § 451*—when defense that obligation was discharged by agreement with one of the payees sustained by the evidence. In an action by the payees on a promissory note signed by several, where the note contained a condition that the note should be paid in railroad stock in case a certain railroad was constructed on or before the maturity of the note, and the railroad was not built within the time required by the condition, held that a defense by some of the signers, who were made defendants, that one of the payees on behalf of himself and the other payee agreed that the obligation on the note should be discharged if the defendants, who were directors of the railroad named in the condition, would furnish funds to complete the construction of the railroad, was sustained by the evidence.</p> <p>2. Bills and notes, § 294*—when obligation on note may be discharged by agreement with one joint payee. Where a promissory note is signed by several persons and made payable to joint payees, the entire obligation thereon may be discharged by an agreement with one of the payees.</p> <p>3. Pleading, § 104*—necessity of electing between inconsistent pleas. A proposition of law to the effect that if there is a conflict between two special pleas the defense must elect which one they will rely on, held not to state the law in this State.</p> <p>4. Pleading, § 104*—right to file inconsistent pleas. The right to file inconsistent pleas has always been recognized in this State, except that a plea in bar to the entire declaration pannot be filed with a plea of tender.</p>

<p>1. Intoxicating liquors, § 34*—when ordinance does not require petition on application for license. Under an ordinance requiring an application for a saloon license, to he accompanied with a petition signed by property owners but not requiring the filing of such petition, where a place was conducted as a saloon at the time the ordinance was adopted, unless the place then used for saloon purposes was vacant and abandoned for such use for seven months, held that a person conducting a saloon at the time of the adoption of the ordinance was entitled to a license without filing a petition, where he made application before seven months expired, though the mayor failed to issue the license until after the expiration of such time.</p> <p>2. Quo warranto, § 46*—sufficiency of pleas setting up right to saloon license. On information in the nature of a quo warranto to require a saloon keeper to show by what warrant he exercised his license, held that a demurrer to pleas filed by the respondent setting up facts showing his right to a license on an ordinance was properly sustained to all of the pleas except one.</p> <p>3. Quo warranto, § 46*—when pleading ordinance, etc., hy reference sufficient. On information in the nature of quo warranto against a saloon keeper requiring him to show by what warrant he exercised his license, a plea, instead of setting out ordinances, bonds and license, referred to former pleas therefor. Held that such was not model pleading but permissible.</p> <p>4. Intoxicating liquors, § 31*—when applicant for license must he in possession of premises. Where ordinances require an applicant for a saloon license to state in his application his place of business, it is necessary that the applicant shall be in possession of the premises when he makes the application.</p> <p>5. Appeal and error, § 784*—what writings must appear in hill of exceptions. On appeal from a judgment on information in the nature of quo warranto, certain written objections, motions and affidavits held no part of the record, unless made so by a bill of exceptions.</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 90*—when evidence sufficient to sustain a recovery of commissions. In an action for a commission for selling real estate belonging to defendant, a verdict for plaintiffs and a special finding that plaintiffs were the procuring cause of the sale, held sustained by the evidence, it appearing that defendant had listed the premises with plaintiffs to be sold at a certain price and that the defendant had consummated a sale with a purchaser whom the plaintiffs had negotiated with for the purchase of the property.</p> <p>2. Brokers, § 48*—when real estate agents entitled to a commission. Where real estate agents were the procuring and efficient cause of a sale they are entitled to a commission though the owner completed the negotiations.</p> <p>3. Appeal and error, § 1002*—when sufficiency of evidence to support verdict not presented for review. Where the abstract does not show that the bill of exceptions contains a motion for a new trial, it does not show that the sufficiency of the evidence to support the verdict is presented by the record. The clerk’s record cannot supply the omission.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. Geobge W. Patton, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Building and construction contracts, § 97*—admissibility of evidence. In an action for lathing done on a building, defendant testified that he paid a certain sum to a third person to secure other men to do part of the work not done by plaintiffs and such testimony was excluded. Held that exclusion of such testimony was proper where there was no testimony showing the hiring of such third person was necessary, the time spent by him in finding lathers or that such sum was a reasonable compensation.</p> <p>2. Appeal and ebbob, § 472*—necessity of preserving objection to questions asked of witness by court. Though section 81 of the Practice Act, as amended in 1911, J & A. ¶ 8618, does away with the necessity for preserving an exception, it is still the law that counsel considering themselves injured by question asked of a witness by the court must object thereto and give the trial judge an opportunity to withdraw the objectionable question.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 131*-—when evidence sufficient to sustain recovery for injuries to horses and wagon. In an action against a street railway company to recover for injuries to horses and wagon owned hy plaintiff and driven by his servant for the purpose of sprinkling the street, it appearing that the wagon was being driven along the side of defendant’s car tracks and that the wagon was struck by a street car going in the same direction, held that a verdict for plaintiff was sustained by the evidence.</p> <p>2. Street railroads, § 124*—what evidence competent to show speed of car at time of collision. In an action for injuries to plaintiff’s horses and wagon by being struck by defendant’s street car while the wagon was being driven by plaintiff’s servant, testimony by the servant as to personal injuries held competent, as tending to show the speed with which the car was driven when it struck the wagon.</p> <p>3. Appeal and error, § 1489*—when admission of testimony as to facts otherwise proved not prejudicial. In an action to recover for injuries to plaintiff’s horses and wagon while being driven by a servant of plaintiff, resulting from being struck by defendant’s street car, permitting the servant to describe his injuries held not prejudicial error, for the reason that such injuries were proved by other testimony to which no objections were made.</p>

