Volume 190 — Illinois Appellate Court Reports

<p>Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Tobrison, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Divorce, § 168*—how decree effects property rights. Where, in a divorce suit, the parties entered into an agreement, approved by the court in its decree, that the wife should have all the personal property and she should pay the husband fifteen hundred dollars for his interest in certain real estate, for which she gave her notes, secured by a trust deed on the property, the decree fixing their property rights was held binding in a suit to foreclose the trust deed, when she refused to pay certain of the unpaid notes and repudiated the notes and trust deed as arising out of an illegal transaction.</p>

<p>Abstract of the Decision.</p> <p>1. Exchange of property, § 10*—when party not entitled to rescission. Where a woman, after making loans through a real estate and loan broker, entered into a contract with the broker for an exchange of real estate and gave her note secured by mortgage for the difference in the value of the properties and subsequently became in arrears in making payments, whereupon the broker required her to execute to him a quitclaim deed as an equitable mortgage, held there was no fiduciary relation existing between the parties at the time the contract was made or the deed was given nor any ground for rescinding the same in equity.</p> <p>2. Brokers, § 6*—relation with person maJcing loan. Where a mortgage hanker or dealer in securities sells to a person a note secured by a mortgage, the buyer is an investor, and the relation growing out of the transaction is that of banker and customer or seller and buyer and not a fiduciary or trust relation."</p> <p>3. Brokers, § 6*—when fiduciary relation created. When a person intrusts money to another to invest for him ánd the person who is intrusted with the money selects the security and makes the investment, a trust or fiduciary relation is created.</p> <p>4. Brokers, § 6*—when fiduciary relation not created. The fact that a person buying a note from a loan broker paid for it with money which the broker had collected for him, and that the note and interest coupons were payable at his office and the interest was paid there and turned over to the buyer of the note, held not to create a trust or fiduciary relation between them.</p> <p>5. Brokers, § 6*—when not a general agent. An owner by listing lots with a real estate agent for sale does not make the agent the owner’s general agent.</p>

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

<p>1. Bills and notes, § 462*—when instruction erroneous. In an action on a promissory note by a person claiming to be an innocent holder for value before maturity where the maker’s defense was that false representations were made to him as to the consideration of the note and that there was no consideration for it, an instruction, in effect, telling the jury that plaintiff could not recover if there was no consideration for the note and there was fraud and circumvention at the time it was made, and that the burden was on the plaintiff to prove by a preponderance of the evidence every material fact of his case, held erroneous for the reason there was no evidence of any fraud and circumvention in procuring the note, and also for the reason that the burden was on the defendants and not the plaintiff to show that the note was without consideration and that plaintiff was not an innocent holder for value before maturity.</p> <p>2. Bills and notes, § 61*—fraud which will not invalidate. False representations made to the maker as to the consideration, held not to constitute such fraud as will invalidate the note; the fraud must relate to the execution and not to the consideration on which it is based.</p> <p>3. Bills and notes, § 61*—what fraud invalidates. Fraud which vitiates a promissory note must consist of some trick or device that induces the giving of one kind of an instrument under the belief of the maker that he is giving one of a different kind.</p>

<p>1. Appeal and error, § 1669*—when irregularity in perfecting appeal waived. Where there are irregularities in perfecting appeals from a justice court to the Criminal Court, in that the bonds were not filed and approved by the same officer, or were not filed within the statutory time, the irregularities may be considered waived by the parties appearing in court and proceeding to dispose of the causes without objection.</p> <p>2. Appeal and error, § 788*—burden of preserving matters for review. The burden is upon a plaintiff in error to preserve for review the matters before the trial court, and the failure to do so is not cured by attempting, even with success, to show the weakness of the various considerations which may or may not have been presented to the lower court and moved it to its conclusions.</p> <p>3. Appeal and error, § 1318*—when order dismissing appeal presumed justified. On writ of error to reverse an order dismissing an appeal from a justice court, it will be presumed there were sufficient matters presented to the court to justify the order, in the absence of a bill of exceptions.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 138*-—when buyer not entitled to damages for nondelivery. In an action to recover an excess of costs to plaintiff over an alleged contract price at which defendant had agreed to furnish certain doors, where it appeared that plaintiff would not agree to pay for the doors, but only to give defendant credit on an alleged claim arising out of another sale, the plaintiff was not entitled to its claim for damages for defendant’s refusal to deliver, since there is no rule of law which requires a seller to deliver goods to a buyer where the buyer before delivery has notified the seller that he will not pay for them.</p> <p>2. Sales, § 97*—when buyer must reject goods for breach of contract as to quality or description. Where goods are not of the quality or description ordered, a purchaser should reject them within a reasonable time and not appropriate them to his own use.</p> <p>3. Sales, § 401*—when evidence insufficient to charge seller for worh done on goods sold. Where a plaintiff attempted to charge a defendant with the cost for labor, etc., in sandpapering and putting in condition, agreed upon, a lot of doors sold and delivered by defendant to plaintiff, it. appeared that plaintiff had the doors for about eight months without making any complaint concerning their condition, and the testimony tended to show that the exposure of the doors during such winter months would roughen them, the evidence was insufficient to charge defendant with the expense of removing the roughness in question, caused by the plaintiff’s own act.</p> <p>4. Sales, § 329*—when evidence justifies a directed verdict for seller. Where the trial court was properly of the opinion that plaintiff was not entitled to credits claimed, and the items of amounts, dates of delivery and prices of defendant’s statement of set-off were not in dispute, it did not err in directing a verdict for the amount of the defendant’s set-off, the correctness of the set-off being admitted under the pleadings in the case and the testimony of the opposite party.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 237*&emdash;when not liable for loss resulting from pasturing sheep en route. Where it appeared that the owner of sheep was traveling with the shipment and that he was an experienced sheep man, knowing their habits and results of feeding, and he saw the pasture in question in daylight and made suggestions about it and knew its character, it was held, if there was any negligence in connection with the duration of the period of feeding, the shipper and owner was guilty of such contributory negligence as would bar a recovery for loss of sheep due from negligence in placing them in a rich pasture and permitting them to overeat.</p> <p>2. Carriers, § 235*&emdash;when not negligent in providing pasture for sheep. In an action to recover damages for loss of sheep through eating in a pasture furnished by a defendant carrier, the evidence is held to fail to show in the pasture anything which, in itself, was harmful for sheep to eat and to charge defendant with negligence with reference to the kind of pasture furnished.</p>

<p>Abstract of the Decision.</p> <p>1. Chattel mortgages, § 209*—when evidence insufficient to identify property. Where a chattel mortgage covering ordinary-household furniture described the furniture as in a certain apartment upon a certain street and the mortgagee testified that she did not know of her own knowledge that the articles in question were the articles described in her chattel mortgage as contained in the apartment so described, the evidence is held insufficient to establish her right of property in the furniture in question which had been seized under an attachment writ.</p> <p>2. Chattel mortgages, § 210*—burden of proof. Where a right of property in certain household furniture, held under an attachment writ, is -set up by the holder of a chattel mortgage, it is incumbent upon such mortgagee to prove that the furniture in question is the same furniture as that covered by the chattel mortgage.</p> <p>3. Chattel mortgages, § 209*—effect of failure of mortgagee to show interest in property. Where a mortgagee sets up a right of property in chattels taken under an attachment writ, it is of no concern of the mortgagee as to who is awarded title in the property, so long as the claim under the chattel mortgage is denied for insufficient identification of the property in question.</p>

<p>Error to the Superior Court of Cook county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph P. Rapeebty, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>1. Principal and agent, § 113*—when agent may employ brolcer. Authority to sell or lease does not imply authority in the agent to employ a broker.</p> <p>2. Principal and agent, § 168*—when agent is individually liable. An agent who employs a broker to procure a lessor for premises is individually liable for the services of such broker, when his act is not authorized, even though such agent has no interest in the property involved.</p> <p>3. Appeal and error, § 1238*—when appellant cannot complain of error below. In a suit by brokers for commissions in procuring a tenant against an agent and an owner of property, it could not he contended that there could he no recovery against the agent alone, when the plaintiff, before verdict, dismissed the suit as to the owner.</p> <p>4. Municipal corporations, § 103*—when ordinance must be proved. The court cannot take judicial notice of an ordinance.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 170*—when master is hound hy notice to agent. Knowledge of a superintendent of the presence of gas in wells used for the construction of a building is knowledge of the master.</p> <p>2. Master and servant, § 609a*—what may he considered in determining master's negligence. In an action for the death of an employee caused by the presence of gas in a well used in constructing a building, the jury might consider all the circumstances attending the accident, and the acts and conduct of the defendants prior to such death, but the verdict could only properly turn on the question whether the defendants were guilty of negligence which caused or contributed to the death of the employee.</p> <p>3. Negligence, § 191*—what are questions of fact. What'is reasonable care in a particular case depends on the circumstances of the case and is peculiarly a question of fact for the jury.</p> <p>4. Master and servant, § 800*—when instruction as to place of worlc is erroneous. In an action for the death of an employee caused by the presence of gas in a well used in constructing a building, an instruction that the jury might find that the defendants were not guilty of negligence if they found that such defendants exercised reasonable care down to a reasonable time before the death of the employee, was erroneous.</p> <p>5. Master and servant, § 800*—lohen instruction as to duty owing to servant is erroneous. In an action for the death of an employee caused by gas in a well used in constructing a building, an instruction that if the employee was ordered to work in another well, and was killed when he returned to the first well to obtain a tool that he had left therein, he was a mere volunteer or licensee, to whom defendants owed no duty except to restrain from wilfully or wantonly injuring him, was, in effect, an instruction to find the defendants not guilty, and was erroneous as deciding the issues of fact as to whether the deceased went into the well to obtain a tool, and whether such act was within his employment, as matters of law.</p> <p>6. Master and servant, § 709*—what are questions of fact. Where an employee was killed by gas in a well when he returned to obtain a tool he had left therein, the questions whether he went down into the well to obtain such tool, and whether in so doing he was reasonably within the scope of his employment, should have been submitted to the jury.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Habry M. Fisher, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the October term, 1913.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Clabence N. Goodwin, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>1. Newspapers, § 6*—right to impose, discriminatory terms for news service. Under the Illinois law, in compelling a newspaper company to accept excessive .and unjust terms as a condition of obtaining news service is an actionable wrong.</p> <p>2. Appeal and error, § 1844*—conclusiveness of decision on former appeal. As to questions decided upon a former record as to a like statement of facts, the law declared in a former opinion of this court will be taken as the law in a review.</p> <p>3. Conflict of laws, § 12*—law governing legality of news service contracts. The wrong committed by a press association in requiring illegal exactions in a contract for news service becomes consummated at the time of the contract rather than at the time of the subsequent acts of payment or parting with property, so that the right of action, if any, is governed by the law of the place where the contract was made.</p> <p>4. Newspapers, § 6*—admissibility of evidence. In an action to recover damages for an alleged illegal discrimination and exaction growing out of the by-laws of a press association, where the contract was made without the State and not to be performed within the State, the exclusion of decisions of the lex loci is erroneous if the law therein stated was applicable and different from that of the forum.</p> <p>5. Conflict of laws, § 12*—law governing legality of a news service contract. If a press association may in New York lawfully impose conditions in its news service contracts which in other jurisdictions are declared illegal and as unjustly discriminating, the mere act of entering into the contract or negotiating for such conditions, whether they be called requirements or exactions, cannot be deemed illegal or tortious in New York, as the alleged tort, if any, is founded upon a contract, valid where made, and there can be no cause of action in a State where it is neither made or to be performed.</p> <p>6. Newspapers, § 6*—scope of law against discriminatory exactions in giving news service. The law which prohibits those engaged in a business affected by a public interest from unjustly discriminating among those receiving news service is not a statutory enactment but a rule of the common law, and it is not local to the State or limited in its application to corporations, and cannot reasonably be invoked against a corporation where it would not be against others engaged in a business clothed with a public interest, unless there is something in its charter or the law under which it is incorporated that requires observance of such a distinction.</p> <p>7. Conflict of laws, § 1*—extent of application of doctrine of comity. While this State will not enforce by comity a contract made in a foreign State, or give effect to its laws, so as to defeat the public policy of this State, the rule is not applicable where a party to a contract made in a foreign State, not to be performed in this State, comes into the State not to enforce it but to effect a repudiation of it, as in such case he will be relegated to the laws where the contract was made or to be performed.</p>

