Volume 188 — Illinois Appellate Court Reports

<p>1. Assignments, § 8*—right to assign future wages hy power of attorney. A workman cannot execute a power of attorney to authorize the assignment of wages to be earned in an employment which he is not engaged, and has no contract for, at the time of the execution of the power of attorney.</p> <p>2. Assignments, § 3*—right of workman to assign wages. A workman cannot by himself assign wages to be earned in a future employment for which he has not contracted at the time of the assignment.</p>

<p>Abstract of the Decision.</p> <p>Appeal and ebrob, § 1755*—when judgment will he affirmed hy a divided court. On appeal to the Appellate Court where the judge assigned to write the majority opinion died and the other two judges were unable to agree, held that the judgment would be affirmed, it appearing that there would be a delay of several months before the successor of the deceased judge could consider the case, and it also appearing that whichever party is defeated will take the case to the Supreme Court.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Mybbs, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Error to the County Court of Champaign county; the Hon. William G-. Sfobsin, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1682*—when pleading over waives error in ruling on demurrer. Where a party to an action desires to have an order of court overruling a demurrer reviewed in a higher court he must abide by the demurrer; by pleading over the demurrer is waived.</p> <p>2. Appeal and error, § 1718*—when appeal to Appellate Court waives constitutional questions. A party taking an appeal to the Appellate Court upon, assignments of error, which include a ruling on a constitutional question, waives the constitutional question.</p> <p>3. Appeal and error, § 800*—when ruling on motion to require electioñ of count in declaration not saved for review. A ruling of the court on a motion to require plaintiff to elect on which count of the declaration he would ask recovery is not saved for review where neither the motion, the ruling of the court nor any exception thereto are preserved in the bill of exceptions.</p> <p>4. Appeal and error, § 565*—necessity of exceptions to save ruling on motions made preliminary to trial. Section 81 of the Practice Act, J. & A. If 8618, providing that a formal exception is not necessary to save for review rulings on questions during the progress of the trial, has no application to motions made preliminary to the trial, such as motions for a continuance or motions to require plaintiff to elect on which count in the declaration he will ask recovery.</p> <p>5. Appeal and error, § 800*—when rulings on motion must be preserved by bill of exceptions. Rulings on motions preliminary to a trial, which are not a part of a common-law record, must be preserved by a bill of exceptions.</p> <p>6. Pleadings, § 58*—when plaintiff not required to elect between counts. Denial of a motion to require plaintiff to elect on which count in the declaration he will ask recovery, held not error where all the counts are based on the same state of facts.</p> <p>7. Action, § 41*—when not a misjoiner of causes of action. There is no misjoinder of causes of action in several counts of the declaration where all the counts are based on the same state of facts.</p> <p>8. Action, § 44*—when plaintiff not required to bring separate actions. Where a defendant is liable to plaintiff for personal injuries in an action at law either under section 21 of the Miners’ Act, J. & A. If 7495, or in an action at law as modified by other provisions of the statute, the plaintiff should not be required to bring separate actions based on the same facts.</p> <p>9. Workmen’s Compensation Act, § 5*—when count in declarar tion ,based on Workmen’s Compensation Act defective. A count in a declaration to recover for personal injuries which pleads the Compensation Act of 1911, J. & A. fjf 5449 et seq., and avers simply that plaintiff was injured in the course of his employment without averring the failure to perform any duty which defendant owed to plaintiff, or any negligence or carelessness on the part of the defendant, held not to be a good count where the defendant had elected not to come under the act.</p> <p>10. Workmen’s Compensation Act, § 2*—Workmen’s Compensar tion Act construed. Sections 3 and 10 of the Workmen’s Compensation Act of 1911, J. & A. 5451, 5459, apply only to cases where both parties have accepted the provisions of the act.</p> <p>11. Workmen’s Compensation Act, § 2*—right of employee to recover under Workmen’s Compensation Act where employer refused to accept provisions of act. Where an employer has refused to accept the provisions of the Workmen’s Compensation Act of 1911, he thereby waives his defenses of assumed risk, fellow-servant and contributory negligence, and an employee who has not refused to accept its provisions may maintain an action against his employer for injuries received by him freed from said defense, if it is averred that the injuries were caused by the negligence of the employer and the evidence sustains the declaration subject only to the provision that contributory negligence shall be considered in reducing the amount of damages.</p> <p>12. Mines and minerals, § 182*—when question relating to examination of mine is for jury. In an action to recover for injuries sustained by a miner from the fall of a stone from the roof of the mine, where it was alleged that the mine examiner failed to mark the dangerous condition of the roof, held, under the evidence it was a question for the jury whether the examination was of the kind contemplated by statute and whether' the roof at that time was safe or was in fact dangerous.</p> <p>13. Mines and minerals, § 187*—when instruction based on counts in declaration erroneous. In an action to recover for personal injuries received by plaintiff in defendant’s mine, an instruction telling the jury that if they find that the evidence bearing on plaintiff’s case, as alleged in his declaration or in either count thereof, preponderates in his favor although but slightly it will be sufficient to warrant a finding for plaintiff, held erroneous where one of the counts was defective in failing to aver any negligence.</p> <p>14. Workmen’s Compensation Act, § 2*—when instruction stating language of Compensation Act misleading. An instruction stating the provisions of section 1 of the Workmen’s Compensation Act, J. & A. 1f 5449, held misleading in so far as it states that part of the section preceding the portion which states the penalties imposed for refusal of employer to accept the provisions of the act.</p> <p>15. Mines and minerals, § 189*—when instruction in language of Miners’ Act not misleading. The giving of an instruction in the language of paragraph “b” of section 21 of the Miners’ Act, J. & A. ^ 7495, held not misleading though parts of it had no application to the case.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. William G-. Cochran, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>1. Appeal and error, § 932*—how bill of exceptions may not be amended. A bill of exceptions cannot be amended in the Appellate Court by affidavits.</p> <p>2. Appeal and error, § 784*—language of bill of exceptions. It is immaterial whether the language óf the bill of exceptions is in the present or past tense.</p> <p>3. Trial, § 295*—when propositions of law must be -submitted. Propositions of law not presented until after the court has announced its decision may be properly refused.</p> <p>4. Trial, § 296*—duty of court to consider propositions of law. The number of propositions of law is no legal reason for refusing to pass on them; when they are properly presented the court should pass on a sufficient number of them to cover all legal questions in the case.</p> <p>5. Appeal and error, § 1725*—when decision on former appeal not res adjudicata. A decision of the Appellate Court on a former appeal is not res adjudicata on a subsequent appeal where the issues on the last trial were entirely different from those on the first.</p> <p>6. Drainage, § 51*—when recovery for work in cleaning ditch sustained by the evidence. In an action against drainage commissioners to recover for services rendered by plaintiff in repairing and cleaning out a drainage ditch, alleged to be a branch in the system of defendants, evidence held sufficient to sustain a finding and judgment in favor of plaintiff.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. William B. Scholeield, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Witnesses, § 131*—when defendant incompetent to testify to conversations in suit drought dy administrator. In an action against a physician to recover for the death of plaintiff’s intestate alleged to have resulted from malpractice, refusal to permit the defendant to testify to a conversation held between himself and a nurse in an adjoining room to that occupied by the patient and which could have been heard by the patient, and to a conversation between himself and the patient in which the nurse took part and concerning which the nurse had testified, held not error.</p> <p>2. Witnesses, § 93*—exceptions to section 2 of Evidence Act construed. Neither the second nor the fourth exception to section 2 of the Evidence Act, J. & A., If 5519, permits a party in interest to testify to a conversation he may have had with the deceased, whether it was testified to by an agent of the deceased or by a disinterested witness, nor do they permit an adverse party to testify to a conversation of such adverse party that occurred before the death in the presence of the deceased and which is testified to by a disinterested witness not an agent of the deceased.</p> <p>3. Witnesses, § 48*—dur-den of proving grounds of incompetency. The presumption is that one offered as a witness is competent to testify, and the burden is upon the party objecting to state and prove the grounds of his objections.</p> <p>4. Witnesses, § 43*—competency to testify to conversations with defendant’s wife. In a suit against a physician to recover for the death of plaintiff’s intestate alleged to have resulted from malpractice, where the facts showed that a nurse attending the patient called up the doctor’s office and was answered by the doctor’s wife, held that under section 5 of the Evidence Act, J. &. A., j[ 5522, neither the nurse nor the doctor’s wife were competent to testify to the telephone conversation for the reason that there was no evidence to show that the doctor’s wife was acting as agent for her husband.</p>

<p>Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>1. Principal and surety, § 96*—insolvency of cosureties as affecting right to contribution in law and equity. In a suit at law against a cosurety for contribution, the surety can only recover a cosurety’s aliquot part calculated on the hole number of sureties without reference to the insolvency of tl cosureties, while in equity, if one or more are? insolvent, the loss . ipportioned among the solvent ones.</p> <p>2. Contribution, § 2*—fui,. -¿ycition of Probate Court to follow the rule in equity. Where a trustee tor the use of sureties on notes presented a claim against the estate of a deceased cosurety, held that the Probate Court could follow the rule of a court of equity as to the extent of recovery, by considering the number of insolvent cosureties and apportioning the loss on the solvent ones.</p> <p>3. Bills and notes, § 177*—when indorsers liable as guarantors and cosureties as to each other. The provisions of paragraphs 2 and 3 of sec. 64 of the Negotiable Instrument Act of 1907, J. & A. If 7703, make indorsers, before delivery of a note payable to the order of the maker, guarantors and cosureties as regards each other.</p> <p>4. Bills and notes, § 183*—liability of indorsers as to each other. In determining the liability of indorsers to each other, section 68 of the Negotiable Instrument Act of 1907, J. & A. If 7707, should be read in connection with the provisions of section 64 of such Act, J. & A. If 7703.</p> <p>5. Courts, § 105*—equitable jurisdiction of Probate Courts. Although Probate Courts have no general chancery jurisdiction, yet in probate matters they have jurisdiction of an equitable character, may adopt the forms of equitable proceedings and grant relief of an equitable nature where justice and equity require such relief.</p>