<p>1. Corporations, § 450*—power to execute promissory notes. A corporation organized for pecuniary profit has power to give a note during the two years allowed for its liquidation for a debt which existed before the period of its corporate authority had expired by limitation.</p> <p>2. Corporations, § 57*—when estopped to deny corporate existence. In an action against a company on its promissory note where its defense was that the corporate existence of the defendant had expired by limitation before the note was given and that therefore the note was void, held that the defendant by assuming to act as a corporation was estopped from denying its existence as a corporation.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Abthob H. Frost, Judge, presiding.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding.</p>

<p>Error to the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>1. Insurance, § 761*—when benefit society cannot claim answer in application was false. Where an applicant for membership in a benefit society made true statements to the society’s examining physician and the physician wrote an inaccurate answer in the application, a defense that the answer was false cannot be maintained in a suit on the certificate by the beneficiary to recover insurance.</p> <p>2. Insurance, § 793*—when benefit society estopped to claim forfeiture of certificate for false answer in application. Where an application was addressed to a local camp of a benefit society as well as to the head camp, held that the head camp was estopped to claim a forfeiture of the certificate by reason of false answers in the application, where the local camp with full knowledge of a false answer in the application voted to make the applicant a member, accepted his dues and remitted the same to the head camp.</p> <p>3. Insurance, § 761*—when applicant by signing and delivering application does not warrant answers to be true. An applicant by-signing the application and delivering it to the society does not warrant the answers to be true, though directly beneath his signature was the following printed words: “A copy of your application for membership is attached to this certificate—Read it—. If any answer or statement therein is not correct, notify the Head Clerk at once.” „</p> <p>4. Insurance, § 761*—when examining physician is agent of benefit society. A regular examining physician of a benefit society is the agent of the society, and the society is bound by his acts within the scope of his authority notwithstanding an express stipulation in the application that the applicant makes him his agent.</p> <p>5. Insurance, § 889*—when evidence of conversation with member concerning his health competent. In an action on a benefit certificate to recover insurance, sustaining an objection to an offer to prove by a witness a certain conversation with the member concerning his health shortly before the application was made, held error.</p> <p>6. Insurance, § 889*—when declarations of member admissible in suit by beneficiary on certificate. Declarations made by the member of a benefit society against his interest are admissible in evidence against the beneficiary in a suit by the beneficiary upon the certificate after the death of the member.</p> <p>7. Insurance, § 887*—admissibility of application and examinar tion of member by another lodge. In an action by a beneficiary on a benefit certificate where the defense was that the member made false answer in his application concerning his health, defendant offered in evidence a previous application of the deceased member to another lodge, and attached thereto was an examination by the physician of such lodge in which he stated that he considered the applicant a second-class risk, etc. Held that the application was competent but that the physician’s examination not signed by the applicant was incompetent because not under oath.</p> <p>8. Trial, § 83*—when calling witness after close of case should be permitted. Where defendant, after it closed its case and plaintiff had closed its rebuttal, called an expert witness, without previously having revealed to the court that it had an absent witness and asking permission to call him, but counsel upon calling such witness stated that the witness had been absent making professional calls and could not be obtained, held that unless the court had some reason to doubt the truthfulness of counsel’s statements he should have been permitted to testify in the interest of justice, and that although the court permitted him to testify to certain things his examination was unduly restricted.</p> <p>9. Pleading, § 136*—effect of going to trial without written rejoinder. Where parties go to trial without any written rejoinder of issues upon certain replications to a plea, the case is treated as if there were oral denials of the replications.</p> <p>10. Appeal and error, § 1456*—when striking of rejoinders from files harmless. Where parties go to trial without any written rejoinder of issues upon replications, and special rejoinders are filed without leave of court and without the knowledge of plaintiff, held that the striking of such rejoinders from the files at a later term did not harm the defendant.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Irwin, Judge, presiding.</p>

