Volume 196 — Illinois Appellate Court Reports

<p>Abstract of the Decision.</p> <p>1. Death, § 73*—when instruction on negligence properly refused as misleading. In an action to recover for the death of plaintiff’s intestate caused by injuries received while a passenger on defendant’s electric car, an instruction to the effect that evidence that an accident has occurred is not evidence of negligence on the part of defendant, held properly refused, as tending to mislead and confuse the jury, in that it singled out one item of evidence and stated that a certain conclusion would follow therefrom.</p> <p>2. Trial, § 155*—province of jury to weigh conflicting evidence. Where the evidence is conflicting, a question of fact for the jury is presented.</p> <p>3. Trial, § 155*—province of jury to determine weight and truth of evidence. It is always the province of the jury to determine the weight of evidence and the credibility of witnesses as well as the question as to which of the witnesses is better entitled to be believed.</p> <p>4. Appeal and error, § 1410*—when verdict will not be disturbed on review. Where the evidence is conflicting, a verdict of a jury will not be disturbed on review unless clearly and manifestly against the weight of the evidence.</p> <p>5. Carriers, § 476*—sufficiency of evidence as to negligent death. In an action to recover for the death of plaintiff’s intestate alleged to be due to the wrongful act of defendant, where the death of deceased was caused by being brought in contact with an iron pole standing near defendant’s street railway track, deceased being at the time of the accident a passenger on one of defendant’s electric cars, evidence examined and judgment for plaintiff held sustained by the evidence.</p> <p>6. Carriers, § 480*—whether person on car a passenger as question for jury. In an action to recover for the death of plaintiff’s intestate caused by injuries received while a passenger on defendant’s electric car, the question whether at the time of receiving such injuries deceased was a passenger as alleged is for the jury.</p> <p>7. Carriers, § 480*—when contributory negligence of passenger question for jury. In an action to recover for the death of plaintiff’s intestate caused by injuries received while a passenger on defendant’s electric car, the question whether recovery is barred by contributory negligence is for the jury.</p> <p>8. Appeal and error, § 1512*—when remarks of court on credibility Of witness harmless error. In an action to recover for the death of plaintiff’s intestate as a result of the wrongful act of defendant, the remark of the trial judge that a witness for plaintiff who was under cross-examination had stated a matter differently, which, on exception to the remark, was followed by an examination of the witness in regard to the matter adverted to, held not prejudicial where the fact stated by the court was not denied by defendant and was borne out by the record, for the reason that the remark was natural and that when defendant excepted the court may have supposed that counsel took issue with him as to the correctness of witness’ testimony, and hence interrogated witness further, and also for the reason that such statement and examination was a just and reasonable exercise of the judicial function.</p> <p>9. Witnesses, § 178*—when questions put to witness objectionable in form. Questions to a witness containing a positive assertion rather than a query, and which are in the form of a contradiction of the witness, are objectionable.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county, the Hon. Denis E. Sullivan, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>Abstract of the Decision.</p> <p>1. Brokers, § 93*—when question whether broker procuring cause of renting premises for jury. In an action to recover a broker’s commission for negotiating the rental of property, the question whether plaintiff’s services was the procuring cause and the effective means of bringing about such renting of the property is a question of fact for the jury on all the evidence.</p> <p>2. Brokers, § 51*—what is effect on right to compensation of other broker being procuring cause of obtaining tenant. The fact that plaintiff, a broker, had formerly negotiated with a person in regard to such person’s taking a lease of defendant’s store does not warrant a claim for a commission by plaintiff for bringing about such lease, wheye it appears that such person was finally induced to take such lease through the efforts of another broker after plaintiff had for some time abandoned negotiations with such lessee in regard to his taking the lease.</p> <p>3. Brokers, § 37*—when broker not procuring cause of lease. Where a broker negotiates with a person to induce him to take a lease, which such person then refuses to do, upon which plaintiff abandons further negotiation with such person in regard to his taking such lease, such broker cannot be said to be the procuring cause of making the lease, so as to entitle him to recover a commission therefor, where such person later changes his mind and takes the lease, in the absence of evidence that plaintiff induced such person to change his mind with reference to taking such lease.</p> <p>4. Brokers, § 90*—when evidence sufficient to sustain finding that broker not procuring cause of lease. In an action to recover a broker’s commission for procuring a lease of defendant’s property, where plaintiff, a broker, negotiated in regard to such lease with a person who at first refused, and who, after plaintiff had abandoned such negotiations, changed his mind and took the lease, a finding that plaintiff did not procure or induce such person to take the lease held not manifestly against the weight of the evidence.</p> <p>5. Brokers, § 72*—when judgment properly entered on set-off in action for commissions. In an action to recover a broker’s commission for procuring a lease of defendant’s property, where defendant filed set-off, and the action was tried by ttie court, judgment for defendant on his set-off held not erroneous as ignoring the issues joined on plaintiff’s claim, where it appears that the trial court after hearing the issues raised both on plaintiff’s claim and defendant’s set-off, and overruling plaintiff’s motion for a finding in his favor, and finding that plaintiff was indebted to defendant entered the judgment complained of, for the reason that such action of the trial court was proper under section 47 of the Practice Act (J. & A. If 8584), providing that where it appears on the trial of an action that plaintiff is indebted to defendant, the jury shall find for defendant and shall certify to the court the amount so found, which shall enter judgment for defendant, and further, that where the cause is tried by the court, the finding in judgment shall be in like manner.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1831*—when additional evidence may he heard upon remanding cause. In a bill by a trustee in bankruptcy to reach the interest of the bankrupt under a certain lease, where on review the Supreme Court without making a decision on the merits reversed the decree of the trial court and remanded the cause with direction to enter a decree requiring every person liable to the bankrupt for rent under such lease to pay to complainant as such trustee the amounts for which such person was liable, but also holding that the record did not contain evidence sufficient to enable the reviewing court to determine who the persons so liable were, it was proper for the trial court to permit the action to be redocketed, to allow amendments and to hear further evidence.</p> <p>2. Appeal and error, § 1831*—when evidence not incompetent as relating to matters res adjudicata. In a bill by a trustee in bankruptcy to reach the interest of the bankrupt under a certain lease, where the Supreme Court reversed the decree of the trial court and remanded the cause with a mandate which made it necessary that the trial court determine what, persons were liable to the bankrupt under such lease, and the .amounts for which such persons were liable, in a further hearing held to determine such questions, held, proper to admit evidence of persons holding such lease by assignment from the bankrupt and a transcript of a judgment entered by the Municipal Court of Chicago in action wherein the bankrupt and those claiming under him were dispossessed, such transcript being explained by the testimony of lessor’s agent as to the manner in which such lease was terminated, all of such evidence being competent as tending to show that such lease had been terminated, and such evidence is not incompetent by reason of its having relation to matters res adjudicata, nor were defendants precluded from introducing such evidence by the fact that it was equally available to them at the time of the first hearing and not then introduced.</p> <p>3. Bankruptcy, § 38*—when pleadings in another case admissible in action by trustee. In a bill by a trustee in bankruptcy to reach the interest of a bankrupt under a certain lease, where on review the Supreme Court reversed the decree of the trial court with mandate requiring the trial court to ascertain what persons were liable to the bankrupt under such lease, and where one of the ultimate facts to be determined was the termination of the lease in question and the subletting thereafter by the owner to others, the pleadings in a cause involving the same leasehold held competent, although complainant was not a party to such action, as being one element in that chain of account tending to prove such ultimate fact.</p> <p>4. Bankruptcy, § 38*—when evidence of tender of rent properly excluded in action by trustee. In a bill by a trustee in bankruptcy to reach the interest of the bankrupt in a .certain lease, where on remand after reversal by the Supreme Court one of the issues was whether the lease in question was terminated, evidence that after the termination of such lease a tender of rent was made to lessor by a person not a party to the action, held properly excluded as immaterial.</p> <p>5. Bankruptcy, § 38*—when evidence sufficient to sustain decree in action by trustee. In a bill by a trustee in bankruptcy to reach the rights of the bankrupt under a certain lease, where on review the Supreme Court reversed the decree of the trial court with mandate making it necessary for the trial court to ascertain what persons were liable to the bankrupt under such lease, and the amounts for which such persons were liable, a decree finding a particular defendant liable to the bankrupt under such lease held proper under the evidence, complainant having renounced all claims against all defendants except two, and the court having dismissed the bill for want of equity as to the other defendant, against whom complainant had not renounced his claims.</p>

<p>1. Carriers, § 30*—when duties and responsibilities of carriers governed by acts of Congress. The duties and responsibilities of common carriers of interstate shipments are to be determined wholly by the acts of Congress and the interpretations thereof by the Federal Courts.</p> <p>2. Carriers, § 33a*—what is purpose of act as relating to rates. Sections 2, 6, and 10 of the Interstate Commerce Act, as amended by Act of February 19, 1903, and Act of June 20, 1905, pertain only to the matter of rates, fares and charges, and prohibit any preference or discrimination in that regard, their broad purpose being to compel the establishment of reasonable rates and the uniform application thereof.</p> <p>3. Carriers, § 33a*—when carrier cannot waive provision in contract relating to rates. Under the Interstate Commerce- Act and its amendments a carrier cannot waive any provision in the contract under which the goods in question were transported which was determinative of the rate established for such transportation, for the reason that otherwise it would be within the power of the carrier to violate the law.</p> <p>4. Carriers, § 160*—when liability of carrier may be limited by special contract. Under the Interstate Commerce Act and its amendments, the liability of the carrier may be limited by special contract without violation of the act, provided such limitation be just and reasonable and does not exempt the carrier from liability due to negligence.</p> <p>5. Carriers, § 177a*—when effect of waiver of provision requiring notice of damages of shipper cannot he evaded. The Interstate Commerce Act, with its amendments, was not intended to apply to conditions in the contract between the carrier and the shipper which are not determinative of the rate established, or to enable the carrier to obtain advantages over the shipper in regard to such matters not possessed before the passage of the act, so that the mere fact that the contract in question was on a form filed with the Interstate Commerce Commission into which the carrier had incorporated provisions not determinative of the rate established would not enable the carrier to evade the effect of a waiver of a provision in the contract requiring the shipper to give notice to the carrier within a named time of any claim for damages under the contract, although the provisions incorporated into the form of contract so filed expressly state that a lower rate is given in consideration of the special provisions of the contract than would have been given without such provisions, .especially where such incorporated provisions also expressly state the provisions of the contract which determined the lower rate, from which it may be reasonably presumed that all provisions in the contract other than those expressly stated would be contained in a contract based on the higher rate.</p> <p>6. Carriers, § 218*—what does not constitute preference or discrimination within Interstate Commerce Act. Under the Interstate Commerce Act and its amendments, the fact that the carrier might pay on its merits a claim for liability growing out of negligence in one instance, and might in another instance refuse to pay on its merits such a claim made by another shipper, would not constitute an act of preference or discrimination within the meaning of the act, where it appeared from the contract with the shipper whose claim was paid that the provision waived did not affect the rate established.</p> <p>7. Carriers, § 185*—when provisions of interstate contract may he waived hy carrier. Under the Interstate Commerce Act and its amendments, provisions intended for the sole benefit of the carrier may be waived where such provisions are not determinative of the rate established.</p> <p>8. Carriers, § 241*—when provision in contract limiting time within which claim for damages may he filed may he waived. In an action to recover damages for the negligent transportation of stock in interstate commerce, under a contract providing that any claim for damages thereunder must be presented to the carrier within a stated time, the refusal of the trial court to hold as a proposition of law that under the Interstate Commerce Act and its amendments such provision might be waived, held erroneous.</p>

<p>Error to the County Court of Lake county; the Hon. DeWitt L. Jones, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Circuit Court of Livingston county; the Hon. Thomas M. Harris, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Charles Whitney, Judge, presiding.</p>

<p>1. Municipal corporations, § 1107*—when questions of size and depth of hole in sidewalk, and danger therefrom for the jury. In an action to recover for personal injuries alleged to have been sustained as a result of stepping into a hole in a sidewalk, the question of the size and depth of such hole and whether it was of a character to render it dangerous to pedestrians exercising due care i& for the jury.</p> <p>2. Municipal corporations, § 1107*—when question ichether fall on sidewalk proximate cause of injuries for jury. In an action to recover for personal injuries alleged to have been sustained as a result of stepping through a hole in a sidewalk, the question whether plaintiff’s alleged fall on the sidewalk w.as the' proximate cause of the injuries sought to be recovered for is for the jury.</p> <p>3. Municipal corporations, § 1107*—when nature, extent and cause of injuries, to one stepping in hole in sidewalk for jury. In an action to recover for personal injuries alleged to have been sustained as a result of stepping through a hole in a sidewalk, where plaintiff claims such injuries resulted in a permanent stiffening of the joints of his knee and ankle, the question of the nature and extent of the injuries sustained by plaintiff by reason of the fall, and whether the stiffening of the joints was due to that accident or to a fracture of the thigh which plaintiff was shown to have suffered six months later, are questions for the jury.</p> <p>4. Appeal and error, § 1404*—when verdict of jury will not be disturbed on appeal. The verdict of a jury on controverted questions of fact will rarely be disturbed by a court of review unless unreasonable, or it is apparent that such verdict is the result of the passion and prejudice of the jury.</p> <p>5. Municipal corporations, § 1079*—when declaration describing place of accident sufficient. In an action to recover for personal injuries alleged to have been sustained as a result of stepping through a hole in a sidewalk, a declaration alleging that the accident took place “on LaSalle street” in the City of Aurora, held not insufficient in not alleging that such street' was a public street, as the word “street” is a generic term, including within its meaning all public roads of ways within a municipality over which such municipality has jurisdiction and as to which such municipality owes a public duty to keep and maintain it in a reasonably safe condition for public use.</p> <p>6. Evidence, § 148*—when proper to 'permit exhibition of injured leg to jury. In an action to recover for injuries to plaintiff’s leg alleged to have been sustained as a result of stepping into a hole in a sidewalk, it is proper to permit plaintiff to exhibit his injured leg to the jury.</p> <p>7. Damages, § 168*—when error to refuse physical examination of plaintiff. In an action to recover for injuries to plaintiff’s leg, alleged to have been sustained as a result of stepping into a hole in a sidewalk, where plaintiff was permitted to exhibit the injured leg to the jury, the refusal of the trial court to permit a physical examination of the leg by defendant’s physician held error, defendant having the right in such case not only to inspect the leg by sight but also to make a physical examination thereof, under such reasonable restrictions as the court might require.</p> <p>8. Municipal corporations, § 1225*—what are elements essential to validity of notice to city of injuries. In Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to commence an action against a municipal corporation for personal injuries to give certain notice to such corporation before bringing an action, five elements are emphasized as being essential to the validity of a notice given under the statute: (1) The name of the person to whom such cause of action has accrued; (2) the name and residence of the person injured; (3) the date and about the hour of the accident; (4) the place or location where the accident occurred; (5) the name and address of the attending physician, if any.</p> <p>9. Municipal corporations, § 1225*—when notice to city as to place where accident occurred sufficient. In an action to recover for personal injuries alleged to have been sustained as a result of stepping into a hole in a sidewalk in defendant city, a notice to defendant wherein the hole in question was alleged to be “located upon the west side of said LaSalle street between North avenue and Washington street and opposite Jennings Seminary,” held insufficient-under Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring such notice to be given before bringing an action for damages against a municipal corporation to- recover for personal injuries, where plaintiff’s testimony fixes the location with sufficient definiteness as being located “in the sidewalk about fifty-five feet north of the corner of North avenue,” and where no reason appears why plaintiff could not in such notice have fixed the location of such hole with equal definiteness.</p> <p>10. Municipal corporations, § 1225*—what notice to city describing place of accident must contain. A notice to a municipal corporation of intention to commence an action to recover for personal injuries, given in pursuance of Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), must, in order to be legally sufficient, contain a sufficiently definite description of the place of the accident as to enable the party interested to identify it from the notice itself.</p> <p>11. Municipal corporations, § 1225*—when notice to city inaccurately describing place of accident sufficient. A notice to a municipal corporation of intention to commence an action to recover for personal injuries, given in pursuance of Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), is sufficient, although the description of the location of the accident be insufficient, provided that in the remainder of the notice the place where the accident occurred describes such place with sufficient definiteness to enable the authorities of such municipal corporation to determine such location.</p> <p>12. Municipal corporations, § 1225*—what are requisites of notice to city of personal injuries. The notice required by Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. 6190), to be given to a municipal corporation before bringing an action for damages for personal injuries must be specific and not general as to both time and place, and as definite and exact as it can be reasonably made.</p> <p>13. Municipal corporations, § 1225*—when notice to city of injuries wrongly stating time of accident defective. Although the notice required by Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ft 6190), to be given to a municipal corporation by one intending to commence an action against such municipal corporation for personal injuries need only set forth “about the hour” when the accident occurred, and therefore does not require an exact statement thereof, yet where claimant in such notice undertakes to state such time exactly and states it wrongly, the notice is insufficient under the statute for the reason that in such case the notice is misleading and detrimental in that it gives the municipal corporation no aid in determining the facts, being in practical effect no better than if the notice had not stated “about the hour” when the accident occurred.</p> <p>14. Municipal corporations, § 1225*—when notice to city not giving hour of accident, fatally defective. Under Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to commence an action against a municipal corporation for damages for personal injuries to give certain notice to such municipal corporation, a notice which does not state the hour when such accident occurred is fatally defective.</p> <p>15. Municipal corporations, § 1225*-when notice to city of injuries incorrectly stating residence of claimant fatally defective. Under Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to bring an action against a municipal corporation for damages for personal injuries to give certain notice to such municipal corporation before bringing an action, a notice which incorrectly states the residence of claimant is fatally defective, in that it fails to give the municipal corporation correct information on which it may ascertain the extent and nature of the injury sustained, for the reason that where on the trial on an action such questions are controverted, a definite and correct statement of such residence would be of co-ordinate importance with a similar statement of the place where the accident occurred.</p> <p>16. Municipal corporations, § 1225*—when notice to city giving wrong residence of claimant not unable by proof of residence elsewhere. Where a notice is given in pursuance of Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to commence an action against a municipal corporation for personal injuries to give certain notice to such municipal corporation before bringing an action, and where such notice is defective in that it states the residence of claimant to be at a named place where claimant in fact never resided, such defect cannot be cured by proof that claimant actually resided at some other place on the street named in the notice as that on which claimant resided, as the cause of the invalidity of the notice is the failure to state correctly the place where claimant in fact resided.</p> <p>17. Municipal corporations, § 1223*—what is object of statute relative to notice to city of personal injuries. The object of Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to bring an action against a municipal corporation for damages for personal injuries to give to such municipal corporation certain notice before bringing an action, is to furnish timely notice to such municipal corporation of the fact that the party giving the notice claims to have sustained injuries for which he proposes to enforce a claim against such municipal corporation by suit, so as to enable such municipal corporation to investigate such claim while the facts are fresh and the justice of the claim may be readily ascertained.</p> <p>18. Municipal corporations, § 1224*—when provision relative to notice to city of personal injuries condition precedent to maintenance of action. Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), requiring persons intending to commence an action against a municipal corporation for personal injuries to give certain notice to such municipal corporation before bringing an action is mandatory and is a condition precedent to maintaining an action to recover for such injuries.</p> <p>19. Municipal corporations, § 1233*—when giving of statutory notice to city of injuries must be averred and proved. In an action against a municipal corporation to recover for personal injuries, the giving of the notice required by Hurd’s Rev. St., ch. 70, sec. 7 (J. & A. ¶ 6190), to be given to such corporation in such case before bringing an action must be both averred and proved.</p>