<p>1. Trial, § 293*—when submission of propositions of law improper. Propositions of law cannot be submitted on the hearing of a petition to have an order granting second letters of administration on the same estate, since such propositions may be submitted only in a case where the right to a trial by jury exists and has been waived.</p> <p>2. Executors and administrators, § 52*—when admission of incompetent evidence harmless. On the hearing of a petition by the widow of the intestate to have an order granting second letters- of administration on the estate of her deceased husband vacated, the admission in evidence of pleas in a suit of the administrator and a power of attorney executed by the widow held improper, for the reason such evidence was incompetent for any purpose, but its admission held harmless error where it was admitted on the hearing that the names given to the decedent in the grant of letters stood for the same person.</p> <p>3. Executors and administrators, § 45*—effect of two separate grants of letters of administration. Two separate and valid grants of letters of administration on the same estate cannot exist at the same time in the same court.</p> <p>4. Executors and administrators, § 49*—authority to revolee invalid grant of second letters. The Probate Court has authority to revoke and set aside a void order granting second letters of administration on the same estate where the order was procured on a petition constructively fraudulent.</p> <p>5. Executors and administrators, § 51*—sufficiency of order revolting invalid grant of letters. An order of the Probate Court revoking and setting aside an order granting second letters of administration need not make any order concerning the acts of the administrator done in pursuance of the appointment thereunder.</p>

<p>1. Masteb and servant, § 485*—when failure of conductor to observe rule of railroad company contributory negligence. In an action against a railroad company for personal injuries received by a conductor in a collision with a northbound train while he was in charge of an extra southbound train, where it was alleged that defendant was negligent in failing to warn plaintiff of the approach of the northbound train, held that a direction of a verdict for defendant was not error, it appearing that there was a rule of the company giving the northbound train the right of way, and that the plaintiff violated another rule of the company requiring conductors on southbound trains to register at stations and seek information.</p> <p>2. Master and servant, § 485*—when failure of employee to observe rules constitutes contributory negligence. Where a railroad employee has violated a rule of the railroad company designed for the protection of himself and the patrons of the company, which if he had observed be would not have been injured, such violation of itself is such contributory negligence as will preclude recovery.</p>

<p>Abstract of the Decision.</p> <p>1. Bastards, § 21*—when evidence of intercourse with other men competent. In a bastardy proceeding it is competent for the defendant to introduce evidence to show that the relatrix had intercourse with other men about the time she became pregnant, but such evidence must be limited to a period of time within which, in the course of nature, the child could have been begotten.</p> <p>2. Bastards, § 24*—what may he ashed of relatrix on cross-examination. The relatrix in a bastardy proceeding may be asked on cross-examination whether she had intercourse with other men within the period in which the child could have been been begotten.</p> <p>3. Witnesses, § 239*—when redirect examination improper. Where the relatrix in a prosecution for bastardy in the County Court was asked on cross-examination if she had not testified to certain things at the preliminary examination before a justice of the peace, permitting counsel for the People to ask her on re-examination if she had not testified to other things before the justice that were not connected with the questions asked on cross-examination, held improper, since a re-examination should have been confined to such answers, if any, as were connected with and modified or explained the answers inquired about on cross-examination.</p> <p>4. Bastards, § 34*—when instruction as to effect of change of name of relatrix properly refused. In a prosecution for bastardy where it appeared the relatrix had procured a divorce under a different name, the refusal of a requested instruction telling the jury that if they believed such was her correct name they should find the defendant not guilty, held not error, where the evidence shows that she was known under the name in which she made the complaint, that she was known by such name and the proof corresponded with the complaint.</p> <p>5. Bastards, § 22*—degree of proof to authorize verdict of guilty. A prosecution for bastardy is a civil proceeding and a preponderance of the evidence is all the law requires to authorize a verdict of guilty, and where an instruction requires a clear preponderance of the evidence the court may properly modify it by striking out the word “clear.”</p> <p>6. Bastards, § 34*—when instruction as to effect of verdict of guilty improper. In a prosecution for bastardy, instructions given at the request of the People informing the jury that a judgment of conviction only meant that the defendant would be compelled to pay the mother for the use of the child one hundred dollars for the first year and fifty dollars, for nine succeeding years, if the child lived that long, held argumentative and improper.</p> <p>7. Appeal and error, § 1514*—when remarks of counsel prejudicial. Statement made in final argument by counsel for the relatrix in a bastardy proceeding that “if a man would debauch a daughter of mine as this man debauched this woman, there wouldn’t be any jury to pass upon that question,” etc., held inflammatory and prejudicial.</p>

<p>1. Masteb and sebvant, § 704*—when recovery for injury to section hand caused by a kicked car sustained by the evidence. In an action by a section hand against a railroad to recover for personal injuries received, caused by a locomotive kicking a car on a switch track where he was employed in gathering up scrap iron, held that a verdict for plaintiff was not manifestly against the weight of the evidence.</p> <p>2. Masteb and servant, § 152*—when kicking cars constitutes negligence. Kicking cars and running switch engines and cars in railroad yards without giving adequate warning of their approach constitute negligence.</p> <p>3. Damages, § 115*—when verdict for personal injuries excessive. A verdict in a personal injury case for two thousand five hundred dollars held excessive where the only wounds found on plaintiff were a cut on the head about two inches long and a bruise on his leg, and it appeared that he was able to do some work a week after the injury and soon thereafter to do the work of a farm hand, and that many of the troubles from which he suffered at the time of the trial were existing before he received the injuries sued for.</p> <p>4. Appeal and error, § 1500*—when presence of family of plaintiff in court room prejudicial. The presence of the wife and children of plaintiff in the court and their attraction of the attention of the jury during arguments of counsel and while the court was reading instructions to the jury, held prejudicial.</p> <p>5. Appeal and ebbob, § 1514*—when statements of counsel in argument prejudicial. Conduct of counsel in his closing argument to the jury in making a reference to the defendant Railroad Company as a soulless corporation and stating that “this great corporation, with its power of driving machinery by steam, sends a car down that injures and maims this man,” held prejudicial error, and its effect not cured by the court sustaining an objection to the statements and warning counsel to keep within the record, nor by counsel immediately apologizing for making them.</p> <p>6. Appeal and ebbob, § 569*—when improper argument of counsel cannot be excepted to. Reference by counsel for plaintiff in his argument that plaintiff was a married man with two or three children, though irrelevant and improper, cannot be excepted to where there was evidence in the record as to plaintiff’s domestic relations, to which there was no objection made.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Coeostin D. Mybbs, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>Insubance, § 24*-—when evidence insufficient to show consolidation or conspiracy to defeat insurance claims. On a bill filed by members of a fraternal insurance company against such company and a life insurance company charging a conspiracy on the part of the officers of the two companies to defraud complainants of their insurance claims, evidence held insufficient to show a consolidation of the two companies or to show such fraudulent conspiracy, it appearing that the life insurance company received nothing from the fraternal insurance company except a small increase in policy holders from its members.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 696*—sufficiency of declaration, in action for death of child in care of father. In an action for the death of a child who was killed at a highway crossing hy one of defendant’s trains while riding in a buggy with her father, failure of the declaration to allege the age of the deceased child, how and with whom she was riding, and that the father was in the exercise of due care, held not to render the declaration insufficient to sustain a verdict on account of variance between its allegations and the proof, since the child’s age, how and with whom she was riding are simply evidentiary facts which need not he pleaded, and any negligence of the father which might he imputed to the child was sufficiently negatived by the averment of due care and caution on her part, as such averment would also necessarily imply due care and caution on the part of the father.</p> <p>2. Negligence, § 250*—when giving of instruction requiring due care only on the part of child’s father harmless. In an action for the death of a child while in care of its father, where the case was tried on defendant’s theory of the law that the father was negligent and that his negligence was imputed to the child, the giving of a modified instruction requiring the exercise of due care on the part of the father and not requiring due care on the part of the deceased child, held harmless where all the evidence showed that the child was in the exercise of due care.</p> <p>3. Appeal and error, § 1241*—when adversary’s instructions cannot he complained of. Appellant cannot complain that the court modified appellee’s instructions to conform to the theory of the law as presented by his own instructions.</p> <p>4. Appeal and error, § 1238*—when appellant cannot complain of court’s adoption of his theory of case. Where appellant has induced the court to adopt a theory of the law most favorable to himself, he cannot on appeal insist that the court should have adopted some other theory.</p>

<p>Error to the Circuit Court of McLean county; the Hon. CoLosim D. Myebs, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>1. Mechanics’ liens, § 57*—when owner liable to party furnishing materials as an original contractor. Where persons organized a water company and pursuant to a scheme to build a large water works system, without capital, let the contract to a construction company formed by one of their number, and the construction company was simply used as a receptacle in which to place all the indebtedness incurred in the construction of the plant so that the creditors of such construction company would have no recourse and the profits on the deal would be equally divided between the promoters of the scheme, held under the circumstances that the water company was liable to a party that had furnished materials to the construction company as an original contractor instead of a subcontractor.</p> <p>2. Mechanics’ liens, § 128*'—when contractor’s lien prior to subsequently recorded trust deed. An original contractor’s lien attaches from the date of the contract and takes priority over a trust deed recorded subsequent to the execution of the contract.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Jersey county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the October ' term, 1913.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the. October term, 1913.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>1. Insurance, § 119*—when liability on contract to renew policy question for jury. In an action of assumpsit on a parol agreement to renew a policy of fire insurance to recover for a loss by fire which occurred after the expiration of the original policy, refusal of the court to direct a verdict for defendant at the close of all the evidence held proper, in view of the facts disclosed by the record.</p> <p>2. Insurance, § 59*—effect of limitations on powers of agent. A person dealing with an insurance agent, having no notice of limitations on the powers of the agent, will be justified in believing that the power of the agent is coextensive with his undertaking.</p> <p>3. Insurance, § 97*—power of agent to make oral contract. Agents of an insurance company have power to bind the company by a parol contract.</p> <p>4. Insurance, § 704*—when giving of instruction based on proof of allegations of declaration reversible error. In an action for fire insurance where the declaration was defective in not alleging the interest of plaintiff in property, and the policy provided that the loss was payable to a third party, if on buildings, otherwise to the insured as his interest may appear, the giving of instructions which directed a verdict for plaintiff if the jury believed from the evidence the allegations of the declaration, held reversible error, as allowing recovery even if the evidence had shown that plaintiff had no interest in the property.</p> <p>5. Istbuctions, § 129*—essentials when peremptory. A peremptory instruction must include every element necessary to a recovery.</p>