<p>1. Contracts, § 157*—right to enforce contracts against public policy and prohibited by law. Where a party comes into court seeking to enforce a contract which is against public policy or is prohibited by public law, the court will refuse to aid either party and will leave them where they have placed themselves, and in refusing to enforce such contracts the court does not act for the benefit or for the preservation of the alleged rights of either party, but in the maintenance of its own dignity, the public good and the laws of the State.</p> <p>2. Sales, § 329*—when secret agreement to pay buyer’s agent commissions established by the evidence. In an action by one corporation against another to recover a balance due for goods ordered by an official of defendant corporation, a defense that there was an arrangement between such officer and an officer of the plaintiff corporation whereby the officer of defendant corporation received secret commissions on goods ordered and that such payments of money were a fraud upon defendant constituting a defense to the entire claim, held established by the evidence.</p> <p>3. Appeal and error, § 1241*—when party cannot complain of refusal to give instructions. Where a defendant otters two sets of instructions together he cannot complain of refusal of court to give one of the sets, where both sets could not be given and the choice made by the court was invited by defendant offering both sets of instructions together.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.</p>

<p>1. Waters and water courses, § 29*—when evidence sufficient to sustain a decree abating a levee. On bill filed for a mandatory injunction for the removal of a levee constructed to obstruct the flow of flood waters, a decree requiring the defendants to abate the levee held sustained by the evidence, there being evidence to show that complainant’s lands were more or less damaged by reason of the obstruction.</p> <p>2. Waters and water courses, § 12*—right to erect levee against flow of flood waters. The rule that the owner of a servient estate has no right to erect a levee to obstruct the flow of surface waters applies to the flow of flood waters.</p> <p>3. Waters and water courses, § 22*—what not a defense to bill to abate levee. The fact that the abatement of a levee would cause more harm to the persons constructing it than to the parties damaged by the obstruction, held no defense to a bill for a mandatory injunction to require removal of the levee.</p> <p>4. Appeal and error, § 1365*—when refusal of court to permit amendment and hear evidence not an abuse of discretion. Refusal of court to permit an amendment to an answer and to hear additional evidence after the case had been closed, held not an abuse of discretion.</p> <p>5. Injunction, § 216*—laches. On bill for a mandatory injunction to abate a levee, complainants held not estopped by laches.</p>