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

<p>Error from the Municipal Court of Chicago; the Hon. Oscar M. •Tobrison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>I. Fraudulent conveyances, § 15*—scope of Bulk Sales Act. The Bulk Sales Act (Hurd’s R. S. 1913, ch. 38a, 4, 5,) relates to a business or trade where, in the ordinary course and regular prosecution thereof, the goods or chattels are not ordinarily and regularly sold by the owner in bulk.</p> <p>2. Fraudulent conveyances, § 15*—scope of Bulk Sales Act. The Bulk Sales Act (Hurd’s R. S. 1913, ch. 38a, Ifli 4, 5,) is held not to apply to a sale of a team of horses, including harness and wagon, used personally by the vendor in hauling coal for others at a compensation of so much per ton.</p> <p>3. Fraudulent conveyances, § 15*—property not affected by Bulk Sales Act. The Bulk Sales Act (Hurd’s' R. S. 1913, ch. 38a, W 4, 5) does not contemplate that one called upon to render personal services cannot sell chattels, goods or things appurtenant thereto unless its conditions are complied with.</p> <p>4. Fraudulent conveyances, § 15*—property excluded from operation of Bulk Sales Act. Where the vendee of a team of horses and harness and wagon replevined them when levied upon as the property of the vendor, the sale of such property was not void for want of the statement and notices as required by Hurd’s R. S. 1913, ch. 38a,. W 4, 5.</p>

<p>Error to the Superior Court of Cook county; the Hon. Ciabence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>Abstract of the Decision.</p> <p>Brokers, § 51*—what constitutes procuring cause of sale. Where it appeared that the owner and purchaser of property were brought •together through an agent in June, 1912, when the sale was effected, and plaintiff had submitted the property to the same party about April, 1911, but negotiations for its sale ceased after September, 1911, and plaintiff never disclosed the name of the prospective purchaser to the owner or his agent, nor the name of the owner to the prospective purchaser, though requested to do so, and the prospective purchaser did not accept the terms submitted by the plaintiff, the evidence is held to show that the negotiations between the plaintiff and the purchaser were abandoned and that the plaintiff’s efforts were not the procuring cause of the sale such as to entitle him to recover commissions.</p>

<p>Abstract of the Decision,</p> <p>1. Tbial, § 199*—effect of conflicting evidence on motion for directed verdict. A motion for a directed verdict is properly overruled where the evidence is conflicting.</p> <p>2. Appeal and ebbob, § 601*—necessity for preservation of motion for new trial for review of sufficiency of evidence. The weight or sufficiency of the evidence will not be considered in the absence of the proper preservation of a motion for a new trial.</p> <p>3. Appeal and bbbob, § 800*—insufficiency of transcript to preserve ruling on motion. The failure to preserve a motion for a new trial on the ground of the weight or sufficiency in the bill of exceptions is not obviated by a recital in the clerk’s transcript that such a motion was made and overruled.</p> <p>4. Instbuctions, § 133*—presentation of opposing theories. An instruction framed to present plaintiffs’ theory of the case and not that of defendants’, which is presented by other instructions given at defendants’ request, is not erroneous.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Rufus T. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>1. Appeal and error, § 578*—when exception to judgment necessary. Section 23 of the Municipal Court Act of 1905 as amended in 1907, (J. & A. If 3335,) which has reference to the prosecution of writs of error in cases of the fourth and fifth classes, does not authorize the Appellate Court to review the evidence in a fourth class case tried without a jury to determine whether a judgment is against the weight of the evidence where there is no formal exception to the judgment.</p> <p>2. Appeal and error, § 551*— how statutes as to exceptions are construed. The second clause of section 81 of the Practice Act as amended in 1911, (J. & A. If 8618,) as to exceptions during the progress of any trial, and sections 82 and 83, (J. & A. Iflf 8619, 8620,) authorizing the allowance of an exception to a final judgment of the court in a case tried without a jury, are to be construed together.</p> <p>3. Appeal and error, § 551*—when exception during trial is necessary. Under section 81 of the Practice Act as amended in 1911, (J. & A. 1f8618,) as to exceptions during the progress of any trial, the word “trial” means a judicial examination of the issues between the parties, and such section is not strictly construed.</p> <p>4. Appeal and error, § 551*—when exception is necessary. Section 81 of the Practice Act, (J. & A. If 8618,) providing for a review of any matters at the trial, upon which the court rules adversely, without formal exception thereto, is not confined to a ruling made before the court has pronounced the finding, and does not exclude the judgment or decision of the court, it being the evident intent of the legislature to provide a method for the- review of causes without the necessity of the record disclosing that a formal exception was taken at the time to the adverse ruling upon which error is assigned.</p> <p>5. Appeal and error, § 578*—When court may review evidence. In an action of the fourth class before the Municipal Court of Chicago, where the case was tried by the court without a jury, and where the defendant objected to a finding against it and moved for a new trial, the Appellate Court was authorized to determine whether such finding was against the weight of the evidence, where the stenographic report of the trial complied with section 81 of the Practice Act, (J. & A. jf 8618,) but did not show that the defendant excepted to the entry of the judgment.</p> <p>6. Sales, § 267*—when warranty is violated. In an action to recover damages for breach of an oral contract to purchase raw cinematograph film, the evidence was held to show that such film was purchased under an express warranty, that the same was first class and of good quality, and also under an implied warranty that it was merchantable and fit for the defendant’s use, and since such film did not comply with the warranties, the defendant was not liable for film shipped after notice to the plaintiff not to make further shipments.</p> <p>7. Sales, § 404*—when evidence will warrant recovery for breach of warranty. In an action for damages for breach of an oral contract to purchase raw cinematograph film, a finding in favor of the plaintiff was held not warranted by the evidence, since the evidence as to damages was not sufficiently definite to warrant such finding, and since it -was not sufficiently shown that the plaintiff in making a resale of film, which the defendant refused to accept, did so to the best advantage of the defendant.</p>

<p>1. Fobeeitubes, § 1*—how regarded. Forfeitures are never favored by courts of equity, and gifts for charitable purposes are the special care of such courts.</p> <p>2. Wills, § 493*—when bequest to eharitable corporation forfeited. Where a bequest was made to an Old People’s Home to promote the objects and purposes for which such Home was organized, such bequest would not be forfeited under the terms of the will unless it was clearly shown that the Home had ceased or failed to carry out effectively the objects and purposes for which it was organized.</p> <p>3. Tbusts, § 243*—what is remedy to enforce trust. In the event of nonuser or misuser of a gift for charitable uses, the remedy is not the forfeiture of the property to the grantor or his heirs, unless the trust is coupled with a condition to that effect, but by a proceeding in equity to enforce the trust.</p> <p>4. Wills, § 493*— when equity will not forfeit bequest at instance of heir. A court of equity will not, at the instance of an heir, decree a forfeiture of a bequest to an. Old People’s Home for the construction of a suitable building, where there is no showing as to the reasonableness or unreasonableness of the time elapsed, or the adequacy of the fund for the purpose contemplated.</p> <p>5. Wills, § 495*—how property disposed of when gift has lapsed or is void. Where lapsed or void gifts of personal property fall into a general residuary bequest, instead of being an intestate estate descending to the heirs at law, such heirs have no right or interest in a gift which lapses.</p> <p>6. Wills, § 343*—when conditional limitation valid. Under a will making devises to several charitable corporations, a conditional limitation is valid and effective and not obnoxious to the rule against perpetuities, since the beneficiary is a charitable corporation.</p> <p>7. Wills, § 346*—when conditional limitation created. Where a will provided for a bequest to a charitable corporation, but stated that if such corporation failed to carry out the purposes for which it was organized the bequest should be treated as a lapsed legacy, there being a residuary bequest to another charitable corporation and a specific legatee, such will did not create a condition subsequent but a conditional limitation, the limitation over being in the nature of an executory devise.</p> <p>8. Wills, § 343*—what is effect where limitation over is void. Where a limitation over is void, the property is vested in the first taker as if the devise had been originally free from any limitation over.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 333*—when breach of contract not justified. Evidence held to show a breach of contract under which a brewery loaned two persons a sum of money and certain furniture, it being agreed that such persons should sell only the heer manufactured by such brewery, and the breach of such contract was not justified by evidence showing that on two occasions when beer was ordered, someone at the brewery told such persons that they would have to wait for the delivery of their order.</p> <p>2. Evidence, § 173*—when evidence of telephone conversation admissible. Evidence of a telephone conversation with an agent of plaintiff is erroneously admitted where it is not shown who answered the call, that he was known to the witness or recognized as an agent of the plaintiff, or authorized to speak for such plaintiff.</p> <p>3. Principal and agent, § 225*—who has burden of proving authority of agent. The burden of proof of authority of an agent is on the party dealing with such agent.</p> <p>4. Principal and agent, § 240*—when evidence of agent admissible to bind principal. Evidence of an agent is not admissible to bind his principal where his authority is not shown.</p> <p>5. Witnesses, § 209*—what cross-examination improper. Where a witness’ testimony on direct examination was limited solely to identification of signatures on a judgment note, questions asked on cross-examination as to the witness’ duties, were improper.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1236*—when appellant cannot complain of decree. Where certain complainants abandoned an original bill for an accounting and dissolution of a partnership, and prosecuted their suit for the sole purpose of determining whether a hank was entitled to certain warrants purchased from a third person who had obtained them from a member of the partnership, they could not be heard to claim, as a basis for a reversal of decrees entered on a bill of review, that there was no proof by which the court could determine the share of a member of the partnership in its assets.</p> <p>2. Appeal and error, § 484*—when master’s report must he objected to. An appellant who makes no objections to a master’s report or exceptions thereto, raising the question of want of proof on an issue presented by the original bill, although ruled to make proof on such bill, cannot raise the question for the first time on appeal.</p> <p>3. Equity, § 582*—what relief is proper on hill of review. Where decrees entered on a bill of review sought to terminate a receivership of a partnership by dismissal of the original bill under which the receiver was appointed, it was proper and equitable to require proceeds of warrants in the hands of the receiver to be paid to a bank from which the warrants were received, and it was also equitable and proper to decree that money received from a partner be returned to such partner or his assignee, after deducting a share of the expenses of the receiver.</p> <p>4. Dismissal, nonsuit and discontinuance, § 38*—when hill for partnership accounting will he dismissed. It is equitable and proper to dismiss a bill for partnership accounting where no evidence is offered supporting the bill or where the evidence leaves the matter in such a state that it is impossible for the court to state an account.</p> <p>5. Equity, § 431*—when exceptions to master’s report are necessary. An appellant who files no exceptions to a master’s report recommending the return of proceeds and moneys is bound thereby.</p> <p>6. Equity, § 473*—when right of intervenor in action not affected hy original hill. In an action for a partnership accounting, where a bank intervened and claimed to be entitled to proceeds of warrants" purchased from a third person, after such person had obtained such warrants from one of the partners for services rendered, the right of the bank was not affected by the accounting and it was not required to enter upon proofs as to such accounting.</p> <p>7. Appeal and error, § 493*—when appellant cannot complain of decree. Where the right of a partner to moneys in the hands of a receiver was not questioned by partners seeking a dissolution and accounting, and they abandoned their claim to an accounting from such partner, they could not complain of a decree awarding the money to the partner.</p>

