Volume 197 — Illinois Appellate Court Reports

<p>1. Pleading, § 102*—when plea puis darrein continuance bad. A plea puis darrein continuance of a former adjudication of the same cause of action is had if such plea fails to allege that the former judgment pleaded is either satisfied or is in full force and effect.</p> <p>2. Infants, § 34*—when person bringing suit as next friend presumed to have authority to act. Where an action is brought in the name of an infant by his “next friend,” such person is presumed to have authority so to bring the action.</p> <p>3. Infants, § 54*—when judgment in action by next friend not void. A judgment in an action brought by a “next friend” in the name of an infant is not rendered void at law by the misconduct of the “next friend” and can be set aside only in equity.</p> <p>4. Infants, § 56*—when decree by agreement will be set aside. A decree against an infant by agreement is erroneous but not void and may be set aside on a bill of review.</p> <p>5. Jurisdiction, § 69*—when exclusive jurisdiction may be waived. The rule giving exclusive jurisdiction of a cause of action to the court first acquiring jurisdiction of such action may be waived by the parties.</p> <p>6. Judgment, § 5*—when judgment may be taken in county other than one in which first pending. Where the courts of two counties have jurisdiction of the parties and subject-matter of a cause of action, and where an action is . pending- in one of the counties on such cause and between the same parties, the parties may for any reason take judgment in the-other county.</p> <p>7. Lis pendens, § 12*—who may take advantage of pendency of action in another court. Where the courts of two counties have jurisdiction of the parties and subject-matter of a cause of action, and an action thereon is pending in one county, only the defendant can take advantage of the pendency of such action in a second action on the same cause instituted in the other county.</p> <p>8. Judgment, § 360*—when cannot he collaterally attacked. Where the courts of two counties have jurisdiction of the parties and subject-matter of an action, and where an action thereon is pending in the courts of one county, a judgment obtained in a second action on the same cause and between the same parties commenced in the other county during the pendency of the first action cannot be collaterally attacked.</p> <p>9. Judgment, § 391*—how fraud in procuring judgment may he taken advantage of. Where the courts of two counties have jurisdiction of the parties and subject-matter of a cause of action, and an action thereon is pending in the courts of one county, and where a judgment is obtained in an action on the same cause and between the same parties commenced in the courts of the other county during the pendency of the first action, fraud in the procurement of such judgment can only be taken advantage of by appeal or other action directly attacking the judgment.</p> <p>10. Judgment, § 6*—when parties hound hy. Where parties voluntarily submit themselves to the judgment of a court they are bound by such judgment, although a prior action involving the same subject-matter be pending between the same parties.</p> <p>11. Judgment, § 401*—when judgment may he pleaded in har. Where the courts of two counties have jurisdiction of the parties and subject-matter of a cause of action, a judgment obtained in one county may be pleaded in bar of a prior action involving the same subject-matter and between the same parties pending in the courts of the other county.</p> <p>12. Judgment, § 401*—when may he pleaded in har. Where the courts of two counties have jurisdiction of the parties and subject-matter of an action, a judgment obtained in one county on such cause in an action brought in the name of an infant by his father as “next friend” may be pleaded in bar of a prior action on the same cause and between the same parties similarly brought in the other county.</p> <p>13. Judgment, § 321*-—when may be directly attacked. A judgment may be attacked directly on the ground of fraud in its procurement.</p> <p>14. Courts, § 134*—when court first obtaining jurisdiction may proceed with cause. If a judgment in an action commenced while an action between the same parties and on the same cause of action is pending in another county is vacated or set aside on the ground of fraud in its procurement, the parties may proceed with the action first commenced, where both counties have jurisdiction of the parties and subject-matter of the action.</p> <p>15. Pleading, § 102*—when demurrer to plea alleging satisfaction of judgment on same cause of action properly overruled. In an action in the name of an infant by his father as “next friend,” where both the court of the county where the action was brought and the court of another county have jurisdiction of the parties and subject-matter of the action, a demurrer to a special plea alleging that during the pendency of the action a judgment was obtained in the court of the other county on the same cause of action, which judgment had been fully satisfied, held rightfully overruled.</p>

<p>Abstract of the Decision.</p> <p>1. Fraudulent conveyances, § 111*—when insolvent debtor may prefer creditors. An insolvent debtor who does not take the benefit of the General Assignment Act (J. & A. If 6234 et seq.) may prefer one creditor to the exclusion of others if such preference is in good faith.</p> <p>2. Fraudulent conveyances, § 109*—when insolvent debtor may prefer creditors. An insolvent debtor may secure certain creditors to the exclusion of others, if he acts in good faith, although such preference may to that extent operate to hinder and delay his general creditors.</p> <p>3. Fraudulent conveyances, § 264*—when evidence sufficient to show bona fide indebtedness. In an action in attachment where the property attached was claimed in interpleader hy the holders of a chattel mortgage of such property given hy defendant, evidence held sufficient to prove that at the time such mortgage was given defendant was in good faith indebted to interpleaders in the amount of the note secured by the mortgage.</p> <p>4. Arbitration and award, § 20*—what are duties and liabilities of arbitrators. Arbitrators, like jurors, are held to the highest degree of good faith, and can have no secret interest in the subject-matter of the arbitration.</p> <p>5. Arbitration and award, § 17a*—when arbitrator not disqualified. The fact that one of the parties to an arbitration is indebted to an arbitrator may unfit such arbitrator to act as such in the matter to be arbitrated.</p> <p>6. Arbitration and award, § 75*—when award may be attacked. An award made by arbitrators may be attacked on the ground of the disqualification of arbitrators to act by reason of the fact that one of the parties to such arbitration was indebted to such arbitrators.</p> <p>7. Arbitration and award, § 17a*—when rules as to qualification of arbitrators apply. Rules as to the qualification of arbitrators apply only to their action as such making an award on the matters submitted.</p> <p>8. Arbitration and award, § 20*—when arbitrator has right to obtain security for debt. Where a contemplated arbitration is never concluded, the persons selected to act as arbitrators therein occupy the same position towards the parties as though such arbitrators had never been selected to act as such, and if such arbitrators are creditors of one of the parties to the proposed arbitration, such arbitrators have the same right as other creditors to obtain security for their debts.</p> <p>9. Fraudulent conveyances, § 17*—when mortgage does not constitute fraudulent conveyance to hinder and delay creditors. In an action in attachment, where the goods attached were claimed in interpleader by the mortgagees in a chattel mortgage of such goods given by defendant, held that the giving of such mortgage was not a fraudulent conveyance of effects to hinder and delay creditors within the meaning of clause 7 of section 1 of the Attachment Act (J. & A. If 492), although it appeared that at the time such mortgage was given defendant was insolvent, it also appearing that at such time defendant was in good faith indebted to interpleaders in the amount of the note secured by the mortgage, and that such mortgage was given in good faith.</p>