<p>1. Mines and minerals, § 47*—when complaint charging obstruction of escapement shaft insufficient. A complaint based upon a violation of clause “a” of section 9, ch. 93, R. S. 1911, J. &. A. ¶ 7483, charging that defendant then being top boss of a certain coal company did wilfully cause the escapement shaft at the mine to be locked up and obstructed so that there was no place of egress at said mine except the main shaft, held insufficient to sustain a conviction for the reason that it nowhere charges that the mine was in operation or that the shaft was so constructed that there was not a place of egress to all persons employed in such mine.</p> <p>2. Mines and minerals, § 47*—who may be- prosecuted for violation of duty in maintaining escapement shaft. Clause “a” of section 9, ch. 93, R. S. 1911, J. & A. ¶ 7483, held not to impose a duty upon an employe in a mine of maintaining an escapement shaft so that he may be prosecuted for a violation of the statute.</p>

<p>Error to the County Court of Saline county; the Hon. Kenneth C. Ronalds, Judge, presiding.</p>

<p>1. Master and servant, § 98a*—when Workmen’s Compensation Act deprives employe of right to sue. Where the employer is a corporation, section 3 of the Compensation Act of 1911, J. & A. ¶ 5451, deprives an employe from suing to recover for injuries under the Act of 1909, providing for the health, safety and comfort of employes, J. & A. ¶¶ 5386 et seq., where the injury was caused by the intentional omission of a person other than an elective officer of the corporation.</p> <p>2. Master and servant,- § 98a*—word “intentional” in Compensation Act construed. The word “intentional” in the proviso of section 3 of the Compensation Act of 1911, J. & A. ¶ 5451, was not intended to be given the broad construction of the word “wilful” is construed in the Miners’ Act.</p> <p>3. Master and servant, § 98a*—Compensation Act as affecting right of employe to sue. Section 3 of the Compensation Act of 1911, J. & A. ¶ 5451, takes away from an employe the right of action, either at common law or under the statute, relating to the safety of employes unless he brings himself within the proviso that excepts him from the operation of that statute.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>Bills and notes, § 78*—when erasures and alterations on note defeats recovery thereon. In an action against an estate to recover on a promissory note containing erasures and alterations which plaintiff claimed were made before the note was signed by the deceased, held that a judgment for defendant was sustained by the evidence, it appearing that the amount of the note, the payee and also the date had been changed and there was no explanation given as to why a new note was not prepared.</p>

<p>Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bbrnreutbr, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Wilmam E. Hadley,, Judge, presiding.</p>

<p>1. Insurance, § 752*—when statements in application not warranties. Where statements made in an application for membership in a benefit society were not incorporated in and made a part of the certificate, the statements are mere representations and not warranties,</p> <p>2. Insurance, § 897*—when waiver of by-law as to age of applicant question of fact. Whether or not there was a waiver of a by-law of the society limiting the age of applicants to fifty years,j held a question of fact, it appearing that the society had in its, power by its general conduct to waive such by-law as the. statute gave it the right to receive members under sixty years of age. ¡</p> <p>3. Insurance, § 897*—when falsity or materiality of representation in application questions of fact. In an action on a benefit certificate where statements made in the application were representations and not warranties, a defense was interposed that the member falsely stated in his application for membership that he was only forty-nine years of age when in fact he was over fifty-years of age and therefore ineligible to become a member under a by-law of the society limiting the age of applicants to fifty years. Seld that the questions, whether the statement as to age was false or whether, if false, it was material, were questions of fact for the jury and that the verdict of the jury was conclusive.</p> <p>4. Insurance, § 908*—sufficiency of instruction on burden of proof. In an action on a benefit certificate where the defense was that the member falsely stated his age at less than fifty and a bylaw of the society made persons over fifty years of age ineligible to become members, held that an instruction given for plaintiff stat'ing that there was a presumption of law that the applicant was not over fifty years of age did nothing more than announce the principle that the burden was on defendant to show that the applicant was over fifty years of age, though the use of the word “presumption” was inaccurate.</p>