<p>1. Negligence, § 142*—what is doctrine of res ipsa loquitur. Where a thing which is alleged to have been the cause of an accident is shown to have been under the management of defendant or his servants, and the accident is one which in the ordinary course of things does not happen when those having the management of the thing use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care.</p> <p>2. Negligence, § 142*—when doctrine of res ipsa loquitur inapplicable. The rule of res ipsa loquitur has no application to a case where the thing alleged to have been the cause of an accident does not: require direction or management in its operation and use, such as, for example, an electrical appliance used to furnish power for elevators, which appliance is stationary, and works automatically without manipulation and without the need of an interposing or independent agency to direct the performance of its functions.</p> <p>3. Negligence, § 140*—when burden of proof on plaintiff to sustain charge of negligence. Where an action is based on specific charges of negligence, plaintiff has the burden of proving such specific charges as laid.</p> <p>4. Master and servant, § 584*—when no presumption of negligence arises from occurrence of fire. In an action by a servant to recover for personal injuries due to a fire alleged to have been started as a result of defendant’s negligence, the fact that a fire occurred whereby plaintiff was injured raises no presumption of negligence.</p> <p>5. Master and servant, § 687*—when evidence insufficient to establish application of doctrine of res ipsa loquitur. In an action to recover for personal injuries sustained as a result of a fire which was alleged to be due to the negligence of defendant, where plaintiff invoked the rule of res ipsa loquitur, evidence held to have no tendency to show that the accident was due to the “management” of defendant or its servants even though the word “management” used in the rule invoked can be construed as having the same meaning as “use,” where the thing from which the fire in question was alleged to have originated was an electrical appliance used to furnish power for elevators, which worked automatically and without manipulation, as it is clear that such appliance in the ordinary course of its use by defendant would not be likely to cause a fire.</p> <p>6. Master and servant, § .687*—when evidence sufficient to repel presumption that use of elevator power furnishing appliance involved danger from fire. In an action to recover for personal injuries sustained as a result of a fire alleged to be due to defendant’s negligence, where plaintiff invoked the rule of res ipsa loquitur, and where the fire was alleged to have originated from an electrical appliance used to furnish power for elevators, and which worked automatically without manipulation or management by defendant or its servants, evidence that such appliance had been in daily and safe use for ten years held to repel any just assumption that the use of such appliance involved danger from fire.</p> <p>7. Master and servant, § 687*—when evidence insufficient to establish negligence in management or construction of elevator power furnishing appliance. In an action by a servant to recover for personal injuries sustained as a result of a fire alleged to have been due to defendant’s negligence, where the specific facts relied on as proving negligence were the improper management and construction of an electrical appliance used to furnish power to elevators, from which the fire was alleged to have originated, evidence held insufficient to prove negligence, there being no evidence of improper construction of such appliance, or that the fire was caused thereby, and It appearing that such appliance worked automatically, without management by defendant.</p> <p>8. Master and servant, § 699*—when evidence sufficient to sustain finding of contributory negligence in failing to escape from burning building. In an action by a servant to recover for personal injuries as the result of a fire alleged to have been caused by the negligence of defendant, where the fire occurred in a hotel belonging to defendant wherein plaintiff was employed as a chambermaid, evidence held conclusively to show a want of due care for her own safety on the part of plaintiff, where it appeared that plaintiff had ampié time and opportunity to escape after the commencement of the fire in question, but, although urged to do so, plaintiff made no effort to escape until the flames reached the place where she persisted in remaining.</p> <p>9. Negligence, § 66*—what constitutes contributory negligence. One who voluntarily exposes himself to a danger of which he has knowledge, or who fails to exercise ordinary precautions to avoid such danger, thereby bars a recovery for injuries resulting therefrom.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Attorney and client, § 123*—when court power to determine fees. The allowance of attorney’s fees rests on a basis different from any other allowance by a court, and while evidence is necessary in such case to show the ordinary and usual charges in similar cases where such fees are the subject of contract, yet the court is well qualified to form an opinion on this subject and will exercise an independent judgment thereon.</p> <p>2. Eminent domain, § 224*—how attorney’s fees computed. In a proceeding by a railroad company to condemn a right of way across land of defendant, where the reasonableness of attorney’s fees allowed defendant was in question, which fees in part were for services rendered in an unsuccessful attempt to defeat the condemnation proceeding, the court, in determining such reasonableness, cannot treat the proceeding in which the services were rendered as merely one to recover the value of the land damaged, where it appears that the taking sought to be made was of land lying along the entire side of a farm adjoining a highway, and that condemnor, though ostensibly condemning for the purposes of an electric railroad, had also by statute the power to operate by steam at its pleasure, so that defendant might in the future have a steam railroad between his farm and the highway, which was a serious matter.</p> <p>3. Eminent domain, § 224*—what is effect of amount of recovery in determining attorney fees. The fact that the recovery obtained by the services of an attorney in prosecuting an action is less than double what is awarded as attorney’s fees in a petition for condemnation of land is not conclusive of the reasonableness of such award, since there are many cases where the whole amount of the recovery would not be a fair compensation for the services rendered.</p> <p>4. Attorney and client, § 123*—bow reasonable value of legal services should be determined. The determination of the reasonable value of legal services depends upon a consideration both of the nature and result of the controversy in which such services were rendered, the skill and labor required, the responsibility imposed and the standing and character of the attorney rendering such services.</p> <p>5. Eminent domain, § 224*—when amount awarded as attorney’s fees not excessive. In a petition seeking to condemn a right of way over defendant’s land where defendant was awarded attorney’s fees, an award of $250 for such fees held not excessive under the evidence, it appearing that such services were performed by an attorney competent to protect the interests of his client.</p> <p>6. Trial, § 69*—when burden of showing number of witnesses unreasonable upon party objecting. Where objection is made to the number of witnesses called by a party in the trial, of an action, the party making the objection has the burden of showing that the number of such witnesses was unnecessary and unreasonable.</p> <p>7. Trial, § 69*—when court power to limit number of witnesses. Rule laid down in Geohegan v. Union El. R. Co., 266 Ill. 482, as to the power of the court to limit the number of witnesses who may testify on a given subject, followed.</p> <p>8. Appeal and error, § 1313*—when presumed court would have made order as to limitation of number of witnesses. On appeal, where it is objected that the number of witnesses called by a party at the trial was unnecessary and unreasonable, the Appellate Court will presume that if a motion had been seasonably made to limit the number of witnesses the trial court would have made a proper order on that motion.</p> <p>9. Appeal and error, § 1313*—when presumed number of witnesses not unreasonable. Where on appeal it is objected that the number of witnesses who testified for a party at the trial of a cause was unnecessary and unreasonable, the Appellate Court will presumé in support of the trial court that the number of such witnesses was not unreasonable where the record does not show the subjects on which any witness testified on either side of the case.</p>

<p>1. Trial, § 187*—when motion to direct verdict waived. A motion made by defendant at the close of plaintiff’s evidence in chief to direct a verdict is waived by his subsequently introducing evidence.</p> <p>2. Pleading, § 421*—when variance waived. A motion by defendant at the close of plaintiff’s evidence in chief raising questions of variance is waived by defendant introducing evidence thereafter without further suggesting variance.</p> <p>3. Trail, § 217*—what effect of motion to direct verdict after close of all evidence. A motion to direct a verdict made by defendant after the close of all the evidence raises the question whether there was any evidence legally tending to sustain the verdict.</p> <p>4. Trial, § 195*—when motion to direct verdict properly denied. If there is evidence introduced which fairly tends to make a case for plaintiff, defendant’s motion to direct a verdict made at the close of plaintiff’s evidence in chief is properly denied without regard to the court’s opinion as to where the preponderance of the evidence is.</p> <p>5. Trial, § 861*—when motion to direct verdict at close of evidence proper. If there is material variance between all the proof and each count of the declaration, such variance may be presented under a motion to direct a verdict at the close of all the evidence.</p> <p>6. Pleading, § 423*—when variance not material. A variance which consists in the simple mistake of using the word “west” instead of “east” in two counts of the declaration in stating in which direction defendant’s wires ran and which was not suggested in the trial court is not material.</p> <p>7. Pleading, § 431*—when variance question for jury. Where there is evidence tending to sustain the charges in the declaration, the court cannot hold that there is a variance based on the evidence of one witness alone, but the question is one for the jury.</p> <p>8. Appeal and error, § 1411*—when finding on conflicting evidence not ground for reversal. Finding of the jury on conflicting evidence will not be disturbed on appeal where there is sufficient evidence to warrant such finding.</p> <p>9. Appeal and error, § 1466*—when ruling upon admission of testimony not ground for reversal. Evidence in an action to recover for the death of a person killed by coming in contact with electricity from defendant’s wire, examined and held that the ruling of the court upon its admission did not constitute reversible error.</p> <p>10. Appeal and error, § 1533*—when instruction not ground for reversal. In an action to recover for the death of plaintiff’s intestate by coming in contact with an electric wire, an instruction as to the duty of plaintiff proving “her case” and referring to “the evidence bearing on the plaintiff’s case” is not objectionable for failing to tell the jury what plaintiff’s case is.</p> <p>11. Appeal and error, § 1533*—when instruction not ground for reversal. Error in giving an instruction referring to plaintiff’s “case” is not ground for reversal where like language was contained in an instruction given at the request of defendant.</p> <p>12. Appeal and error, § 1523*—when instruction not ground for reversal. In an action to recover for the death of plaintiff’s intestate by coming in contact with an electric wire, instructions examined and held not ground for reversal.</p> <p>13. Instructions, § 131*—when refusal to give proper. Instructions which ignore an element of the case are properly refused.</p> <p>14. Instructions, § 151*—when refusal to give instruction on matters already covered proper. Refusal to give instruction on questions which are sufficiently covered by other instructions is not ground for reversal.</p> <p>15. Instructions, § 18*—when réfusal of misleading instructions proper. Refusal to give an instruction is not improper where the requested instruction is calculated to mislead the jury.</p> <p>16. Instructions, § 71*—when refusal of instruction incorrectly stating law proper. In an action to recover for the death of plaintiff’s intestate caused by coming in contact with an electric wire, an instruction which placed upon the deceased a higher degree of care than the law imposed upon him, and ignored the duty of defendant owed to one in his position and performing his duty on the wire upon which, at the particular place, deceased had never been before, is properly refused.</p> <p>17. Instructions, § 164*—when second reading of instruction not ground for reversal. The action of the court in having an instruction brought back to the court room at the request of plaintiff and in the presence of defendant’s counsel, and in changing a word therein and reading the instruction again to the jury, is not ground for reversal.</p>

<p>1. Master and servant, § 653*—when rule and custom, to be considered in determining the question of negligence. In an action by an employee to recover for injuries claimed to have been received through the negligence of the master, the rule and custom prevailing in the performance of the master’s business will be considered in determining whether the employee was guilty of negligence.</p> <p>2. Master and servant, § 751*—when contributory negligence question for jury. In an action by an employee for injuries claimed to have been received through the master’s negligence, it is a question for the jury whether in view of an existing rule and custom as to the performance of the master’s business, the employee was in the exercise of due care for his own safety.</p> <p>3. Master and servant, § 465*—when nature of servant’s employment to be considered in determining question of contributory negligence. In an action by one working as a crossing flagman at a railroad crossing against a railroad using such crossing to recover for injuries by being struck by a train operated by such railroad company at the crossing, in determining whether or not plaintiff was guilty of contributory negligence, regard must be had to the fact of his employment at the "crossing by defendant to ascertain the approach to the crossing of trains and engines and to warn persons of their approach.</p> <p>4. Master and servant, § 699*—when evidence shows contributory negligence. In an action by the crossing flagman to recover for injuries through being struck by a train at the crossing where the evidence shows that the train was in sight for four blocks, the weather clear and the time of the accident midday, it is sufficient to show that plaintiff did not properly look in the direction from which the train was approaching.</p> <p>5. Master and servant, § 699*—when servant guilty of contributory negligence. Where the evidence shows, in an action by a crossing flagman to recover for injuries through being struck by a train at the crossing, that at the time of the accident he was neglecting the duty which he was stationed there to perform and while thus neglecting his duty received the alleged injury, which he would not have received if he had performed his duty, the evidence is sufficient to warrant a finding of his contributory negligence.</p>

<p>Error to the County Court of Boone county; the Hon. William C. DeWolf, Judge, presiding.</p>

<p>Error to the County Court of Lake county; the Hon. David T. Smiley, Judge, presiding.</p>

<p>Error to the County Court of De Kalb county; the Hon. David T. Smiley, Judge, presiding.</p>

<p>1. Municipal corporations, § 90*—when ordinance not void as unreasonable. An ordinance of a village requiring a railroad company to erect, maintain and operate gates at each of four different crossings is not invalid as to all of such crossings merely because it is found to be unreasonable as to one of them, the provision for gates at any one of such crossings not being in any way inseparably connected with the provision for gates at the other streets.</p> <p>2. Municipal corporations, § 85*—when provision in ordinance for daily penalty does not invalidate. An ordinance providing for the erection and maintenance of gates at certain crossings is not void because it makes each day’s failure to obey a separate offense.</p> <p>8. Railroads, § 626*—when requirement for gates at crossing reasonable. Evidence in an action against a railroad company to recover penalties for failure to comply with the village ordinance requiring the erection and maintenance of gates at certain crossings, examined and held to show that such ordinance was reasonable as to one street but unreasonable as to others.</p> <p>4. Railroads, § 626*—when ordinance requiring operation of gates unreasonable. A village ordinance providing for the erection, maintenance and operation of gates at street crossings in the village is unreasonable where it requires the gates to be operated the entire twenty-four hours of the day.</p> <p>5. Evidence, § 22*—when court will take judicial notice of railroad conditions. In an action against a railroad company to recover fines for failure to comply with an ordinance regulating the erection, maintenance and operation of gates at crossings in the village, the court will take judicial notice of conditions which ordinarily exist in a rural community, and that after the affairs of the day and evening are ended, the ordinary statutory signals of bell and whistle and the headlights of the trains are sufficient for a period extending at least from midnight to six a. m.</p> <p>6. Railroads, § 626*—when penalty for failure to maintain and operate crossing unreasonable. In an action to recover penalties for failure of defendant railroad company to comply with a village ordinance requiring the erection, maintenance and operation of gates at certain street crossings in the village under a penalty of from §10 to §200 for each violation thereof, the provision for the penalty renders the whole ordinance unreasonable and void, for the reason that it would permit a verdict against the defendant of a disproportionately large sum.</p> <p>7. Railroads, § 626*—when not estopped to question of validity of ordinance. The fact that a railroad company has erected and maintained gates at one of four crossings at which said gates are required by village ordinance does not estop it to question the validity of such ordinance in an action to recover penalties for its failure to comply with the provisions as to the other crossings.</p> <p>8. Railroads, § 626*—how ordinance relative to crossings affected by Public Utilities Act. Quaere, as to what effect the adoption of the Public Utilities Act (Laws 1913, p. 455) has upon the right of a village to adopt an ordinance requiring a railroad company to erect, maintain and operate gates at crossings in the village and to provide a penalty for failure to comply therewith.</p>

<p>Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.</p>

<p>1. Bills and notes, § 373*—when introduction of note makes prima facie case. In a claim against an estate on a promissory note where plaintiff introduces the note in evidence and proves that the signature thereto was the genuine signature of the deceased, he makes a prima facie case.</p> <p>2. Bills and notes, § 391*—when holder presumed bona fide purchaser. One holding a promissory note indorsed in blank must be assumed to be an innocent purchaser for value before maturity.</p> <p>3. Bills and notes, § 407*—when burden of proving illegal consideration on defendant. In an action on a note indorsed in blank brought by the holder, where the defense is that it was given in settlement of differences in trades on the Board of Trade, the burden is on the defendant to establish such defense by substantial proof of the facts constituting alleged defense.</p> <p>4. Bills and notes, § 434*—when evidence inadmissible to show illegal consideration. In an action on a note indorsed in blank brought by the holder thereof, the defense that the note was void because given by the maker in settlement of differnces in trades on the Board of Trade in transactions with the payee cannot be established by evidence of transactions with which the payee was not connected and of which he was not shown to have had any knowledge.</p> <p>5. Bills and notes, § 434*—when evidence inadmissible to show illegal consideration. In an action on. a promissory note, dated 1906 and indorsed in blank, brought by the holder thereof, where the defense is that it was given to the payee in settlement of differences in trades on the Board of Trade, evidence that the maker had similar transactions with other members of the Board of Trade about 1901 is inadmissible as being too remote.</p> <p>6. Bills and notes, § 434*—when evidence inadmissible to show illegal consideration. Evidence in an action on a promissory note examined and held inadmissible to show the illegality of the consideration.</p> <p>7. Evidence, § 107*—when evidence of telephone conversation inadmissible. Evidence of a witness as to a telephone conversation which does not state the conversation he held nor his inability to recollect the words used, but merely undertakes to give his opinion of the general result of numerous conversations, is inadmissible, especially where he does not testify that the person with whom the telephone conversation was had, had a telephone nor give its number nor state that he heard the other person call that number and get it.</p> <p>8. Bills and notes, § 443*—when evidence insufficient to show illegal consideration. Evidence in an action to recover on a promissory note, examined and held insufficient to show that the note was given in settlement of differences in trades on the Board of Trade.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 244*—when evidence justifies instruction as to exemplary damages. Evidence in an action by a wife to recover under section 9 of the Dramshop Act (J. & A. 1(4609), examined and held to justify an instruction given for plaintiff submitting the question of exemplary damages to the jury.</p> <p>2. Intoxicating liquors, § 214*—when evidence as to other sales properly excluded. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 114609),.it is proper to exclude evidence as to the names of other saloon keepers who had sold intoxicating liquors to plaintiff’s husband.</p> <p>3. Intoxicating liquors, § 216*—when evidence of sales by others not a defense. In an action by a wife under section 9 of the Dram-shop Act (J. & A. ¶ 4609), to recover for sales to plaintiff’s husband, it is no defense that others had sold intoxicating liquors to the husband and caused or contributed to his intoxication.</p> <p>4. Intoxicating liquors, § 216*—when evidence of habitual drunkenness not a defense. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), it is no defense that plaintiff’s husband, for the sales to whom of intoxicating liquors the action is brought, was an habitual drunkard before the five years covered by the suit.</p> <p>5. Intoxicating liquors, § 181*—when presence of plaintiff at time of sale not a defense. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover for sales of intoxicants to her husband, it is not a defense that she was present at times when such sales were made to the husband and did not protest then against it, where evidence shows that she had theretofore protested without avail, ,was present unwillingly when they were made and had taken steps to notify defendant not to sell liquor to the husband.</p> <p>6. Intoxicating liquors, § 249*—when instruction as to sales by others proper. In an action by a wife under section 9 of the Dram-shop Act (J. & A. ¶ 14609), to recover damages for injury to her means of support and property by the sale and gift of intoxicating liquor to her husband, an instruction given at plaintiff’s request which after submitting to the jury the question whether the husband duringi the five years covered by the action became an habitual drunkard, and whether within such time defendant sold and delivered to him intoxicating liquor, and whether the husband drank the liquor, and whether the drinking, thereof contributed-to his becoming an habitual drunkard, and whether by. reason of such habitual drunkenness the plaintiff was injured in her means of support, then told the jury that if they further believed from the evidence that during the period other persons- sold and delivered intoxicants to the husband and that he drank them and that the drinking thereof contributed to his becoming an habitual drunkard, yet under the law defendant would be liable for the acts of all other persons who contributed to such habitual intoxication by selling and delivering intoxicating liquors to the husband, is proper.</p> <p>7. Intoxicating liquors, § 206*—when instruction as to burden of proof properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injury to her means of support and property by the sale of intoxicating liquor to her husband, an instruction to the effect that if the husband became intoxicated by liquor obtained from others and by reason thereof plaintiff was injured in person, property or. means of support, and if defendant sold intoxicating liquors to the husband and he thereby became intoxicated, then before plaintiff could recover she must prove that the intoxication caused by defendant contributed to the injury to her person, property or means of support, is properly refused as placing upon her the burden of proving an injury from the use of defendant’s liquor separate from that produced from the .liquor sold the husband by others.</p> <p>8. Intoxicating liquors, § 249*—when instruction not based on evidence properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injuries to her means of support and property by the sale of intoxicating liquor to her husband, an instruction on the basis that the liquor sold by defendant was not intoxicating and that defendant mixed it with other liquors and thereby became intoxicated is properly refused where there was no proof on which to base such an instruction.</p> <p>9. Intoxicating Liquors, § 246*—when, instruction as to mitigation of damages properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injury to her means of support and property by the sale of intoxicating liquors to her husband, an instruction intended to cause the jury to consider the proof that the husband became intoxicated by liquors sold him by others in mitigation of damages is properly refused.</p> <p>10. Intoxicating liquors, § 246*—when instruction as to mitigation of damages properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injury to her means of support and property by the sale of intoxicating liquor to her husband, an instruction which assumes that there was evidence that plaintiff purchased from defendant intoxicating liquors for her husband and that such fact might be considered in mitigation of damages is properly refused where there was no evidence upon which to base it.</p> <p>11. Intoxicating liquors, § 249*—when ruling of court on instructions not ground for reversal. Rulings on instructions in an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), examined and held not ground for reversal.</p>

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 76*—when evidence sufficient to show failure to supply props. Evidence in an action by .a miner to recover for injuries by the fall of rock in the roof of a mine of defendant while plaintiff was working in the mine in the employ of defendant, examined and held to show that there was a clear preponderance of evidence that the only props in the vicinity accessible to plaintiff were broken or crooked and unfit for use, and that defendant had failed to supply the needed props as demanded in accordance with the requirements of Hurd’s Rev. St., ch. 93, art. 20.</p> <p>2. Mines and minerals, § 176*—when evidence sufficient to support verdict for plaintiff. Evidence in an action to recover for injuries to an employee by the fall of rock in a mine in which he was working, examined and held sufficient to support a verdict for plaintiff.</p> <p>3. Mines and minerals, § 168*—when evidence of rule properly excluded. In an action by a miner to recover for injuries by the fail of rock in the mine in which he was employed, evidence of a rule so framed as to permit the employer to wilfully violate the statutory regulations as to mines and yet give him a defense against any miner injured by such wilful violation is properly excluded, such rule being void as against public policy.</p> <p>4. Appeal and error, § 1561*—when omission in instruction cured by other instructions. The fact that an element in a case is stated in brief form in an instruction is not ground for reversal where the element was fully stated in other instructions given at the request of the same party.</p> <p>5. Mines and minerals, § 195*—when damages not excessive. In an action by a miner to recover for injuries received by the fall of rock in a mine where the evidence shows that he was seriously injured; that his lower limbs and the lower part of his body were completely paralyzed; that he had no control over his bowels nor his bladder; that he suffered from great pain; that he was under constant treatment for a very long time; that he is a helpless cripple and permanently incapacitated for work and that at the time of the injury he was twenty years old and a strong healthy man, it cannot be said that $14,000 is an excessive award even though the maximum amount recoverable for his death would have been-$10,000.</p>