<p>1. Chattel moetgages, § 3*—what is nature of chattel mortgage. The chattel mortgage was unknown to the common law, it being the rule that all sales and pledges of personalty were void unless possession accompanied and went with the title or to the pledgee.</p> <p>2. Chattel mortgages, § 1*—how statute is construed. A chattel mortgage is valid only when the requirements of the statute have been strictly complied with, and the statute being in derogation of the common law is to be construed strictly.</p> <p>3. Chattel mortgages, § 46*—how mortgage must he acknowledged and recorded. A chattel mortgage not acknowledged and recorded as prescribed by statute is invalid as to third persons.</p> <p>4. Chattel mortgages, § 55*-—when acknowledgment does not comply with statute. A chattel mortgage not acknowledged by the owner in person, but acknowledged by his attorney in fact, is not acknowledged in compliance with the statute and is invalid as to a person who claims to own the property as a purchaser.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 943*—when party cannot object to recp/rd. On appeal from a foreclosure decree, a contention that no-' evidence is contained in the record showing a tax sale or deed/on the mortgaged property, warranting foreclosure cannot be sustained where it appears that the appellee was not afforded an opportunity to supply such defect, and where a transcript of additional parts of the record was filed subsequent to the filing of briefs showing the tax sale.</p> <p>2. Mortgages, § 394*—what is sufficient election to declare whole-debt due. The determination of a holder of notes to file a bill for the foreclosure of a trust deed for the entire indebtedness, and the preparation and filing of such bill, is a sufficient election to declare the whole sum due, and to entitle him to maintain the bill.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1734*—when former decision is law of case. A holding on a prior appeal that evidence failed to sustain a charge of negligence is not binding on a subsequent appeal where the evidence is materially different.</p> <p>2. Master and servant, § 161*—what duties of master cannot he delegated. The duty of inspection of appliances is on the master and cannot be delegated.</p> <p>3. Master and servant, § 123*—what are duties as to safe place of work. A master is bound to furnish a servant with a safe place in which to work, and noncompliance with this duty is not one of the ordinary risks assumed by the- servant</p> <p>4. Master and servant, § 123*—what is extent of master’s duty as to place of work. The duty of the master to furnish a safe place of work is continuing, and if the place- is. made unsafe by reason of the master’s negligence without the servant’s knowledge, the master is liable for the injury.</p> <p>5. Master and servant, § 447*-—when servant may rely on care of master. A servant may assume that a master has provided a safe place of work, unless he has notice of the danger or the unsafe condition is obvious, in which case he assumes the risk.</p> <p>6. Master and servant, § 714*—what is question for jury. In an action for injuries sustained by a servant, the question whether wire on a street car was out of order when such servant took charge of the car was for the jury, the defect not being apparent, and since .the evidence was sufficient to sustain a finding of negligence the. verdict would not be interfered with.</p> <p>7. Master and servant, § 777*—when instruction not misleading. In an action for personal injuries, an instruction that the jury was not bound to consider the evidence evenly balanced when twp •witnesses contradicted each other, but that the surrounding facts might be considered, was not erroneous as misleading or as invading the province of the jury.</p> <p>8. Master and servant, § 807*—ivhen instruction as to assumed risk not erroneous. In an action for personal injuries, an instruction that a servant is not bound to inspect appliances but may ■assume that they are safe, and that such servant is- only bound to take notice of such defects as actually come to his knowledge, oj would be disclosed by ordinary care, and- applying such rules to the evidence, was not misleading or inapplicable.</p> <p>9. Master and servant, § 790*—what facts' may he assumed in instruction. In an action by a servant for personal injuries, where there was no controversy that a defect in a street car existed at the time of the injury, such defect could he assumed to exist in an instruction as a fact.</p> <p>10. Damages, § 110*—when verdict not excessive. A verdict of five thousand dollars for personal injuries held not excessive, or the result of passion of prejudice, or improper argument of counsel.</p>

<p>Abstract of the Decision.</p> <p>1. Animals, § 43*—when evidence shows negligence in management. Evidence held to warrant a finding that a driver of a horse and wagon was guilty of negligence in placing the horse in a dangerous place, under an elevated railroad track, and taking the bridle bit out of the mouth of the horse and leaving it unhitched and unfettered while he was engaged on some errand at the wagon.</p> <p>2. Animals, § 43*—when evidence sufficient to show cause of injury. Evidence held to show that a collision due to a horse running away was the cause of the loss of another horse which died shortly after such collision.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>1. Appeal and ebbob, § 395*—when objections to master’s report not saved. A party will not be heard on review to make objections to the master’s report which he did not bring to the attention of the trial court.</p> <p>2. Interest, § 43*—when only legal rate may be charged. As against their cotenants, tenants'in common with entire charge and control of the premises, receiving the rents and profits, are entitled to only legal interest on amounts paid by them to discharge incumbrances.</p> <p>3. Partition, § 72*—allowance for improvements. In an action for partition and an accounting, a decree allowing defendants for certain improvements placed on the land by them on the basis of cost thereof rather than on the basis of the difference in the market value of the land because of such improvements, held not erroneous where there was no sufficient evidence as to the market value of the land with and without the improvements, and the allowance appeared to be equitable.</p> <p>4. Partition, § 136*—when order of proceedings cannot be complained of on review. The fact that a decree of partition was entered and proceedings had thereunder before the decree for an accounting and proceedings thereunder, by which the interest of the parties in the improvements would be ascertained, cannot be complained of where such order of proceeding was expressly consented to by the party complaining.</p> <p>5. Appeal and ebbob, § 831*—term at which bill of exceptions must be talcen. In cases at law the bill of exceptions must be taken at the term at which the rulings excepted to were made, or within such time as the court may at that term have granted for that purpose; and this applies whether the ruling excepted to is a final and appealable order or not.</p> <p>6. Appeal and ebbob, § 862*—certificate of evidence. The rule that in cases at law bill of exceptions must be taken at the term at which the rulings excepted to were made, or within such time as the court may at that term have granted for that purpose, properly applies to the filing of a certificate of evidence.</p> <p>7. Appeal and error, § 86*—when motion for leave to file certificate of evidence properly denied. Denial of motion to grant leave and to extend the time to present a certificate of evidence, held properly denied where there is no means of preparing such certificate except to trust to the memory of some person that heard the evidence.</p> <p>8. Partition, § 69*—scope of accounting. In an action between heirs for a partition and an accounting, the complainant is not entitled to a credit for money loaned to defendants.</p>

<p>Appeal from the County Court of Woodford county; the Hon. Arthur C. Fort, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Appeal from the City Court of Sterling; the Hon. Henry C. Ward, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Husband and wife, § 267*—when decree for separate maintenance will not be disturbed. Where a decree for separate maintenance is entered upon conflicting evidence, it will not be disturbed on review, if there is sufficient evidence to support complainant’s contention.</p> <p>2. Husband and wife, § 249*—solicitors’ fees not excessive. An allowance of fifty dollars for solicitors’ fees in an action for separate maintenance is held not to be excessive, there being no question as-to the court’s right to make such an allowance.</p> <p>3. Ne exeat, § 8*—when objection to power of court to issue not preserved for review. Where an appeal bond does not recite an appeal from a distinct order for a writ of ne exeat, which was not questioned in the trial court, the question whether the issuance of such a writ was beyond the powers of the court because not within the letter of the statute was not saved for review.</p>

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

<p>Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>1. Municipal corporations, § 998*—liability for defective sidewalks. A city is liable for personal injuries to a pedestrian resulting from a defective sidewalk contructed on private property if it is treated by the city as a' public walk and permitted to be used as such.</p> <p>2. " Negligence, § 134*—right of recovery on proof of negligence of one defendant. One may charge negligence generally against several defendants and recover against those who are proven to have been negligent; so that it is not erroneous to permit recovery where on of two defendants was dismissed without amending the declaration.</p> <p>'3. Municipal corporations, § 1063*—contributory negligence. In an action by a pedestrian for injuries resulting from a fall on a defective sidewalk, the fact that he knew that the walk was defective and could have gone another way does not preclude recovery, as the act of walking on the defective sidewalk is not negligence per se, but merely a circumstance to be considered by the jury, inter alia, in determining whether he was guilty of contributory negligence.</p> <p>4. Municipal corporations, § 1064*—effect of failure of pedestrian to take different course. The fact that a pedestrian might have reached his destination by a route other than that over a defective sidewalk is not negligence per se, hut merely a circumstance to be considered by the jury in passing upon the question of contributory negligence.</p> <p>5. Municipal corporations, § 1060*—care required in using defective sidewalk. All that the law requires of one walking upon a public sidewalk with the knowledge of its defects,'and that there is another way that he could travel upon, is that he should exercise ordinary care for his own safety.</p> <p>6. Municipal corporations, § 1225*—sufficiency of notice of claim or injury. In an action against a city for personal injuries by reason of a defective sidewalk where the plaintiff, in front of his residence, met the city clerk on his way to the city hall and handed a statement of injuries to him, who carried the notice to his office in the city hall and had it there in the presence of the city attorney, and the plaintiff later called upon the clerk in his office upon the subject, it constituted a sufficient filing of the statement of injury, under the statute, immediately upon its reaching the city clerk’s office.</p> <p>7.. Municipal corporations, § 1098*—sufficiency of evidence. Where it appeared that a pedestrian had attempted to step over a hole or a broken place in a sidewalk and slipped because the walk was wet from rain and caught his toe in the hole and was thrown, evidence held .sufficient to support recovery for injuries received, the jury’s verdict being conclusive of the absence of contributory negligence.</p> <p>8. Municipal corporations, § 1001*—when evidence sufficient to show control or possession of sidewalk and driveway. Where a sidewalk and driveway, constructed on private property, had for fifteen years extended up a hill upon which from sixteen to twenty-five families lived, and where there was a public school and the street and alley commissioners of the city did work upon the walk before and after the accident in question, and the city had paid for repairs on the walk a few months before, evidence held sufficient to show that it was treated and permitted to be used as a public walk and driveway.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Chables Whitney, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Error to the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1914.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Sales, § 186*—effect of failure to take possession. While a sale of personal property, where made in good faith and where' all the terms were agreed upon, is valid so as to pass title without a delivery of such possession as the property is capable of, if the vendor retains possession the transaction is fraudulent as to creditors and subsequent purchasers without notice.</p> <p>2. Sales, § 186*—what constitutes an unreasonable time within which to take possession. In an action of replevin against a sheriff and the constable, representing respectively an execution and attachment creditor, by a purchaser of the contents of a corncrib, held twenty-four days was not a reasonble time within which the purchaser should in some effective manner take possession of the corn, and that his purchase for value would not hold the property as against such creditors.</p> <p>3. Sales, § 186*—necessity for taking possession. In an action of replevin by a purchaser of corn in a corncrib upon which he had made payments, where it appeared that the purchaser did not go to the corn, nor nail up the crib, nor post any notice of his purchase upon it, nor put a custodian in possession, nor take any of the corn away, held that he could not properly prevail as against the sheriff and constable representing, respectively, execution and attachment creditors.</p> <p>4. Sales, § 186*—when question of reasonable time to take possession not for the jury. The refusal of an instruction leaving to the jury the question whether a reasonable time had passed within which a purchaser should take possession of corn in a crib, and in determining what was a reasonable time the jury should take into consideration all the facts and circumstances shown by a preponderance of the evidence, was not erroneous since the evidence was such that the jury might not reasonably conclude that a reasonable time had not passed within which to take possession of the property.</p> <p>5. Appeal and ebbob, § 1560*—when refusal of requested instruction not prejudicial. The refusal of an instruction that the actual delivery of corn in a crib was not necessary to pass title to a purchaser for value was not prejudicial, as there was no dispute as to the passing of title and the instruction was unnecessary.</p>