<p>IsfsuBAjsrcE, § 415*—when injury while fighting covered by accident policy. The breaking of the leg of insured while engaged in a fight in which he began the assault is caused by “accidental means,” within the terms of an accident policy insuring against injuries “effected exclusively by external, violent and accidental means” where the injury is an unusual and unexpected result of the fight.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 696*—when finding that coemploye was vice-principal sustained 6y the evidence. In an action for personal injuries sustained, by plaintiff while in the employ of defendant and engaged in working with a riveting gang on a building, it appeared that plaintiff was a new man and that the injury resulted from the breaking of a defective board on which he was standing while performing his work. Plaintiff claimed that one of the gang with whom he was working was directing the work and that his failure to provide a proper scaffold was negligence of the defendant, while defendant claimed that such person was a fellow-servant. Held that the question whether such person was a vice-principal and had charge of the work was a question of fact and that a 'finding of the jury in favor of plaintiff was sustained by the evidence.</p> <p>2. Witnesses, § 179*—when question does not call for conclusion, In an action by a servant for personal injuries alleged to have resulted from the negligence of his employer, overruling objection to question asked by counsel for plaintiff as to “who had immediate charge of the work, if anybody, of riveting the pieces together” and other questions of like import, held not error under the state of the record, for the reason that the questions call for a conclusion.</p> <p>3. Master and servant, § 777*—when instruction not misleading. In an action by a servant for personal injuries, where the issue was whether a person working with plaintiff was a vice-principal, the fact that an instruction given for plaintiff did not submit the matter of who gave such person authority or how he received it, Held not misleading.</p> <p>4. Evidence, § 308*—admissibility of photographs. Admission in evidence of a 'photograph of plaintiff’s injured leg held not error, for the reason that it was not identified by the person making the photograph, where it was identified by the plaintiff in his testimony as the one taken and by the doctor as being a true representation of the leg, and the leg was also presented to jury so that even if the photograph was incorrect the jury would not be misled by it.</p> <p>5. Appeal and error, § 1637*—when defect in instruction cured by other instructions. Failure of an instruction to distinguish between what constitutes a fellow-servant and a vice-principal, held cured by other instructions given which informed the jury when a fellow-servant may become a vice-principal.</p>

<p>Appeal from the City Court of Bast St. Louis; the Hon. Robert H. Blannigan, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 179*—When recovery for injuries resulting from fall of coal sustained by the evidence. In an action for personal injuries sustained by plaintiff by a quantity of coal falling upon him from the face of the coal he was undercutting, it was alleged that the falling of the coal was on account of the rib on each side of the room being so thin as to allow the coal and pillars to press out from the face of the coal when the coal was undercut. Held that a verdict for plaintiff was sustained by the evidence, it appearing that the plaintiff was not acquainted with the conditions surrounding the room, that he had not observed the width of the pillars and that his attention had not been called to the thinness of the pillars.</p> <p>2. Mines and minerals, § 152*—when expert testimony admissible. In an action for injury to a miner alleged to have been caused by a “squeeze” in a mine, permitting expert witnesses to testify that the pillars in the room where the injury occurred were not sufficient to support the roof, held not improper where the witnesses were shown to have such knowledge as would justify an opinion as to the required width of a pillar to support the roof and the effect that a thinning of a pillar would have upon the roof.</p>

<p>Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>1. Elections, § 29*—when count of declaration in suit against election officials for damages resulting from failure to count votes demurrable. In an action against election judges to recover damages for failure to count the whole number of votes cast for plain’tiff at a primary election a count in a declaration averring that hy (reason of the wilful refusal and neglect of defendants to count for ¡plaintiff all the votes cast for him at the election he was deprived of the office for which he was a candidate, held demurrable for 'the reason that the loss of office could not be directly contributable to acts complained of.</p> <p>2. Elections, § 29*—when counts of declaration in suit against election judges for failure to count votes state a cause of action. In an action against election judges to recover damages for their failure to count the votes cast for plaintiff at a primary election, counts in a declaration alleging that the wilful neglect and refusal of defendants to count all the votes cast for plaintiff resulted in depriving plaintiff of a nomination and deprived him of having his name placed on the official ballot and alleging that plaintiff was damaged thereby, held to state a cause of action and not demurrable for the reason that damages could not be proved to the extent of the amount claimed.</p>