<p>IirstJBANCE, § 663*—when evidence of incendiary origin of fire and conspiracy to defraud insurer sufficient to defeat recovery. In an action on a fire insurance policy to recover for the loss of a stock of goods hy fire, held that a judgment for plaintiff could not be sustained and it was reversed on the ground that the preponderance of the evidence showed that the fire was of incendiary origin, and that a conspiracy existed between plaintiff and. others to defraud the insurance company by misrepresenting the value of the goods before the issuance of the policy and in fraudulently misrepresenting the value of the goods destroyed.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. E. R E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>1. Mines and minerals, § 141*—when declaration not demurrable as stating too high a duty. In an action to recover damages for the death of a mule driver in defendant’s mine, a statement in the declaration that it was the duty of defendant to furnish proper and suitable means and appliances, held not to render the declaration subject to a general demurrer on the ground it states a higher duty than the law requires since the statement, in so far as it imposes too high a duty, may be regarded as surplusage, when from the facts stated the law will imply a legal duty.</p> <p>2. Workmen’s Compensation Act, § 5*—sufficiency of declaration in suit hosed on Workmen’s Compensation Act. Where an employer within the meaning of the Workmen’s Compensation Act of 1911, J. & A. jflf 5449, et seq., has elected not to accept the provisions of the act in a suit against him to recover for the death of an employee, the declaration need not allege that the employee had or had not accepted the act, since under the act the rejection of it by the employer precluded the employer from right of election.</p> <p>3. Workmen’s Compensation Act, § 2*—when employee precluded from right of rejecting provisions of Compensation Act. Under the Workmen’s Compensation Act of 1911, J. & A. If If 5449, et seq., the employee has no right of election where the employer has elected not to accept the provisions of the act.</p>

<p>1. Indictment and information, § 34*—sufficiency of allegation as to time of offense. Where the information alleges the time of the offense under a videlicet, the allegation of the precise time is not necessary except that the allegation and proof must bring the offense within the statute of limitations.</p> <p>2. Criminal law, § 120*—when evidence of other offenses admissible. Evidence of the acts of the accused at other times thán the particular one for which he is on trial is competent for the purpose of showing intent.</p> <p>3. Master and servant, 1 873*—when instructions as to what constitutes violation of section 159 of Criminal Code erroneous. In the trial of an information charging defendant with a violation of section 159 of the Criminal Code, J. &. A. U 3779, prohibiting a person from seeking to prevent any other person from working or obtaining work, by threat, intimidation or unlawful interference, instructions informing the jury as to what constitutes intimidation and that intimidation might include following or spying after a person if done to prevent his working at a lawful business, held erroneous.</p> <p>4. Master and servant, § 873*—acts not constituting violation of section 159 of Criminal Code. Under section 159 of the Criminal Code, J. & A.. 1i 3779, union men or other employees have the right to seek, by peaceable persuasion, to induce others to leave or refrain from working for their employers, if the persuasion is not in the nature of intimidation or coercion.</p> <p>5. Instructions, § 129*—requisites when peremptory. A peremptory instruction should include every element requisite to the returning of a verdict as directed.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1506*—when sustaining objection to question ashed of witness on redirect examination harmless. In a personal injury case sustaining an objection to a question asked of plaintiff on redirect examination as to whether he noticed the object which struck him, held not error where the form of the question was changed and the witness fully answered what he saw.</p> <p>2. Appeal and ebbob, § 1625*—when error in rejection of evidence cured. In a personal injury case, where the court permitted the defendant to ask the court reporter if a certain witness testified on a certain subject at a former trial and refused to permit plaintiff to show by the reporter that the witness was not asked any question on the subject, held that any error in the rulings of the court was cured, where it appeared the court afterwards changed its ruling and plaintiff was allowed to read to the jury the entire testimony of the witness at the first trial.</p> <p>3. Appeal and ebbob, § 1241*—when adversary’s instructions cannot he complained of. The appellant cannot complain of the giving of his adversary’s instruction on a legal question involved in his own instruction, where it is not contended that it did not state the law correctly.</p> <p>4. Master and servant, § 792*—when instruction on theory, of accident proper. In an action by a servant against his employer for personal injuries, the giving of an instruction which informed the jury that if the injury was the result of an accident the jury should find the defendant not guilty, held to state a correct proposition of law and that there was no error in giving it.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. Theodore Ñ. Green, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence, § 367*—when opinions as to mental capacity incompetent. On the hearing of a petition to have a conservator appointed for defendant on the ground she was feeble-minded and incapable of caring for her property, permitting the petitioners to ask their witnesses after they had testified as to defendant’s mental capacity whether they thought she would know and understand the nature of the mortgage for three thousand dollars executed by her upon her land “and other like questions, and permitting them to ask the same questions of defendant’s witnesses on cross-examination, held improper for the reason the witnesses were not experts, and that though they were competent to give an opinion concerning defendant’s mental condition, from what they had seen and observed, they knew nothing about the mortgage except what they had been told, and were no better qualified to give expert opinion with reference to her capacity to understand the mortgage than the jury.</p> <p>2. Evidence, § 365*—applicability of rule as to opinion evidence on cross-examination. The rule concerning the right of lay witnesses to give their opinion is the same whether the questions are asked on direct or cross-examination.</p> <p>3. Insane persons, § 5*—admissibility of evidence. In a proceeding for the appointment of a conservator, where the issue was whether the defendant was feeble-minded, a note given to defendant by her brother shortly before the trial held admissible.</p> <p>4. Instructions, § 81*—when objectionable as argumentative. On the hearing of a petition for the appointment of a conservator, seven instructions given at the request of the petitioners held improper as being argumentative in their nature in that they directed the attention of the jury to a note and mortgage given by defendant and told the jury that they should consider them with all the other evidence.</p> <p>5. Instructions, § 81*—when objectionable as argumentative. In a proceeding for the appointment of a conservator, an instruction telling the jury that the proceeding was for the purpose of protecting the estate of defendant, held objectionable as argumentative.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 131*—when recovery of damages resulting from collision at street intersection sustained hy the evidence. In an action to recover damages for the loss of a team of mules by being struck by a street car at a street intersection, a verdict for plaintiff on conflicting evidence as to the speed the team was being driven and the rate at which the car was running, held sustained by the evidence.</p> <p>2. Instructions, § 17*—when instruction erroneous as tending to encourage a disagreement of the jury. Requested instructions containing a statement that: “No juror should consent to a verdict which does not meet with the approval of his own judgment and conscience after due deliberation with his fellow jurors after fairly considering all the evidence admitted by the court and the law as given in the instructions,” held properly refused as tending to encourage and invite a disagreement.</p> <p>3. Evidence, § 430*—when witness not disqualified to give testimony on value. A witness called to testify as to the value of mules, held not disqualified by his testimony that he was not an expert on mules, but knew the value of them.</p> <p>4. Street railroads, § 149*—when requested instruction properly refused. In an action to recover for the loss of a team of mules by being struck by one of defendant’s street cars at a street intersection, a requested instruction which told the jury that it was not material whether a gong was sounded if they believed the driver of the team saw or could have seen, heard or could have heard the car by the use of reasonable care on his part, held prop-, erly refused for the reason the law does not excuse the failure to sound the gong on the possibility of the traveler seeing or hearing a car in the exercise of due care but only, if in the exercise of ordinary care, he would' or must have seen it.</p> <p>5. Appeal and ebbob, § 1538*—when giving of incomplete instruction not reversible error. The giving of an instruction which stated: “The jury are the judges of the questions of fact in the case, and the court does not by any instruction given to the jury in this case intend to instruct the jury how they should find any question of fact in this case,” held not reversible error for the reason it did not state “from the evidence in the case under the instructions of the court,” where the jury were fully instructed and the error could not have misled the jury.</p>

<p>Appeal from the Circuit Court of Morgan, county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the April term, 1914.</p> <p>Certiorari allowed by Supreme Court.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>" 1. Usury, § 5*—when note is usurious. Where a note executed and made payable in Missouri exacted the highest rate of interest allowed in such State, and was given for a loan under an arrangement whereby the payee received bonds of the face value of $10,000 as a bonus for making the loan, held that the exaction of the bonus was a shift or device to evade the law against usury.</p> <p>2. Usury, § 22*—what law governs. A note which is usurious under the laws of the State where it was executed and made payable is usurious in Illinois.</p> <p>3. Usury, § 75*—when usury paid may he deducted from principal. In an action to foreclose a trust deed given on Illinois real estate to secure a note which, under the laws of another State where it was executed and made payable was usurious by reason of exacting the highest rate of interest and an additional bonus, held that the court properly applied the value of the usurious bonus and the payments made on the interest in reduction of the principal of the note.</p>

<p>1. Appeal and ebbob, § 1431*—when refusal to require security for costs harmless. Refusal of court to require a plaintiff to file security for costs, held harmless where the judgment was rendered in his favor.</p> <p>2. Oebiciai, bonds, § 19*—liability on village marshal’s bond. A person unlawfully arrested and beaten by a village marshal may recover on the latter’s official bond given under section 75, ch. 24, Hurd’s R. S., J. & A. If 1347, where the act was done in his official capacity by virtue of his office.</p>