<p>1. Counties, § 67*—when action not maintainable for negligence of servants. A private action will not lie against a county for injuries occasioned by the negligence of its servants or officers in the performance or nonperformance of their duties, or in the performance of their duties in a negligent manner in the absence of express statutory authority.</p> <p>2. Municipal corporations, § 948*—when not liable for negligence of servants.' The same principle applies as to the nonliability of a municipal corporation for the negligence of its servants or officers in the performance or nonperformance of their duties, or in the performance of their duties in a negligent manner, as applies in the case of counties when the municipality is performing those acts which it is empowered to do in its public capacity and in the discharge of duties imposed for the general welfare.</p> <p>3. Pleading, § 184*—what the proper office of demurrer. It is not the office of demurrer to allege facts, but it simply concerns such facts as are stated in the pleading demurred to.</p> <p>4. Pleading, § 14*—when demurrable as stating conclusion. In an action against a county to recover for injuries caused by an automobile alleged to have belonged to the county and to have been negligently operated by one whom it had placed in custody and control of the machine, a declaration which nowhere states for what purpose defendant purchased and used the automobile, but simply alleges that it was not being operated by the defendant in the performance of any duty imposed upon it by law, is insufficient as stating a conclusion and not a fact.</p> <p>5. Pleading, § 146*—when allegations of fact in demurrer disregarded: Allegations of fact contained in a demurrer will be disregarded.</p>

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

<p>Appeal from the County Court of Stark county; the Hon. Frank Thomas, Judge, presiding.</p>

<p>1. Mines and minerals, § 149*—when failure to comply with statutory regulation implied to he wilful. Failure of a coal mine operator to comply with' the provisions of the Mines Act (J. & A. ¶¶ 7533-7575), requiring the sprinkling or spraying of roadways, will be implied to be wilful. '</p> <p>2. Mines and minerals, § 176*—when evidence sufficient to support finding that explosion due to failure to sprinkle roadway. In an action against a coal mine operator to recover for the death of a shot firer alleged to have been caused by an explosion resulting from a failure of defendant to sprinkle the roadways of its mine in accordance with the requirements of the Mines Act (J. & A. ¶¶ 7533-7575), evidence examined and held to support a verdict for plaintiff.</p> <p>3. Mines and minerals, § 125*—when contributory negligence not a defense. In an action against a coal mine operator to recover for the death of a shot firer in a mine alleged to have been caused by an explosion resulting from the failure of defendant to sprinkle the roadway of its mine in the manner required by the Mines Act (J. & A. ¶¶ 7533-7575), contributory negligence is not a defense.</p> <p>4. Mines and minerals, § 41*—when provisions of statute applicable to shot fires. The provisions of the Mines Act (J. & A. ¶¶ 7533-7575), are to be construed as being for the protection of shot firers in mines.</p> <p>5. Evidence, § 232*—when verdict of coroner's jury admissible. In an action to recover for the death of a shot firer in a mine alleged to have been caused by an explosion, the verdict of a coroner’s jury that the death of deceased was caused by asphyxiation from gases generated by an explosion caused by a blast is admissible, although coming from the files in the coroner’s office and not from the circuit clerk’s office.</p> <p>6. Mines and minerals, § 152*—when expert testimony inadmissible. Testimony of an expert, in an action to recover for the death of a shot firer, as to other explosions in the mine and his theory as to what caused them and what effect followed them, properly excluded.</p> <p>7. Appeal and error, § 1561*—when refusal to give instruction not ground for reversal. A refusal to give instructions on principles of law covered in instructions already given is not ground for reversal.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding.</p>

<p>1. Pleading, § 42*—when original declaration abandoned. A party who elects not to abide by his original declaration, but obtains leave to amend it and flies an amended declaration, abandons his original declaration.</p> <p>2. Municipal corporations, § 1122*—when city not required to keep park in safe condition. A city is not required by law to keep every part of a public park safe for public travel.</p> <p>3. Pleading, § 52*—when declaration insufficient. It is not sufficient for a declaration to aver that a particular duty arises upon defendant, but it must state the facts from which the law will raise that duty.</p> <p>4. Pleading, § 45*—how question as to whether new cause of action stated in amendment determined. The question whether the cause of action stated in an amended declaration was stated in the original declaration is determined by a comparison of the two declarations.</p> <p>5. Limitations, statute of, § 58*—when cause of action barred. On amendment of a declaration if amendment is found to be a different mode of stating the same matter, the statute of limitations which ran after the original declaration and before the amendment was filed is not a defense.</p> <p>6. Limitation of actions, § 71*—when statute does not run in action against city. In an action against a municipal corporation to recover for personal injuries alleged to have arisen through its negligence, amendments of pleadings examined and held not to state a cause of action subject to a plea of the statute of limitations.</p>

<p>Error to the County Court of Lake county; the Hon DeWitt L. Jones, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Railroads, § 615*—when no question presented of violation of ordinance requiring automatic hell at crossing. In an action to recover for personal injuries sustained as a result of a collision between defendant’s railroad train and a wagon in which plaintiff was riding at the time of the accident, no question is presented of the violation of a village ordinance requiring the maintenance of an automatic bell at railroad crossings where the ordinance is not in evidence, although there is evidence that such a bell was maintained at such crossing at the time of the accident, but was not in operation.</p> <p>2. Negligence, § 3*—what constitutes ordinary care. Ordinary care, as applied to the conduct of individuals, does not mean the highest degree of care.</p> <p>3. Negligence, § 1*—what constitutes. Negligence is the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.</p> <p>4. Negligence, § 198*—when question for jury whether plaintiff guilty of contributory negligence. The question whether a plaintiff seeking to recover for injuries alleged to have been sustained as the result of defendant’s negligence was himself at the time of the accident in the exercise of the care for his own safety which a reasonable man would exercise under the same or similar conditions is a question of fact for the jury, unless the evidence of a want of such care is so clear that fair-minded men of ordinary intelligence would not differ as to the inferences to be drawn therefrom.</p> <p>5. Railroads, § 250*—when presumed jury found that plaintiff acted as a reasonable person would have done in crossing tracks. In an action where plaintiff recovered a verdict for personal injuries alleged to have been sustained as a result of defendant’s negligence, the jury in finding for plaintiff must be presumed to have found that a reasonable man, guided by those considerations which ordinarily regulate human affairs would under similar circumstances have acted as the evidence shows plaintiff acted at the time of the accident.</p> <p>6. Railroads, § 755*—when question for' jury whether plaintiff crossing tracks while view obscured guilty of contributory negligence. In an action to recover for personal injuries sustained by plaintiff as a result of a collision occurring at a railroad crossing between defendant’s freight train and a wagon in which plaintiff was riding, which collision was alleged to be due to defendant’s negligence, and where contributory negligence was relied on in defense, and there was evidence that plaintiff’s view of the track in the direction from which such train was approaching was obscured by box freight cars and buildings standing on defendant’s right of way; that the ground was frozen and a high wind was blowing which, with the noise of the wagon on the frozen ground, tended to deaden the sound of the approaching train; that an automatic bell was maintained by defendant at such crossing which was not in operation at the time of the accident on which plaintiff might have relied to give warning of the approach of such train; and that, if the whistle and bell on the locomotive of such train were sounded, plaintiff did not hear them, held that it was a question for the jury whether plaintiff was guilty of contributory negligence, although plaintiff did not look and listen before crossing the track and there was evidence that had he done so he would have seen the approaching train.</p> <p>7. New trial, § 52*—when not allowed because verdict against evidence. In an action where the evidence presents a question for the jury, a motion for a new trial will not be allowed unless the verdict of the jury was manifestly against the evidence, although the trial judge, if sitting as a juror, might not have consented to the verdict sought to be set aside, or, if trying the same case without a jury, might have found differently on the same facts, for the reason that if no verdict of the jury which did not meet the view of the trial judge as to the facts on which the verdict is found is to be accepted, the jury would be useless as a part of the trial.</p> <p>8. Appeal and error, § 1410*—when finding conclusive on appeal. Although the present method of presenting a stenographic report of the evidence to a court of review has many advantages not possessed in former practice by a brief bill of exceptions, and better enables a court of review to determine the weight of evidence, yet where the trial court and the jury seem to have acted fairly and intelligently in reaching the conclusions sought to be reversed, a court of review has no power to reject such conclusions, although it may seem to such court that if it had acted in the place of such trial court and jury it might have reached a different conclusion.</p> <p>9. New trial, § 52*—when properly denied because verdict not against manifest weight of evidence. In an action to recover for personal injuries sustained as a result of defendant’s negligence, because of a collision between, defendant’s railroad train and a wagon in which plaintiff was riding, a motion for new trial on the ground that the verdict was against the manifest weight of evidence, held properly denied.</p> <p>10. Railroads, § 695*—when declaration sufficiently alleges negligent operation of train at excessive speed. In an action to recover for personal injuries sustained by plaintiff as a result of a collision occurring at a railroad crossing between a wagon in which plaintiff war riding and defendant’s freight train, a count in plaintiff’s declaration charging a violation of a village ordinance limiting the speed of such trains to ten miles an hour in that “said defendant then and there ran a freight train on one of its tracks * * * at a speed of * * * thirty miles an hour, down to, upon and across said street and down to and upón said plaintiff,” and also a count charging that defendant ran such freight train “down to and over and across said street at a rate of speed exceeding ten miles an hour in violation of said ordinance,” cannot be narrowed by construction so as to limit the charge of excessive speed to the space covered by the crossing, and to warrant the objection that the counts were not supported by proof of the excessive speed of the train before reaching the crossing.</p> <p>11. Railroads, § 737*—when evidence sufficient to sustain, finding as to rate of speed of train in passing over crossing. In an action to recover for personal injuries sustained by plaintiff as a result of a collision occurring at a railroad crossing between defendant’s freight train and a wagon in which plaintiff was riding, which collision was alleged to be due to defendant’s negligence, where plaintiff’s declaration charged a violation of a village ordinance limiting the speed of such trains to ten miles an hour, evidence held to sustain a finding that the train in question was running at a speed greater than ten miles an hour at the time of the accident.</p> <p>12. Railroads, § 737*—when evidence sufficient to sustain finding as to operation of train over crossing at negligent speed. In an action to recover for personal injuries sustained by plaintiff as a result of a collision occurring at a railroad crossing between defendant’s railroad train and a wagon in which plaintiff was riding, where plaintiff’s declaration charged negligence in that the speed at which the train in question was being run at the time of the accident was in violation of a village ordinance limiting the speed of such trains to ten miles an hour, evidence held sufficient to prove negligence as charged, it appearing that such violation of such ordinance contributed to the injury complained of.</p> <p>13. Trial, § 211*—when denial of peremptory instruction on ground of variance properly refused. In an action to recover for personal injuries sustained by plaintiff as a result of a collision occurring at a railroad crossing between defendant’s freight train and a wagon in which plaintiff was riding, where three counts of plaintiff’s declaration alleged that defendant’s engine struck such wagon and threw plaintiff out causing the injuries for which recovery was sought, and where the fourth count alleged that such injuries were caused by such engine striking plaintiff, the denial of a peremptory instruction for defendant on the ground of variance in that the evidence was alleged to show that plaintiff’s injuries were due to falling against such engine after jumping out of such wagon, held not erroneous where the motion for such instruction was directed to all the counts and not to each of the counts, the court being unable to allow such motion as to the fourth count, and also for the reason that there was evidence on which the jury might have found the fact to be as alleged in the first three counts.</p> <p>14. Railroads, § 718*—when evidence admissible as to rate other trains passed crossing. In an action to recover for personal injuries alleged to have been the result of a collision occurring at a railroad crossing between defendant’s railroad freight train and a wagon in which plaintiff was riding, where the negligence alleged was in part that the train in question w.as at the time of the accident being run at a rate of speed which was in violation of a village ordinance limiting the speed of such trains to ten miles an hour, held not error to permit plaintiff’s witnesses to testify that other trains of defendant ran through the village in question at a high rate of speed, It appearing that the testimony objected to was brought out- on redirect examination, after defendant had made such witnesses to testify that the two main tracks of defendant at the point where the accident occurred were constantly used by fast moving trains of defendant, most of which did not stop at such village, and where it did not appear that plaintiff sought to emphasize other violations of the ordinance, and that such testimony did not exceed what was required by what defendant brought out on cross-examination, or materially add thereto.</p> <p>15. Appeal and error, § 1238*—when party estopped to object that improper subject introduced at trial. A party cannot op review be heard to object that a subject which such party introduced into the trial was improper.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.</p>

<p>1. Death, § 6*—when death may be presumed before lapse of time ordinarily required. The presumption of fact which will justify the conclusion of death before the lapse of time required for the legal presumption of the death of an absentee must arise from specific evidence of circumstances tending to show such death.</p> <p>2. Evidence, § 23*—when not presumed that Supreme Court names all conditions under which a stated rule will apply. Where a decision oí the Supreme Court names certain circumstances under which a stated rule of law will apply, it is not to be presumed that all the conditions under which such rule would apply are therein named, but that a class of evidence is intended to be described which would warrant the application of the rule.</p> <p>3. Death, § 2*—when presumed to have occurred at end of seven years. Where there is no specific evidence tending to show the death of an absentee before the expiration of seven years from the date of his disappearance, the death of such absentee is presumed to have occurred at the end of seven years from the date of such disappearance precisely as if there were positive evidence that such absentee died on the last day of such seven-year period.</p> <p>4. Insurance, § 794*—when by-law providing for suspension not waived by acceptance of assessments. In an action to recover on a certificate of insurance issued by a- fraternal benefit society, where plaintiff was the beneficiary named in such certificate, and a by-law of defendant society provided that upon disappearance of insured and failure to reappear within one year from the date of such disappearance insured should stand suspended, and such disappearance took place November 7, 1905, the acceptance by defendant of the assessment for the month of November, 1906, held not a waiver of its rights under the by-law, it appearing that such assessment became payable before the expiration of one year after such disappearance.</p> <p>5. Insurance, § 747*—when members of benefit society bound by subsequently enacted by-laws. After-enacted by-laws of a fraternal benefit society will bind its members when the contract so provides, so as to change such contract in accordance with such subsequent by-laws.</p> <p>6. Insurance, § 747*—when after-enacted by-laws of benefit society not invalid. After-enacted by-laws of a fraternal benefit society which forfeit claims for the death of a member in certain cases are not in and of themselves invalid as being unreasonable.</p> <p>7. Insurance, § 747*—when benefit society no power to talce away its power to adopt by-laws in future. A fraternal benefit society cannot by a by-law or by a constitution having only the force of a by-law take away its inherent power to adopt in the future such other by-laws as its charter permits, although such after-enacted by-law may change the manner of adopting by-laws and thereby affect the obligation of the contract.</p> <p>8. Insurance, § 747*—what subsequently enacted by-laws included in contract. The contract of a member of a fraternal benefit society to be bound by after-enacted by-laws, held to mean such by-laws as may be legally enacted either in the manner provided at the date when such member became such or in some other legal manner thereafter provided.</p> <p>9. Insurance, § 887*—when subsequently enacted by-law admissible. In an action by the beneficiary named in a fraternal benefit certificate, conditioned on the conformance by the member with rules and usages of the society issuing the certificate “now in force or which may hereafter be adopted by the same,” the admission in evidence of a by-law adopted after the date when the member became such, held not erroneous.</p> <p>10. Evidence, § 287*—when foundation for admission of documentary evidence need not be laid. Although there are certain requisites to be observed in the passage of a valid law, by-law or municipal ordinance, „ yet preliminary proof in detail that such requisites were observed in a particular case is not usual necessary to the competency of the law, by-law or ordinance, especially where the admission in evidence of such law, by-law or ordinance is not objected to on the ground of the want of such requisites, and where the officers and records whereby to prove the observance of such requisites are in court, so that if objection to the evidence is made on that ground, proof may readily be made as to the manner in which such law, by-law or ordinance was- passed, if thought necessary by the court.</p> <p>11. Insurance, § 741*—when contract not governed by law of state in which benefit society originally incorporated. In an action to recover on a certificate of insurance issued by a fraternal benefit society, where plaintiff is the beneficiary named in such certificate, it is immaterial that a by-law of such society is void under the laws of Kentucky, although it appears that such society was originally incorporated in such State, it appearing that. subsequently such society was incorporated in Indiana, which Indiana corporation thereupon took over the obligations of the former Kentucky corporation, and thereafter issued in this State the certificate sued on after becoming qualified to business therein, and such society later incorrectly stated in its annual report to the insurance superintendent of this State that it was organized under the laws of Kentucky.</p> <p>12. Insurance, § 913*—when submission of question of time of death of insured to jury substantial error. In an action to recover on a certificate of insurance issued by a fraternal benefit society, where plaintiff was the beneficiary named therein, the submission to the jury of the question of the time of the death of the insured held substantial error, where under the evidence insured was presumed to have died seven years after his disappearance, and where under a valid by-law of defendant society insured stood suspended one year after such disappearance, so as to preclude a recovery.</p> <p>13. Insurance, § 793*—when limitation in by-law of time within which action may be brought not waived. In an action to recover on a certificate of insurance issued by a fraternal benefit society, where plaintiff was the beneficiary named in such certificate, which action was commenced more than seven years after the disappearance of insured, a by-law of defendant society limiting the time within which an action may be brought on such certificate- to one year after the death of insured, held not waived by. the passage of a later by-law providing that in ease of such disappearance the beneficiary named therein might continue payment of assessments for one year after such disappearance, and also by receiving from such beneficiary payment of such assessments thereunder, for the reason that such later by-law merely gave the beneficiary such right in order to avoid the suspension of insured for nonpayment of such assessments, and also because such beneficiary was under no obligation to make such payments, and did so at the risk of losing the amount so paid if insured did not reappear within that year.</p>

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

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 97*—when driver crossing in front of car guilty of contributory negligence. One who is driving a vehicle in a public highway parallel to a street car track and who suddenly turns upon the track without looking to see if a car is approaching is not in the exercise of ordinary care, and in case that the vehicle is struck by a car such driver is guilty of contributory negligence.</p> <p>2. Street railroads, § 91*—what care drivers of vehicles must exercise. Drivers of vehicles have not equal rights in the highway with street cars so that such drivers may drive on or across street car tracks between street intersections, knowing that a collision will be inevitable unless the car is stopped, and may not rely on the motorman of such car to prevent such collision by stopping his car.,</p> <p>3. Street railroads, § 64*—what care required in operation of car at crossings. A street car should be operated with more care at places habitually used by the public for crossing the track than at places not customarily used for crossing.</p> <p>4. Street railroads, § 63*—what degree of care required im, operation of car at place other than usual crossing. A motorman of a street car who sees the driver of a vehicle proceeding along the track without crossing at the usual place may assume, in the exercise of due care, that such driver does not intend to cross, and therefore not hold his car in such good control as if he saw such driver approaching such crossing.</p> <p>5. Street railroads, § 111*—when motorman presumed to know possible presence of vehicles at crossing. A motorman operating a street car in a public highway who is approaching a usual place of crossing is presumed to know that there may be vehicles crossing at such point, and therefore, if he sees an approaching vehicle, be bound to keep his car in better control than at other points.</p> <p>6. Street railroads, § 73*—when signals necessary. In case of a collision between an electric street car and a,vehicle, the question whether the motorman gave signals or hot is only important where the collision took place at a street intersection where the motorman is presumed to know that such vehicles might be crossing, or where such signals are necessary in the exercise of due care in order to give warning of the approach of his car to a vehicle .ahead of the car which, without such warning, might turn upon the track, such signals being unnecessary at other times.</p> <p>7. Appeal and error, $ 1778*—when case mil not be reversed without remanding because of insufficiency of proof. In an action to recover for personal injuries alleged to have been sustained by reason of a collision between a wagon which plaintiff was driving and an electric car, due to defendant’s negligence, where the evidence of plaintiff was vague and contradictory and tended to show contributory negligence in that plaintiff attempted to cross the track in front of the car at a point other than the usual crossing, evidence held insufficient to warrant the Appellate Court in reversing without remanding.</p> <p>8. Street railroads, § 131*—when evidence insufficient to establish wilful and wanton conduct in operation. In an action to recover for personal injuries sustained as a result of a collision between a wagon which plaintiff was driving and an electric car, due to defendant’s alleged negligence, where one of the counts of plaintiff charged wilful, wanton and malicious injury in the operation of the car in question, a verdict of not guilty as to this count held right, there being no evidence of wilful and wanton conduct in running the car at a high rate of speed.</p> <p>9. Negligence, § 68*—when one failing to employ all reasonable means to avoid injury may not recover. In an action to recover for personal injuries alleged to be due to defendant’s negligence, plaintiff cannot recover if he was negligent in falling to employ all reasonable means to avoid the injury.</p> <p>10. Street railroads, § 131*—when evidence insufficient to warrant finding of lack of contributory negligence. In an action to recover for personal injuries sustained as a result of a collision between a wagon which plaintiff was driving and an electric car, due to defendant’s alleged negligence, evidence held insufficient to warrant a finding that plaintiff was at the time of the accident in the exercise of due care. "</p> <p>11. Street railroads, § 131*—when evidence insufficient to sustain finding of negligence. In an action to recover for personal injuries sustained as a result of a collision between a wagon which plaintiff was driving and an electric car, alleged to be due to defendant’s negligence, evidence held insufficient to sustain a finding that defendant was negligent.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.</p>