<p>Error to the Circuit Court of Jefferson county; the Hon. William H. Green, Judge, presiding.</p>

<p>Mandamus, § 129*—when petition filed against mutual telephone corporation by a subscriber demurrable. A petition by a subscriber of three shares of stock in a mutual telephone corporation for a writ of mandamus to compel the corporation to give petitioner free telephone service, the same as it gives other subscribers for three shares of stock, and to compel it to establish a principal office, keep correct books of account and to permit petitioner to examine the records and books of account, held demurrable, there being nothing but a mere conclusion of the pleader that petitioner complied with the by-laws, rules and regulations, without setting out the same, and no averment that any demand was made upon the corporation to establish a principal office, keep correct books of account and to permit petitioner to examine the records and books.</p>

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

<p>Abstract of the Decision.</p> <p>Sales, § 436*—when seller entitled to possession as against chattel mortgagee. Where a corporation sold a piano stool and scarf to certain individuals and received their obligation to pay therefor in instalments and on default in payment the seller returned to the purchasers their obligation and took possession of the property after the purchasers gave a third party a chattel mortgage but before it was recorded, held in replevin by the seller against the mortgagee, who had possession of the property, that a verdict and judgment for the plaintiff was proper for the reason that neither the plaintiff nor the defendant at the time plaintiff took possession of the property had a lien thereon which was valid against other lien holders and that the defendant was not in a position to complain.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.</p>

<p>1. Master and servant, § 849*—when master is liable for the wilful and wanton acts of servant. Under the law of this state the master is responsible for wilful or wanton acts of the servant done within the general scope of his employment while engaged in his master’s business with a view to the furtherance of that business.</p> <p>2. Master and servant, § 849*—when master liable for wilful acts of servant in management of horse. Where an owner of a horse directed his servant to take the horse out on the highway to feed and graze and the servant while riding the horse wilfully guided it so as to run against and injure a pedestrian, held that the servant’s acts were committed by him in the scope of his employment and the master was liable.</p> <p>3. Master and servant, § 866*—when statement of servant to third parties elicited on cross-examination admissible. In an action against the owner of horses to recover for injuries sustained by plaintiff through the negligence of defendant’s servant in riding a horse on the highway so as to cause it to run against plaintiff, a statement made by the servant to third parties, brought out on cross-examination, held competent so far as it went to the credibility of his statement as to how the accident occurred, and therefore properly admitted</p>

<p>1. Injunction, § 385*—when discretion as to allowance of temporary injunction revietoable. Though the matter of granting or refusing a temporary injunction is largely a matter of discretion, a court of review may be called upon to determine whether the trial court’s discretion was properly exercised.</p> <p>2. Witnesses, § 31*—competency of husband or wife in equity. The competency of a husband or wife to testify for or against each other is the same in a court of law as in a court of equity.</p> <p>3. Equity, § 340*—when bill should be dismissed for want of jurisdiction. Where a cause of action cognizable at law is entertained in equity on the ground of some equitable relief which cannot be granted for want of sufficient allegations or proof or for other reasons, the court is without jurisdiction to proceed further and should dismiss the bill without prejudice.</p> <p>4. Fbaud, § 38*—when not ground for equitable relief. It doés not necessarily follow that because there are allegations of acts of fraud that chancery should take jurisdiction, for under the law fraud avoids a contract ab initio both in law and equity.</p> <p>5. Injunction, § 189*—grounds for equitable relief. A .bill to enjoin an action on a certificate of deposit held not to show ground for equitable relief for the reason that an injunction would prevent an assignment of the certificate, where it appears that the certificate was past due and suit at law was brought thereon so that any assignee would take with notice of the equities and defenses.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Geokqe A. Cbow, Judge, presiding.</p>