<p>1. Master and servant, § 158*—application of Safety Appliance Act. Act of 1897 (Hurd’s R. S. 1913, ch. 48, §§ 43-48, J. & A. ITT 5378-5383) held not to apply to the injury in question, as sought to be guarded against by the statute.</p> <p>2. Master and servant, § 158*—persons protected by Safety Appliance Act. To entitle a person to recover because of a violation of a statute imposing a duty upon an employer for the protection of an employee, he must be within the class contemplated by the statute and within the purpose and protection for which the law was enacted.</p> <p>3. Master and servant, § 572*—burden of proof. In order to entitle an employee to recover under a statute 'enacted for the protection of workmen, it is not alone sufficient to aver and prove the violation of the statutory duty of the defendant and the consequent injury to the plaintiff, but it must also appear that the statutory duty violated was one that defendant owed the plaintiff and of which he complains.</p> <p>4. Instructions, § 25*—where counts are defective. Refusal of an instruction to the jury to disregard certain bad counts is not reversible error if there is another good count in the declaration.</p> <p>5. Master and servant, § 158*—safety appliance statute construed. Act of 1909 (Hurd’s R. S. ch. 48, §§ 89 et seq., J. & A. If 5386 et seq.) held that the purpose of the act manifest from its title and provisions was to provide for guarding power driven machinery and that it was not intended to limit its requirements to machines specifically named and hence it should be construed to cover buffing wheels, as there was not an attempt to name every machine or part of a machine that must be guarded, but rather the specific mention of certain machines to indicate the kind and character of machinery contemplated.</p> <p>6. Master and servant, § 445*—compliance with direction of master. A workman is not to be charged with negligence, or with the performance of an unlawful act, because he installs or works upon machinery not guarded in compliance with statute, if he does so under the direction of his master.</p> <p>7. Master and servant, § 432*—care required of servant to use safety devices. It seems that if a workman is in charge of the Installation and operation of a machine, with full power to guard it or not as he sees fit, he cannot maintain an action for negligence of his master based on his own failure to do the act required.</p> <p>8. Instructions, § 38*—when recital of inapplicable part of statute reversible error. An instruction reciting sections of an act not applicable, held prejudicial as presenting improper matters for consideration in reaching a verdict.</p> <p>9. Master and servant, § 302*—where doctrine of assumed risk does not■ apply. In an action under the Act of 1909 (Hurd’s R. S. ch. 48, §§ 89 et seq., J. & A. HIT 5386 et seq.), held that an instruction that the doctrine of assumed risk did not apply and the doctrine of contributory did apply was proper under the pleadings, although both defenses may not be available under the statute.</p> <p>10. Instructions, § 38*—effect of recital of lengthy statute. While the recital of an extensive statute in an instruction is not good practice, it was held not to be erroneous.</p> <p>11. Master and servant, § 685*—admissibility of evidence. Where an injury fell within the Safety Appliance Act of 1909, it was held erroneous to permit the introduction of evidence that other machinery in the factory was not guarded, including machinery that might fall within the provisions of the Act of 1897, which did not apply to the injury in question.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the April term, 1914.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Job A. Davis, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Parties, § 13*—when declaration in suit for use irregular as to party plaintiff. Where the People of the State of Illinois for the use of an individual is the plaintiff in the summons, it is irregular to file a declaration in the name of such individual alone as plaintiff.</p> <p>2. Official bonds, § 29*—form- of action in suit on tond under seal. The proper form of action upon an official bond under seal is debt and not assumpsit.</p> <p>3. Official bonds, § 32*—sufficiency of declaration. In an action on an official bond, a count in the declaration held defective as containing no allegations which would make one of the defendants liable on the instrument, which was not executed by him.</p> <p>4. Official bonds, § 32*—when declaration fatally defective. In an action on an official bond of a treasurer of a drainage district for a balance claimed to he due to plaintiff for work and alleged to be wrongfully withheld by the treasurer, a declaration failing to allege whether the district was operating under the acts forbidding the treasurer of a district organized thereunder to pay out money except upon the written order of the majority of the commissioners, and failing to allege that plaintiff obtained any such order and presented the same to the treasurer for payment, held fatally defective, since the declaration must he construed most strongly against the pleader.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1914.</p> <p>Certiorari allowed by Supreme Court.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Greek, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 375*—nature of distress warrant. A distress warrant is a suit at law for rent and, is governed by the common rules of pleading and by our Practice Act, except that the distress warrant stands as a declaration.</p> <p>2. Pleading, § 104*—right to file inconsistent pleas. Inconsistent pleas are permitted in this State, except that a plea in bar of the entire declaration cannot be filed with a plea of tender.</p> <p>3. Pleading, § 400*—effect on issues when plea does not deny joint liability. Notwithstanding joint liability has not been denied by plea, the evidence must show that each defendant is liable in order to entitle the plaintiff to a judgment against any one of them in an action ex contractu.</p> <p>4. Pleading, § 400*—effect of plea of set-off on issue of joint liability. In a suit at law against several defendants alleging a joint liability for a debt, the fact that the defendants filed a plea of set-off does not obviate the necessity of proving- them all liable where they also pleaded the general issue.</p> <p>5. Trial, § 83*—when request for leave to reopen case for further evidence properly refused. Where in a suit against two defendants jointly for rent, the plaintiff, after having closed his case without proving the debt was still unpaid and without any evidence to prove that one of the defendants owed anything, asked leave to reopen his case for the purpose only of proving that the alleged sum was still unpaid, held that the court did not err in refusing leave.</p> <p>6. Judgment, § 192*—right to judgment against joint defendant in actions ex contractu. In a suit at law against several defendants alleging a joint liability for a debt, and all are served with process, the plaintiff in order to recover, must prove a case against all the defendants or else he must dismiss as to those whom he cannot prove liable and amend his declaration by striking out so much thereof as charges that the dismissed party was liable; otherwise, if he fails to prove a case against any one of the defendants, his suit fails.</p>

<p>1. Corporations, § 173*—validity of voting trust agreement. A voting trust agreement entered into by a majority of the stockholders of a corporation whereby such stockholders assigned their stock to a trustee for a certain period of time, giving such trustee power to vote such stock as a unit as he may deem best, held valid and not against public policy, where the purpose of the agreement was for keeping a certain faction of the stockholders from securing control of the corporation, which the members of the trust agreement believed would be detrimental to the interest of all the shareholders.</p> <p>2. Corporations, § VIZ*—when voting trust not shown to he illegal. The formation of a voting trust by a majority of the stockholders is not shown to he illegal for the reason that its purpose was to enable three of their number to obtain salaries as officers of the corporation, where there is no proof that it had any such purpose except such inference as may be drawn from the bare fact that such stockholders after becoming elected officers voted themselves salaries, it also appearing that the amount of the salaries thus voted was reasonable.</p> <p>3. Coepobations, § 285*—right officer to participate in voting Ms salary. A salary voted to an officer of a corporation is illegal i£ the resolution fixing the compensation is carried by his vote.</p> <p>4. Coepobations, § 285*—who may fix salary of officers. Courts have no authority to fix the salary of an officer of a corporation, since such salaries must be fixed by the directors of the corporation, under the statute.</p> <p>5. Coepobations, § 284*—right of officers to salary. A person who serves as an officer of a corporation when no salary has been provided must render his services gratuitously; salaries cannot be fixed for the time that has passed.</p> <p>6. Coepoeations, § 173*—when shareholder not entitled to Question legality of voting trust. A voting trust agreement by a majority of the stockholders of a corporation cannot be attacked by the owner of a small minority of such shares on the ground that it is illegal because the trustee is left in sole control for a certain period of time, where a clause on the agreement contemplates that the trustee may die, resign or be removed for cause, and the vacancy so created filled and it is apparent from the agreement that only the holders of a majority of the shares in the voting trust could make objections to any act of the trustee.</p>

<p>1. Insurance, § 128*—how policy will Be construed. Where the meaning of an accident insurance policy is ambiguous and uncertain, it must be construed liberally in favor of the insured and strictly against the insurer.</p> <p>2. Insurance, § 432*—what injury covered by accident policy. Under an accident insurance policy providing, for certain payments for certain injuries, “while actually riding within a conveyance drawn by horse power * * * in consequence of a collision or other accident to the conveyance,” it cannot be contended that the only injuries that can be recovered for are confined to injuries received in consequence of a collision or other accident to the conveyance, since the policy was issued to insure against injuries to the person of the insured while riding in a cbnveyance drawn by horse power.</p> <p>3. Insurance, § 432*—what is meant by term “total disability.” Under an accident insurance policy insuring against total disability, it is not necessary to constitute total disability that the insured be helpless, and the question of such disability is one of fact.</p> <p>4. Insurance, § 432*—when person insured is totally disabled. Where an accident policy insured against total disability, and the insured was injured so that the use of one hand was prevented, and it appeared that he could do no work, though he was able to go around and give instructions to others, a verdict in favor of such insured was justified by the evidence.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myeks, Judge, presiding. Heard in this court at the April term, 1914.</p>