<p>Appeal from the County Court of Henderson county; the Hon. Rufus F. Robinson, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Principal and agent, § 113*—when principal not hound by acts of agent having authority to sell personalty. The acts of an agent assuming to have authority to sell the personalty of the principal will not bind such principal unless he has actually given such authority, or held the agent out to the public as clothed with such authority, or has done acts which clothe such agent with apparent authority to sell such personalty.</p> <p>2. Principal and agent, § 113*—when agent no authority to sell samples. A commercial traveler or other similar agent has Usually no authority to see his samples, such authority not being conferred simply by intrusting the possession of such samples to such agent.</p> <p>3. Principal and agent, § 102*—what duty imposed on person dealing with agent to ascertain authority. A person dealing with an agent must use ordinary prudence and reasonable diligence where the character assumed by such agent is of a suspicious or unreasonable character, or if the authority sought to be exercised is of such an unusual or improbable character as to put an ordinarily prudent man on his guard, and such person dealing with such agent may not shut his eyes to the obvious facts, but should either refuse to deal with such agent or ascertain the real state of the ease from the principal.</p> <p>4. Principal agent, § 245*—when question whether defendant in buying from agent exercised prudence to ascertain authority for jury. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff who had no authority to make such sale, the question whether defendant in dealing with such agent exercised ordinary prudence and reasonable diligence is a question of fact to be determined by the jury.</p> <p>5. Principal and agent," § 245*—when question whether sale by agent was of such unusual character as to put prudent person on guard for jury. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of •'plaintiff, who had no authority to make such sale, the question whether the transaction between defendant and such agent was of such an unusual and improbable character as to put an ordinarily prudent man on his guard is a question of fact to be determined by the jury.</p> <p>6. Principal and agent—when evidence sufficient to sustain finding that purchaser from agent acted with prudence. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff who had no authority to make such sale, evidence held to show that defendant acted with ordinary prudence and reasonable diligence although she did not investigate to ascertain whether such agent had such authority, he having the automobile in his possession at the time of sale, and it appearing that such agent called on defendant’s employer in answer to a letter to plaintiff in regard to such automobile, and there being no facts of a suspicious, unreasonable unusual or improbable character in regard to the transaction which ought to have put defendant on inquiry.</p> <p>7. Principal and agent, § 102*—when purchaser from agent not-negligent in failing to ascertain want of authority of agent. Where an agent who has no authority to sell an automobile which is in his possession offers it for sale to one who does not buy it, but the automobile is finally sold to one who acts on the information as to the authority of the agent which was possessed by the person to whom the automobile was first offered, such person cannot' be held negligent in not ascertaining the fact of such agent’s want of authority to make the sale if the person to whom it was first offered would not have been held negligent had he purchased the car without ascertaining such fact.</p> <p>8. Principal and agent—when evidence sufficient to sustain finding that ordinarily prudent person would have made check for purchase payable to agent. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff, who had no authority to make such sale, where defendant, a stenographer, paid such agent the purchase price thereof in money and drafts payable to the order of such agent, held that there was no reason for disturbing a verdict for defendant in so far as it rested on a finding that an ordinary prudent man would have paid for the automobile in the way in which defendant paid, instead of drawing a check payable to the order of the principal as a careful business man would have done.</p> <p>9. Principal and agent, § 131*—when payment to agent talcing order invalid. Payment for goods ordered on future shipment is not valid as against the principal when made to a traveling salesman who takes orders for such goods.</p> <p>10. Principal and agent, § 131*—when agent implied authority to receive payment. Generally an agent in possession of goods has an implied authority to receive payment therefor when sold by him.</p> <p>11. Principal and agent, § 103*—when purchaser charged, with notice as to lack of authority of agent. One dealing with an agent selling goods by sample is charged with notice that samples are not generally placed in the hands of the agent for sale.</p> <p>12. Principal and agent, § 165*—when principal estopped to deny lack of authority of agent to sell. Although .an agent cannot usually bind his principal beyond his authority, yet where the true owner of property holds out, or allows another to appear as being the owner or as having full power of disposition of the property whereby innocent third parties are led into dealing with such apparent owner, such third parties will be protected if they buy such property from such supposed owner, their rights in such case depending not on the actual title or authority of the person with whom they deal directly, but on the act of the owner which precludes him from disputing, as against such third parties, the existence of the title or power with which he has caused or allowed the party making the conveyance to appear to be invested.</p> <p>13. Trial, § 150*—when question of fact arises for fury. Although in the trial of an action there is no dispute as to what the parties actually said and did in the transaction which gave rise to the action, yet where there are conclusions of fact to be drawn from the admitted facts there are still questions for the jury to determine, so that in such case it is not merely a question of applying the law to the facts.</p> <p>14. Trial, § 191*—when evidence not sufficient to warrant direction of verdict. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff, who had no authority to make the sale, evidence held not sufficiently clear to warrant the direction of a verdict, although' there was no dispute as to what the parties actually said and did in the transaction on which the action was founded.</p> <p>15. Replevin, § 123*—when verdict not so clearly against tveight of evidence as to indicate bias. In an action of replevin by a nonresident corporation to recover possession of an automobile alleged to have been sold to defendant, a woman, by an agent of plaintiff who had no authority to make the sale, judgment for defendant held not so manifestly against the weight of the evidence as to indicate that the jury were biased because plaintiff was a nonresident corporation and defendant was a woman.</p> <p>16. Appeal and error, § 866*—what abstract of record should contain. On appeal the appellant must present in his abstract of the record the matter relied on for reversal, as a reviewing court \yill not go into an examination of the record to see if errors have been committed in regard to matters not abstracted.</p> <p>17. Replevin, § 147*—when instruction as to authority of, agent not misleading. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff, who had no authority to make such sale, but where such agent had such automobile in his possession at the time the sale was made, and it appeared that defendant made no investigation as to such agent’s authority before purchasing, an instruction telling the jury to inquire whether plaintiff, by its actions, justified defendant in thinking that such agent had such authority, held not misleading open to- criticism, in that it did not direct the jury to inquire whether a “reasonably prudent man,” or person described by some similar expression, would have been, under the circumstances named, justified in thinking such agent had such authority.</p>

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

<p>Abstract of the Decision.</p> <p>1. Husband and wife, § 264*—when evidence sufficient to sustain verdict on Mil for separate maintenance. In a bill for separate maintenance on the ground of cruel and abusive treatment, a verdict and finding for complainant held sustained by the evidence.</p> <p>2. Appeal and error, § 1401*—when verdict will not be disturbed on appeal. In an action where the finding made depended largely on the opportunity which the court and jury had of judging of the credibility of the witness, such finding will not be disturbed on review in the absence of substantial error of law found in the record.</p> <p>3. Appeal and error, § 1491*—when failure to exclude question not prejudicial error. Although a question is leading and suggestive, the failure of the court to- exclude the question will not be deemed to be substantial error, where an examination of the testimony shows that defendant was not prejudiced by the ruling of the trial court in permitting the question to be answered.</p> <p>4. Instructions, § 109*—when instruction not improperly refused because not applying the pleadings. In a bill for separate maintenance, where defendant’s pleadings did not charge complainant with adultery, and where defendant as a witness expressly disclaimed such charge, an instruction informing the jury of the evidence necessary to establish such charge and the effect of a con-donation of the offense, held proper where the attention of the jury was directed to the question whether complainant had been guilty of adultery by defendant’s introduction of • evidence tending to show that he had grounds for being jealous of complainant</p> <p>5. Husband and wife, § 267*—what is effect of errors on trial by jury in suit for separate maintenance. Since in a separate maintenance proceeding the verdict of a jury is merely advisory, which the court may disregard and enter such decree as in his judgment equity demands, questions of errors of law, in rulings on evidence, and in instructions are of less importance than in a common law or divorce proceeding, where a jury trial is a matter of right.</p>

<p>1. Workmen’s Compensation Act—what is effect of lack of negligence or lack of due care upon 'right to recovery. Under the Workmen’s Compensation Act (J. & A. ¶ 6449 et seq.), it is not necessary to a recovery that the accident should have been caused by the negligence of the master or that the servant should have been in the exercise of due care when injured.</p> <p>2. Negligence, § 66*—what constitutes contributory negligence. Where a person is injured as a result of his negligence or want of due care, such person is always carelessly doing something which a prudent man would not have done under similar circumstances, or omitting something which reasonable prudence requires of such person.</p> <p>3. Workmen’s Compensation Act—when employee right to recover although his negligence proximate cause of injuries. Under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), a recovery cannot be denied although it is possible or even probable that the proximate cause of the injuries for which compensation is sought was the negligence of the claimant.</p> <p>4. Workmen’s Compensation Act, § 11*—what is effect upon right to recover compensation of performing act outside course of employment. Under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), compensation cannot be recovered for injuries resulting to, an employee while engaged in acts not in the course of his employment.</p> <p>5. Workmen’s Compensation Act, § 11*—when employee putting head out of moving elevator engaged in usual course of employment. In an action under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), to recover compensation for the death of a plaintiff’s intestate as a result of being caught in an elevator shaft in a building where he was employed by defendant, which elevator decedent was operating at the time of the accident, being engaged in hoisting certain frames from one floor of the building to another by means of such elevator, held that at the time of the accident decedent was engaged in the usual course of his employment, although there was evidence that decedent put his head out of the door of the moving elevator and thereby contributed to the injury sustained, such evidence being construable merely as indicating a want of due care.</p> <p>6. Workmen’s Compensation Act—when yearly earning poiver properly computed. In an action under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), to recover for the death of plaintiff’s intestate as a result of injuries sustained in an accident occurring while decedent was in the employ of defendant, where it appeared that at the time of his death decedent was twenty-two years of age, of more than average education, and had been working for defendant at various times and in various capacities for five years prior to the accident, his last employment by defendant commencing two weeks before the accident and involving duties mainly of superintendence at a wage of $3 per day, a finding which computed the yearly earning power of decedent under clause d of section 6 of such act (J. & A. ¶ 5455), providing that in certain cases such earning power may be computed by taking three hundred times the average amount earned by decedent during the days preceding the accident, held not erroneous, and that the result attained was fair and reasonable.</p> <p>7. Workmen’s Compensation Act—when substantial damage presumed from relationship. The law will presume from relationship alone that a wife, child or parents of a decedent will suffer some substantial damage as a result of the death of such decedent.</p> <p>8. Statutes, § 203*—what is effect of punctuation in construing statutes. The punctuation used in a statute is helpful in its construction although such punctuation does not control such construction.</p> <p>9. Workmen’s Compensation Act, § 102—when son contributes to support his parents. A son living with his parents and paying them for his board and lodging at a price ordinarily paid for such board and lodging at boarding houses is contributing to the support of such parents.</p> <p>10. Workmen’s Compensation Act, § 1*—how construed relative to contribution to support of parents. In an action under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), to recover for the death of plaintiff’s intestate as a result of an accident occurring while decedent was in the employ of defendant, such action being brought for the benefit of decedent’s father, the words “to whose support he has contributed within five years previous to his death” in clause a of section 4 of the Act (J. & A. ¶ 15452), held to qualify the word “parents” as well as the words or other “lineal heirs,” also found in such clause of such section, there being no comma after the word “parents” and before the words “lineal heirs,” for which reason the section requires, as a prerequisite to a recovery in behalf of parents, evidence that decedent had contributed to the support of such parents within five years prior to his death, and such construction is not affected by the fact that similar language is used in clause 1 of section 5 of such Act (J. & A. ¶ 5453), relating to the payment of compensation accruing in the lifetime of the employee in case of his death before the total of the payments equals the amount of a death benefit, wherein the word “parents” is separated from the words “or other lineal heirs” by a comma.</p> <p>11. Workmen’s Compensation Act, § 10*—when son contributing to support of parents. In an action under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), to recover compensation for the death of plaintiff’s intestate as a result of an accident happening while decedent was employed by defendant, held that decedent was contributing to the support of parents within the meaning of section 5 of such act (J. & A. ¶ 5452),- fixing the amount of compensation to be recovered in case of the death of an employee who “leaves * * * parents * * * to whose support he had contributed within five years previous to his death,” where it appeared that within the time named decedent had resided with his parents and paid to them an amount equal to that usually paid for board and lodging in boarding houses, and that decedent later increased the amount paid such parents in consideration of the necessities of such parents.</p> <p>12. Workmen’s Compensation Act, § 12*—when evidence of habits of employee admissible. In an action under the Workmen’s Compensation Act (J. & A. ¶ 5449 et seq.), to recover for the death of plaintiff’s intestate as a result of injuries sustained by being caught in an elevator shaft in a building where decedent was employed by defendant, and was at the time of the accident operating such elevator, such action being tried by the court without a jury, evidence of the careful habits of deceased held competent, though there were eyewitnesses of the accident.</p>

<p>Abstract of the Decision.</p> <p>1. Negligence, § 131*—when no variance as to place where injury sustained. In an action to recover for personal injuries where the declaration alleged that plaintiff’s injuries were sustained by falling through a hole in defendants’ “store building,” and the evidence showed that the hole in question was in the floor of a warehouse used in connection with defendants’ store, held no variance, the warehouse under the evidence being properly denominated a store building.</p> <p>2. Negligence, § 24*—when owner not liable for injuries to person entering premises by permission only. One entering premises by permission only, without enticement, allurement or inducement held out by the owner or occupant, cannot recover for injuries caused by obstructions or pitfalls existing in the premises.</p> <p>3. Negligence, § 23*—when person entering premises not mere ' licensee without invitation. In an action to recover for personal injuries sustained as a result of defendants’ alleged negligence by falling through a hole in the floor of an entrance to a building where defendants conducted a tin and hardware business, it appearing that the entrance in question through which plaintiff sought to enter such store was not the entrance provided for the purpose, held that plaintiff was not a mere licensee without invitation so as to excuse defendants from the duty of exercising care to keep such entrance free from danger where it appeared that the entrance in question was so used by customers entering the store with sufficient frequency to charge defendants with knowledge that it was being so used, in which case an invitation so to use that entrance is to be implied.</p> <p>4. Negligence, § 205*—when instruction ignoring issue not prejudicially erroneous. In an action to recover for personal injuries sustained as a result of defendants’ alleged negligence by falling through a hole in the floor of an entrance to a building wherein defendants conducted a tin and hardware business, where the defense was that at the time of the injury .plaintiff was a mere licensee without invitation, an instruction ignoring the question whether plaintiff at such time was an invitee of a licensee held not prejudicially erroneous, where a further instruction told the jury that plaintiff could not recover unless the evidence showed that the building in question was a store building into which the public was invited to enter, and where the proof was clear and convincing, and where the instructions, as a whole, were as favorable to defendants as they had a right to ask.</p> <p>5. Negligence, § 198*—when question whether plaintiff exercised due care for jury. In an action to recover for personal injuries alleged to have been sustained by reason of defendants’ negligence, the question whether at the time of the injury plaintiff was in the exercise of due care for his own safety is for the jury.</p> <p>6. Negligence, § 188*—when evidence sufficient to sustain finding as to exercise of due care Toy plaintiff. In an action to recover for personal injuries sustained by falling through a hole in the floor of an entrance to a building wherein defendants conducted a tin and hardware business, which defect in such floor was alleged to be due to defendants’ negligence, evidence held to justify the jury in finding that at the time of the injury plaintiff was in the exercise of due care for his own safety.</p> <p>7. Damages, § 115*—when verdict for personal injuries not excessive. In an action to recover for personal injuries sustained as a result of defendants’ alleged negligence by falling through a hole in the floor of an entrance to a building wherein defendants conducted a tin and hardware business, where plaintiff in his testimony sought to magnify the injuries sustained by him as a result of the accident, a verdict of two hundred and fifty dollars for plaintiff held not excessive.</p>

<p>Appeal from the Circuit Court of Stephenson county; the Hon. Richabd S. Fabband, Judge, presiding.</p>