<p>1. Descent and distribution, § 9*—what law governs. The right of succession to the personal estate of a deceased person, whether he leaves a will or dies intestate, depends on the law of his domicile.</p> <p>2. Wills, § 224*—law governing construction as to right of succession to personal estate. The construction of a will as to the right of succession to personal property must be determined according to the law of the State in which the testator was domiciled at the time of his death.</p> <p>3. Wills, § 495*—when lapsed legacies do not fall in residuum. Though as a general rule lapsed legacies will sink into the residuum where there is a general residuary clause sufficient to embrace it in its terms, there is an exception to the rule in cases where the testator gives legacies to the same persons who are provided for under the residuary clause.</p> <p>4. Wills, § 494*—when lapsed legacies become intestate property. Where a will gave legacies to the same persons who were made beneficiaries under the residuary clause and the residuary clause provided for a distribution of the residue of the estate and lapsed legacies and one of the legatees died before the testatrix, held that the legacy and also the residuary legacy of such deceased legatee lapsed and became intestate property.</p> <p>5. Judgment. § 576*—conclusiveness of foreign judgments. Foreign judgments are conclusive in this State only when the proceedings in which they were rendered show that the court had jurisdiction of both the subject-matter and the parties.</p> <p>6. Judgment, § 577*—right of courts of this State to inquire into jurisdiction of court entering foreign judgment. Courts of this State may inquire into the proceedings, judgments and decrees of a court of another State to determine if that court had jurisdiction of the subject-matter and of the parties.</p> <p>7. Executors and administrators, § 564*—law governing distribution on ancillary administration. The distribution of personal assets in the hands of an ancillary administrator or executor must-be made according to the laws of the decedent’s domicile.</p> <p>8. Judgment, § 577*—when foreign judgment void for want of jurisdiction to mate it. Where the Probate Court in another State on an ancillary administration of an estate of a decedent, who was a resident of this State made an order of distribution contrary to the laws of succession in this State, held that it acted without authority and that the order was not conclusive on the courts in this State.</p> <p>9. Judgment, § 577*—when foreign judgment void and not conclusive for failure of record to show jurisdiction of parties. An order of distribution by a Probate Court of another State made on an ancillary administration, held void and not conclusive on the courts of this State for the reason that the record did not show service of notice upon the persons interested in the estate.</p> <p>10. Executors and administrators, § 563*—nature of ancillary administration. An ancillary administration is but auxiliary to the principal administration and is subordinate thereto.</p> <p>11. Executors and administrators, § 583*—when erroneous distribution on ancillary administration may be corrected on final distribution of principal estate. Where on an ancillary administraton the Probate Court of another state makes an order of distribution of the personal estate whereby the distributees receive a larger share than they are entitled to, such error in the distribution may be corrected on the final distribution of the principal estate by requiring such distributees to account for the excess over their proper shares, where the executor of the principal estate has made no distribution and has sufficient funds in his hands to rectify the error.</p>

<p>Appeal from the Circuit Court of Fulton county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Robebt B. Shirley, Judge, presiding. Heard in this court at the April term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Principal and agent, § 105*—when corporation not liable on contract of assumed agent. Where a corporation engaged in buying and selling grain leased its property to others who carried on the same kind of business and made a sale of a shipment of wheat through a correspondence in which they used the letter head of the corporation signed by one of them as agent, held in an action by the purchaser against the corporation to recover back an overpayment made, for the reason that wheat was not up to the grade agreed to be furnished, that the evidence was insufficient to show any liability on the part of the defendant, there being no evidence to show that the defendant authorized the sellers to use its name or had knowledge of its use until after the transaction and no proof of any act of omission or commission on the part of defendant to render it liable.</p> <p>2. Principal and agent, § 237*—proof of agency. The mere showing that one assumed to act as agent is not sufficient to estab,-. lish an agency, nor can the agency be proved by an act of th§ supposed agent which was neither expressly nor impliedly authorized by the alleged principal.</p> <p>3. Principal and agent, § 225*—burden of proving authority. One attempting to take advantage of the act of one claiming to be an agent has the burden of showing his authority.</p>

<p>1. Executors and administrators, § 284*—when appeal to Circuit Court properly dismissed for failure to file appeal bond. On appeal to the Circuit Court from an order of the County Court allowing a claim against an estate, the appeal bond is jurisdictional, and where no appeal bond whatever has been filed the court may properly dismiss the appeal and deny appellant’s cross-motion to file an appeal bond nunc pro tunc.</p> <p>2. Appeal and error, § 654*—jurisdiction of court when no appeal bond filed. Where a party entitled to an appeal files no bond or instrument in the nature of a bond within the time prescribed by law, the court, to which the appeal is taken, cannot permit a bond to be filed and has no jurisdiction to do anything but dismiss the appeal.</p> <p>3. Appeal and error, § 654*—right of Probate Court to dispense with-requirement of filing appeal bond. Section 11 of the Probate Court Act, J. & A. j[ 3269, providing for appeals to the Circuit Court upon the appellant giving an appeal bond in such amount and upon such conditions as the court shall approve, cannot be construed as authorizing the Probate Court to make an order that no bond whatever be filed, nor is such section applicable to County Courts acting as Probate Courts in counties having a population of less than 70,000.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>1. Railroads, § 516*—duty to trespassers or mere licensees on right of way A railroad company owes no duty to a trespasser or a mere licensee on its right of way except not to wantonly or wilfully injure him.</p> <p>2. Railroads, § 583*—when evidence insufficient to sustain recovery for death of trespasser on right of way. In an action against a railroad company for the death of plaintiff’s intestate alleged to have been caused by the defendant wantonly and wilfully driving and managing its train so that the deceased. while walking along defendant’s right of way was struck and killed, held that the evidence was insufficient to sustain a verdict for plaintiff, it appearing that the deceased had no grer ;ghts on the right of way than a mere licensee and that the b " lar did see the deceased before he was struck, and there was a:;'- absence of proof showing or tending to show wanton or w its or a reckless disregard of the safety of others on the ;■ c employees in charge of the engine.</p>

<p>Appeal from the Circuit Court of Randolph county the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>1. Appeal and ebbob, § 186*—when freehold involved. On appeal from a judgment in an action of trespass vi et armis to recover for the cutting of timber, where the general issue and pleas of liberum tenementum were filed, but the special pleas were ordered stricken from the files with leave to defendant to prove any matter of defense under the general issue, and the main issue was whether plaintiff owned the property on which the timber was cut, held that the case involved a freehold and was not reviewable by the Appellate Court.</p> <p>2. Appeal and ébbob, § 123*—right of parties to confer jurisdiction when freehold involved. Jurisdiction cannot by agreement of the parties be conferred upon the Appellate Court to review a case involving a freehold.</p> <p>3. Appeal and ebbob, § 131*—duty of Appellate Court when freehold involved. Where it is clear that a case involves a freehold, it is the duty of the Appellate Court to consider that question sua sponte and transfer the case to the Supreme Court.</p> <p>4. Appeal and ebbob, § 123*—exceptions to rule that Appellate Court is without jurisdiction when freehold involved: The rule that the Appellate Court has no jurisdiction to review a case involving a freehold has two exceptions: One is where the suit is commenced before a justice of the peace or in the County Court, the other is where a freehold is involved in the original judgment or decree but not in the points assigned for error.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. James C. McBeide, Judge, presiding. Heard in this Court at the March term, 1914.</p>

<p>Appeal from the Circuit Court of Clinton county; the Hon. Albert M. Bose, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal corporations, § 1085*—burden of proof. In an action against a city for personal injuries alleged to have resulted from the negligence of the city in permitting its sidewalk to remain out of repair, the burden is upon the plaintiff to show, by a preponderance of the evidence, that the sidewalk was out of repair at the time of the accident and for a sufficient length of time prior thereto to give the city notice thereof, actual or constructive; that the city had notice of the accident as provided by statute; that plaintiff at the time of the accident was in the exercise of due care; and that he was injured and the extent thereof.</p> <p>2. Municipal corporations, § 1098*—when verdict for injuries resulting from defective sidewalk sustained by the evidence. In an action against a city for personal injuries sustained by plaintiff by tripping and falling by reason of the defective condition of a sidewalk which it was alleged the defendant negligently permitted to remain out of repair, a verdict for plaintiff on conflicting evidence held not against the manifest weight of the evidence.</p>

<p>1. Assumpsit, action of, § 33*—when common counts proper to recover for services under Pauper Act. A physician who has treated paupers and cyclone sufferers under the Pauper Act, J. & A. Iff 8355 et seq., is entitled to recover from the County for such services under the common counts.</p> <p>2. Paupers, § 25*—right of physician to recover for aid to persons not paupers. To entitle a physician to recover under section 24 of the Pauper Act, J. & A. jf 8378, for treatment of cyclone sufferers, he must show that those treated did not come within the definition of paupers, that they were injured or had fallen sick and that they have neither money nor property to pay for medical aid.</p> <p>3. Appeal and error, § 1506*—when refusal to permit cross-examination of plaintiff reversible error. In an action by a physician to recover from the County for treatment of paupers and cyclone sufferers, refusal to permit cross-examination of plaintiff to show that other physicians had performed some of the services sued for and what the arrangement was between them, held reversible error.</p> <p>4. Paupers, § 22*—when instruction improper. In an action by a physician against the County to recover for treatment of paupers and also for treatment of cyclone sufferers, an instruction given for plaintiff which directed a verdict and told the jury as a matter of law that if they believed the services were ordered by the overseer of the poor the plaintiff would be entitled to recover, held erroneous as authorizing the jury to return a verdict for the claims without stating the necessary elements to entitle plaintiff to recover.</p> <p>5. Paupers, § 25*—when instruction on right of physician to recover for treatment of cyclone sufferers erroneous. An instruction based on the right of a physician to recover from the County for the treatment of cyclone sufferers, held erroneous where it does not include the element that the parties treated were without means to pay for the medical aid.</p> <p>6. Paupers, § 22*—when instruction on right of physician to recover for treatment erroneous. An instruction based upon the right of a physician to recover from the County for treatment of paupers and cyclone sufferers which told the jury that if the supervisor employed plaintiff to render medical aid to the parties mentioned in the suit, the plaintiff would be entitled to recover a fair and reasonable compensation for his services, held erroneous.</p>

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 148*—burden of proof in suit for death of miner. In an action against a mining company to recover for the death of a miner resulting from the fall of a stone from the roof of a mine, held under the averments of the declaration the burden was upon the plaintiff to prove by a preponderance of the evidence that the deceased while in the exercise of due care and caution was injured by defendant’s failure to use reasonable care to furnish deceased with a reasonably safe place to work; that at the time of the accident he was acting under and in obedience to a special order; that the danger was known to defendant or could have been known by the exercise of reasonable care; that deceased did not know of the danger and that he was free from the negligence which contributed to the injury.</p> <p>2. Mines and minerals, § 173*—when recovery for death of miner not sustained by the evidence. In an action against a mining company to recover for the death of a miner resulting from" the fall of a rock from the roof of a mine, where the declaration alleged defendant was guilty of common-law negligence in failing to prop the roof, held that a verdict in favor of plaintiff could not be sustained for the reason that the .evidence showed that the deceased was not in the exercise of due care for his own safety, it appearing that deceased was taken from the place where he was injured to a place of safety and directed to keep out, and that he returned to the place he was injured in violation of the directions.</p> <p>3. Appeal and error, § 1411*—when verdict may be set aside. A verdict on conflicting testimony may be set aside as against the weight of the evidence where the verdict is based on the testimony of one witness, which was denied by three others, and all the circumstances and inferences to be drawn from the evidence corroborated the three witnesses.</p> <p>4. Appeal and error, § 1802*—when judgment may be reversed without remandment. Where a verdict upon which a judgment was entered is without sufficient evidence to support it and the case has been tried twice in the lower court, and it appears from the record that all the facts material to the issue have been brought forward to both parties and that a new trial would serve no good purpose, the case will he reversed with a finding of fact.</p>