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

<p>1. Bankruptcy, § 23*—when evidence sufficient to show preference. In an action to recover the amount of an alleged unlawful preference under the provisions of the Bankruptcy Act, where the evidence did not show clearly whether the bankrupt was insolvent at the time of the preference, the question whether the defendant knew or had reasonable cause to believe that such bankrupt was insolvent and that it would receive a preference from the proceeds of the sale of an elevator and, crib of corn and certain drafts was for the jury, its finding in the affirmative being supported by the evidence.</p> <p>2. Bankruptcy, § 21*-—what constitutes preference. Where the sale of a bankrupt’s property was made to satisfy a debt of a defendant and not voluntarily, the application of the proceeds not being because of mutual debts, or a debt in the nature of a running account, the payment constituted an illegal preference.</p> <p>3. Appeai and error, § 492*—■when erroneous judgment cannot be objected to. Error in the entry of a judgment in excess of the amount claimed in a declaration is waived when there is no objection in the lower court, since the question cannot be first raised on appeal.</p> <p>4. Bankruptcy, § 27*—what evidence admissible to show preference. In an action against a bank to recover the amount of an unlawful preference, where the defendant claimed that it ceased to make payments on checks because the bankrupt began doing business with another bank, a receipt for money deposited with another bank was properly admitted when its purpose was only to show that the deposit was not general but in trust for creditors.</p> <p>5. Bankruptcy, § 27*—when bankrupt’s schedule of debts admissible in evidence. In an action against a bank to recover the amount of an alleged unlawful preference, the' admission in evidence of the schedule of debts and creditors' filed in the bankruptcy court, while unnecessary was not error, the effect of the evidence being properly limited by the instructions.</p> <p>6. Appeal and erbob, § 1632*—when improper remarle of counsel cured. In an action to recover the amount of an alleged unlawful preference, a question asked of an attorney as to whether he did not state that a conveyance was worthless if there were other creditors, and his negative answer, were harmless and the ruling of the court in excluding the question and answer on motion operated to remedy the error, had" there been any.</p>

<p>Abstract of the Decision.</p> <p>1. Vendob and pukchaseb, § 118*—-when contract may 6e enforced. A contract for the sale of land which stipulates for the payment of liquidated damages in case of failure to perform, but which is not in the alternative, and does not contain any provision that it shall become null and void on the failure to perform any of its conditions, is not an optional contract, and its performance may be enforced.</p> <p>2. Brokers, § 65*—when "brokers entitled to compensation. Where real estate brokers produced a purchaser ready, able and willing to buy land at the price fixed, they were entitled to compensation for their services, and when the agreement provided that the brokers were to be entitled to an additional sum if the price exceeded that asked by the seller, they would be entitled to such excess when the sum was paid, but an action for the excess could not be maintained until the money was paid.</p> <p>3. Brokers, § 99*—when instruction as to amount of compensar tion erroneous. In an action for commissions for procuring a purchaser for real estate, the refusal to give an instruction assessing damages, as requested, was proper, where the amount stated was more than the ad damnum, and such amount stated was not due under the contract.</p> <p>4. Appeal and error, § 1156*—when rehearing may be permitted though petition not filed in time. While the granting of a rehearing may be erroneous because the petition therefor is not filed in time, the court has control over its judgments during the term at which they are entered, and such rehearing may be allowed to stand as granted on the court’s initiative.</p>

<p>1. Replevin, § 10*—what is nature of statute. Section 2 of the Replevin Act (chapter 119, J. & A. If 9187) prohibiting actions of replevin at the suit of the defendant in execution, and section 4 of such Act (J. & A. If 9189) requiring an affidavit that the goods were not seized under any execution, are mostly declaratory of the common law.</p> <p>2. Justices oe the peace, § 117*—when judgment must he rendered. A justice of the peace at the conclusion of a trial before him must either render judgment or continue the cause to some definite time when he shall render judgment; and if he takes the case under advisement indefinitely, a judgment subsequently rendered by him is a nullity.</p> <p>3. Execution, § 33*—when execution void. An execution issued on a judgment of a justice which is void because of his taking the case under advisement indefinitely, is unauthorized and void.</p> <p>4. Replevin, § 10*—what property may he replevied. As a general rule, neither the defendant in execution nor any one claiming under him can maintain replevin against an officer levying an execution, as the property is in the custody of the law.</p> <p>5. Replevin, § 10*—when property taken under execution may he replevied. A writ in the form of an execution, which is void because the judgment on which it is issued is void is not an execution, and the party named therein may replevy property attempted to be taken under such void writ.</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>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Master and servant, § 582*—what must be shown to prove negligence, under Federal Employers’ Liability Act. In an action under the Federal Employers’ Liability Act for the death of a locomotive fireman caused by a derailment, the plaintiff was not required to prove the exact point where the locomotive left the track nor that, beyond a doubt, it was derailed because- of defective ties, and since the evidence showed a large percentage of rotten ties, it was a legitimate inference that the train was derailed by the rails spreading or giving away because the ties did not properly support them, wherefore a verdict of negligence was supported by the evidence.</p> <p>2. Master and servant, § 622*—what evidence is admissible to show negligence. In an action for the death of a locomotive fireman caused by a derailment, evidence of the condition of the ties that were splintered and mashed by the engine was competent, when confined to the ties under the train and which it had passed over.</p> <p>3. Master and servant, § 622*—what conditions may be shown to prove negligence. In an action for the death of a locomotive fireman caused by a derailment, the parties were permitted to show the condition of the roadbed at the time of, prior to and immediately after the accident, but evidence of what was done after the accident was not admissible, since if changes were made they were apt to be interpreted as an admission of negligence, and if the defendant was permitted to offer evidence on such question, the plaintiff would be entitled to rebut such evidence, and it would raise an immaterial issue.</p> <p>4. Master and servant, § 622*—lohen cross-examination improper. In an action for the death of a locomotive fireman caused by a derailment, where a witness testified to the condition of the road just prior to the accident, a question asked of such witness as to what was done five years prior to that time was not proper cross-examination, and such question was properly excluded.</p> <p>5. Master and servant, § 666*—what evidence as to cause of accident improper. In an action for the death of a locomotive fireman caused by a derailment, it was not error to sustain an objection to a question put to an expert witness as to what was the cause of the accident, as such cause was an issue for the iury.</p>

<p>1. Property, § 27*—when person is presumed owner. A party. In possession of personal property is presumed to be the owner of it, and where such owner puts another in possession and clothes him with the indicia of ownership, he loses his right thereto, as against creditors of that person.</p> <p>2. Attachment, § 360*—when sureties are estopped from attaching bond. Obligors on a forthcoming bond are estopped to deny the recitals and admissions in the bond.</p> <p>3. Attachment, § 317*—what is effect of plea preventing inter-pleaders from claiming property. Where certain property and money, seized by a writ of attachment, was released because of the giving of a forthcoming bond, and a partnership interpleaded and claimed the property, a plea that the sureties on the forthcoming bond executed the same at the special instance and request of the interpleaders, and that the undertaking was that of the partnership, was one of estoppel by record or deed, the bond being under seal.</p> <p>4. Attachment, § 317*—when interpleaders are estopped from claiming property. Where personal property, seized by a writ of attachment, was released because of the giving of a forthcoming bond, and it appeared that such bond was the undertaking of a partnership which interpleaded and claimed the property, it was not permissible for such partnership or its surety to obtain the property under the outstanding title of a third person, when they had agreed to hold it under the sheriff.</p> <p>5. Principal and surety, § 8*—what is extent of liability of surety. The liability of sureties follows that of the principal, and if the obligation is valid against the principal it is valid against the sureties.</p>

<p>Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>1. Appeal and error, § 198*—when question of validity of statute waived. A party appealing to the Appellate Court waives the question as to the constitutionality of a statute.</p> <p>2. Master and servant, § 760*—when question of proximate cause for jury. In an action for injuries sustained by a shot firer in a coal mine, the question of whether the negligence of the defendant was the proximate cause of the injuries was for the jury; and it appearing that loaded coal cars and gob piled at both sides of the cars delayed the plaintiff from escaping from a shot, a finding of negligence was sustained.</p> <p>3. Master and servant, § 528a*—what is effect of Compensation Act. In an action by a servant for injuries sustained in a mine, where it appeared that the defendant had elected not to pay compensation under- the Workmen’s Compensation Act, (J. & A. 1f1f 5449 et seq.), the effect'of such election was to relegate the plaintiff to a suit at law for damages measured by the law as it existed prior to the act, except that contributory negligence could not be considered in reduction of damages.</p> <p>4. Master and servant, § 670*—what evidence admissible to show damages. In an action by a shot firer for injuries sustained in a coal mine, there was no error in permitting the plaintiff to prove the amount of his daily wages.</p> <p>5. Masteb and sebvant, § 795*—when requested instruction may he refused. In an action for injuries sustained by a shot firer in a coal mine, there was no error in refusing requested instructions when the instructions given covered those refused.</p> <p>6. Damages, § 135*—when verdict not excessive. Where a shot firer in a coal mine, forty-four years of age, earning $4.72 a day, had both his upper and lower jaws broken, lost several teeth and pieces of bone, was out of work nine weeks, was in bed two weeks, suffered intense pain and was compelled to pay a doctor’s bill of $75, a verdict of $1,029.16 was not excessive.</p>

<p>Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>1. Landlord and tenant, § 5*—when relation not created. Under a contract by which a person was to furnish her son-in-law with board and lodging and pay him $B0 per year, in return for which the son-in-law was to render certain services, furnish household supplies and care for Ms mother-in-law, 'the premises occupied being restrained by the mother-in-law during her life, the son-in-law had no right of possession to the premises except as was necessary to perform the services required, and the contract did not create the relation of landlord and tenant, but that of master and servant.</p> <p>2. Master and servant, § 39*—what is duty of employee on termination of relation. Where an employee occupies a house incidently to his employment and he is discharged, whether the discharge be rightful or wrongful, he must vacate the premises occupied by him as such employee, and if he fails to leave peaceably, or after doing so returns and becomes a trespasser, he may be ejected by the master although his wages have not been paid.</p> <p>3. Forcible entry and detainer, § 3*—when remedy available. Under the Forcible Entry and Detainer Act, § 2, (J. & A. V 5843), suit may be maintained when a peaceable entry is made and the possession unlawfully withheld; and where a contract for services under which a son-in-law occupied premises of his mother-in-law was cancelled wrongfully, it was his duty to vacate the premises, and his withholding possession thereafter was wrongful.</p> <p>4. Appeal and error, § 1625*—when exclusion of evidence harmless. In a suit in forcible detainer, a contract showing the nature of the occupancy of the premises was competent, but its rejection as evidence was harmless, where such contract was in the record and its admission could not have changed the result of the trial.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding. Heard in this court at the April term, 1914.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Master and servant, § 298*—when station agent and brahe man not fellow-servants. A station agent and a brakeman on a freight train are not fellow-servants.</p> <p>2. Master and servant, § 350*—when risk of another servant’s negligence not assumed. The negligence of a station agent in placing baggage and express on the station platform in such close proximity to the tracks as to strike a brakeman riding on the step or stirrup of a box car, while engaged in his duties in connection with switching cars, is not' a risk assumed by such brakeman.</p> <p>3. Master and servant, § 753*—when contributory negligence a question for jury. In an action to recover for the death of a brakeman caused by his being struck by baggage and express trucks standing on the station platform while he was riding on the stirrup or step of a passing box car engaged in his duties in connection with switching cars, where there is no evidence tending to show that deceased had any knowledge that the trucks were on the platform, or that they were too close to permit him to pass, the question of his contributory negligence is for the jury.</p> <p>4. Master and servant, § 485*—how rule of railroad to be construed. Where a railroad company’s rule provides that “an inferior train must keep at least five minutes off the time of a superior train in the same direction, and must be clear at the time the superior train is due to leave the last station in the rear where time is shown,” the word “time” cannot be construed as meaning the schedule time named in the time cards for the arrival and departure of trains, but as referring to the actual time when the trains arrive and depart.</p> <p>5. Masteb and sebvant, § 757*—when contributory negligence a question for jury. In an action to recover for the death of a railroad brakeman while employed by defendant railroad company, where defendant contends that deceased was guilty of contributory negligence as a matter -of law in violating its rule requiring the tracks to be cleared for trains having the right of way, the burden of showing the violation is on defendant, and where the evidence in regard to the violation is conflicting, the question is one for the jury under proper instructions.</p> <p>6. Masteb and sebvant, § 805*—when instruction defining assumption of risle not erroneous. In an action to recover for the death of a brakeman killed by being struck by a truck near the track while in the performance of his duties in the employ of defendant Railroad Company, it is not error to instruct that the servant does not assume “risks of the master’s own negligence,” in an instruction defining the risks which a servant assumes, where there is no evidence that deceased knew that the truck had been placed on the platform, nor that it had been placed so near the track as to menace his safety, and where it cannot be said as a matter of law that he had equal opportunity with the master of knowing its position, but his knowledge and of the danger therefrom are denied in the declaration and the jury are instructed to find defendant not guilty if they believe from the evidence that the truck was in plain view and could have been seen by deceased in the exercise of ordinary care and caution, or if he had an equal opportunity with defendant of ascertaining the location of the truck.</p>