<p>1. Insurance, § 668*—when evidence sufficient to sustain finding that horse was hilled hy lightning. In an action to recover for the loss of a horse under a policy of insurance insuring plaintiff against loss as to his farm horses by reason of lightning, where the horse was alleged to have been struck by lightning while running in a pasture and so damaged that plaintiff was compelled to kill it, and where the evidence tending to prove that the horse was injured by lightning was circumstantial, evidence held to warrant the jury in finding that the injury was the result of lightning, such injuries being usually, if not necessarily, proven by circumstantial evidence.</p> <p>2. Insurance, § 342*—when stipulations in policy requiring written waiver of proofs of loss as prerequisite to action may he waived. Stipulations in an insurance policy making it a prerequisite to a recovery thereon that insured shall furnish proofs of loss as required in such policy may be waived by insurer, and such waiver need not be in writing although such policy provides that such condition shall not be waived unless the waiver be in writing, such condition being one which may be waived like other conditions in the policy.</p> <p>3. Insurance, § 321*—when stipulation in policy requiring proofs of loss as prerequisite to action waived. In an action to recover for the loss of a horse under a policy of insurance insuring plaintiff against loss as to his farm horses by reason of lightning, where the horse was alleged to have been struck by lightning while running in a pasture and so damaged that plaintiff was compelléd to kill it, a provision in the policy requiring plaintiff as a prerequisite to recovery thereunder within sixty days of a loss under the policy to furnish to insurer proofs of such loss, held waived where it appeared that shortly after the accident an agent, of insurer called on plaintiff to adjust the loss and filled out a form of proof of loss which plaintiff executed, and in which he incorrectly stated that the horse “was struck by lightning,” it also appearing by uncontradicted evidence that such agent took the paper away with him after being informed by plaintiff of the actual fact as to the cause of the death of the horse, such information being given either before signing such proof of loss or so immediately thereafter as to be part of the same transaction.</p> <p>4. Insurance, § 472*—when failure of insured to demand arbitrar tion of amount of loss not condition precedent to maintenance of action. In an action to recover on a policy of insurance which provided that in case of difference arising in case of loss or damage such difference should be arbitrated, but that such arbitration should be binding “as to the amount of loss only,” where insurer did not demand an arbitration, and where there was no controversy as to the amount of loss, the failure of insured to make such demand held immaterial, such arbitration being not made by the policy a condition precedent to the right of recovery thereunder.</p> <p>5. Evidence, § 399*—when expert may not state ultimate fact. An expert witness must not take the place of the jury and declare his belief as to the ultimate fact to be determined by them.</p> <p>6. Evidence, § 399*—what facts witness may not express opinion upon. A witness cannot give his opinion upon the fact which the jury are to determine.</p> <p>7. Appeal and error, § 1492*—when exclusion of expert testimony not substantial error as unduly restricting rights thereto. In an action to recover for the loss of a horse under a policy of insurance insuring plaintiff against loss as to his farm horses by reason of lightning, where the horse was alleged to have been struck by lightning while running in a pasture, the horse’s leg being broken and it being so damaged that plaintiff was compelled to kill it, the exclusion of the testimony of an insurance adjuster and two veterinary surgeons offered as expert witnesses by defendant as to whether such horse was struck by lightning, held not substantial error as unduly restricting defendant in the introduction of expert testimony where it appeared that such witnesses were permitted to testify as to the effect of a stroke of lightning on an animal, and that such a stroke would not be likely to break a bone without killing the animal, as well as to other facts supposedly within the special knowledge of such witnesses.</p> <p>8. Evidence, § 399*—what matters expert witnesses may not state conclusions in. Expert witnesses are not permitted to state their conclusions in matters of common observation in which the lay mind is capable of forming a correct conclusion.</p> <p>9. Evidence, § 399*—when veterinary surgeon may not express opinion as to how horse brolce leg. There is nothing in the education of a veterinary surgeon which would enable him, as an expert witness, to enlighten the lay minds of the jury on the question as to how a horse might get his leg broken while running in a pasture.</p> <p>10. Insurance, § 397a*—when insurer liable for loss of horse hilled by owner because disabled by lightning. In an action to recover for the loss of a horse under a policy of insurance insuring plaintiff against loss as to his farm horses as a result of lightning, where the horse was alleged to have been struck by lightning while running in a pasture, so damaging the horse that plaintiff was compelled to kill it, it is immaterial whether the horse was killed by the lightning or by plaintiff as a result of being injured by the lightning, since the recovery is based on the injury and not on the killing.</p> <p>11. Insurance, § 669*—what evidence sufficient to establish lach of value of horse after injury by lightning. In an action to recover for the loss of a large farm gelding used as a draft horse, under a policy insuring plaintiff against loss as to his farm horses by lightning, where the horse was alleged to have been struck by lightning while running in a pasture and so damaged that plaintiff was compelled to kill it, only slight evidence will be required to prove that the horse was of no value after the injury where there is direct evidence that it was worth but $125 before such injury.</p> <p>12. Insurance, § 447*—when incorrect statement in proof of loss of horse by lightning does not bar recovery. In an action to recover for the loss of a horse under a policy of insurance insuring plaintiff against loss as to his farm horses as a result of lightning, where the horse was alleged to have been struck by lightning while running in a pasture and so damaged that plaintiff had to kill it, and where the policy provided that attempted fraud or false swearing by plaintiff, either in the proof of loss or otherwise, should forfeit all claim under the policy, a written statement sworn to by plaintiff and intended as a proof of loss, wherein plaintiff incorrectly stated that the horse “was killed by lightning,” held not available to defendant as a bar to recovery where it appeared by uncontradicted evidence that the statement in question was prepared by defendant’s agent and taken away by him with full knowledge that such statement was not strictly true, plaintiff having so informed such agent either before signing or so immediately thereafter as to be part of the same transaction, it thereby appearing that plaintiff had no intention of deceiving defendant.</p> <p>13. Insurance, § 694*—when instruction as to proofs of loss not substantially harmful in ignoring issues. In an action to recover for the loss of a horse on a policy of insurance insuring plaintiff against loss as to his farm horses as a result of lightning, which action involved the question of defendant’s waiver of a provision in such policy requiring proofs of loss to be furnished as a prerequisite to a recovery, and the further question of plaintiff’s alleged fraudulent misstatements in a paper intended to be a proof of loss in compliance with the requirements of the policy, an instruction that as a prerequisite to a recovery in the action the jury must find that plaintiff complied with the conditions of the policy, held not substantially harmful to defendant in that it ignored the question of waiver and fraud or in that it told the jury without qualification that plaintiff could recover regardless of waiver, since if such instruction was so construable the evidence was clear that there was a waiver of such proof of loss.</p> <p>14. Insurance, § 639*—when evidence of agent admissible without proving authority. In an action to recover on an insurance policy, evidence of the statement of an agent made to plaintiff that insurer would not pay the loss is competent without proof of the authority of such agent to speak for the company, where it appears that the policy sued on was negotiated by such agent and was by him delivered to plaintiff, in which case such agent must be held to have authority to communicate to plaintiff the fact that insured would not voluntarily pay the loss.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Arthur W. Deselm, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>1. Pleading, § 387*—when general issue sufficient plea. Where defendant pleads the general issue to a declaration containing only the common counts, a further plea is not required upon plaintiff amending by adding other counts, the general issue being a sufficient plea to such counts.</p> <p>2. Pleading, § 453*—when written pleas and formal joinder of issue warned. By going to trial without raising any question as to the lack of pleas, plaintiff waives the necessity for written pleas and for the formal joinder of issue.</p> <p>3. Principal and agent, § 167*—when agent not liable for breach of contract negotiated for principal. One who is not a party to a contract, and has nothing to do with such contract except he negotiated the contract as agent for another, cannot be held liable for a breach thereof.</p> <p>4. Pleading, § 431*—when variance fatal. A material variance between a contract declared on and the contract proved is fatal, since the evidence offered in support of a declaration must substantially support the allegations of such declaration.</p> <p>5. Contracts, 366*—what constitutes fatal variance between contract declared on and proved. In an action to recover on a contract wherein the contract proved was not between the same parties and not in relation to the same subject-matter as that declared on, held that there was a fatal variance, so that a motion by defendant at the close of all the evidence to direct a verdict in its favor should have been sustained.</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. Job A. Davis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthinston, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 868*—when evidence sufficient to sustain finding that gate along right of way not opened by human agency. In an action to recover for the alleged, killing of plaintiff’s steer by defendant’s train, where it appeared that the steer got on defendant’s right of way through a gate in a fence separating defendant’s right of way from plaintiff’s land, both gate and ‘fence being constructed and maintained by defendant; that the gate swung on hinges from a post in the fence and was formerly fastened by an iron hook to a post set on the opposite side of the opening, and after the hook was broken defendant did not repair it, but fastened the gate by twisting wires round the end of the gate and the post; that after the accident the wires were found lying on the ground untwisted; that after the post had become rotten defendant set a new post alongside the old post, so that the gate did not reach to the new post; that the gate had been pushed open by cattle on other occasions, and that on the day of the accident hunters were seen in the vicinity, held that the evidence did not exclude the possibility that on the day in question the gate was pushed open by cattle so as to warrant an inference that it was not opened by human agency.</p> <p>2. Witnesses, § 197*—when paper used by witness to refresh memory may not be used by adverse counsel. Where a paper from which a witness has refreshed his recollection as to the facts to which he testifies contains expressions of opinion, and such witness after examination of the paper testifies to all the matters of fact therein contained, so that the witness could not be contradicted by the admission of the paper, it is incompetent as evidence.</p> <p>3. Evidence, § 365*—when opinion evidence improper. Opinion evidence is properly excluded where there is no occasion for expert testimony, and where the jury are as well qualified as the witness to decide the question as to which the opinion is sought.</p> <p>4. Instructions, § 41*—when instruction not rendered improper by insertion of words limiting province of jury. The insertion of the words “if proven” in an instruction requested by a party, which instruction commences “if the jury believe from the evidence,” is not objectionable as shifting the burden of proof, the words inserted being of the same meaning as “if the jury believe from the evidence,” and the words so inserted being merely an unnecessary repetition of what was already expressed.</p> <p>5. Appeal and error, § 1241*—when party may not complain of his own instructions. The fact that an instruction given put an improper burden on a party to an action cannot be assigned by such party as error where the instruction complained of was requested by it.</p>

<p>Abstract of the Decision.</p> <p>1. Specific performance, § 46*—when equity will compel delivery of corporate stock. Where stock which is easily obtainable in the market is contracted to be sold but is not delivered, the purchaser is left to his remedy at law for damages, no special reason appearing why such purchaser should have the particular stock contracted for, but where the value of such stock is not easily ascertainable, or is not readily obtainable elsewhere, or where some reasonable cause is shown why vendee should have that particular stock, equity will compel its delivery.</p> <p>2. Specific performance, § 46*—when delivery of stock having no market value compelled. One who has a contract right to the delivery of particular stock should be permitted to maintain a bill to compel its delivery where the stock in question has no present market or other tangible value, never having been listed or offered on the market, and is only salable by one man having special skill in Inducing persons of means to buy stock for pure speculation, especially where, owing to the fact that the company issuing the stock has no means of procuring the equipment necessary to operate its plant and is unable to get its product to market, it does not yet appear whether such product can be sold at a profit, since until all these things are accomplished such stock is not likely to have a market or other value which can be fixed or ascertained by the courts.</p> <p>3. Equity, § 23*—when jurisdiction retained to grant specific performance of contract to deliver stock. In a bill alleging that complainant assigned a judgment to defendant under an agreement that if the judgment was used by defendant in a certain manner defendant should deliver to plaintiff in full payment for such judgment a named number of shares of a particular stock, and where in his answer to the bill defendant denies that he so used the judgment, and offers to reassign it, complainant has the right to resort to a court of equity to obtain a determination of the controverted question as to whether defendant used the judgment in the manner agreed, and if it should be determined that he has not, to compel such reassignment in accordance with the terms of the agreement, defendant’s offer in his answer to reassign not investing complainant with title to the judgment.</p> <p>4. Equity, § 23—when jurisdiction retained to administer further relief. Where equity has jurisdiction it will proceed to administer all the relief required by the subject-matter of the action, notwithstanding the fact that as to part of the relief required complainant had an adequate remedy at law.</p> <p>5. Specific performance, § 93*—when decree requiring delivery of specified number of shares of stock erroneous on complainant's theory. In a bill to compel the delivery of shares of particular stock under a contract whereby complainant was entitled to receive 20.000 shares of the stock of a corporation to be formed by defendant, which should be authorized to issue 500,000 shares, of which 400.000 shares should remain in the treasury and 100,000 shares be taken by stockholders, where the capitalization was later increased tenfold, but the proportion of stock retained in the treasury and that issued to stockholders was the same as that of the original capitalization, and where complainant claimed to be entitled to the same proportion of stock under the increased as under the original capitalization, a decree that defendant deliver to complainant 180,000 shares of such stock, held erroneous on complainant’s theory, complainant claiming to be entitled to one-tenth of the total increased capitalization, or 100,000 shares, and it appearing that 20,000 shares had been received by complainant, the amount which should have been decreed to him on his own theory being 80,000 shares.</p> <p>6. Specific performance, § 91*—when evidence insufficient to sustain claim in bill for additional shares of stock. . In a bill to compel the delivery of shares of particular stock of a corporation to be organized by defendant, where it appeared under a written contract that a named number of shares of such stock had been delivered as provided therein, but complainant alleged that the capitalization of the corporation had been increased by defendant without adding to its assets, and that under a verbal agreement made with defendant after the execution of the written contract plaintiff was entitled to an additional number of shares of such stock, such additional number claimed bearing the same proportion to the total capitalization as increased as the number of shares delivered bore to the original capitalization, evidence held insufficient to sustain the claim made in the bill.</p> <p>7. Specific performance, § 13*—when agreement for delivery of additional shares of stock too uncertain to be enforceable. In a bill to compel the delivery of shares of particular stock, an agreement alleged in the bill that defendant verbally agreed to deliver a number of shares of such stock in addition to the number already delivered under a written contract, which additional number should bear the same proportion to the total capitalization as the number actually delivered bore to the original capitalization, held too indefinite and uncertain to be enforced by a court of equity.</p> <p>8. Corporations, § 169*—when person not in possession of stock certificate a stockholder. Where a person is shown by the records of a corporation to be a stockholder therein, and such person acts as such stockholder after the organization of such corporation, and obviously considers himself a stockholder, he." will be regarded as such although he never had manual possession of the stock certificate, it appearing that in pursuance of a contract such certificate was duly made out in his name and delivered to another person to be delivered to such stockholder, but never actually delivered.</p> <p>9. Contracts, § 309*—what constitutes performance of contract to deliver stock. A contract for the delivery of shares of particular stock is fully performed, although manual possession of the certificate of such stock is never delivered to vendee, where it appears that the certificate was duly made out by the proper officers of the company issuing the stock and delivered to vendor to be delivered to vendee, and afterwards vendee acted as such stockholder, and obviously considered himself such.</p> <p>10. Specific performance, § 77*—when necessary that bill allege conversations taking place after execution of contract. In a bill to compel the delivery of shares of particular stock where the bill relies on a contract set out therein, rights’ based on oral conversations which took place after the execution of the contract cannot be taken advantage of without some pleading alleging such rights.</p> <p>11. Specific performance, § 13*—when equity will not enforce oral contract. An oral contract which is uncertain in its terms and which is not adequately proved will not be enforced by a court of equity, although properly pleaded.</p> <p>12. Corporations, § 83*—when consent of minority stockholder not necessary to increase of capital stock. The consent of a stockholder owning a small minority of the stock is not necessary in order to enable a stockholder owning a large majority of the stock to increase the capitalization, although such minority stockholder received no additional shares when the capitalization was increased, and although such majority stockholder received a large number of additional' shares, where it appears that all minority stockholders, were treated alike, and the evidence shows that such majority stockholder had conveyed valuable property to the corporation in return for the additional stock received by him.</p> <p>13. Specific performance, § 91*—when evidence sufficient to show that judgment not used as contemplated in contract. In a bill to compel the delivery of shares of particular stock under a contract whereby complainant assigned to defendant a judgment and provided that if defendant used the judgment as provided by the contract defendant should deliver complainant a named number of the shares of such stock, but otherwise should reassign the judgment to complainant, evidence held to show that defendant did not use the judgment as provided in the contract.</p> <p>14. Specific performance, § 93*—when reassignment of judgment properly decreed. In a bill based on a contract which provided that complainant should assign to defendant a judgment, which, if used by defendant in a manner provided by the contract, should be paid for as provided thereto, and, if not so used, should be reassigned to complainant, a decree that defendant reassign such judgment to complainant, held proper, where it appeared from the evidence that the judgment was not used by defendant as contemplated by the parties.</p>

<p>1. Stipulations, §16*—when stipulation construed as providing for final judgment whether injury to land by vacation of street actionable. In an action to recover compensation for depreciation in the value of land due to the vacation of part of a street in the neighborhood, where after testimony had been introduced as to the amount of such depreciation parties agreed that the court should determine first whether plaintiff could recover on the evidence introduced, and, if the court so held, further evidence of depreciation should be introduced, and if not, plaintiff would appeal, held that the intention of parties in making the agreement was to obtain a final judgment whether the injuries complained of were actionable.</p> <p>2. Municipal corporations, § 450*—when opinion evidence as to depreciation in value of land due to vacation of street inadmissible. In an action to recover compensation for depreciation in the value of land as the result of the vacation of part of a street in the neighborhood, opinion evidence as to such depreciation is incompetent until the question as to liability for the injury causing the depreciation has been determined,</p> <p>3. Trial, § 195*—when verdict improperly directed. Where plaintiff has a right of action to recover compensation for depreciation in the value of his land due to the vacation of part of a street in the neighborhood, it is error to direct a verdict for defendant if there is any evidence of a pecuniary loss as a result of such vacation, whether such loss be great or small.</p> <p>4. Municipal corporations, § 450*—when evidence sufficient to show decrease in traffic after vacation of part of street. In an action to recover compensation for depreciation in the value of plaintiff’s land as a result of the vacation part of a street in the neighborhood, evidence held to show that the amount of traffic by vehicles past plaintiff’s property had been materially decreased as a result of such vacation.</p> <p>5. Words and phrases—market value of urban property. The market value of urban property depends much upon the amount of travel past such premises, and is therefore increased or decreased by considerations affecting such travel, such as the location of other properties of public improvements, and the improvement or non-improvement of the streets leading to or past such property. '</p> <p>6. Municipal corporations, § 424*—when abutting property owner no right to damages for vacation of street. Generally an owner of property abutting a public street has no right of action because of the vacation of a street at some distance from his property, or because of the suspension or removal of some business, public or private, which drew travel in the direction of such property, although the value thereof, is lessened thereby.</p> <p>7. Municipal corporations, § 424*—when abutting property owner not entitled to damages for vacation of street. Owners of land abutting a public street are not entitled to damages by reason of the vacation or discontinuance of a neighboring or other street, or of the same street when the point where the street is vacated or discontinued is beyond the cross street next after the location of such owner’s land, although its value may be lessened by such vacation or discontinuance.</p> <p>8. Action, § 5*—when private individual no right of action for act obstructing a public right. No private action will lie for any act obstructing a public and common right where the damages sustained thereby are of the same hind as those sustained by the general public, although such injury has a much greater effect on the value of the property of the owner seeking compensation than on the value of property of other owners.</p> <p>9. Action, § 25*—what individual must prove to entitle him to redress for interference with common public right. An owner of a house must be compensated for a physical interference with a right which the owner is by law entitled to use in connection with the house except where the right interferred with is one which is possessed in common with the public, in which case to entitle him to compensation the owner must show that the connection of the right with the house is peculiar in some way and sufficient to distinguish his use of the right from the use enjoyed by the public.</p> <p>10. Words and phrases—access. The courts use the Words ‘‘ingress” and “egress” interchangeably with the word “access.”</p> <p>11. Municipal corporations, § 423*—when right of access to property abutting street may not be interfered with. The right of an owner of property abutting a public street to access thereto, from or by way of such street, and his right of ingress and egress to and from such street cannot be interfered with by the construction of a public improvement without compensation.</p> <p>12. Municipal corporations, § 423*—what is nature of right to access to property abutting street. Owners of property abutting a public street have, as an incident to such ownership, a right of access by way of the streets.</p> <p>13. Municipal corporations, § 423*—what constitutes access to real estate from street. It is difficult to define exactly the meaning of the word “access” as used with reference to real estate abutting a street, its meaning not being confined to the exact point where such real estate abuts upon such street, and being not capable of being so extended as to make an interference with or obstruction of the use of such street at a point two or three blocks away from such land an interference with or obstruction of such access, unless it appears that such owner is specially and particularly injured thereby.</p> <p>14. Municipal corporations, § 424*—when inconvenience in reaching a street formerly accessible from partly vacated street common to all using street. Where the vacation of part of a street on which an owner’s property abuts compels persons passing from such owner’s property to go considerably further to reach a street formerly accessible directly from the street vacated, the inconvenience sustained thereby is one which results to all wherever located who have occasion to use that route.</p> <p>15. Municipal corporations, § 424*—when immaterial that damage sustained by abutting property owner from vacation of street greater than that of others. There is no significance in the fact that an owner of property abutting a public street sustains damage in the depreciation of the value of such property by reason of the vacation of part of such street “in excess” of that sustained by other owners similarly situated if the damage sustained by such owner is of the same kind as that sustained by such other owners.</p> <p>16. Municipal corporations, § 424*—when closing of street injury to abutting property owner distinct from public injury. The closing of a street, whereby the street is converted -into a blind court in front of the premises of an abutting owner, is an injury distinct from that suffered by the general public.</p> <p>17. Municipal corporations, § 424*—when closing of street damnum absque injuria. Damage sustained by an owner of property abutting a public street as a result of the vacation of a street or alley is damnum atsque injuria and gives no right of action where the damage sustained is of the same kind and character as that sustained by the general public, differing therefrom only in degree.</p> <p>18. Municipal corporations, § 424*—when abutting property owner not entitled to damages for vacation of part of street. In an action to recover compensation for depreciation in the value of land owing to the vacation of part of the street which plaintiff’s land abutted, held that plaintiff had no cause of action where it appeared that after such vacation plaintiff still'had unobstructed access to his property from one end of such street, and that as to the other end, such access was only partially obstructed, pedestrians being able to pass along the street without obstruction, and vehicles being compelled merely to travel several blocks further in order to reach those parts of the city which before such vacation might be reached directly by such street.</p> <p>19. Municipal corporations, § 424*—when depreciation in value of land abutting partly vacated street due to proper operation of railroad. In an action to recover compensation for depreciation in the value of land due to the vacation of part of a street which the land abutted, such vacation being the result of an elevation of an existing railroad right of way in obedience to a municipal ordinance, and also by reason of the fact that after such tracks were elevated the trains of another railroad company were operated on such right of way, held that the depreciation complained of arose solely from the legitimate and proper operation of the railroad, although there was an increase of noise, dust and confusion, and although plain-tie’s light and air were appreciably obstructed by the construction of the embankment, it appearing that there was no physical interference with the corpus of plaintiffs property.</p> <p>20. Municipal corporations, § 421*—when owners of city property not entitled to recover for decreased value due to legitimate use of other property. The market values of all urban properties are subject to the increase and decrease due to legitimate uses which adjacent owners may make of their lands, and the owners of such urban properties are only required to pay for increased values and are not allowed to recover for decreased values as a result of such uses.</p> <p>21. Municipal corporations, § 450*—when person purchasing property adjacent to railroad tracks presumed to purchase subject to legitimate use of right of way. One who purchases property adjacent to an existing railroad track, and conducts on such property a manufacturing business to which the advantage of being near such a track is absolutely necessary, is presumed to have so purchased with a view to such advantages and to the disadvantages which may arise in the legitimate use of the right of way for railroad purposes.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 82*—when showing sufficient to set aside judgment Toy confession. On a motion supported by an affidavit to set aside a judgment obtained by confession on a narr and cognovit, and for leave to plead, held that the showing made by defendant was sufficient to sustain an order staying the execution, and granting such leave.</p> <p>2. Judgment, § 78*—when court right to open judgment and allow defendant to plead toithout notice. The right of a court to make an order staying an execution on a judgment by confession and'granting defendant leave to plead does not depend upon notice to plaintiff.</p> <p>3. Notice, § 62*—when party compelled to take notice of court proceedings. A plaintiff who appears for the purpose of having judgment entered by confession is properly in court and is compelled to take notice of all subsequent proceedings in relation thereto.</p> <p>4. Judgment, § 78*—when immaterial that plaintiff had no formal notice of order staying execution and granting right to plead. Where an order is entered, staying an execution and granting defendant leave to plead, it is immaterial that plaintiff had no formal notice of such action by the court, where it appears that after the pleas were filed plaintiff actually took notice of such action by making a motion to strike the pleas, and to vacate and set aside the order, and raised all the questions it could have raised if it had had notice of the motion for leave to plead, it thereby appearing that plaintiff lost no rights by such want of notice.</p> <p>5. Pleading, § 312*—when verification of plea not necessary. Section 55 of the Practice Act (J. & A. fl 8592), does not require verification of pleas filed in pursuance of an order staying an execution and granting leave to plead, since such statute applies only where plaintiff files with his declaration an “affidavit showing the nature of his demand, and the amount due him from the defendant, after allowing to the defendant all his just credits, deductions and set-offs, if any,” and has no application to a case where the only affidavit filed with the declaration is the one usually filed in cases of judgment by confession, in an action to recover on a note, verifying the handwriting and the genuineness of the signature of the maker of the note.</p> <p>6. Pleading, § 215*—what questions demurrer to special pleas raises. A demurrer to special pleas raises the question of the sufficiency of the pleas as a defense to the action.</p> <p>7. Pleading, § 102*—when not necessary that all special pleas in tar he sufficient. In order to support a judgment in bar, entered on special pleas, it is sufficient if any of the pleas filed contained matters constituting a bar to the action, for which reason it is not necessary in such case to find that all the pleas were sufficient in law to constitute a defense, or to bar plaintiff’s action.</p> <p>8. Pleading, § 200*—what demurrer admits. A demurrer admits as matter of law that the matters set up in the pleading demurred to are true, and such matters must be so regarded by the court in passing on the demurrer.</p> <p>9. Bills and notes, § 348*—when special plea in har sufficient. In an action to recover on a note, a judgment in bar held not erroneous, where on demurrer to defendant’s plea in bar it appeared that such plea alleged matter constituting a sufficient and complete defense to the action.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 312*—what are dangers incident to nature of work, of switchman. In an action by a switchman under the Federal Employers’ Liability Act to recover for personal injuries sustained by jumping off a platform car to the ground in a railroad freight yard, a distance of four feet, in order to avoid an impending collision with another car also being switched, where it appeared that plaintiff was ruptured as a result of striking the ground “stiff-legged” when he jumped, plaintiff’s act in jumping held, an ordinary and usual incident in his employment, the “stiff-leggedness” of the jump not being caused by the impending collision, and there being nothing unusual in such a collision when cars were being switched, so that it was obviously necessary for plaintiff to jump off such cars to avoid such collisions.</p> <p>2. Master and servant, § 312*—when servant assumes risks. A servant assumes the risks, hazards and dangers which are ordinary and usual incidents to the employment of such servant, and the master is not liable for injuries resulting therefrom.</p> <p>3. Master and servant, § 302a*—when defense of assumption of risks a/oailable under Federal Act. The Federal Liability Act of 1908 does not abolish the defense of assumption of risk by the servant in actions where the injury sought to be recovered for does not arise from the want of or a defect in an appliance with which such act requires cars moving in interstate commerce to be equipped.</p> <p>4. Master and servant, § 302a*—when switchman jumping to ground to avoid collision assumes rislc under Federal Act. In an action by a switchman under the Federal Employers’ Liability Act to recover for personal injuries sustained by jumping off a platform car to the ground, a distance of four feet, to avoid an impending collision in a railroad freight yard between such car and another car which was also being switched, held that plaintiff assumed the risk.</p>