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

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 89*—duty to furnish sufficient props. The fact that the miner has unused props will not relieve the mining company of the duty to furnish props of suitable length.</p> <p>2. Mines and minerals, § 89*—effect of ordering props before they are needed. The fact that a miner orders props before they are needed, held not to relieve a mining company from liability to furnish them.</p> <p>3. Mines and minerals, § 89*—right of miner to continue work after demand for props. The fact that a miner, with knowledge of the dangerous condition of the roof of the mine, continued to work two days after props were ordered from the timberman, does not charge him with contributory negligence or with assuming the risk, where there was a custom for the timberman to receive orders for props, and he was charged with knowledge of the dangerous condition of the mine and permitted the miner to work without the direction of the mine manager.</p> <p>4. Mines and minerals, § 90*—when company bound by custom of timberman to furnish props. Where a mining company has adopted and recognized a custom whereby a miner orders props, caps and timbers from the timberman and has the timberman measure and determine the length of suitable props, it is bound by such custom and the timberman becomes a vice-principal, and his knowledge and neglect of duty is that of the company.</p> <p>5. Mjnes and minerals, § 187*—when instruction not misleading. In an action against a coal mining company for the death of a miner alleged to have resulted from the failure of defendant to provide props, caps and timbers, .an instruction given for plaintiff which undertook to set out what was necessary to prove under a count in the declaration, held not misleading, for the reason that the declaration referred to caps and timbers while the evidence was with reference to props, there being undisputed evidence that props, caps and timbers are inseparable.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter', Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Wabash county; the Hon. William H. Green, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>1. Statutes, § 143*—methods of repeal. A prior statute may be repealed by express declaration of the Legislature, by amendment, by a general revision and by implication.</p> <p>2. Statutes, § 148*—when provisions of former statute not repealed by revision. Where the law on a particular subject is revised and rewritten, only the provisions of the old law that are omitted from the revised act are repealed, and all provisions of the old law retained in the new act are regarded as having been continuously in force.</p> <p>3. Mines and minerals, § 41*—claims arising under Act of 1899 as affected by Act of 1911. All undetermined claims arising under the old Miner’s Act of 1899 before the Miner’s Act of 1911, J. & A. 1Í1T 7475 et seq., went into effect, held saved under the provisions of chapter 131, sec. 2, Hurd’s R. S., J. & A. V 11,103.</p> <p>4. Mines and minerals, § 41*—effect of Act of 1911 as repealing former act. The Miner’s Act of 1911, J. & A. 7475 et seq., was a revision of the former Act of 1899 and did not operate to repeal the provisions of section 18 of the old Act, since the provisions of such section are substantially repealed in section 21 of the new Act, J. & A. IT 7495.</p> <p>5. Mines and minerals, § 86*—right to maintain action for violation of provisions of former statute. Where a miner was injured in a mine while the Miner’s Act of 1899 was in force and died after the Miner’s Act of 1911 (J. & A. jf 7475) became effective, held his administrator could maintain an action for the benefit of the widow and children based on the wilful violations of the provisions of section 18 of the old Act.</p>

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 173*—when evidence sufficient to warrant recovery under declaration. In an action by a miner for personal injuries sustained by the fall of the roof of a mine, evidence held sufficient to sustain a recovery under the statutory counts in the declaration charging the mine examiner with failure to furnish props and to inspect and mark the dangerous condition of the roof.</p> <p>Í- ' 2. Negligence, § 48*—proximate cause. The proximate cause is not necessarily the beginning cause but the efficient cause, such a cause in the absence of proof which the court would say as a ^matter of law the injury would not have occurred.</p> <p>3. Mines and minerals, § 84*—what constitutes a wilful violation of the statute. A wilful violation of the Miner’s Act is nothing more than a conscious violation thereof, and such is to be determined from all the facts and circumstances in evidence.</p> <p>4. Mines and minerals, § 194*—when requested instruction properly refused. An instruction telling the jury "that if you believe from the evidence that the plaintiff knew the roof in his working place was loose and liable to fall and injure him, and that knowing this continued to work under such dangerous roof and was injured in consequence thereof, then you should find defendant not guilty as to the fourth count,” held properly refused as ignoring the alleged examination of the mine manager and his assurances of safety, and also as ignoring the principal of law that although plaintiff may have known there was some danger, yet if the danger was not such that an ordinary prudent person would refuse to work, then he might continue.</p> <p>5. Appeal and error, § 1560*—when refusal of requested instruction not error. The refusal of' a requested instruction applicable to only one count in the declaration is immaterial where the evidence is sufficient to support the verdict and judgment under other counts.</p> <p>6. Appeal and eeroe, § 1561*—when refusal of requested instruction harmless. The refusal of a requested instruction is not reversible error where it was practically covered by other instructions given.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 687*—when recovery by brakeman for injuries resulting from defective air brake sustained by the evidence. In an action by a brakeman to recover for personal injuries received by him in a collision between defendants’ train and a team and wagon at a street crossing alleged to have been caused by defendants’ negligence in permitting the air brake to remain out of repair so that plaintiff could not operate it to avert the collision, held under the evidence whether or- not the brakes were defective and whether such defect was the cause of the injury were questions for the jury and that verdict for plaintiff was sustained by the evidence.</p> <p>2. Master and servant, § 572*—burden of proof. In an action by a brakeman to recover for injuries resulting from a defective air brake, the burden is on the plaintiff to prove by a preponderance of the evidence the existence of some defect in the construction or operation of the air brake, and that the plaintiff did not know of such defect and did not have equal opportunities with defendants of knowing of it.</p> <p>3. Negligence, § 125*—necessity of alleging and proving due care of plaintiff. In an action for personal injuries the plaintiff must allege and prove that he was free from contributory negligence.</p> <p>4. Master and servant, § 452*—when servant chargeable with knowledge of defective appliance. To charge a servant with negligence he must not only know or have the means of knowing by the exercise of ordinary care of the defect, but must also know that the defect renders the appliance unsafe to use, and he is not bound to make an inspection for latent defects.</p> <p>5. Master and servant, § 685*—proof of servant’s want of knowledge of defects in appliances. .Where a servant’s want of knowledge of defects in appliances is not susceptible of direct proof it may be inferred from circumstances and the servant may be aided by the presumption that a person does not voluntarily incur danger or the risk of death.</p> <p>6. Master and servant, § 457*—duty of servant to discover defects. A servant is under no primary liability to investigate for latent defects to test the fitness and safety of the place, fixtures or appliances provided him by the master; he may assume that they are fit and safe, though the circumstances may be such that a servant is chargeable with knowledge of such defects as are patent and obvious and of such defects as in the exercise of ordinary care he ought to have knowledge of, and he is not deemed to have notice or knowledge of such defects and insufficiencies as can be ascertained only by investigation and. inspection for the purpose of ascertaining that there is no danger.</p> <p>7. Master and servant, § 120*—duty of master to keep appliances in safe condition. While there is no absolute duty upon the master to keep appliances in safe condition there is a duty to use reasonable care to keep them fit,- and this duty may require inspection at reasonable intervals and the employment of such tests as will reveal the condition of the machinery or appliances.</p> <p>8. Master and servant, § 161*—duty to inspct appliances. The master’s duty of inspection rests upon the employer and not upon the employee and depends upon the character of the machinery or appliances, since ordinary care may require an inspectiion oftener in one case than in another.</p> <p>9. Master and servant, § 302*—risks assumed by servant. While an employee assumes such risk of his employment as is usually incident thereto and of the extraordinary hazards of which he has notice, or which in the usual exercise of his faculties he ought to have notice, he does not take the risk or dangers known to the master which can he avoided by him in the exercise of reasonable care; he assumes the risk more or less hazardous of the service of which he is engaged, but he has a right to presume that all proper attention shall be given to his safety and that he shall not be carelessly and needlessly exposed to risks not necessarily resulting from his occupation, and preventable by ordinary care and precaution on the part of his employer.</p> <p>10. Masteb and seevant, § 685*—proof of notice to master of defective condition of appliances. Notice to the employer of a defective condition of appliances may not be capable of direct proof and is not required; such notice may be proven by facts and circumstances which the master has notice of or an opportunity to have knowledge of which is not open to the servant.</p> <p>11. New tetad, § 125*—when denial of motion for not an atuse of discretion. Overruling of a motion for new trial on the ground of newly-discovered evidence, held not an abuse of discretion where there was no showing of proper diligence and the evidence would have been cumulative.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 415*—when covenant in lease binding on assignees. Where a covenant between lessor and lessee relates to a thing not in esse but which is yet to be done upon the land tending to enhance its value or to render its enjoyment more beneficial to the owner or occupant, the assignees if named are also bound.</p> <p>2. Covenants, § 19*—when covenant in oil and gas lease runs with the land. A covenant in an oil and gas lease providing for the payment of a certain sum to the lessor in case the first oil well is a paying well, held to be a covenant running with the land and binding upon the assignees of the lessee where they proceeded under the lease, drilled the well and made a part payment to the lessor according to the terms of the lease.</p> <p>3. Landlord and tenant, § 67*—what constitutes “paying well” within meaning of oil and gas lease. Under a covenant in an oil and gas lease to pay a certain sum in case a well drilled by the lessee is a paying well, held that the cost of equipment and drilling of the well was not to be taken into consideration in determining whether it was a paying well.</p> <p>4. Partnership, § 30*—when persons liable as partners. Assignees taking an assignment of an oil and gas lease from the lessee and drilling an oil well pursuant to the terms of the lease under the name of an oil company, held, liable to the lessor on the covenants in the lease as partners regardless of any arrangement between them as a partnership.</p>

<p>Abstract of the Decision.</p> <p>1. Assignments, § 19*—necessity of proof of notice of assignment of wages. In an action on an assignment of wages, where the defense was that defendant had not received notice of the assignment and that the wages had been paid to the employee, held that a direction of a verdict for defendant was proper where there was no competent evidence to show notice to the defendant of the assignment.</p> <p>2. Notice, § 51*—when foundation for reception in evidence of copy of mailed notice insufficient. In an action to recover on an assignment of wages, a copy of a notice of the assignment claimed to have been served on the defendant by mail held properly excluded, for the reason there was no proper foundation laid for its introduction, where there was no evidence offered to show that the copy of the notice was inclosed in an envelope directed to defendant with a proper amount of postage thereon and deposited in a place for the receiving of United States mail.</p> <p>3. Notice, § 51*—when registry receipt for letter insufficient to prove mailed notice. A post office registry receipt for a letter in which it is claimed a notice to the sendee was inclosed, does not of itself prove what was received.</p>