<p>Error to the Circuit Court of Pulton county; the Hon. Geobge W. Thompson, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Trespass, § 49*—when evidence sufficient to shoio. Where land was rented under an agreement that a part thereof should he kept in hay, the rental of such part to he fixed each year by the price of hay in the vicinity, and a controversy arose between the lessee and the lessor’s agent about the price for the hay while a part of the tract was in hay, and the agent sold the hay to others and went on the field with them to measure it after the lessee had warned him off and had also posted trespass notices and locked the gates, held such agent was guilty of a violation of Hurd’s R. S„ c. 38, § 266, J. & A. 1 3958.</p> <p>2. Criminal law, § 93*—when arraignment and plea unnecessary on appeal to Circuit Court. On an appeal to the Circuit Court from the judgment of a justice finding a defendant guilty of a misdemeanor, it is not necessary, under Hurd’s R. S., c. 79, art. XVIII, §§ 9, 72, J. & A. Tilf 7033, 7038 n, p. 3841 that plaintiff in error be arraigned and a plea of not guilty be entered in the Circuit Court.</p>

<p>1. Contracts, § 65*—when agreement as to price sufficiently certain. A contract.for the sale of bank stock which provides that it shall be “at $230.00 per share with any additions there may have been made to the contingent or surplus fund since the date of this agreement,” is not void for uncertainty in its terms as to the price to be paid for the stock.</p> <p>2. Contracts, § 143*—when option contract not in violation of Statute of Wills. An - option contract for the sale of bank stock which confers on one party a priority of privilege to purchase, in the event that the other desires to sell, at any time within ten years from its date, and makes it binding upon the latter’s heirs, executors or administrators and directs that in case of such latter’s death before the expiration of the option period, her executor or administrator shall deliver the stock at the agreed price, is not invalid as an attempted testamentary disposition of the stock without compliance with the Statute of Wills.</p> <p>3. Contracts, § 135*—when agreement to give priority of privilege to repurchase stoclc valid. An agreement whereby the buyer of stock in a national hank gives the seller the priority of privilege to purchase, should the buyer wish to sell for a period of ten years, at an agreed price per share with any additions there may have made to the contingent or surplus fund after the date of the agreement, is not unreasonable nor contrary to public policy.</p>

<p>1. Divorce, § 9*—when decree for desertion proper. Where a husband deserts his wife for more than two years because she refuses to pay his debts she is entitled to a decree for divorce on the grounds of desertion.</p> <p>2. Divorce, § 39*—when evidence as to prior marriage and divorce incompetent. In a suit for divorce the admission of evidence that plaintiff had been married and had been divorced from her former husband and that there were no children of that marriage and the husband was dead is error.</p> <p>3. Divorce, § 53*—when refusal to permit plaintiff to dismiss Mil not error. After a verdict has been rendered in a suit for divorce and a motion to set aside the verdict and .for a new trial has been overruled, it is not error to refuse to permit plaintiff to dismiss her bill.</p>

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

<p>1. Appeal and ebbob, § 1725*—when judgment on former appeal conclusive. Where a third appeal involves no issue which might not have been presented on the former appeals, every question which might have been presented in the former actions and appeals is res adjudicata.</p> <p>2. Appeal and ebbob, § 1733*—when exception to rule of res adjudicata not allowed. On a third appeal, the negligence of a litigant in failing to discover facts practically wholly within his own means of ascertainment is not a ground for setting aside the rule of res adjudicata.</p> <p>3. Insubance, § 122*—when application for original life policy a part of reinsurance. Where a life insurance policy, reinsuring one who held a policy in another company, makes the application to such other company a part of the reinsurance policy, but makes no reference to the original policy, the original application and the reinsurance policy constitute the entire contract between the policy holder and the reinsurer.</p> <p>4. Insubance, § 122*—when terms of original application for life insurance control reinsurance policy. A policy reinsuring one who held a policy in another company made his original application a part of the reinsurance policy. The application provided that .suicide within two years from its date was not a risk assumed by the original insurer. The reinsurance policy provided that in case of suicide within two years from its date, the reinsurer would repay the premiums with five per cent, interest, but should not otherwise be liable. The insured committed suicide more than two years after the date of the original application, but less than two years after the date of the reinsurance policy. It was held that the policy would be construed most favorably to the insured and that the incontestability period would run from the date fixed by the application, and recovery was allowed.</p>

<p>Sales, § 396*—when averment of performance of conditions necessary where defendant alleges breach of warranty. Where an action is brought on promissory notes and defendant pleads the general issue and special pleas, averring a total and partial failure of consideration, in that there was a breach of warranties by plaintiff, and plaintiff files a replication setting forth the warranties and averring that defendant failed to perform the conditions therein contained, to which defendant filed a rejoinder, a demurrer should be sustained to the rejoinder where it fails to aver a performance of the conditions imposed on defendant under the terms of the warranties.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1914.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1914.</p> <p>Oertiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>1. Moetgages, § 504*—requisite proof on 5ill taken pro confesso. Where a decree of foreclosure and for a deficiency is entered pro confesso upon default, such decree if warranted by the averments of the bill is unassailable, there being no need of any evidence, as the finding of the court as to facts is conclusive.</p> <p>2. Moetgages, § 504*—effect of decree pro confesso. Upon the prosecution of a writ of error to reverse a deficiency decree entered against subsequent grantees of mortgaged premises, where the averments in the bill of foreclosure were sufficient to support the decree and defendants permitted the cause to go by default so that a decree pro confesso was taken against them, held that they were concluded from questioning its correctness.</p>

<p>1. Principal and agent, § 35*—right of agent to purchase principal’s property for resale. Where defendants acted as agents for a woman whose property they had under control, and in a final settlement of their affairs bought of her, without a complete disclosure of conditions to her advantage, a piece of real estate for $2,200 and immediately sold it for $5,000 to a purchaser with whom they were negotiating at the time for its sale at said price, held that they' were rightly decreed to account to her for the $5,000 with interest, and without any allowance of a commission for consummating the sale, as they occupied a fiduciary relation to the owner.</p> <p>2. Brokers, § 61*—effect of had faith. A broker’s had faith will forfeit his right to commissions and profits in a transfer of real estate.</p>

<p>Abstract of the Decision.</p> <p>1. Teial, § 195*—when direction of verdict improper. If there Is any evidence which fairly tends to support the plaintiff’s case it must he submitted to the jury, and the weight and credit to he given it is for the jury. 2. Street railroads, § 100*—when driving on car tracks not negligence per se. For plaintiff’s servants to drive on a track held not negligence per se under the circumstances shown by the evidence, and the question of whether or not they were guilty of contributory negligence in doing so was a question of fact to b'e determined by the jury.</p> <p>3. Street railroads, § 86*—care required in avoiding collision with animals and vehicle. Where, in an action to recover for the killing of a horse and the destruction of a wagon struck by defendant’s street car, it appeared that a team of horses were driven on the street railway tracks to avoid a rock pile, and that the car was coming from the rear at the rate of between thirty and thirty-five miles per hour, and that the headlight was but a 16-candle power reflector, in a rusted condition, by which an object could not be seen at a distance greater than twenty-five or thirty feet in front of the car, and that no bell was rung or whistle sounded, held the court erred in directing a verdict of not guilty.</p>

<p>1. Equity, § 56*—when improper ruling on demurrer waived. Answering over constitutes a waiver of any error in overruling a demurrer to a bill in equity.</p> <p>2. Specific perform as oe, § 45*—when hill will not lie to specifically enforce a contract relating to personal property. Where one of three heirs to an estate sold his interest to his sisters for a certain sum to be paid, upon the admission of the will to probate, in certain bonds, and a certain note which were in excess of the contract price, and the excess was to be repaid by a check from such heir, and the sisters refused to carry out the contract, held that a bill in equity for specific performance was not the proper remedy, as he had an adequate remedy at law for breach of contract.</p>

<p>Error to the Circuit Court of DeWitt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Carriebs, § 452*—when declaration states cause of action. Where the declaration averred that defendant was the owner and operator of an electric railroad from the city of Canton to the village of Norris in Fulton county, Illinois, on which it operated motor cars for the conveyance of passengers for reward; that plaintiff became a passenger thereon to be carried from Canton to Brereton and that it was the duty of defendant to use the highest degree of care to safely convey her on said car, yet the defendant, not regarding its duty, negligently ran said car against another car of defendant, whereby plaintiff, while in the exercise of due care, was injured, etc., held to state a good" cause of action for damages for personal injuries.</p> <p>2. Damages, § 209*—sufficiency of instruction. In an action for personal injuries, an instruction authorizing a recovery for such sum or sums of money shown by the evidence that plaintiff had paid out or become liable for as reasonable charges for medical services, if any, rendered necessary by reason of such injuries, and to the effect that the jury should award her such sum as it believed from all the facts and circumstances in evidence would compensate her for all the damages sustained by her as the proximate result of her injuries, and also authorizing the jury to allow her all money she had paid out or become liable for, .held, though technically erroneous in not limiting the jury on the question of damages, not to have been prejudicial to defendant, since instructions were given for defendant on the question of damages.</p> <p>3. Damages, § 115*—when verdict excessive for temporary injuries. In an action to recover damages for personal injuries received by a school teacher as a passenger on defendant’s electric motor car through a collision with another car on defendant’s railroad, where it appeared that she did not sustain any scratch or cut of any kind but only a bruise on her knee, which did not prevent her resumption of her occupation within two weeks, and that immediately after the accident she was able to ride in a standing position on a hand car to a boarding-house, and no permanent or serious injury was shown to be the proximate result of the accident, held that a verdict for fifteen hundred dollars was so excessive as to require a reduction to seven hundred dollars.</p>