<p>1. Master and servant, § 701*—when evidence shows injury to eye resulted from, mere accident. In an action against an employe to recover damages for injury to plaintiffs eye, alleged to have been caused by the negligence of a servant in emptying a bag of cement near where plaintiff was working so that particles thereof blew in plaintiff’s eye, held that it appeared from the evidence that the injury was the result of mere accident for which the employer was not liable, there being no proof that there was a safer method of handling the material and plaintiff testified that the servant “emptied the sack like anybody would.”</p> <p>2. Master and servant, § 779*—when instruction on theory of accident applicable to case. In an action by a servant against his employer for the negligence of another servant in emptying a bag of cement near where plaintiff was working so that particles of the cement blew in plaintiff’s eye, an instruction given for defendant stating: “If you believe from the evidence that the cement got into plaintiff’s eyes as the result of mere accident, and neither the defendant nor the plaintiff was the cause thereof, you should find the defendant not guilty,” held to correctly state a controlling principle applicable to the case.</p>

<p>Abstract of the Decision.</p> <p>1. Adultery, § 4*—sufficiency of indictment to sustain conviction. Where an indictment consists of two counts, the first charging the defendant, a married man, with living with an unmarried woman in an open state of adultery and fornication, and the second charging him with living with a married woman in an open state of adultery, held that a conviction could be had under the first count only where the woman named was divorced from her husband.</p> <p>2. Adultery, § 7*—when verdict not responsive to the indictment. Under an indictment charging a married man with living with an unmarried woman in an open state of adultery and fornication, a verdict finding the defendant guilty of adultery in the manner and form as charged in the indictment, held not responsive to the indictment for the reason that it did not find that defendant was guilty of openly living together with the woman named, such being necessary to constitute the crime.</p> <p>3. Adultery, § 3*—when adultery or fornication constitutes a crime. The commission of adultery or fornication, however immoral, is not a crime under our statutes; to constitute the crime there must he an open living together by the parties in a state of adultery and fornication.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 699*—when refusal of requested instruction improper. In an action on a fire insurance policy, refusal of a requested instruction that the insurance company would not be liable for loss or damage to the goods other than that arising from the fire resulting from plaintiff not being permitted by the police and fire department to take possession of the goods after the fire, held error, the policy insuring only against direct loss or damage by fire and providing that the insurer shall not be liable for loss caused directly or indirectly by order of any civil authorities.</p> <p>2. Insurance, § 636*—admissibility of insured’s list of property destroyed. A copy of the list of articles made out and furnished the adjuster by the insured may be used by the insured to refresh his recollection when testifying as to what articles were destroyed, but where the list has the value of each article placed opposite the same it should not be permitted to go to the jury.</p> <p>3. Insurance, § 426*—amount of recovery for loss by fire. Where a fire policy limits the liability of the insurer to the actual cash value of the property at the time of loss to be ascertained with proper deductions for depreciations however caused, the insured is not entitled to recover the cost price of the articles when new, it appearing that the articles had been used for one or more</p>