<p>Appeal from the Circuit Court of Williamson county; the Hon. A. E. Somebs, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. James C. McBbide, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Pleading, § 466*—when defective count in declaration sufficient after verdict. A count in a declaration which states a good cause of action in a defective way is good after verdict.</p> <p>2. Railroads, § 583*—when evidence of wanton or toilful negligence sufficient to go to fury. In an action against a railroad company to recover for the death of a pedestrian alleged to have been struck by one of defendant’s through trains while the deceased was attempting to cross defendant’s tracks near its depot, evidence held sufficient to go to the jury on the question whether the defendant was guilty of wanton and willful negligence, it appearing that at the place where deceased attempted to cross the tracks the defendant had constructed a cinder path leading up to its tracks, and that the engine was running at a high and dangerous rate of speed, without a headlight or a hell being rung.</p> <p>3. Railroads, § 577*—admissibility of evidence. In an action against a railroad company for wrongfully causing the death of plaintiff’s intestate alleged to have resulted through the negligent operation of defendant’s train so as to strike the deceased when he was attempting to cross defendant’s tracks at a point near defendant’s depot,, evidence as to the locality, streets and cross-streets, location of depot and acts of the defendant in the building of a cinder walk, tending to prove that the travel of such way was by the defendant’s invitation, held properly admitted.</p> <p>4. Railroads, § 593*—when instruction as to wilful and wanton negligence erroneous. In an action against a railroad company to recover for the death of a pedestrian alleged to have been caused by being struck by one of defendant’s trains while deceased was attempting to cross defendant’s railroad tracks, an instruction directing the jury to find for plaintiff if they believed from the evidence that the defendant carelessly and negligently operated its train in the manner and form as charged in the declaration and that such negligence amounted to wanton and wilful negligence, held erroneous as not confining the jury to a count in the declaration in which wanton and wilful negligence was charged and also objectionable as not stating the facts that constitute wanton and wilful negligence.</p> <p>5. Death, § 73*—when instruction on question of damages objectionable. In an action for death resulting from wrongful act, an instruction stating that the plaintiff is not required “to furnish, in the proofs, any definite or specific basis for the computation of, said damages, hut that such question is for the jury to determine as practical men according to the evidence and all the facts and circumstances proven in the case,” held objectionable as not limiting the pecuniary injuries resulting to the widow and next of kin, and the giving of the instruction held reversible error.</p>

<p>Error to the Circuit Court of Randolph county; the Hon. Geobgb A. Grow, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>1. Sales, § 199*—when title to shipment passes. Where a contract of sale provides that a shipment shall be f.o.b. cars at the buyer’s place of business, a delivery does not take place so as to vest title in the buyer until the shipment is delivered at such place.</p> <p>2. Commerce, § 5*—when interstate shipments not prohibited. The citizens of any State have the right to sell and ship any article of commerce to a citizen of another State unless prohibited by Act of Congress.</p> <p>3. Commerce, § 6*—when importation of intoxicating liquors not prohibited. Where a person having his place of business in dry territory in this State orders shipments of beer f. o. b. cars at his place of business from a brewery in another State, held such sale and shipment was not prohibited by the Act of Congress passed August 8, 1890, nor in violation of the Local Option Act of this State, J. & A. 1f1f 4637 et seq.</p> <p>4. Intoxicating liquors, § 268*—right to recover purchase price of imported liquors. Where intoxicating liquors are purchased and imported into dry territory in this State, the fact that the seller may have known that it was the intention of the buyer to sell them unlawfully will not bar a recovery by the seller of the purchase price where, there is no statute prohibiting a recovery under such conditions.</p>

<p>Insurance, § 397a*—provision in plate glass policy limiting liability construed. A provision in a plate glass policy that the insurance company shall not be liable for any loss or damage resulting directly or indirectly from any inundation, held to exempt the company from liability for damages resulting to the glass by persons using row boats during an inundation.</p>

<p>Appeal from the Circuit Court of Jackson county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Robekt H. Flannigan, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Appeal from the County Court of Johnson county; the Hon. J. P. Hight, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Appeal from the Circuit Court of Effingham county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Appeal from the City Court of Bast St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>1. Pbincipai, and agent, § 5a*—when contract creates relation. A contract whereby a real estate agent is to have as his commissions all he obtains for the land above a fixed price creates the relation of principal and agent.</p> <p>2. Pbincipai, and agent, § 11*—when agency revocable. Unless an agency is coupled with an interest the principal may revoke it at any time, being liable for the damages sustained, and this rule applies though the appointment is by its terms made irrevocable.</p> <p>3. Principal and agent, § 12*—when agency is not coupled with an interest. An agents authority to sell land is not coupled with an interest in the land so as to be irrevocable by his principal where the interest of the agent could only arise out of the execution of the power and in the proceeds derived from the sale as a compensation for his services in its execution.</p> <p>4. Brokers, § 19*—when authority to ■ sell real estate revoked by death of owner. A contract between real estate agents and an owner of land whereby the agents were to have as commissions all they could obtain for the land above a fixed price, held not to create an authority to sell, coupled with an interest in the land, so that the agency would not he revoked by death of the owner.</p>

<p>1. Executors and administrators, § _ 92*—when proceeding 6y citation inappropriate remedy. A proceeding by citation under sections 81 and 82 of the Administration Act, J. & A 130, 131, is not the proper remedy to try a contested claim of ownership to property.</p> <p>2. Gifts, § 9*—sufficiency of delivery to constitute gift inter vivos. To constitute a valid gift inter vivos there must be a complete delivery of the property, that is, such a change of possession as to put it out of the power of the giver to repossess himself of the thing given, and the delivery must be made with the intent to vest title in the donee.</p> <p>3. Gifts, § 15*—when gift inter vivos of certificate of deposit valid. Where a person in his lifetime gave his money to his daughter’s husband to deposit in a bank in her own name for the purpose of making a gift of the money to her, and the husband did so and took a certificate of deposit which recited that the money was deposited in her name, but beneath the signature of the cashier of the bank it further stated in the case of her death before the death of the donor the certificate becomes the property of the donor, held under all the evidence in the case that the transaction constituted a valid gift inter vivos, it appearing that the certificate was delivered by the donor to his daughter without anything said as to his right to repossess himself of the certificate, and that the writing on the certificate beneath the signature of the cashier was placed there on the proposal of the husband without any solicitation on the part of the donor.</p> <p>4. Triad, § 302*—authority of court to modify propositions of law. Under section 61, ch. 110, Hurd’s R. S., J. & A. f 8598, the trial court has authority to modify propositions of law.</p>

<p>Error to the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles -H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1855*—undertaking of sureties on appeal bond. Sureties on an appeal bond are bound by the terms of the bonds and must pay upon the occurrence of the contingencies upon which they agreed to pay.</p> <p>2. Appeal and erbob, § 1864*—what not a defense by surety on appeal bond. A surety on an appeal bond, where the appeal was dismissed, cannot in a suit on the bond interpose the defense that the decree appealed from was satisfied by reason of the fact that a receiver appointed by the court below took possession of sufficient property of the obligor to pay the decree, costs and interest.</p> <p>3. Subrogation, § 30*—right of surety on appeal bond. A surety on an appeal bond who is required to pay the amount of the judgment, costs, etc., is entitled to be subrogated to the obligor’s right pro tanto to funds in the hands of a receiver, who was appointed by the trial court to take possession of the obligor’s property.</p>

<p>Interlocutory appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court.</p>

<p>1. Bankruptcy, § 23*—proof of preferential payment. To charge a creditor of a bankrupt with a preferential payment the trustee is required to prove not only that the bankrupt made a payment which had the effect of a preference, but also that the creditor had reasonable cause to believe that a preference was intended; it is not sufficient to prove that the creditor had knowledge of facts and circumstances sufficient to put him on inquiry to ascertain whether the debtor was insolvent and that the payment was intended as a preference.</p> <p>2. Bankruptcy, § 23*—persons chargeable with preferential payments. An indorser or guarantor of a note of a bankrupt is a creditor within the meaning of section 60 b of the Bankruptcy Act so as to charge him with a preferential payment made to the holder of the note, and both the owner of the note and the indorser or guarantor may be charged for the receipt of a preferential payment to the holder, but only the amount by which the assets of the estate have thereby been depleted must be returned.</p> <p>3. Bankruptcy, § 23*—when evidence insufficient to charge defendants with preferential payments. In an action against two defendants to recover preferential payments made to them by a bankrupt within four months from the time the bankruptcy petition was filed, evidence held insufficient to prove that either defendant had reasonable cause to believe that a preference was intended.</p> <p>4. Action, § 32*—when action is in contract. An action by a trustee of the estate of a bankrupt against two defendants to recover a certain sum of money alleged to have been paid as a preference, held to be an action in contract, requiring plaintiff to prove his cause of action against both defendants.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 51*—when broker not procuring cause of exchange of real estate. In an action for brokerage commissions for procuring an exchange of real estate, evidence held insufficient to show that plaintiff was the procuring cause in bringing about the agreement for the exchange, it appearing that the defendant had listed his property with plaintiff and another real estate broker and that the latter broker first directed the attention of the defendant to property listed with him for exchange and brought about an agreement for the exchange, and there being no evidence to show that defendant did not remain neutral as between plaintiff and the other broker, or that defendant was guilty of any wrong to plaintiff.</p> <p>2. Brokers, § 84*—admissibility of evidence. In an action for brokerage commissions for procuring an exchange of real estate owned by defendant, where it appeared that another broker with whom the property was also listed, consummated the exchange, held that a carbon copy of a letter written by plaintiff to defendant after the exchange had been consummated, in which he stated a history of the dealings and relations of the parties and expressed surprise at the “clandestine" manner in which the negotiations had been carried on, etc., was a self-serving document and apparently written in preparation of making a claim against defendant for commissions, and held that its admission in evidence on behalf of plaintiff tended to prejudice the jury in favor of plaintiff.</p> <p>3. Brokers, § 99*—when instruction on amount of compensation erroneous. In an action in the Municipal Court for commissions in procuring an exchange of real estate for defendant, where there was no special agreement as to the rate of the commissions, the giving of an oral charge to the jury in which they were told that if they found the issues for plaintiff their verdict must be for a certain sum, which was computed at a certain rate on the trade value, held error where there was testimony that the rate used in computing the sum was the customary charge, but where there was no testimony of the custom on what that rate was figured, whether on the actual or trade value, and where there was testimony as to the custom, whether said rate was figured on the value of the property less the mortgage or not</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 746*—contract of insurance in fraternal "beneficiary society. The constitution and by-laws, the application for membership and the benefit certificate constitute the contract of insurance in a fraternal beneficiary society.</p> <p>2. Insurance, § 741*—when by-law of benefit society self-executing. A by-law of a beneficiary society providing that a member who has not paid his assessments or dues on or before the last day of the month shall stand suspended without notice, etc., held self-executing and to cause a member who failed to comply with it to be ipso facto suspended and to forfeit all rights under his certificate.</p> <p>3. Insurance, § 807*—what not a reinstatement of a suspended member in a beneficiary society. Under a by-law of a benefit society which provides that any member suspended for nonpayment of dues and assessments may be reinstated by payment of all arrearages within sixty days from date of suspension, if he is in good health at the time of reinstatement, a suspended member is not reinstated by the beneficiary causing the arrearages to be paid to the financier of the local lodge while the member was in the last stages of a mortal illness, where the financier accepted such payment without any knowledge of the member’s illness, there being also a further provision in the by-law that the receipt and retention of assessments and dues, in case the suspended member is not in good health, shall not have the effect of reinstating him.</p> <p>4. Insurance, § 793*-—what not a waiver of prompt payments of dues and assessments. A private agreement between the beneficiary in the certificate of a member of a benefit society and the financier of the local lodge whereby the financier agreed to advance the assessments and dues for one month or more in ease they were not paid by the member or the beneficiary held not to disclose any waiver on the part of the society with reference to the prompt payment of dues and assessments, for the reason it was not shown to have been known by the member or the principal lodge and that the agreement was beyond the scope of the authority of the financier to make.</p> <p>5. Insurance, § 786*—when evidence of custom to extend leniency in payment of dues and assessments incompetent. In an action against a benefit society to recover insurance where the defense was that the member had by virtue of a by-law been ipso facto suspended for failure to make prompt payment of monthly assessments, evidence offered to show that leniency had been extended customarily by the local lodge to certain members thereof as to the payment of assessments held incompetent.</p>