<p>Abstract of the Decision.</p> <p>1. Trial, § 82*—discretion of court in reopening cause for further evidence. Where the court permitted defendants, after both parties had rested, to reopen the case and introduce in evidence a judgment upon which an execution was based and a levy made, it was held not erroneous, as being a matter wholly within" the discretion of the court, the exercise of which is ordinarily not a subject for review.</p> <p>2. Instructions, § 11*—when erroneous. An instruction directing a verdict and not requiring the jury to find the facts from the evidence, and leaving it to the jury to say what is a valid mortgage, without telling what constitutes a valid mortgage, is erroneous.</p> <p>3. Instructions, § 94*—where witness testifies falsely to fact material to issues. An instruction to the jury to the effect that if any witness has knowingly and wilfully testified falsely to any “material fact or allegation, etc.,” is erroneous as it should have been any “fact material to the issues, etc.”</p> <p>4. Instructions, § 119*—necessity of lasing on evidence. An instruction should be based on evidence with which to support it.</p> <p>5. Instructions, § 114*—necessity of confining to issues of pleadings. Where there is no plea alleging that there was no consideration for a mortgage, it is erroneous for the court to instruct the jury upon such a question.</p> <p>6. Replevin, § 147*—when instruction erroneous as ignoring defense. In an action of replevin of property taken under an execution, an instruction that entirely ignores the defense that plaintiff was in possession of the property under a chattel mortgage is held erroneous.</p> <p>7. Replevin, § 26*—sufficiency of instruction. In an action of replevin to recover the possession of property taken under an execution, an instruction is held to fail to correctly state the law; that if possession is taken under an unacknowledged mortgage before possession is taken under the execution, possession will defeat the execution.</p>

<p>1. Waters and . water courses, § 4*—duty of owners along streams. The owners of land along a stream must use the same so as not to injure the land of others both as regards to surface and overflow waters.</p> <p>2. Waters and water courses, § 15*—when owners along stream not entitled to lúild or maintain levee. Owners of land along a stream have no right to huild or maintain a levee on their land where by doing so the current of the stream during high waters will be diverted across the land of others.</p> <p>3. Waters and water courses, § 22*—admissibility of evidence. On bill to restrain owners of land along a stream from erecting and maintaining a levee on their land so as to divert the overflow waters upon the lands of complainants, evidence with reference to an overflow at the time of a high water, and with reference to the effect of the levee upon the flow of the water after the levy was erected down to the time of the trial, held admissible.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 512*—sufficiency of objections to questions ashed of expert. An objection that questions asked of an expert were irrelevant and immaterial does not save for review the question whether they were strictly hypothetical.</p> <p>2. Appeal and ebbob, § 512*—when sufficiency of hypothetical questions not saved for review. The sufficiency of hypothetical questions cannot be considered on review where the missing element or inaccuracy is not pointed out in the objection or in the argument in the Appellate Court.</p> <p>3. Municipal coepobations, § 1122*—when city liable for fall of tower. Where a city improperly constructs a fire alarm tower and the property of an adjoining owner is damaged by the falling thereof during a windstorm, the city is liable though the storm was unusual.</p> <p>4. Appeal and ebbob, § 1421*—effect of errors in decisions doing substantial justice. Courts will not grant a new trial or reverse a judgment for error in admission or rejection of evidence or in the giving of improper instructions, if it appears from the entire record that justice has been done.</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>Error to the County Court of Morgan county; the Hon. Edwaed P. Bbockhouse, Judge, presiding. Heard in this court at the April term, 1914.</p>

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

<p>1. Intoxicating liquors, § 249*—when instruction improper. In a suit by a widow for the loss of her means of support by reason of the sale of intoxicating liquors to her minor son, the giving of an instruction that under the laws of this State the conducting of a legally licensed dramshop is in all respects legitimate, held error.</p> <p>2. Intoxicating liquors, § 249*—when instruction erroneous. In a suit by a widow for the loss of support resulting from the sale of intoxicating liquor to her minor son, an instruction telling the jury that if they believe from the evidence that plaintiff during the time covered by the declaration received a sufficient sum of money from any of her other children which together with that received from her son was sufficient to and did support her in manner" suitable to her condition in life they should find defendants not guilty, held erroneous as not properly stating the law.</p> <p>3. Intoxicating liquors, § 249*—when instruction erroneous. In a suit by a widow for the loss of her means of support on account of the sale of liquor to her minor son, an instruction to the effect that if the plaintiff knowingly permitted the son to collect his wages himself and use the same as he saw fit she cannot recover for the wages spent by her son by reason of intoxication, etc., held erroneous as falsely assuming that plaintiff was attempting to recover her son’s wages.</p>

<p>Error to the Circuit Court oí McLean county; the Hon. Homes W. Hall, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>1. Cbeditobs’ suit, § 11*—when creditor's bill .will not lie to reach trust funds. By section 49 of. the Chancery Act (J. & A. 1Í 929) a creditor’s bill will not "lie to reach a fund held in trust when the trust or the fund has proceeded in good faith from some • person other than the judgment debtor.</p> <p>2. Cbeditobs’ suit, § 9*—when distributive share of legatee cannot be reached. A creditor’s bill will not lie to reach' the distributive shares of judgment debtors, as legatees under a will, before the order of distribution is made, where there is no fraud on the part of the executors and they have honestly and openly received the estate.</p>

<p>1. Municipal corporations, § 377*—ivhen contract for local improvements invalid. A city cannot let a contract for a local improvement without an ordinance and without advertising for bids, and where it does so the contract is without authority of law and the allowance and payment by the city of the contract price therefor is unauthorized.</p> <p>2. Municipal corporations, § 419*—right to recover hade money paid on illegal contract for local improvements. Where a city lets a contract for street paving without an ordinance and without advertising for bids and the work is performed by the contractor and accepted and paid for by the city, any citizen may bring an action in the name of the City to recover back the money thus illegally expended.</p>

<p>Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1914.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding. Heard "in this court at the April term, 1914.</p>

<p>1. Wills, § 447*—when settlement between legatee and heirs enforceable. Where upon a will contest a legatee entered into an agreement to take a less sum than the amount of her legacy, held that the settlement was of a disputed right and enforceable as a full satisfaction of her legacy in the absence of fraud.</p> <p>2. Trial, § 293*-—when rulings on propositions of law not error. Rulings of court on propositions of law cannot be held to be error where the parties were not entitled to a jury trial and therefore not entitled to the submission of such propositions.</p>

<p>Wills, § 494*—when portion of legacy remaining after reduction by compromise agreement becomes intestate estate. Where, upon a will contest, certain legatees entered into a compromise agreement with the contestants to take a less sum than the full amount of their legacies to avoid the litigation, and the money was so paid by the administrator with the will annexed to a trustee for the legatees as provided by the agreement, held that the money thus saved did not belong to the contestants, but became intestate estate and descended to the heirs.</p>

<p>Appeal from the County Court of McLean county; the Hon. Homes W. Hall, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Error to the County Court of De Witt county; the Hon. Peed C. Hill, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1725*—when decision on former appeal conclusive. The decision of the Appellate Court in a former appeal on questions of law involved cannot he reviewed and is binding on the parties and such court on a subsequent appeal.</p> <p>2. Limitations of actions, § 53*—when amended declaration constitutes commencement of action. In an action for personal injuries, where the suit was brought within the prescribed time by the filing of a declaration which did not state a cause of action and an amended declaration was filed which for the first time stated a cause of action, the suit' is regarded as begun when the amended declaration was filed, and if the amended declaration is not filed within two years from the date of the injury, a plea of the statute of limitations is a good defense.</p>

<p>1. Trial, § 191*—rule in passing on motion for directed verdict. When a motion for a peremptory instruction is made by defendant, the motion should be allowed if the court is of the opinion that in case a verdict is returned for plaintiff it must be set aside for want of any evidence in the record to sustain it; but the motion should be denied if the court is of the opinion that there is evidence in the record which, standing alone, is sufficient to sustain such a verdict, but that such verdict, if returned, must be set aside because against the manifest weight of all the evidence.</p> <p>2. Master and servant, § 770*—when direction of verdict improper. In an action against a railroad company to recover for the death of plaintiff’s intestate, alleged to have been caused by failure of defendant to properly equip its cars with automatic couplers, the giving of a peremptory instruction for defendant held error, where the testimony of two eyewitnesses showed that deceased was on the ladder of the rear, car when making a running switch and that he ■made several unsuccessful attempts to lift the coupling pin with the lever and that he then got down to lift the pin with his hands.</p> <p>3. Trial, § 197*—what may not he considered in ruling on motion for directed verdict. In ruling on a motion for a directed verdict for defendant, the fact that two of plaintiffs eyewitnesses did not agree in every particular, or that one of them had a better opportunity for seeing what occurred than the other, cannot be considered.</p>

<p>Abstract of the Decision.</p> <p>1. Mechanics’ liens, § 57*—when person contracting for work and materials not a contractor. A written contract between two parties whereby one sold to the other a lot to be paid for out of a loan made to the purchaser by the seller for the purpose of enabling the purchaser to build thereon, held not to show any employment of the purchaser to contract for the building or that there was to be any joint ownership of the property, but to show that the seller was to part with his title, and that therefore the purchaser in contracting for work and materials could not be considered as a contractor within the meaning of the Mechanics’ Liens Act.</p> <p>2. Mechanics’ liens, § 56*—when persons furnishing labor and materials not subcontractors. Where a person who contracts with others for labor and materials to build a house is the purchaser of the lot on which the house is to be built and has no contract by which he is to build, or furnish work and materials for the vendor who retained the legal title, he is not a contractor within the meaning of the Mlechanics’ Lien Act (J. & A. K 7139), and persons contracting directly with him to furnish labor and materials are principal contractors and not subcontractors so as to be required to • give notice to owner.</p> <p>3. Mechanics’ liens, § 35*—when vendor of property cannot defend against lien. Where a purchaser of a lot contracted with others for labor and materials to build a house thereon but had no contract with the vendor to do so, held that the fact that the legal title remained vested in the vendor could not be availed of by the latter as a defense to a suit for a lien on the property, where he authorized or knowingly permitted the purchaser to contract for the improvement.</p> <p>4. Mechanics’ liens, § 134*—right of assignee of claim to enforce lien. Where a lien claimant takes an assignment of a lien claim of another with the consent of the owner of the premises he is entitled under section 22 of the Mechanics’ Liens Act (J. & A. f 7146) to include the assigned claim with his own in filing his petition for lien.</p> <p>5. Mechanics’ liens, § 103*—when excessive claim defeats lien. The wilful and fraudulent filing of a claim for an excessive amount may, under some circumstance, defeat the allowance of a mechanic’s lien.</p> <p>6. Mechanics’ liens, § 103*—when excessive claim, will not defeat lien. The fact that a lien claimant included in its statement money advanced for labor performed on the premises, held not to show any fraud was committed or contemplated by it which would defeat its right to the allowance of a lien for the amount to which it was entitled.</p>

<p>1. Pleading, § 384*—necessity of similiter. Not error to proceed to trial without a similiter filed to the plea of general issue.</p> <p>2. Corporations, § 763*—when replication demurrable. A replication to a special plea setting up that plaintiff, a foreign corporation, had not complied with the laws in this State in order to do business therein, held demurrable.</p> <p>3. Appeal and error, § 1681*—when erroneous ruling on demurrer waived. Error of court in overruling a demurrer to a defective replication cannot be availed of on review where the party demurring did not abide by the demurrer but proceeded to trial.</p> <p>4. Appeal and erbob, § 1303*—when judgment presumed sustained by the evidence. Where the record states that evidence was introduced but fails to show what it was, it will be presumed that it was sufficient to sustain the judgment.</p> <p>5. Cobpobations, § 710*—when foreign corporation not doing business in this State. Where a foreign corporation has no established place of business of any kind in this State and carries on no local business, but merely sells its merchandise through soliciting agents or drummers and'delivers the same through common carriers in the ordinary course of business, such corporation is not transacting business in this State within the meaning of the statute requiring such corporations to comply with certain formalities before transacting business in this State.</p>