<p>Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.</p>

<p>1. Mines and minerals, § 109*—when statute requires trip of cars to carry lights. Under section 15, div. “A,” of the Miner’s Act (R. S. 1911, J. & A. ¶ 7489), a trip of cars is required to carry lights though not attached to a motor car, where they are put in motion by means of the motor car in making a flying switch from the single haulage track to a parting track.</p> <p>2. Mines and minerals, § 191*—when instruction as to duty to maintain lights on trip cars proper. In an action for the death of a miner resulting from being run over by a trip of cars in a mine, an instruction as to the duty of the - coal company to have placed upon the front of the trip of cars a conspicuous white light, held to state the law applicable to the case.</p> <p>3. Mines and minerals, § 187*—when instruction basing right to recovery on negligence not erroneous. In an action for the death of a miner resulting from being run over by a trip of cars, where there was a count in the declaration alleging a violation of statute and a common-law count averring negligence, the giving of an instruction basing plaintiff’s right to recover on negligence held not error because negligence was not averred in the statutory count.</p> <p>4. Limitation oe actions, § 62*—when amendment of declaration does not state new cause of action. In an action for wrongful death, an amendment to a declaration changing the given name of one of the children of the deceased and adding the name of one that had been omitted, held not to state a new cause of action.</p> <p>5. Pleading, § 250*—right to amend declaration. Permitting plaintiff to amend his declaration after the evidence was all in, by changing the given name of one of the parties and inserting the name of a person which had been omitted, held not error.</p>

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

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

<p>Master and servant, § 98a*—when servant is injured in the course of employment under Workmen’s Compensation Act. Where a workman while engaged with others in operating a trip hammer attempted to remove a tin can placed on the lower die by a bystander and his hand was crushed, held that the injury sustained arose out of and in the course of his employment within the meaning of section 1 of the Workmen’s Compensation Act, in force May 1, 1912, J. & A. ¶ 5449, though the bystander placed the can on the die for fun, it appearing that the workman took no part in the fun but proceeded to clear the die of the obstruction so that he could continue the work.</p>

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

<p>1. Mandamus, § 136*—sufficiency of petition to compel drainage district to replace bridges. A petition for a writ of mandamus to compel a drainage district to replace and rebuild three bridges made necessary by the prosecution of work of the district, held not defective on demurrer for the reason that it did not state the material of which the bridges should be constructed, nor because there was no allegation that the drainage district has the means with which to build said bridges.</p> <p>2. Mandamus, § 172*—certainty of judgment. A judgment in a proceeding for mandamus to compel a drainage district to build bridges, commanding the district to forthwith build certain bridges and necessary approaches thereto, described in the petition, held sufficiently certain as to what bridges and approaches were referred to.</p>

<p>Appeal from the City Court of Granite City; the Hon. Robert H. Flaitntgan, Judge, presiding.</p>

<p>1. Pleading, § 380*—necessity for joinder of issue. Though as a general rule there must be an issue, either of law or fact, joined on the pleadings or default of the defendant entered of record, courts may avoid the use of unnecessary circumlocution and useless technicalities in arriving at inevitable results when such a course can be followed without abandoning rules of pleading and procedure necessary to protect the interests of one or more of the parties.</p> <p>2. Appeal and error, § 1830*—effect of decision of Supreme Court as to matters which may he considered on remandment. Where, in a proceeding in the nature of a quo warranto questioning the title of a city judge to office, a demurrer was sustained to replications setting up that the court was not legally established for the reason that the city was partly situated in two counties and on appeal from the order sustaining the demurrer the Supreme Court decided that the Constitution prohibited the establishment of the City Court for the reasons stated in the replications and remanded the cause with directions to overrule the demurrer, held that the action of the trial court, upon reinstatement of the cause in refusing respondent leave to file certain rejoinders to the effect that the city was not located in two counties, and in entering judgment of ouster against the respondent without further pleadings, was not error, for the reason that the rejoinders presented no defense in view of the decision of the Supreme Court.</p> <p>3. Evidence, § 9*—judicial notice of location of cities with reference to counties. Courts of this State will take judicial notice of the location of cities with reference to the counties in which they are situated.</p> <p>4. Municipal corporations, § 28*—when right of city to extend its territory cannot he inquired into in collateral proceeding. The question of the right of a city to extend its territory into another county cannot be inquired into in a collateral proceeding such as a proceeding by information in the nature of a quo warranto questioning the title to the office of city judge.</p>

<p>Appeal from the City Court of Centralia; the Hon. Albert D. Rodenberg, Judge, presiding.</p>