<p>1. Officers, § 52*—what is nature of liability for interest on public moneys. The decisions which hold that in the absence of a controlling statute public officers are entitled to the interest collected on public moneys in their hands and are not obliged to account therefor are based mainly on the consideration that an absolute liability is imposed on the officer for the payment of the principal sums collected by him, in which ease it is said that he is not merely the custodian or bailee thereof, and does not assume the liability of a trustee in regard to such moneys.</p> <p>2. Counties, § 49*—what is nature of liability of county treasurer for interest on public funds. A county treasurer is an absolute insurer of the fund coming to his hands in the sense that he cannot excuse a failure to pay it over on grounds which would excuse a trustee for such failure.</p> <p>3. Counties, § 49*—why funds held by county treasurer should not be regarded as private property. Plurd’s Rev. St., ch. 36, sec. 4 (J. & A. ¶ 2908), providing that a county treasurer shall receive and safely Iceep all revenues and funds authorized by law to be paid to him, and disburse the same pursuant to law, and section 81 of the Criminal Code (J. & A. ¶ 3625), making it a penal offense for a country treasurer for his own use to loan any of the money intrusted to him, forbid the conclusion that such funds should be regarded as the private property of the officer.</p> <p>4. Officers, §52*—when interest money m hands of officer in official capacity. Interest received by a public officer on funds deposited in banks by him in his official capacity is an increment to such funds, hence the right to such interest is vested in the public, and on its receipt by the office such interest becomes money in his hands in his official capacity.</p> <p>5. Counties, §49*—how liability of county treasurer for interest determined. The disposition of interest received by a county treasurer on deposits of public money in his hands in his official capacity is controlled by section 10 of article X, of the Constitution, providing that all fees or allowances received by a public officer in excess of the amounts allowed to such officer by the county board shall be paid into the county treasurer, and by section 52 of the Fees and Salaries Act (J. & A. ¶ 5654), requiring that all fees, perquisites and emoluments received by county officers of the certain classes in excess of the amounts allowed to such officers by the county board shall be paid into the county treasurey.</p> <p>6. Officers, § 62*—what constitutes fees, perquisites and emoluments. The words “fees, perquisites and emoluments,” used in section 52 of the Fees and Salaries Act (J. & A. ¶ 5654), are sufficiently comprehensive to include every payment to a public officer in his official capacity.</p> <p>7. Contribution, § 1*—when doctrine of compelling contribution among wrongdoers inapplicable. The cases which hold the sureties on the bond of a public officer are not entitled to indemnity from their principal as being involved in a contract to perform an illegal and criminal act, the law not compelling contribution among wrongdoers, or enforcing illegal contracts, have no application to an action by an innocent plaintiff against a defendant who is charged with an illegal act.</p> <p>8. Counties, § 49*—when county treasurer must pay fees into county treasury. Full force and effect must be given to the requirements of section 52 of the Fees and Salaries Act (J. & A. ¶ 5654), requiring that all fees, perquisites and emoluments received by county officers of certain classes in excess of the amounts allowed to such officers by the county board must be paid into the county treasury, as is shown by the construction given to the statute by the Supreme Court, holding that fees received by clerks of Circuit Courts in naturalization cases under the Federal Act of 1908 are fees of the office, which under the statute must be paid into the county treasury. .</p> <p>9. Counties, § 49*—how Fees and Salaries Act construed relative to collection of and accounting for interest by county officers. Although section 12 of the Cities, Towns and Villages Act (J. & A. ¶ 2061) in express terms requires the treasurer of a sanitary district to collect and account for interest on public moneys deposited by him in banks, and while section 52 of the Fees and Salaries Act (J. & A. ¶ 5654) does not in terms require county officers so to collect and account, yet this consideration is not controlling of the construction of the latter statute so as to require an inference that the Legislature therein intended to recognize the right of the county officer to retain interest received on public funds, or as authorizing or acquiescing in a misappropriation of public funds in the absence of express statutory provisions, section 12 merely requiring the collection and accounting for such interest, where without such provision such officer would not be required to collect interest.</p> <p>10. Officers, § 62*—lohat is custom among public officers regarding interest on public funds. It is common knowledge that there is a long established custom by which public officers collect and appropriate to their own use interest received on public funds, with the knowledge and acquiescence of every one.</p> <p>11. Statutes, § 194*—when existence of custom inconsistent with statute disregarded. If the meaning of a statute is clear and unambiguous, a practical construction by long established custom which is inconsistent with such meaning will have no weight and will not be followed.</p> <p>12. Counties, § 44*—what constitutes a perquisite within Fees and Salaries Act. Interest received by a county treasurer on deposits of public money is a “perquisite” within the meaning of section 52 of the Fees and Salaries Act (J. & A. ¶ 5654), requiring that all fees, perquisites and emoluments received by public officers of certain classes in excess of the amounts allowed to such officers by the county board be paid into the county treasury.</p> <p>13. Counties, § 44*—Fees and Salaries Act not ambiguous. Section 52 of the Fees and Salaries Act (J. & A. ¶ 5654), requiring that all fees, perquisites and emoluments received by county officers of certain classes in excess of the amounts allowed to such officers by the county board be paid into the country treasury, held not ambiguous so as to require or admit the aid of contemporaneous construction by which county treasurers are allowed to retain for their own use interest received by them from deposits of money in their hands in their official capacity.</p> <p>14. Officers, § 62*—when officer retaining public funds not guilty of bad faith. The long continued and improper practice of public officers in retaining public funds in their hands,. claiming them as their own, leads to the conclusion that one so doing is acting honestly and is not guilty of bad faith in following the custom of his predecessors.</p> <p>15. Estoppel, § 93*—when estoppel inapplicable to State. Since the State cannot be estopped by laches from claiming its own, the actual ownership of money required by statute to be paid into the public treasury cannot be permitted to be controlled by the consideration that there exists a long continued and improper practice of officers in retaining such funds in their hands, claiming such funds as their own.</p> <p>16. Counties, § 49*—what is nature of liability of county treasurer failing to pay into county treasury interest received on public funds. Although interest received by a county treasurer on public funds in his hands in his official capacity be so received from various funds other than the county tax, yet, it being his duty to pay such interest into the county treasury, he is a wrongdoer if he fails so to pay such interest, and stands in the same legal attitude as though he took and appropriated to his own use any other money from the treasury.</p> <p>17. Counties, § 49*—when fact that money abstracted by county treasurer is taxes belonging to another municipality no defense. A county treasurer cannot defend an action brought by the county for wrongfully abstracting money from the county treasury on the ground that the particular money abstracted was received from taxes levied by another municipality and was ultimately to be paid to such municipality.</p>

<p>Error to the County Court of Lake county; the Hon. Perrt L. Persons, Judge, presiding.</p>

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

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

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

<p>Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the County Court of Lake county; the Hon. David T. Smiley, Judge, presiding.</p>

<p>1. Mortgages, § 714*—when grantee purchasing real estate from purchaser at foreclosure sale not innocent purchaser for value. In a bill to redeem real estate from a master’s certificate of sale under a foreclosure of a mortgage, where the legal title to the real estate sought to be redeemed is in a grantee of the purchaser at such foreclosure sale, no question of such grantee’s being an innocent purchaser for value without notice of complainant’s claim arises where it appears from the findings of the master, which were approved by the court, that such grantee purchased such real estate subject- to any rights which complainant might be able to enforce by law against such real estate.</p> <p>2. Mortgages, § 730*—when agreement for extension of time for redemption will be enforced. Courts of equity will enforce agreements involving an extension of the statutory or legal period of time for the redemption of property from a foreclosure sale.</p> <p>3. Witnesses, § 252*—how credibility of witness on disputed fact determined. Where there is a direct conflict between the testimony of two witnesses as to a question of fact, the question as- to which witness has sworn truthfully must be determined by considering the circumstances which may corroborate one or the other of such witnesses.</p> <p>4. Mortgages, § 720*—when evidence sufficient to sustain finding as to oral agreement for extension of time to redeem. On a bill to redeem real estate from a master’s certificate of sale under foreclosure of a mortgage, evidence held sufficient to sustain a finding that an oral agreement was made for the extension of the time to redeem beyond the statutory period.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 126*—when appeal from decree sustaining will raises question of freehold. Adi appeal from a decree sustaining a will raises a question of freehold where the will devises real estate to the widow of testator which such widow could not have taken as heir at law, and makes other devises of real estate and annuities charged on real estate to persons not heirs at law, since if the will had been set aside all such interests in the real estate would have been defeated, and the real estate so devised would have in part passed to heirs at law who took nothing under the will.</p> <p>2. Appeal and error, § 123*—when Appellate Court no jurisdiction of question involving freehold. The Appellate Court has no jurisdiction to determine a question of freehold.</p> <p>3. Appeal and error, § 123*—when cause improperly appealed will he transferred to Supreme Court. A cause improperly appealed to the Appellate Court because involving a freehold will be transferred to the Supreme Court under section 102 of the Practice Act (J. & A. ¶ 8639).</p>

<p>1. Intoxicating liquors—when title to liquor passes. The raleas to when title to ordinary chattels passes has no application to a case where the sale in question was of a bottle of intoxicating liquor in violation of law, and where the sale was a mere device by which It was sought to give a color of legality to such a sale.</p> <p>2. Intoxicating liquors—when title to liquor passes. Title to liquor bought will not pass merely on payment of the price, and will only pass on delivery where no specific bottle of liquor is purchased, and where at the time of payment the liquor actually delivered had not been separated from the bulk, it being possible for the vendor at any time between separation and delivery to substitute another bottle for that finally delivered.</p> <p>3. Intoxicating liquors, § 67*—what constitutes violation of Sunday closing law. In a prosecution for keeping a tippling house open on Sunday, the keeping of such a house. open on Sunday to serve intoxicating liquors therein held a violation of the statute, although it appeared that defendant received' no money for liquor delivered on that day and collected such money in advance on Saturday, it also appearing that the purchasers of the liquor paid for on Saturday were tippling on Sunday in defendant’s place with the liquor so paid for.</p>

<p>1. Injunction, § 177*—when terms “city marshal” and “chief of police” used to describe same person. In a bill by a city official claiming to be “city marshal and chief of police,” to restrain another claimant to such office from interfering with complainant’s performance of duty as such, it is to be inferred that the terms “city marshal” and “chief of police” are used in the bill to describe the same office.</p> <p>2. Municipal corporations, § 119*—how officer removed from office. Under section 7, art. II, part I, of the Cities and Villages Act (J. & A. ¶ 1291), authorizing the mayor of a city to remove any officer appointed by him, and requiring such mayor on such removal to state his reasons therefor to the city council within ten days, an officer so removed stands suspended and is restored to office only by the failure of the mayor to file such reasons within the time limited, or by the disapproval by the city council by a two-thirds vote of such removal.</p> <p>3. Municipal corporations, § 119*—when officer removed by failure of council to disapprove of action of mayor. If a city council fails to disapprove by a two-thirds vote of the removal by the mayor of a city officer appointed by him under section 7, art, II, part I, of the Cities and Villages Act (J. & A. ¶ 1291), after the mayor has filed his reasons for such removal as required by such section, such officer stands removed.</p> <p>4. Injunction, § 182*—when allegation as to nontermination of office conclusion of law. In a bill by a city official seeking to restrain another claimant to the office held by complainant from interfering with complainant’s performance of duty as such, an allegation that complainant’s term of office as such official has not expired is a mere conclusion of law.</p> <p>5. Injunction, § 177*—how allegation as to nomination of another person for office by mayor construed. In a bill by a city official to restrain another claimant to the office held by complainant from interference with complainant’s performance of duty, an allegation that on a named date the mayor of such city nominated another person for the office held by complainant implies either that such mayor had attempted to remove complainant or that such mayor considered that complainant’s term had expired.</p> <p>6. Municipal corporations, § 112*—when mayor right to appoint officer in place of removed officer. Where the mayor of a city removes a city official appointed by him under the authority of section 7, art. II, part I, of the Cities and Villages Act (J. & A. ¶ 1291), such mayor has the right to appoint an officer to act for the time being, although such mayor has no power to appoint a successor to such official prior to filing his reasons and the action of the city council thereon as required by the statute.</p> <p>7. Injunction, § 177*—when bill to restrain removal of city official insufficient. Even if it be held that a court of equity has jurisdiction to restrain the removal of a city official, a bill therefor cannot be entertained which does not show that the office held by complainant was duly established by ordinance, the nature and extent of complainant’s right to hold the office, and the nature of the authority by which he was sought to be removed.</p> <p>8. Officers, § 2*—what is nature of office of city marshal. The office of city marshal in a city is political in its character, being one of the agencies by which a city government is conducted.</p> <p>9. Equity, § 1*—what equity will not interfere with. Courts of equity will not take jurisdiction of political controversies or undertake to control the government of the State, or of cities or other governmental agencies.</p> <p>10. Equity, § 1*—what is subject-matter of jurisdiction of equity. The subject-matter of the jurisdiction of courts of equity is civil property, and the injury thereto, actual or prospective, and such courts ‘have jurisdiction of matters of a political character only under special circumstances where such jurisdiction is necessary in order to protect rights of property.</p> <p>11. Equity, § 1*—when no jurisdiction over appointment and right of officers to office. Disputed questions concerning the appointment of civil officers and of their right to hold office as such are of a nature purely legal and cognizable only by courts of law.</p>

<p>Abstract of the Decision.</p> <p>1. Officers, § 55*—when not personally liable on contract. A public officer making as such a valid and enforceable contract is not personally liable on such contract for the payment of the debt.</p> <p>2. Officers, § 55*—when public officer not personally liable on invalid contract. A public officer who mistakes the law and makes an invalid contract does not incur personal liability thereon in the absence of fraud or of evidence that such officer intended to bind himself personally on such contract, or that the person with whom such officer makes such contract supposed he was dealing with such officer as an individual, the person with whom the contract was made being presumed to know that such officer exceeded his powers in making the contract.</p> <p>3. Principal and agent, § 169*—what is distinction between personal liability of public agent and private agent on unauthorized contracts. There is a distinction between the personal liability of an agent of an individual and that of a public agent in respect to contracts made on behalf or the principal without authority, in that the agent of an individual is personally liable thereon, being presumed to know the extent of his authority, while a public agent is usually not liable.</p>

<p>1. Automobiles and garages, § 3*—when negligence in operation of automobile question for jury. In an action for personal injuries alleged to be due to defendant’s negligence in operating an automobile, held that the question whether defendant was negligent was a question of fact for the jury.</p> <p>2. Automobiles and garages, § 3*—when contributory negligence of person injured by automobile question for jury. In an action for damages for personal injuries alleged to be due to the negligent operation of an automobile, held that whether plaintiff exercised due care was a question for the jury.</p> <p>3. Appeal and error, § 1401*—when verdict will not be disturbed. A verdict will be allowed to stand upon appeal where the evidence as to negligence and contributory negligence is doubtful,'even though the Appellate Court might have reached a different conclusion on the facts, provided the record is free from errors of law.</p> <p>4. Automobiles and garages, § 1*—how Motor Vehicle Act construed relative to speed of automobiles. Section 10 of the Motor Vehicle Act (J. & A. ¶ 10010), regulating the speed at which persons may drive such vehicles on public highways, does not directly prohibit driving in excess of ten miles an hour on such highways, but does prohibit driving such vehicles at unreasonable speed on such highways, and makes the fact that such vehicles are so driven at a speed of more than ten miles an hour prima facie evidence of such unreasonable speed.</p> <p>5. Automobiles and garages, § 3*—when instruction on speed of automobiles erroneous. In an action for personal injuries alleged to be due to defendant’s negligencé in driving a motor vehicle at an unreasonable speed on a public highway, striking plaintiff, and causing the injuries sought to be recovered for, an instruction stating the provisions of section 10 of the Motor Vehicle Act (J. & A. If 10010), prohibiting the driving of such vehicles at unreasonable speed on public highways and making the driving of such vehicles on such highways at a speed in excess of ten miles an hour prima facie evidence of unreasonable speed, and adding, “And the running of such automobile at a rate of speed in excess of ten miles an hour under the circumstances above stated is regarded by the law as negligence,” held erroneous.</p> <p>6. Automobiles and garages, § 1*—how Motor Vehicle Act construed relative to speed. Section 10 of the Motor Vehicle Act (J. & A. ¶ 10010), prohibiting the driving of motor vehicles on public highways at unreasonable speed, and making the fact that such a vehicle was so driven at a speed in excess of ten miles an hour prima facie evidence of unreasonable speed, differs essentially from section 24 of the Railway Act (J. & A. ¶ 8836), prohibiting the running of trains through a city at a speed prohibited by a city ordinance, in that the fact of violation of such ordinance is thereby made negligence per se so that proof of the violation establishes negligence, it thus appearing that in framing such section 10 the Legislature did not intend to prohibit the driving of such vehicle at a rate of speed in excess of ten miles an hour, but merely to require a person driving at such rate of speed to show that such rate was not unreasonable.</p> <p>7. Automobiles and garages, § 1*—when statute not violated by driving automobile at speed exceeding ten miles per hour. Under section 10 of the Motor Vehicle Act (J. & A. ¶ 10010), prohibiting the driving of motor vehicles on public highways at unreasonable speed and making the driving of such vehicles on such highway at a speed in excess of ten miles an hour prima facie evidence of unreasonable speed, driving a motor vehicle on such highway at a speed in excess of ten miles an hour will not be a violation of the statute and will not amount to negligence, where it appears that owing to the deserted condition of the streets at night, or the lack of traffic thereon, such speed is reasonable and proper and will not endanger life or limb or the property of any person.</p> <p>8. Evidence, § 279*—when X-ray photographs properly admitted. In an action to recover for personal injuries sustained by being struck by defendant’s automobile which was alleged to have been negligently operated at the time of the accident, whereby plaintiff suffered a fracture of the bones of his leg, rule as to the evidence necessary to lay a foundation for the introduction of X-ray photographs considered, and such photographs held not erroneously admitted.</p> <p>9. Automobiles and garages, § 3*—when instruction on measure of damages for injuries sustained sufficient. In an action to recover for personal injuries sustained as a result of defendant’s alleged negligence, an instruction as to the measure of damages and the evidence required to support the amount found, held not erroneous under the evidence.</p>