<p>1. Mines and minerals, § 34a*—when finding as to fraud and deceit in sale of coal rights warranted "by evidence. In an action for fraud and deceit practiced by defendant on plaintiff, whereby the latter was induced to sell the coal under his lands for less than it was worth, held that a finding for plaintiff was sustained by the evidence.</p> <p>2. Fraud, § 58*—when action lies for fraud and deceit. A party induced by the fraud of another to enter into a written contract may bring an action for fraud and deceit, though the contract is under seal.</p> <p>3. Fraud, § 84*—sufficiency of declaration in action for fraud and deceit. ■ A declaration in an action for fraud and deceit in inducing plaintiff to sell the coal under his lands, held to state with particularity the fraudulent representations and deceits relied upon, and therefore not defective as stating conclusions only.</p> <p>4. Fraud, § 86*—when variance between declaration and proofs not fatal. In an action for fraud and deceit in inducing plaintiff to sell coal under his land for an inadequate price, held there was no fatal variance between the declaration and proofs, where the evidence sustained the charges substantially as laid in the declaration.</p> <p>5. Fraud, § 125*—when damages not excessive. A judgment in favor of plaintiff for $3,800 for fraud and deceit in inducing plaintiff to sell coal beneath his land at an inadequate price, held not excessive where the evidence tended to show that the coal rights were worth more than the sum paid, together with the amount of the verdict.</p>

<p>Abstract of the Decision.</p> <p>1. Executors and administrators, § 90*—right of administratria> to sue for money received from sale of partnership interest. An administratrix in her official capacity has the right to sue a person for money received by him in selling with her consent, the interest of her deceased husband iñ a copartnership, and is not required to first compel an accounting by the surviving partner.</p> <p>2. Executors and administrators, § 86*—right of set-off in suit for collection of assets. Where an attorney employed hy a widow to settle her husband’s estate out of court sold the husband’s interest in his partnership business and received the money, hut refused to turn over the money to her without first deducting attorney’s fees and other items, and the widow thereafter took out letters of administration and brought suit as administratrix for the money, held that she was entitled to recover without any deduction for attorney’s fees whether she had previously agreed to pay them or not, for the reason that as administratrix she held title to the property for the estate.</p>

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 175*—when finding as to proximate cause of injury sustained by evidence. In an action for personal injuries sustained by a miner alleged to have been caused by failure of the mine examiner to mark a pile of gob as dangerous, held that the question whether the violation of the statute was the proximate cause was properly submitted to the jury, and that the verdict for plaintiff was sustained by the evidence.</p> <p>2. Trial, § 197*—what considered in ruling on motion for directed verdict. On motion for a directed verdict in favor of defendant, the court cannot consider inconsistent statements made by witnesses out of court.</p> <p>3. Trial, § 216*—matters considered in ruling on motion for directed verdict. It is not for the court, upon a motion for a directed verdict, to weigh the evidence and determine where the preponderance lies.</p> <p>4. Mines and minerals, § 185*—direction of verdict. In determining whether it should be submitted to the jury as a question of fact that the violation of a mining statute was the proximate cause of an injury, the court is governed by the same rule of law as applies to any other material issue.</p> <p>5. Mines and minerals, § 153*—when testimony of mine examiner inadmissible. In an action to recover for personal injuries sustained in a mine, alleged to have been caused by failure of the mine examiner to mark the unsafe condition of the mine, where the mine examiner was asked the question: “Tell the jury now what condition you found that entry in as to being safe or otherwise,” held that an objection to the question was properly sustained for the reason that to permit the witness to give his opinion on such matter would improperly usurp the functions of the court and jury.</p> <p>6. Negligence, § 250*—when modification of instruction harmless. A modification of an instruction on the question of proximate cause by striking out the word “direct” and inserting the word “proximate,” held not error, it also appearing that the party complaining had the benefit of the word “direct” in its other instructions given.</p>

<p>Abstract of the Decision.</p> <p>1. Workmen’s Compensation Act, § 2*—duration of election. Under the provisions of the Workmen’s Compensation Act of 1911 (J. & A. mi 5449 et seq.), where an employer files the proper notice rejecting the provisions of the act the notice stands as a negative election until it is withdrawn, and the fact that the employer does not give a further notice, sixty days previous to the first day of the following year, does not automatically constitute an election by him to accept the provisions of the act.</p> <p>2. Workmen’s Compensation Act, § 2*—burden of proving election to come under act. In an action against an employer for personal injuries, where the employer claims to have elected to come under the Workmen’s Compensation Act of 1911, the plaintiff has the burden of proving that defendant had rejected the act by showing that the proper notice had been filed with the Bureau named in the act.</p> <p>3. Workmen’s Compensation Act, § 2*—when employer deprived of common-law defenses. An employer who has elected to reject the provisions of the Workmen’s Compensation Act of 1911 is deprived of his common-law defenses though the employee has not elected to come under the act.</p> <p>4. Workmen’s Compensation Act, . § 2*—evidence admissible to prove election. In proving that an employer elected to reject the provisions of the Workmen’s Compensation Act of 1911, a copy of the notice of election certified to by the person charged with 'the custody of the original is admissible as the best evidence.</p>

<p>Appeal from the City Court of Herrin; the Hon. William W. Clemens, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Washington county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1914.</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>1. Appeal and ebeob, § 800*—when motion must be preserved in bill of exceptions. A motion to quash summons and to strike the declaration from the files can be made a part of the record only by a bill of exceptions.</p> <p>2. Appeal and ebeob, § 824*-—section 81 of Practice Act construed. Section 81 of the Practice Act (J. & A. If 8618) does not change the rule as to the preservation of exceptions but only as to the removal of the record from the trial court to the court of review.</p> <p>3. Appeabance, § 10*—when malting of motion does not constitute general appearance. A motion by defendant to quash a summons and to strike the declaration on the ground that the declaration did not follow the prcecipe as to the parties or the amount of damages, held not to constitute a general appearance because it called upon the court to determine the merits of the case.</p> <p>4. Appeal and ebeob, § 783*—when bill of exceptions becomes part of record. The bill of exceptions becomes a part of the record from the time of signing and filing and not before.</p> <p>5. Pleading, § 451*—grounds for strilting declaration. A motion by defendant to strike the declaration on the ground that it did not follow the prcecipe as to the parties and the amount of damages, held improperly overruled.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Banks and banking, § 119*—effect of acceptance of pass book without examining entries therein. The reception of a pass hook by a depositor with the entries therein made without examining the same and without complaint constitutes an implied acquiescence in the correctness of the entries and makes the entries an account stated between the parties.</p> <p>2. Banks and banking, § 119*—conclusiveness of entries in pass book. The acceptance of a pass book and an acquiescence by the depositor in the correctness of the entries therein are not conclusive on the depositor, but it requires clear and satisfactory proof to open up the transaction and recover for a mistake in the entries, as in the case of opening stated accounts between other individuals.</p> <p>3. Banks and banking, § 118a*—when finding as to fact of deposit sustained by evidence. In an action to recover an unpaid part of an alleged deposit in defendant’s private bank, which amount the defendant denied was ever deposited, a verdict for plaintiff held supported by the evidence, it appearing that plaintiff was unable to read English, that she was corroborated in several particulars and that she had made only three deposits, so that she should have been able to know approximately how much she had in the bank, and it also appearing that both the plaintiff and defendant were guilty of negligence, the former in not examining the pass book before she left the bank, and the latter in not requiring the plaintiff to make out the deposit slip.</p> <p>4. Appeal and ebbob, § 1401*—matters not considered in impeaching verdict. Neither the testimony of jurors nor of outsiders as to facts derived from members of the jury concerning their action as jurors can be considered by a court of review for the purpose of impeaching the verdict.</p> <p>5. Banks and banking, § 118*—admissibility of evidence. In an action to recover an unpaid part of an alleged deposit in defendant’s private bank which defendant claimed was never deposited, permitting plaintiff to prove the profits of defendant in said bank for the last five years of its existence, held improper but not reversible error, it appearing that the defendant testified positively that he made no profits in the bank during that time, and his testimony was uncontradicted.</p> <p>6. Appeal and ebbob, § 549*—when error in admission of evidence not preserved for review. The improper admission of evidence is not preserved for review where the record shows no ruling of the court on the question of its relevancy or competency, and hence no exception to any such ruling.</p>

<p>1. Judgment, § 206*—when joint judgment may be entered on verdict against “the defendant.” A verdict against “the defendant” in a case where there are two or more defendants is sufficient to support a judgment against all the defendants, where it is responsive and the evidence in the record amply warrants a verdict and .judgment against all the defendants.</p> <p>2. Appeal and errob, § 1522*—when irregularity in form, of verdict not reversible error. Where a judgment must necessarily he against all the defendants or against none, the fact that the jury rendered a verdict against “the defendant,” without other designation, instead of against the defendants is a mere irregularity and not reversible error where the defenses made were common to all the defendants.</p> <p>3. Replevin, § 208*—when informal verdict in suit on bond may be corrected by court. In an action on a replevin bond, where the verdict was informal in not showing a finding of the amount of the debt, the court may correct the verdict, and put it in proper form.</p> <p>4. Replevin, § 212*—when entry of judgment on informal verdict harmless. Where a verdict in a suit on a replevin bond is informal in not showing a finding of the amount of the debt, the entry of a judgment on such verdict is harmless.</p> <p>5. Attachment, § 259*—when “half sheet’’ does not purport to constitute judgment or evidence as to issuance of special execution. An instrument designated to be a "half sheet,” which was apparently the clerk’s memoranda or the judge’s minutes in an attachment proceeding, held not to purport to be the record of attachment judgment or the language of the judgment, and not to constitute evidence that no special execution was issued on the attachment judgment.</p> <p>6. Attachment, § 158*—duration of lien after judgment. Property levied on in an attachment suit is in contemplation of law in the hands of the officer making the levy, and his possession for the use of the attachment creditor is sufficient possession to prevent the acquiring of a superior lien during the interval between judgment and the issuing of a special execution, if such execution is issued in a reasonable time.</p> <p>7. Replevin, § 169*^nohat not a defense in suit on bond. Where the seller of property under a condition contract of sale replevied the property from an officer, who attached the property while in the possession of the buyer and the replevin suit was decided in favor of the officer, held in a suit on the replevin bond that the seller was in no position to urge that the attachment lien was lost for failure of the attachment creditor to have a special execution issued in the attachment suit, where it appeared that he failed to return the property and that under a writ of retorno habendo the officer was unable to find the property so that it could be sold under such execution.</p> <p>8. Replevin, § 192*—when judgment on bond not excessive. In an action on a replevin bond, a judgment in favor of plaintiff for $100 held not excessive.</p> <p>9. Attobney and client, § 52*—presumption as. to retainer. In the absence of proof to the contrary, the legal presumption is that the attorney who brings a suit in the name of another has been retained for that purpose.</p> <p>10. Replevin, § 203*—when evidence malees prima facie case for plaintiff in suit on bond. In an action on a replevin bond, evidence held sufficient to establish a prima facie case for plaintiff, where it showed that plaintiff had attached the property while in the hands of the obligor’s vendee under a condition contract of sale, that pending that suit the defendant replevied it and that the replevin suit was decided in the plaintiff’s favor.</p>