<p>1. Master and servant, § 98*—what not a “workshop” within meaning of Factory Act. A pit or manhole in a street constructed; and used by a gas company and located about two miles from its gas plant, held not to be a “workshop” within the meaning of section 12 of the Factory Act of 1909, J. & A. 5397, providing that workshops shall be kept free from gas, etc., it appearing that a gas main passed through the pit, that in the pit there were two valves on the gas main, a governor controlling the pressure of gas and indicators to register the pressure, and that the gas which passed through the main was the finished product.</p> <p>2. Evidence, § 399*—when opinion of expert improper as being . on an ultimate fact. In an action by an employee to recover for personal injuries- caused by inhaling gas which it was alleged defendant allowed to escape in a manhole, 'permitting an expert witness in answer to a hypothetical question to, in effect, give his opinion that plaintiff’s unconsciousness was caused by inhaling the gas, held error for the reason that it, in effect, allowed him to give his opinion as to an ultimate fact, which was a question for the jury, it appearing that defendant pleaded the general issue to plaintiff’s declaration and at the trial made no admission of •plaintiff’s injury, but denied that plaintiff inhaled gas at the manhole.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>1. Contempt, § 18*—when custodian not liable for delivery of bond coupons to debtor without authority from court. Where a trust company was appointed by the Probate Court as custodian of certain bonds and securities belonging to an estate, and the order of the court provided that the bonds and securities deposited with the company should not be withdrawn from its custody except by an order of the court, held that the company could not be fined for contempt of court because it did not obtain authority from the court to deliver bond coupons to the debtor when it received interest on the bonds, where it appeared that the executor of the estate and the company construed the order as not requiring any authority for delivery of a paid security and that there had previously been numerous like deliveries without an order of the court and with the consent and acquiescence of the parties.</p> <p>2. Contempt, § 74*—when appeal lies to the Circuit Court. An appeal from an order of the Probate Court adjudging a custodian of bonds and securities of an estate guilty of contempt, imposing a fine and directing an execution to issue therefor in favor of the executor if not paid within a certain time, properly lies to the Circuit Court.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Appeal from the Probate Court of Cook county; the Hon. Charles S. Cutting, Judge, presiding. Heard'in the Branch Appellate Court at the October term, 1913.</p>

<p>1. Contracts, § 144*—when not void as against public policy. A contract employing a person to go to a city and deliver public addresses and to advocate before city improvement associations the desirability of the city voting a bond issue bearing a sufficient rate of interest to make the bonds salable to carry out the purpose of the city water board to purchase a water plant, the object of the employment being to enable and help his principal to purchase such bond issue or such portion thereof as could be obtained in case they were issued, held not void as against public policy.</p> <p>2. Contracts, § 144*—when not void as against public policy. Where a contract is made by an agent to address himself to property owners on a subject in which the principal who employs the agent is interested for gain, when .the property owners’ consent is necessary to the action of an official representative body, and when it does not appear that the contract contemplates the exercise of personal solicitation or personal influence, or the acting by the agent in a secret manner, require any services at all with the official representative body, but on the other hand, the services are to be performed openly and publicly, and without the use of money, such a contract is good and valid and not against public policy.</p> <p>3. Contracts, § 136*—determination of public policy of State. The public policy of a State is to be found in its constitution and statutes, and when cases arise concerning matters upon which they are silent, then in its judicial decisions and the constant practice of its government officials.</p> <p>4. Municipal Court on Chicago, § 13*—presumption on motion to strike statement of claim. In an action in the Municipal Court based on a written contract, where it cannot be presumed from the contract as set out in the statement of claim that it is illegal, on a motion to strike the statement of claim from the files the contract will be presumed legal, and it is for the defendant to make its illegality apparent.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 13*—sufficiency of affidavit to plaintiff’s statement of claim. Where a statement of claim of a minor plaintiff purported to be made by an agent and it was urged by the defendant that since an infant is without capacity to appoint an agent the court had no jurisdiction of the subject-matter of the cause of action or of the person of the plaintiff, and that no summons could properly issue against the defendant, held that the court had jurisdiction of defendant by her entering a general appearance, and that the informality, if any, in the affidavit did not operate to deprive the court of jurisdiction of the subject-matter.</p> <p>2. Municipal Court of Chicago, § 13*—when objection to sufficiency of affidavit to statement of claim cannot be raised. Insufficiency of an affidavit to plaintiff’s statement of claim cannot be first raised after verdict and judgment to defeat a recovery upon a cause of action of which the .court has jurisdiction of the subject-matter.</p> <p>3. Municipal Court of Chicago, § 19*—when entry of judgment by default irregular. In a fourth class action in the Municipal Court to recover personal injuries, where the defendant entered her general appearance but failed to file an affidavit of merits within the time allowed by the court, the entry of a judgment by default held irregn lar; the judgment should be nil dieit, or for want of plea.</p> <p>4. Municipal Court op Chicago, § 30*—when irregularity in entering default judgment not ground for reversal. Irregularity in entering a judgment by default instead of a judgment nil dicit, or for want of plea, held not to require reversal of the judgment upon the merits.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frederick C. Hill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>1. Factors, § 26*—measure of damages for selling hogs in violation of instructions. In an action against a live stock commission company to recover damages resulting from the defendant selling plaintiffs’ hogs in violation of instructions to hold them over for two days more for an advance in the market price, a finding of the trial court allowing plaintiffs the increase in the market price, without allowing any deduction for the expense and loss necessarily involved in keeping the hogs over, held erroneous where it was established by the evidence that the daily expense for holding over hogs approximated ten cents per hundred pounds and that there was ordinarily some shrinkage in weight.</p> <p>2. Municipal Court of Chicago, § 28*—when insufficiency of affidavit of merits cannot be considered on review. An objection to the affidavit of merits based on the ground that it is insufficient under the rules of the Municipal Court to raise an issue on a particular fact alleged in the statement of claim, cannot be urged on review where the rules of the Municipal Court are not preserved in the record, and it appeared that the rules were ignored on the trial by both parties introducing evidence in support of their several contentions regarding such fact.</p> <p>3. Municipal Court of Chicago, § 29*—judicial notice of rules. The Appellate Court cannot take judicial notice of rules of the Municipal Court where they are not preserved in the record.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 26*—sufficiency of statement of facts. The record does not contain a correct statement of facts, where what purports to he such a statement is merely a statement that certain witnesses testified to certain facts, in substance, as there stated in narrative form.</p> <p>2. Sales, § 329*—sufficiency of evidence. On review of a judgment for the purchase price of goods sold and delivered, evidence in the record as presented held to show an original promise by defendants to pay for the articles furnished.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. James C. Mastín, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>1. Carriers, § 60*—when delivery of hill of lading passes title. Delivery of a bill of lading with intent to transfer the property in the goods is a symbolical delivery of the goods and passes a valid title thereto.</p> <p>2. Carriers, § 43*—when liability for shipment becomes fixed under Carmack Amendment. Under the Carmack Amendment to section 20 of the Interstate Commerce Act, it is the receiving of the goods for transportation to a point in another State that fixes the carrier’s liability for damage or loss caused by itself or by any connecting carrier; the carrier cannot defeat its liability by neglecting or refusing to issue a receipt or bill of lading in compliance with the act.</p> <p>3. Carriers, § 139*—proof essential to show right of action for damage to shipment. In an action against a carrier to recover for loss or damage to a shipment, where the evidence shows a bill of lading was issued, it devolves upon the plaintiff to prove that he is the legal holder of the bill of lading; but where no such bill of lading was issued, ownership of the goods or the right to maintain the suit must of necessity be proved otherwise.</p> <p>4. Carriers, § 50*—nature of bill of lading. A bill of lading is both a receipt and a contract to carry.</p> <p>5. Carriers, § 107*—when oral evidence of a contract of shipment should be excluded. In an action against a carrier for damages resulting from a delayed shipment, where it was disclosed that plaintiff had signed a contract of shipment but the contract was not produced in court or its absence accounted for, and the plaintiff sought to rely wholly upon a verbal contract entered into prior to the signing of the written one, held that the court erred in overruling a motion at the close of the evidence to exclude all the oral evidence of the contract, on the ground that the contract itself was the best evidence and the only contract in the case.</p> <p>6. Carriers, § 159*—power of carrier to limit liability under Carmack Amendment. The Carmack Amendment to section 20 of the Interstate Commerce Act does not prohibit a carrier from making a fair, open and reasonable agreement specifying a time in which a shipment may be delivered and limiting the amount recoverable by the shipper.</p> <p>7. Cabbiebs, § 110*—measure of damages for delayed shipment. Unless otherwise legally limited hy the contract to carry, the measure of damages by reason of a delayed shipment is the difference between the market value of the consignment at the time and in the condition it should have arrived and its fair, cash market value in the condition and at the time it actually did arrive at destination, plus the necessary expense to the shipper caused hy the unusual delay.</p> <p>8. Cabbiebs, § 235*—when not liable for damages resulting from stopping shipment of stoclc. Where a carrier is already liable for damages resulting from delay in a shipment of lambs, it cannot be required to take the risk of further damages by stopping the shipment before reaching destination for the purpose of feeding the lambs for a future market, hut where the shipment is thus stopped the carrier is entitled to the benefit of any reduction of the actual loss to the shipper that might thereby he occasioned.</p> <p>9. Cabbiebs, § 248*—sufficiency of proof for an estimate of damages resulting from delayed shipment of stoclc. In an action against a carrier for damages resulting from a delayed shipment of lambs where, owing to the delay, the shipment was stopped en route to he fed for a future market and later shipped to the original destination and sold, held that the proof in the record was too indefinite for an accurate estimate of the proper damage, and in view of a new trial the character of the proof and method of computation was suggested.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence, § 33*—presumption in the absence of proof of the laws of another State. In the absence of any proof in support of a special plea averring the law of another State, it will be presumed that the common law prevails in that State and that the decisions of the courts of this State embody a correct exposition of the common law as it prevails in that State.</p> <p>2. Banks and banking, § 126*—when drawing of check operates as assignment of funds on deposit. Under the common law in this State the drawing of a check upon a banker by a drawer having funds in his bank operates as an assignment to the drawee of the legal title to so much of the fund on deposit as is named in the check, as between the drawer and drawee; but in order to charge the bank with the amount of the check, it is necessary that the check be presented for payment, or some other act equivalent thereto, and that it be shown that the drawer had at the time of presentment sufficient funds to pay the check.</p> <p>3. Gifts, § 32*—when delivery of check constitutes gift causa mortis of deposit. A delivery by a donor of a check for a greater sum than was on deposit in the bank with intent to transfer and deliver the deposit and no more, held to constitute a completed gift causa mortis of the amount of the deposit, and to entitle the donee to maintain an action against the executor to recover the same where the latter wrongfuly withdrew it from the bank.</p> <p>4. Gifts, § 36*—authority to revoke gift causa mortis. After a delivery of a gift causa mortis to the donee by the donor, and after the death of the donor without revoking the gift, the legal representatives and heirs have no power or authority to revoke the gift.</p>