<p>Error to the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.</p>

<p>1. Principal and agent, § 167*—when agent personally liable to third person for goods purchasedl. Where a sale of goods is made to one who is known to be an agent for a principal, and for whom vendor supposes such agent is acting, but such agent has no authority to act and does not act for such principal in making the purchase, he is personally liable.</p> <p>2. Trial, § 155*—when province of jury to weigh conflicting evidence. The determination of disputed questions of fact properly comes within the province of the jury.</p> <p>3. Evidence, § 475*—what constitutes preponderance. In an action to recover for goods sold and delivered, where defendant denied that a sale was made as alleged, evidence held' fairly to preponderate in plaintiff’s favor, plaintiff being sufficiently corroborated by other witnesses and by the circumstances of the case.</p> <p>4. Assumpsit, Action of, § 89*—when necessary to show delivery of goods sold. In an action for goods sold and delivered where recovery is based on the common counts, the evidence must show a delivery of the goods alleged to have been sold.</p> <p>5. Assumpsit, Action of, § 89*—when evidence sufficient to show delivery of goods. In an action to recover for goods sold and delivered where plaintiff declares on the common counts, a delivery of the goods alleged to have been sold is shown where it appears that plaintiff hired a drayman to haul the goods to and to load them in a freight car procured by defendant for the transportation of the goods, and where defendant paid the charges of such drayman for such hauling and loading.</p> <p>6. Sales, § 126*—what constitutes delivery of goods. A vendee of goods is placed in actual possession of such goods so as to constitute a delivery where it appears that such goods are placed in the direct control of such vendee.</p> <p>7. Principal and agent, § 183*—when purchaser of goods ratifies act of seller in employing drayman. A vendee of goods by paying the charges of a drayman employed by vendor, who hauls and loads such goods into a car engaged by defendant for the transportation of such goods thereby ratifies the act of vendor in employing such drayman to haul and load such goods.</p> <p>8. Sales, § 126*—what constitutes delivery of goods. Actual delivery consists in giving to the buyer, or his servants, or accredited agent, the real possession of the goods sold.</p> <p>9. Sales, § 126*—when evidence sufficient to establish delivery of goods. In an action to recover for goods sold and delivered, evidence held sufficient to establish the fact of a delivery to the vendee of the goods sold.</p> <p>10. Principal and agent, § 249*—when instruction as to personal liability of agent malcing sale without authority correct. In an action to recover for goods sold and delivered where defendant was local manager for a brewing company, and where the goods alleged to have been sold consisted of the stock of a saloon, an instruction as to the personal liability of defendant as agent for selling goods without authority, approved.</p> <p>11. Principal -and agent, § 169*—when agent personally liable to third person on contract. If a person undertakes to contract for an individual or corporation and contracts in a manner not legally binding on his principal, the person so undertaking to contract is personally liable on such contract.</p> <p>12. Principal and agent, § 225*—when burden on agent to show authority to bind principal. An agent who makes a contract on behalf of a principal can exonerate himself from personal liability on such contract only by showing affirmatively that he has authority to bid such principal by the contract made, and it is not incumbent on the person with whom the contract is made to show that such agent had not such authority.</p> <p>13. Principal and agent, § 249*—when instruction as to authority of agent properly modified. In an action to recover for goods sold and delivered where defendant was local manager of a brewing association, where it was undisputed that defendant had no authority to purchase the goods for his principal, an instruction in reference to such authority held properly modified.</p> <p>14. Instructions, § 120*—when instruction not based on issue or evidence properly refused. In an action to recover for goods sold and delivered, where a count presenting the issue as to whether or not plaintiff contracted with defendant as agent for .a brewing^ association, under representation of defendant that he had authority to so contract, had been stricken from the files at the close of plaintiff’s evidence, and where there was no evidence on such issue, an instruction on such issue held properly refused.</p> <p>15. Appeal and error, § 1514*—when improper remarles of counsel harmless error. In an action to recover for goods sold and delivered, remarks of counsel in final argument, an objection to which was.sustained by the trial court, held improper but not of such a prejudicial character as to have influenced the jury in deciding the merits of the case.</p> <p>16. Interest, §23*—when interest not allowed on ground of unreasonable and vexatious delay in payment. Where the right to recover is disputed both on the facts and on the law, the case is not a proper one for the allowance of interest on the ground of an unreasonable and vexatious delay in payment, if it is clear that the delay was due to the defense made to the action.</p> <p>17. Interest, § 24*—what does not constitute unreasonable and vexatious delay. The right to appear and defend .a suit is one which cannot be construed into an unreasonable and vexatious delay without impairing the right.</p> <p>18. Interest, § 24*—what does not constitute unreasonable or vexatious delay in payment. Mere failure to pay a demand will not necessarily constitute the delay in payment unreasonable or vexatious.</p> <p>19. Interest, § 25*—when question of what constitutes unreasonable or vexatious delay in payment not for jury. Where the only delay in payment of a demand is that occasioned by defending the action, the question of the allowance of interest for an unreasonable and vexatious delay in payment is not a question for the jury and should not be submitted to them. '</p> <p>20. Appeal and error, § 1659*—when remittitur cures error in judgment. Where a judgment is erroneous in that it includes interest which plaintiff is not entitled to recover, the entry of a remittitur for the amount of such interest cures the error.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 161*—when lessee entitled to possession. Where a lessee is in possession of premises under an oral lease, the legal as well a's the actual possession of such premises is in such lessee.</p> <p>2. Landlord and tenant, § 176*—what constitutes breach of implied covenant for possession and quiet enjoyment. The covenant for possession and quiet enjoyment impliedly contained in a lease is breached where at the time when the lessee seeks to take possession of the demised premises another is in possession thereof under a prior lease.</p> <p>3. Landlord and tenant, § 191*—when questions as to existence of prior lease and possession by third person' for jury. In an action by a lessee to recover for breach of a lease, where the breach assigned is that plaintiff was prevented from taking possession of the demised premises by the fact that another was in possession thereof under an alleged prior lease from defendant, the questions whether there was such a prior lease and whether such other person was in possession thereunder are questions of fact for the jury.</p> <p>4. Assumpsit, Action of, § 6*—when lies. An action of assumpsit will lie to recover for a breach of the implied covenant of a lease for possession and quiet enjoyment of the demised premises.</p> <p>5. Landlord and tenant, § 191*—what is measure of damages for breach of lease by lessor. In an action by a lessee.to recover. for breach of the condition of a lease, the measure of damages is the difference between the rental value of the premises involved and the rent which lessee actually agreed to pay, together with such special damages as may have been directly and necessarily occasioned to plaintiff by defendant’s wrongful act, but not including what plaintiff might have made on the premises during the lease, or loss sustained by being compelled to sell Ms stock, agricultural implements, etc., for less than their value.</p> <p>6. Trial, § 276*—when interrogatories as to rental value of land erroneous. In an action by a lessee to recover for breach of the condition of a lease, where the breach assigned is that plaintiff was prevented from taking possession of the demised premises by the fact that another was in possession under an alleged prior lease from defendant, and where plaintiff’s lease reserved the right to enter upon the demised premises to lay tracks and to mine silica, and that plaintiff should exonerate defendant from liability for damages in case the rights reserved should be exercised, interrogatories to the jury as to the rental value of the land not incorporating such reserved rights as elements of value, held erroneous.</p> <p>7. Landlord and tenant, § 191*—when evidence as to rental value of house as distinct from land inadmissible. It is error to permit the jury to consider evidence of the rental value of a house apart from the rental value of a tract of land on which the house is situated, in computing the rental value of the premises occupied in estimating damages for breach of an implied covenant of possession and quiet enjoyment.</p> <p>8. Instructions, § 104*—when instruction as to amount of recovery erroneous. An instruction that if certain facts are found the jury should find for plaintiff, “in such damages as it is proved under the instructions in this case he has suffered,” is erroneous where no other instruction is given laying down a correct measure of damages.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 228*—when evidence sufficient to show intoxication proximate cause of death. In an action by minor children to recover for injury to their means of support by the death of their father, where such death was the result of personal injuries sustained by deceased while intoxicated as a result of drinking liquor sold to him by defendant, a saloon keeper, where it appeared that as a result of the injuries sustained deceased became sick and vomited and retched constantly, being unable to eat, and his kidneys and bowels being paralyzed, and suffering much pain, and so continued until his death, which was immediately caused by hemorrhage of the nose, evidence held to sustain a finding that the proximate cause of his death was intoxication.</p> <p>2. Intoxicating liquors, § 247*—when question whether death due to. intoxication for jury. In an action by minor children to recover for injury to their means of support by the death of their father, which death was the result of personal injuries sustained by deceased while intoxicated, as a consequence of drinking liquor sold to him by defendant, a saloon keeper, the question of proximate cause held a question for the jury where it appeared that the immediate cause of death was hemorrhage of the nose, and where the evidence was conflicting whether such hemorrhage was caused by the sickness resulting from the intoxication, or from a weakened condition of the blood vessels of the head due to a previous attack of spinal meningitis.</p> <p>3. Negligence, § 48*—what constitutes proximate cause of injury. The proximate cause of injury must be understood to be that which in a natural and continuous sequence, unbroken by any new or independent cause, produces the result and without which the event would not have occurred.</p> <p>4. Intoxicating liquors, § 245*—when verdict for loss of support not excessive. In an action by three minor children to recover for injury to their means of support by the death of their father, where such death was the result of personal injuries sustained by deceased while intoxicated as a consequence of drinking liquor sold to him by defendant, a saloon keeper, a verdict for plaintiffs of $3,000 held not excessive, where it appeared that plaintiffs were of the age whiph required education and the ordinary expenses of rearing them, and that deceased was an active and reasonably prosperous man, thirty-four years of age, with an earning power of $1,500 a year, from which he properly supported and provided for plaintiffs.</p> <p>5. Appeal and error, § 1406*—when verdict will not be disturbed on ground of excessive damages. A verdict will not be disturbed on the ground of excessive damages where it does not appear that the jury were influenced in assessing damages by sympathy, prejudice or some other improper motive.</p> <p>6. Instructions, § 104*—when instruction as to amount of recovery not erroneous. In an action to recover for death due to defendant’s alleged wrongful act, an instruction containing a correct recital of the essential facts to be proven by plaintiffs in order to recover in the action is not open to criticism because it concludes: “Then the law makes it your duty to find said defendant guilty and assess plaintiffs’ damages as explained in these instructions.</p> <p>7. Intoxicating liquors, § 249*—when instruction as to proximate cause of death not erroneous. In an action by minor children to recover for injury to their means of support by the death of their father, as a result of personal injuries sustained while intoxicated as a consequence of drinking liquor sold to him by defendant, a saloon keeper, where the immediate cause of death was hemorrhage of the nose, an instruction that, “If as a natural result of sales deceased became intoxicated and sickened, and that such sickness induced in him an increased strain upon the arteries of the body, whereby an artery was ruptured and he died therefrom, then such sales would be the proximate cause of his death, and this notwithstanding that there might have been at the time a diseased condition of his artery, which rendered it more liable to burst from increased pressure,” held not improper as invading the province of the jury in determining the question of proximate cause, it appearing that deceased had at one time been afflicted with spinal meningitis, tending to harden the arteries of the head, and that defendant sought to show that the hemorrhage was caused by the weakened condition of the arteries, and the objection not being raised that the elements set forth in the instruction did not constitute proximate cause and it not being pointed out how the jury could have been misled thereby.</p> <p>8. Instructions, § 88*—when instruction on preponderance of evidence sufficient. The use in an instruction of the words “however slight” in speaking of the preponderance of the evidence does not warrant a criticism of the instruction where the party objecting thereto admits that the use of the words, “if the evidence preponderated but slightly,” in the instruction would have been good, there being no material difference between the expressions.</p> <p>9. Instructions, § 89*—when instruction sufficiently refers to number of witnesses as basis for determining preponderance of evidence. An objection to an instruction that it fails to mention specifically the number of witnesses as one of the things to be considered in determining the preponderance of the evidence is not well founded, where it appears from a reading of the whole instruction that the attention of the jury was called to the number of witnesses, among other things to be considered.</p> <p>10. Intoxicating liquors, § 221*—when expert testimony unnecessary to determine proximate cause of death. In an action by minor children to recover for injury to their means of support by the death of their father, which death was the result of personal injuries sustained by deceased while intoxicated as a result of drinking liquor sold to him by defendant, a saloon keeper, there is no necessity for proving the fact that the proximate cause of the death was the wrongful act of defendant by the expert opinion of doctors where the facts connecting the death with the intoxication can be proven by the persons who attended him.</p> <p>11. Instructions, § 93*—when instruction that testimony of expert witnesses should be considered proper. In an action where both sides introduce the testimony of physicians as expert witnesses, a requested instruction should be given advising the jury that the testimony of such witnesses as a class should be considered by the jury with all the other evidence in the case, although such instruction is faulty in calling the attention of the jury to a particular class of witnesses.</p> <p>12. Appeal and error, § 1560*—when refusal of instruction not prejudicial error. The refusal to give a requested instruction that the testimony of physicians as expert witnesses should be considered by the jury with all the other evidence in the case is not prejudicial error, since the jury must have understood that they were to consider such evidence.</p> <p>13. Appeal and error, § 1525*—when imperfect instruction will not cause reversal. Although the instructions given in a case may not be in every respect formal and accurate, yet where such instructions taken as a whole fully and fairly present the law of case to the jury, there is not such error as will justify a reversal.</p> <p>On Rehearing.</p> <p>Instructions, § 20*—when instruction that jury must'not consider propriety of law upon which action based not misleading. An instruction in a civil action for damages for injury to means of support- of children, owing to the intoxication of the father, that it is not for the jury to consider the propriety of the law in force relating to intoxicating liquors under which the action is brought, held not misleading.</p>

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

<p>1. Master and servant, § 98*—how Federal Employers’ Liability Act limited. The application of the Federal Employers’ Liability Act is limited to injuries occurring while the particular service in which the employee is engaged is a part of interstate commerce.</p> <p>2. Commerce, § 4*—what constitutes prima facie case that employee engaged in interstate commerce. In an action under the Federal Employers’ Liability Act, the fact that at the time of the injury sought to be recovered for, plaintiff was engaged in interstate commerce is prima facie proved by uncontradicted testimony that at such time plaintiff was engaged as employee of a railroad company in handling a train in which part of the cars were billed from a point in one State to a point in another State.</p> <p>3. Master and servant, § 537*—what counts declaration for damages for personal injuries sustained hy employee engaged in interstate commerce may contain. In an action by a freight conductor to recover for personal injuries sustained while handling one of defendant’s trains, where a count of the declaration alleges facts sufficient as a basis for prima facie proof that at the time of the injury plaintiff was engaged in an interstate commerce service, it is proper for plaintiff to include in his declaration counts alleging common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act so as to meet the evidence which may be offered at the trial, since defendant may at any time by its records, or other competent evidence, rebut such prima facie case.</p> <p>4. Master and servant, § 537*—whew defendant need not object to declaration becausé containing several counts. In an action by a freight conductor to recover for injuries, received while handling one of defendant’s trains, defendant need not object to the declaration because it contains counts alleging common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act.</p> <p>5. Master and servant, § 706*—when question whether employee engaged in interstate commerce for jury. In an action by an employee to recover for personal injuries where in different counts plaintiff alleges common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, the question whether plaintiff at the time of the injury was engaged in an interstate commerce service must be submitted to the jury like other questions of fact where such question is raised, there being no question of election of remedies in such case.</p> <p>6. Master and servant, § 706*—when question whether employee engaged in interstate commerce for court. In an action by an employee to recover for personal injuries, where in different counts plaintiff alleges common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, the question whether at the time of the injury plaintiff was engaged in an interstate commerce service is a question of law where it is not disputed that plaintiff was so engaged at such time.</p> <p>7. Master and servant, § 98*—when Federal Employers’ Liability Act affords exclusive remedy. In an action by an employee, to recover for personal injuries sustained while engaged in an interstate commerce service, the Federal Employers’ Liability Act controls, and a recovery cannot be had at common law or under a State statute, the Federal act being exclusive, and not cumulative.</p> <p>8. Trial, § 91*—when objection to admission in evidence of State statute based upon more than one ground. In an action by an employee to recover for personal injuries where in different counts of his declaration plaintiff alleged common-law negligence, the violation of a State statute and of the Federal Employers’ Liability Act, where defendant objected to the introduction of the State statute in evidence, “for the reason that those sections have no application to the case, and for the reason that this train was stopped and the engine cut off, etc.,” held that the objection was based on two grounds: (1) that the statute had no application, and (2) that the train was stopped and the engine cut'off, etc.</p> <p>9. Master and servant, § 599*—when State statute incompetent as evidence in action by servant for damages for personal injuries. In an action by an employee to recover for personal injuries, where in different counts plaintiff alleged common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, and where there was no doubt of the application of the latter act under the evidence, held that an objection to the admission of the State statute in evidence should have been sustained, such evidence being incompetent as the statute had no application, the Federal act exclusively applying in such case.</p> <p>10. Trial, § 247*—when verdict will be set aside because of instruction on bad counts. The rule that a verdict will not be set aside when supported by one good count in a declaration does not apply where the court gives an instruction on bad counts which would authorize a verdict on such counts which would have been erroneous.</p> <p>11. Appeal and error, § 573*—when exceptions as to instructions preserved for review. Exceptions not taken at the time of the giving of an erroneous instruction are preserved for review where the giving of such an instruction is assigned as error on a motion for a new trial.</p> <p>12. Appeal and error, § 1560*—when refusal of instructions not reversible error. Where a declaration charging negligence contains both good and bad counts, the refusal of instructions to find defendant not guilty under the bad counts is not reversible error, although such instructions might properly have been given.</p> <p>13. Master and servant, § 799*—when instruction on liability of master under Federal and State statute erroneous. In an action by an employee to recover for personal injuries, where in different counts plaintiff alleged common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, and the application of the latter statute was clear under the evidence, an instruction that if the jury found that defendant had violated the State statute declared on and that such violation had caused the injury sought to be recovered for, a verdict of guilty might be found under the count charging such violation, held error since the jury might infer that if they found that defendant had not violated the Federal statute they might find defendant guilty if they also found that defendant had violated the State statute.</p> <p>14. Appeal and error, § 1478*—when admission in evidence of foreign laws reversible error. In an action by an employee to recover for personal injuries, where in different counts plaintiff alleged common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, and there was no doubt of the application of the latter act, the admission of evidence of the State statute declared on held reversible error.</p> <p>15. Master and servant, § 770*—when not error to refuse peremptory instruction. In an action by an employee against the master to recover for personal injuries, it is not error to refuse a peremptory instruction to find defendant not guilty where sufficient facts are in dispute as to how the injury occurred.</p> <p>16. Master and servant, § 706*—when question as to master's liability properly submitted to jury. In an action by an employee to recover for personal injuries sustained while plaintiff was engaged as a freight conductor in setting out cars from his train to a siding, as required by defendant’s train order, where the declaration contained a count alleging a violation of the Federal Employers’ Liability Act, and the application of such act was clear under the evidence, held that the case was properly submitted to the jury, there being disputed questions of fact as to the control of the track where the accident occurred, and as to whether a coupling was defective, uncoupled or broken.</p> <p>17. Witnesses, § 224*—when witness may be examined as to written statements> It is not error to refuse to permit cross-examination of a witness as to statements made by him in writing where the record does not show the statement claimed to have been made.</p> <p>IS. Evidence, § 153*—when exhibition in evidence of bones permissible. In an action to recover for injuries to plaintiff’s spine caused by being thrown from a car and falling a distance of 37 feet, which injury resulted in temporary paralysis of plaintiff’s legs,, held that the exhibition in evidence of the fourth .and fifth lumbars of the spinal column was properly permitted.</p> <p>19. Evidence, § 151*—when explanation of X-ray pictures proper. In an action to recover for injuries to plaintiff’s spine, explanation of X-ray pictures of the injury held proper.</p> <p>On Rehearing.</p> <p>1. Master and servant, § 98*—when employee deemed to rely on Federal Employers’ Liability Act. In an action by an employee to recover for personal injuries, where counts in the declaration allege a violation of a Federal statute and where it is not clear whether plaintiff relies on the Federal Employers’ Liability Act, or the Federal Safety Appliance Act, a separate statute, plaintiff of necessity relies on the former, since such act regulates and controls the liability of the employer to the employee, whether the employer has violated the Safety Appliance Act or has been guilty of general negligence.</p> <p>2. Master and servant, § 98*—when remedy provided by Employers’ Liability Act exclusive. The remedy provided by the Federal Employers’ Liability Act for injuries to an employee while engaged in an interstate commerce service is exclusive and supersedes all remedies provided by State legislation.</p> <p>3. Master and servant, § 98*—when remedy provided by Employers’ Liability Act exclusive. In an action to recover for personal injuries sustained by plaintiff while working as a freight conductor, the Federal Employers’ Liability Act applies exclusively where it appears by uncontradicted testimony that in plaintiff’s train at the time of the injury there were cars billed from a point in Illinois to a point in Missouri.</p> <p>4. Appeal and error, § 369*—when not necessary that question of exclusion of application of State statute by Federal statute be raised in trial court. In an action by an employee to recover for personal injuries, where in different counts plaintiff alleged common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, it is not necessary that the question of the exclusion of the application of the State statute by the Federal statute be raised at the trial in order to enable defendant to raise such question on review, since if it appeared at the trial that at the time of the injury plaintiff was engaged in an interstate commerce service, the Federal act would apply and supersede the State legislation.</p> <p>5. Courts, § 150*—when immaterial that Appellate Court misconstrued decision of Supreme Court. It is unimportant on rehearing whether the Appellate Court misconstrued an opinion of the Supreme Court where the Supreme Court in a case later than that on which the Appellate Court based its decision used language confirming the construction given to the former case by the Appellate Court.</p> <p>6. Commerce, § 5*—when Federal law exclusive. Wherever Congress sees fit to legislate concerning interstate commerce, its legislation is exclusive.</p> <p>7. Commerce, § 5*—when jurisdiction of Congress exclusive. In an action by an employee to recover for personal injuries where in different counts plaintiff alleges common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, it is immaterial that the act alleged to have caused the injury be a violation both of the Federal act and the State act, it appearing that at the time of the injury plaintiff was engaged in an interstate commerce service, since in such case the jurisdiction of Congress is exclusive when once it acts.</p>

<p>Abstract of the Decision.</p> <p>1. Bastards, § 33*—when question of paternity for jury. In an information in bastardy, where the evidence is conflicting, the question whether defendant is the father of the child is a question for the determination of the jury.</p> <p>2. Bastards, § 22*—when specific date not controlling as to time of conception. In an information in bastardy, where the child alleged to have been begotten by defendant was born on October 17, 1913, and where prosecutrix testified that defendant had intercourse with her on a date in December, 1912, and on January 12, 1913, and February 20, 1913, the date of January 12, 1913, is not absolutely controlling as to the date when the child was begotten, since a pregnancy due to intercourse had between defendant and prosecutrix in December, 1912, may have been abnormally protracted.</p> <p>3. Words and phrases—duration of pregnancy. The duration of the pregnancy of a human female may be stated to be from 260 to 308 days after coition, and the usual or average period to be 276 days, but such duration may exceed its nominal limit, and the limit of such excess cannot be accurately known in the present state of physiological science.</p> <p>4. Bastards, § 23*—credibility of witnesses. In an information in bastardy, where the testimony of defendant and of prosecutrix is conflicting, it is frequently difficult to determine which witness tells the truth, since the desire of the mother to secure a parent for her child and the desire of defendant to avoid the consequences of his conduct are incentives for concealing the facts.</p> <p>5. Bastards, § 22*—when date of alibi not conclusive as to date when child begotten. In an information in bastardy where prosecutrix testifies that defendant had intercourse with her on several named dates, which defendant denies, and offers evidence tending to prove an alibi on one of the dates named, but fails to show where he was on the other dates, if not with prosecutrix, the date as to which defendant proves an alibi will not be deemed controlling as to the date when the child was begotten if it is possible that defendant might have begotten the child on either of the other dates named by prosecutrix as those on which defendant had intercourse with her.</p> <p>6. Bastards, § 22*—when evidence sufficient to sustain finding as to paternity of child. In an information in bastardy, where prosecutrix testifies that defendant had intercourse with her at a date when defendant might have begotten the child, a verdict finding that defendant was the father of the child held sustained by the evidence.</p> <p>7. Bastards, § 34*—when instruction as to immateriality of dates when intercourse took place proper. In an information in bastardy, an instruction, in substance, that if defendant was by a preponderance of the evidence found to be the father of the child, the dates when intercourse took place between defendant and prosecutrix were immaterial, even though prosecutrix was mistaken as to the particular date testified to as that on which such intercourse took place, held not erroneous under the evidence, it appearing that prosecutrix testified to three dates on which defendant had intercourse with her.</p> <p>8. Bastards, § 34*—when instruction to find for defendant not erroneous. In an information in bastardy, where defendant requested an instruction that if plaintiff had not sustained the charge that defendant was the father of the child, “or if on this point the preponderance of the evidence is that he is not such father or if you find the evidence equally balanced” then the jury must find for defendant, an objection to the instruction as modified by striking out the quoted words, held not well taken, it appearing that the instruction as given told the jury that they could find defendant to be such father only where such finding was supported by a preponderance of the evidence.</p> <p>9. Bastards, § 34*—when instruction properly modified by striking out reference to date when intercourse took place. In an information in bastardy, an objection to the modification by the trial court of a requested instruction by striking out the words “on the 12th day of January or at any other time,” held not well taken, such words being misleading, where the instruction as given told the jury that if defendant did not have sexual intercourse with prosecutrix during the period wherein she became pregnant defendant could not be found to be such father of the child, it being immaterial at what date the child was begotten if defendant be found to be the father, and it being therefore improper to call attention to the date when any intercourse took place unless a date when It was impossible that defendant could have begotten the child.</p> <p>10. Appeal and error, § 1561*—when refusal of proper instructions not reversible error. In an information in bastardy, instructions examined and held not reversible error, although objections thereto were well taken, it appearing that the jury had been fully instructed that all the facts and circumstances in evidence should be taken into consideration in arriving at a verdict.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 697*—when evidence insufficient to sustain verdict. In an‘action to recover for personal injuries sustained by plaintiff while riding on a railroad motor car as a result of the car being, derailed by striking a dog, where the evidence tended to show that the dog jumped suddenly on the track in front of the car and was struck before there was time to check the speed of the car, a verdict for plaintiff held manifestly against the weight of the evidence.</p> <p>2. Appeal and error, § 1802*—when judgment reversed second time because against weight of evidence, not remanded. In an action to recover for personal injuries, where a previous judgment for plaintiff has been reversed by the Appellate Court as manifestly against the weight of the evidence, and where in another action growing out of the same accident a judgment for plaintiff has been reversed for the same reason, a judgment for plaintiff in a second trial, when reversed for a similar reason, will not be remanded.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.</p>

<p>Error to the County Court of Marion county the Hon. C. E. Jennings, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Mortgages, § 725*—when right to redeem begins. In a bill to redeem land from a sale under foreclosure of a mortgage, where the" decree grants the right to redeem on certain conditions within four months of a specified date, it is immaterial whether the decree was actually entered on such date, as shown by the record, or at a later date as claimed by complainant, since the right to redeem is fixed as from such specified date.</p> <p>2. Mortgages, § 725*—when time for redemption allowed by decree not shortened. In a bill to redeem land from a sale under foreclosure of a mortgage, where a former decree dismissing the bill was reversed on appeal on the ground that complainant had preserved her rights to redeem by making a valid tender of the amount due within the time for' redemption, which tender was refused by defendant, such tender being made June 29, 1912, a decree entered, after hearing on remand, granting complainant leave to redeem on certain conditions within four months from February 25, 1914, held that the fact that the right to redeem was fixed from such date and not from the date of entering the decree, two months later, did not operate to shorten the time for redemption allowed by the decree, the extension of time for redemption being liberal.</p> <p>3. Tender, § 14*—when presumed maker of tender able to pay amount at time of hearing. Since a> tender must be kept good to reap the benefits thereof, a decree granting relief on the basis of rights preserved by such tender involves the presumption that the maker of the tender was able to pay the amount of such tender at the time of the hearing, as a result of which the decree was entered.</p> <p>4. Mortgages, § 709*—when decree does not require payment of excessive amount to redeem property. In a bill to redeem land from a sale under foreclosure of a mortgage, where a previous decree dismissing the bill had been reversed on the ground that a valid tender had been made preserving the right of redemption, a decree, after hearing on remand, granting complainant the right to redeem within a named time on payment of the amount for which the property was sold, without interest from the date of tender to the date of hearing, together with the taxes paid by defendant on the property sought to be redeemed between the time of sale and the date of the hearing, held not to require complainant' to pay an excessive amount as a condition of the redemption allowed.</p> <p>5. Mortgages, § 710*—when party buying at foreclosure sale entitled to' reimbursement for taxes paid upon redemption. It is just and equitable that one buying property at a foreclosure sale should in case of a redemption under an order of court be reimbursed for the amounts paid out for taxes in order to protect the title of the property bought.</p> <p>6. Mortgages, § 715*—when claimant of redemption fund properly allowed to appear and answer bill to redeem. In a bill to redeem land from a sale under foreclosure of a mortgage, no error is committed of which complainant can complain where one not a party to the bill is permitted to appear and answer in order to determine the rights, as between himself and defendant, to the amounts to be paid as a condition of the redemption sought, it appearing that no complaint was made as to the distribution of the redemption fund between the' claimants, and that the amount to be paid by complainant as a condition of redemption was not affected by the action of the court in permitting such appearance and answer.</p>

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

<p>1. Trial, § 153*—when sufficiency of evidence question for jury. The question whether the evidence is sufficient to warrant a verdict for plaintiff is for the jury under proper instructions.</p> <p>2. Municipal corporations, § 1098*—when evidence sufficient to sustain verdict. In an action against a city to recover for personal injuries alleged to have been due to the negligence of defendant in permitting a public street to be obstructed and in a defective condition, where plaintiff’s horses ran away and he was thrown from his wagon striking the tongue of a vehicle standing in such street, evidence held sufficient to warrant a verdict for plaintiff.</p> <p>3. Municipal corporations, § 1088*—when evidence that other vehicles standing in street at time of accident admissible. In an action against a city to recover for personal injuries alleged to be due to defendant’s negligence in permitting its street to be obstructed and in a defective condition, where plaintiff’s horses ran away and plaintiff was thrown from his wagon, striking the tongue of a vehicle standing in such street the admission of evidence that other vehicles were standing in the street in the vicinity of the vehicle whose tongue plaintiff struck, held not erroneous, such testimony being competent as showing notice to defendant of the condition of the street, but not as showing other independent acts of negligence.</p> <p>4. Municipal corporations, § 1098*—when evidence sufficient to sustain finding that street is a public street. In an action against a city to recover for personal injuries alleged to be due to the negligence of defendant in permitting its street to be obstructed and in a defective condition, where there was no evidence of a formal platting or dedication of such street as a public street, a finding that such street was a public street held warranted, where the evidence showed no dispute as to its character and where there was evidence that it was so called by the witnesses and had been so used, and where it appears that city officials had charge of it and had caused vehicles standing therein to be moved.</p> <p>5. Municipal corporations, § 971*—what is duty of city to keep streets safe. A city is not bound to keep its streets absolutely safe, and is only bound to use reasonable care to keep such streets in a reasonably safe condition for ordinary travel thereon by persons using due care for their own safety.</p> <p>6. Municipal corporations, § 971*—when instruction as to duty of city as to condition of streets erroneous. In an action against a city to recover for personal injuries alleged to have been due to the negligence of defendant in permitting its streets to be obstructed and in a defective condition, instructions that it was the duty of defendant to keep its public streets in a reasonably safe condition and reasonably free from obstructions, held erroneous as requiring of defendant a degree of care higher than that required by law.</p> <p>7. Municipal corporations, § 1100*—when instruction must contain element of notice. In an action against a municipal corporation to recover for injuries due to the defective condition of public streets, notice, either actual or constructive, on the part of such municipal corporation of the defective conditions alleged, as being obstructed or out of repair, is one of the essential elements to- be proved to enable plaintiff to recover, and an instruction directing such a verdict in such an action must contain such element.</p> <p>8. Instructions, § 1*—when must contain all facts essential to verdict. Where an instruction directs a particular verdict, if the jury find particular facts, the instruction must embrace all the facts essential to such a verdict, and a failure to do so is fatally erroneous, and cannot be cured by giving other instructions.</p> <p>9. Municipal corporations, § 1048*—when due care must he exercised to avoid injury. In an action against a city to recover for personal injuries alleged to be due to the negligence of defendant, where the conditions leading up to the injury were set in motion prior to that time, plaintiff is bound to exercise due care as to the manner in which such conditions were so set in motion as well as at the time of the injury, and a failure to do so will bar a recovery.</p> <p>10. Municipal corporations, § 1100*—when instruction as to exercise of due care erroneous. In an action against a city to recover for personal injuries alleged to have been due to the negligence of defendant in permitting its streets to be in a defective and improper condition, where at the time of such injuries plaintiff’s horses were running away, instructions that plaintiff, in order to recover, need show that he was in the exercise of due care only at the time of the injury, held reversible error, the conditions leading up to the accident having been set in motion prior to the accident.</p>

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

<p>Abstract of the Decision.</p> <p>1. Principal and agent, § 132*—when person not in possession of note not agent to accept payment of note. A broker who does not have possession of a note is not made the agent of the holder so as to be authorized to accept payment of part of the principal of the note by the mere fact that such broker sold the holder the note in question, as well as other notes, and has been loaned money by such holder.</p> <p>2. Principal and agent, § 132*—when principal hound by act of a third person in receiving payment of note. In order to bind the holder of a promissory note by a payment of the principal thereof made to one other than the holder, it must appear that the person receiving the payment had either possession of the note or express or implied authority from the holder to receive such payment.</p> <p>3. Principal and agent, § 132*—when duty of person paying note to ascertain authority of third person to accept payment. The payor of a promissory note is charged with the duty of seeing that the person to whom he makes payment thereof has authority from the holder to receive such payment, if such person has not the note in his possession.</p> <p>4. Principal and agent, § 132*—when evidence insufficient to establish agency to accept payment of note. On a writ of error to reverse a judgment approving the allowance of a promissory note as a claim against the estate of a decedent, where the note in question was indorsed by the payee to claimant, and where decedent paid to the original payee, a note broker, an amount in part payment of the principal of such note, evidence held to show that in accepting such payment such broker acted as the agent of decedent and not of claimant, it appearing that such broker did not have possession of the note, or express or implied authority from claimant to receive such payment.</p> <p>5. Principal and agent, § 132*—when broker selling note not agent to receive payment. Where a person purchases notes from a broker and takes from him the notes purchased, the broker is not the agent of such purchaser to receive payment thereon, in the absence of express or implied authority so to act.</p> <p>6. Principal and agent, § 132*—when agent no authority to receive payment of debt. The collection by an agent of other securities or even of a part of the existing debt is not sufficient to raise an implication of authority in the agent to receive payment of the debt.</p> <p>7. Principal and agent, § 132*—when agent no authority to collect principal of debt. The fact that an agent has express authority to collect interest on a note is not- sufficient to show authority in the agent to collect the principal.</p> <p>8. Principal and agent, § 183*—when evidence insufficient to establish ratification of unauthorized collection of note. On a writ of error to reverse a judgment approving the allowance of a note as a claim against decedent, where it appeared that decedent gave a note to a note broker, who assigned it to claimant, that claimant retained possession, and that the broker, who had no express or implied authority from such holder to receive payment, received payment of part of the principal and never paid the amount received over to the holder, evidence held insufficient to show a ratification of the payment to such broker.</p>

<p>Abstract of the Decision.</p> <p>1. Principal and agent, § 8*—when evidence sufficient to establish agency to exchange land. In an action to recover a broker’s commission for procuring a contract between defendant and another whereby defendant traded his store building and stock of goods for a tract of land, where the evidence was conflicting as to whether defendant made a contract of agency with plaintiff to bring about such exchange, but where plaintiff’s testimony was corroborated by that of another witness, evidence held sufficient to sustain a finding that such a contract was made.</p> <p>2. Principal and agent, § 83*—when evidence sufficient to establish that brolcer was procuring cause of sale. In an action to recover a broker’s commission for procuring a contract whereby defendant exchanged his store building and stock of goods for a tract of land owned by a certain person, where it appeared that plaintiff went with such person to the office of an attorney, where the contract was made after plaintiff had brought defendant to the same office, evidence held to sustain a finding that plaintiff was instrumental in bringing about the exchange.</p> <p>3. Principal and agent, § 69*—when agent entitled to recover commissions. In an action to recover a broker’s commission for procuring the exchange of property, where it appeared that defendant requested plaintiff to try to effect such exchange, and where it appeared that plaintiff was instrumental in bringing about such exchange, a verdict for plaintiff for the amount of the commission agreed on held proper.</p> <p>4. Instructions, § 46*—when instruction does not invade province of jury. An instruction that the jury “may” find for a party to an action under certain conditions does not make it mandatory on the jury so to find under such conditions.</p> <p>5. Instructions, § 162*—when modification by insertion of word “may” instead of “should” erroneous. In an action to recover a broker’s commission for procuring the exchange of property, where instructions requested by defendant, to the effect that under certain conditions the jury “should” find in his favor, were modified by the court by substituting the word "may” for the word "should,” instructions held correct as requested, the words “should” and “may” not having the same meaning as used in the instructions requested.</p> <p>6. Words and phrases—“should” and “may.” In some connections the words “should” and “may” have substantially the same meaning.</p> <p>7. Appeal and error, § 1565*—when modification of instruction by substituting word “may” for “should” not prejudicial error. In an action to recover a broker’s commission for procuring a contract to be made whereby defendant traded his store building and stock. of goods for a tract of land, where instructions requested by defendant that the jury “should” find in his favor under certain named conditions were modified by the court by substituting the word “may” for the word “should” as used in the requested instructions, held that the modification was not reversible error, although erroneous as not making it mandatory on the jury to find if they found the conditions named to exist, it appearing that the case was not close on the facts, and that the jury were not misled by the error.</p> <p>8. Appeal and error, § 1538*—when instruction omitting essential element not prejudicially erroneous. In an action to recover a broker’s commission for procuring the exchange of property, an instructions state the necessity of such a contract to entitle plain-would be entitled to a verdict, although erroneous as omitting the element of whether there was a contract for commissions between plaintiff and defendant, is not prejudicially erroneous where other instructions state the necessity of such a contract to entitle plaintiff to recover, and where the case is tried on the theory that such contract was essential to recovery.</p>

<p>1. Mortgages, § 23*—when deed and agreement to recovery constitute single transaction. In a bill to set aside a deed of real estate absolute on its face and praying to have the same declared a mortgage, and to be allowed to redeem therefrom, where it appeared that an agreement between grantor and grantee was made and recorded at the same time as the deed, whereby grantee agreed to reconvey to grantors the premises conveyed in the deed, free and clear of all incumbrances, on the payment by grantors within two years of certain indebtedness named in such agreement, and already existing, held that the deed and agreement constituted a single transaction.</p> <p>2. Mortgages, § 23*—when evidence sufficient to show deed intended to secure indebtedness. In a bill to set aside a deed of real estate absolute on its face and praying to have the same declared a mortgage, and to be allowed to redeem therefrom, where it appeared that an agreement between grantors and grantee was made and recorded at the same time as the deed, whereby grantee agreed to reconvey to grantors the premises conveyed in the deed, free and clear of all incumbrances, on the payment by grantors within two years of certain indebtedness named in such agreement and already existing, evidence held to show that the deed was intended to secure the payment of the indebtedness, and not as an absolute conveyance, effectual at once, for a consideration already paid.</p> <p>3. Mortgages, § 23*—when agreement to reconvey does not malee transaction mortgage. Where a deed absolute in form is made and accepted as in payment of an antecedent debt and not as security for the repayment of money, an agreement to reconvey in a certain time and for a certain sum does not of itself make the transaction a mortgage.</p> <p>4. Mortgages, § 23*—when deed and agreement to reconvey constitute mortgage. In a bill to redeem, a deed absolute on its face coupled with an agreement to reconvey within two years on payment of certain indebtedness held plainly a mortgage within the meaning of Hurd’s Rev. St., ch. 95, sec. 12 (J. & A. ¶ 7587), providing that “every deed conveying real estate which shall have been intended only as a security in the nature of a mortgage, though it be by an absolute conveyance in terms, shall be considered</p> <p>as a mortgage,” it appearing that such deed was intended as security for the payment of such antecedent indebtedness.</p> <p>5. Judgment, § 573*—when bill may be maintained to enforce against real estate. The holder of a judgment may within seven years of its rendition maintain a bill in equity to enforce it against the real estate of the debtor situated within the county where the judgment was rendered, notwithstanding the conveyance of the real estate to another, the judgment being a lien on the real estate and being notice to the world of complainant’s claim.</p> <p>6. Mortgages, § 28*—when rights of grantor and those claiming under him not cut off by refusal of grantee to reconvey. Where a deed absolute on its face conveys real estate under an agreement made and recorded at the same time as the deed, whereby grantee agrees to reconvey within two years on the performance of certain conditions, the rights of grantors and those claiming under them to redeem are not cut off by a conveyance by grantee to one other than the grantor, where it appears that within such period of redemption grantor or those claiming under him were ready to perform, hut grantee refused to accept performance or to reconvey.</p> <p>7. Mortgages, § 28*—when subsequent grantees of land under deed not innocent parties in interest. In a bill to redeem real estate from a deed absolute on its face hut coupled with an agreement to reconvey within a named time, the whole transaction constituting a mortgage, where complainants were a judgment creditor of such mortgagors, and a grantee of the equity of redemption under such mortgage, and where some of the defendants were subsequent grantees claiming under the grantee named in the deed from which the redemption is sought, none of such defendants are to be deemed innocent parties in interest where all sources of complainants’ title are matters of record.</p> <p>8. Equity, § 146*—when bill to redeem from mortgage not multifarious. A bill to redeem real estate from a deed and agreement to convey constituting a mortgage is not demurrable as being multifarious because one of the complainants joined is an execution creditor of such mortgagor, and the other a grantee of the equity of redemption, although the interests of the complainants are to some extent conflicting, and although one might properly have been joined as a defendant, since both are necessary parties to the bill, and neither can maintain the bill except by overcoming the claims of the defendants to the property sought to be redeemed, to which extent their interests are identical.</p> <p>9. Equity, § 106*—when rights of complainants having conflicting interests may be determined. Where two parties, whose rights are to some extent conflicting, are joined in a bill as complainants, if it be determined that either has a right to equitable relief as against the defendants, the rights of complainants can readily be determined under the bill. ,</p> <p>10. Equity, § 106*—who are proper parties complainant. Where two complainants in a bill are necessary parties thereto, the fact that one of them might properly have been joined as a defendant is no obstacle in equity to the adjustment of the rights of all parties, including the complainants.</p>

<p>Error to the County Court of Wayne county; the Hon. J. V. Heidinger, Judge, presiding.</p>

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