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

<p>Abstract of the Decision.</p> <p>1. Accord and satisfaction, § 3*—when acceptance of less sum does not discharge deht. After parties reach a final agreement as to the amount due on a claim, the claim is no longer regarded as an unliquidated disputed one, and an acceptance of a less sum in satisfaction thereof by mistake or oversight, which was well known to the creditor, will not discharge the debt or claim in full.</p> <p>2. Accobd and satisfaction, § 3*—when acceptance of less sum not satisfaction. An acceptance by a creditor of a sum of money less than the amount due on a liquidated debt, even if done by agreement without consideration, is a discharge of only so much of the debt as is thereby paid; the rule is otherwise where property other than money, or money and property, are taken in full satisfaction, or where the payment is the amount agreed upon in an honest compromise of unliquidated or disputed demands.</p> <p>3. Accobd and satisfaction, § 3*—right of creditor to recover balance of liquidated claim after his acceptance of less sum in satisfaction. Where a creditor accepts a less sum than the amount due in full satisfaction of a liquidated demand, it is not essential to his right of action to recover the balance due that he rescind the contract of settlement or that he return the money received; he is only required to give the debtor credit for the amount paid.</p> <p>4. Building and constbuction contbacts, § 69*—when provision requiring architect’s certificate waived. Where the owner asks the architect not to make his final certificate, and makes payments and settles without such certificate, the provisions of the contract requiring such certificate are waived.</p> <p>5. Building and constbuction contbacts, § 84*—right of contractor to recover under common counts. Where the owner and contractor had agreed on the amount due, the contractor may recover from the owner on the common counts, without producing the architect’s final certificate, where such certificate was waived by the owner.</p> <p>6. Building and constbuction contbacts, § 54*—when acceptance of work not waiver of latent defects. Latent defects in work under a building contract, not open to inspection, are not waived by the owner’s acceptance thereof in ignorance of their existence.</p> <p>7. Building and constbuction contbacts, § 57*—power of architect to waive compliance with contract. An architect has no authority to waive for the owner his right to insist on the character of the work and materials called for in the contract, unless such authority is given by the contract or by the consent of the owner.</p> <p>8. Set-off and becoupment, § 17*—when claim may be recouped. A claim for unliquidated damages is not properly a matter of set-off, strictly speaking, but it may be recouped in an action growing out of the same contract or subject-matter, i. e., such claim may be allowed to lessen plaintiff’s claim, or entirely defeat it, but not allowed so as to enable defendant to recover a judgment for any excess in his favor.</p> <p>9. Building and construction contracts, § 95*—when refusal to permit examination of work is circumstance discrediting owner’s claim of defective work. In an action for a balance due for work and materials furnished in decorating defendant’s house, where defendant claimed that the work and materials did not comply with the contract, and defendant upon the trial refused a request of plaintiff’s counsel to permit plaintiff or an expert to examine the work with a view of obtaining evidence to rebut defendant’s claim for damages, held that such refusal should be considered by the court or jury as a circumstance or act discrediting defendant’s claim of defects in the work.</p>

<p>1. Landlord and tenant, § 311*—matter which may he recouped in suit for rent. In an action for rent the tenant is entitled to recoup damages for fraud and deceit in connection with the making of the lease.</p> <p>2. Municipal Court of Chicago, § 27*—when hill of exceptions may he stricken. A bill of exceptions may be stricken where it was not filed within sixty days after the judgment was entered, or within the extended time given by the court within said sixty days, as provided by section 38 of the Municipal Court Act, J. & A. jf 3350.</p> <p>3. Municipal Court of Chicago, § 27*—necessity of hill of exceptions. A judgment of the Municipal Court striking a statement of claim or an affidavit of defense from the files and entering judgment by default must be affirmed in the absence of a bill of exceptions.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

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

<p>1. Accobd and satisfaction, § 1*—when agreement does not constitute. A subsequent agreement by the seller of goods which amounted to a mere promise to adjust the differences that had arisen over a breach of a warranty in a prior contract of sale, held not to amount to a settlement and satisfaction of all claims for damages resulting from a breach of the contract of warranty, where the agreement was not performed.</p> <p>2. Sales, § 387*—what not waiver of right to sue for breach of warranty. Failure of the buyer to pay for goods that, after delivery, have been found to be defective and not suitable for the purpose for which they were purchased, or that in other respects are not as warranted, held not a waiver of the right to sue for breach of the warranty.</p> <p>3. Sales, § 404*—measure of damages for breach of warranty where article is sold for specific purpose. Where an article is sold for a specific purpose, and the seller knows it, and warrants it to be of a particular quality and suitable for the purposes for which it is sold, and it is not as warranted and articles of the kind and quality contracted for cannot be purchased in the open market, the value of the article for such specific purpose is the basis of estimating damages, and if the special purpose for which it is to be used is a resale, or the production of some other article to be sold, then prospective profits are proper elements of damage, provided it is established by the evidence to a reasonable certainty that the article would have been sold as contemplated and how much profit would have been realized.,</p> <p>4. Damages, § 61*—when evidence of loss of profits admissible. Where motors were purchased for the purpose of being installed in automobiles and sold and were warranted to be free from defects of material and workmanship and to be fit for the purpose for which they were purchased, held in an action for a breach of the warranty that it was not error to admit evidence of the loss of. prospective profits.</p> <p>5. Sales, § 402*—when instruction authorizing recovery for loss of prospective profits not warranted by the evidence. In an action for a breach of a warranty in a sale of motors, submitting to the jury by instructions the question of loss of prospective profits, held improper where there was no evidence from which the jury could determine the amount of profits, and no evidence on the question whether other motors of the same kind and quality were obtainable in the market at the time of the breach.</p> <p>6. Sales, § 400*—admissibility of defective parts of article sold. In an action for a breach of a warranty in the sale of motors, the admission in evidence of the several parts of the motors held largely a matter of discretion with the trial court, and unless such discretion is abused its admission will not constitute reversible error.</p> <p>7. Sales, § 400*—preliminary proof necessary to introduction of defective parts of article sold. In order to render admissible in evidence the several parts of a motor in an action for breach of a warranty, the preliminary proof should show that the parts are substantially in the same condition that they were when such condition was material to the issue, or if they have been broken, worn, altered or marred since such time, the court should require evidence to show in what particular they have been changed, the use to which they were put, and, if material, the test or circumstances under which they were broken or marred, and this whether they are introduced to prove a fact or for the purpose of illustration.</p> <p>8. Evidence, § 223*—when letters, inadmissible as hearsay evidence. In an action for breach of a warranty as to motors furnished plaintiff to be installed in automobiles, letters written by persons who were purchasers of the automobiles condemning the motor, held improperly admitted for the reason they were hearsay evidence.</p> <p>9. Sales, § 402*—when instruction in suit for breach of warranty improper. In an action for breach of a warranty that motors furnished should be free from defects of material and workmanship, and that the motors should be fit for the purpose for which they were furnished, an instruction given for plaintiff which told the jury that the seller was required by its contract to furnish motors that‘would render automobiles in which they were installed reasonably saleable, if not otherwise defective is erroneous.</p> <p>10. Sales, § 402*—when instruction erroneous as assuming facts. In an action for breach of a warranty in a contract for the sale of motors, an instruction held bad for the reason it assumed there was a market value for motors in the condition they were when received by the plaintiff.</p>