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

<p>1. Mines and minerals, § 141*—when declaration sufficiently alleges violation of duty to inspect roof of mine. In an action by a miner to recover for injuries sustained by reason of being struck by a clod which fell from the roof of a mine, a declaration alleging that at the time when' plaintiff was injured a dangerous condition existed in the roof above the place where plaintiff was required “to work and to be,” held sufficiently to allege a violation of section 24 of the Miners’ Act (J. & A. U 7495), requiring the mine examiner to inspect places in the mine where men “are required in the performance of their duties to pass and to work,” and to mark all dangerous roofs in such places.</p> <p>2. Mines and minerals, § 179*—when evidence sufficient to sustain finding that miner was in working place at time of injury. In an action by a miner to recover for injuries sustained by being struck by a large clod which fell from the roof of the room where plaintiff was when injured, where the declaration alleged a violation of section 24 of the Miners’ Act (J. & A. jf 7495), requiring the mine examiner to inspect all places where men were required in the performance of their duty “to pass and to work,” and to mark all dangerous places, evidence held, to show that plaintiff was in his working place at the time of the accident within the meaning of the act.</p> <p>3. Mines and minerals, § 173*-—when evidence sufficient to comply with statute. In an action by a miner to recover for injuries sustained by being struck by a large clod which fell from the roof of the room where plaintiff was when injured, where the declaration alleged a violation of section 24 of the -Miners’ Act (J. & A. If 7495), requiring the mine examiner to inspect all places where men were required in the performance of their duties “to pass and to work,” and to mark all dangerous places, evidence held sufficient to comply with the statute.</p> <p>4. Mines and minerals, § 41*—what is object of Miners’ Act. The object of the Miners’ Act (J. & A. If 7475 et seq.) and of other similar acts is to provide for the safety of those engaged in mining, and the requirement of too literal a compliance therewith will deprive such acts of the power to accomplish their object.</p> <p>5. Mines and minerals, § 132*—when miner failing to sound roof of mine guilty of contributory negligence. In an action -by a miner to recover for injuries sustained as a result of being struck by a large clod which fell from the roof of the room where plaintiff was when injured, where there is a violation of section 24 of the Miners’ Act (J. & A. If 7495) by defendant, a violation by plaintiff of paragraph C of section 23 of the same Act (J. & A. If 7497), requiring miners to sound and examine the roof of their working places before commencing work, amounts merely to contributory negligence.</p> <p>6. Mine§ and minerals, § 125*—when contributory negligence no defense. Contributory negligence is no defense to an action brought under the Mining Act (J. & A. f[ 7475 et seq.).</p> <p>7. Mines and minerals, § 176*—when evidence sufficient to show dangerous condition of roof of mine. In an action by a miner to recover for injuries sustained by being struck by a large clod which fell from the roof of the room where plaintiff was when injured, evidence held to show that at the time of such injury such roof was in a dangerous condition.</p> <p>8. Mines and minerals, § 84*—when owner or operator liable for wilful violation of statutory duty to inspect mine. Under the Miners’ Act (J. & A. jf 7475 et seq.), the owner or operator of a mine cannot excuse himself from liability growing out of a wilful violation of such statute in failing to examine the mine properly and to mark dangerous places therein, which are known to him by showing that his examiner or manager thought the place was not dangerous.</p> <p>9. Mines and minerals, § 84*—what constitutes wilful violation of Mining Act. The phrase “wilful violation” used in section 29 of the Miners’ Act (J. & A. f 7503) means a conscious violation.</p>

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

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

<p>Appeal from the Circuit Court of Williamson county; the Hon. Carl E. Sheldon, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 440*—what degree of proof required to annul title of transferee of paper before maturity. Only a strong case will suffice to annul the title of a transferee of commercial paper not yet due, the tendency of the courts of this state being to sustain the negotiability of such paper, and to indulge every presumption in favor of its validity.</p> <p>2. Bills and notes, § 240*—when indorsee or assignee before maturity protected against maker. The indorsee or assignee of commercial paper taking the same before maturity in good faith for value and without knowledge of defects is protected against the defenses of the maker thereto.</p> <p>3. Bills and notes, § 448*—what proof required to defeat title of holder for value before maturity. The title of the holder of commercial paper for value and before maturity can only be defeated by evidence that such holder was guilty of bad faith in taking title to such note, and it is not enough to prove the existence of mere suspicion of defects in such title or that such holder at the time of taking such title knew of facts calculated to excite suspicion in the mind of a prudent man, or even that such holder was guilty of gross negligence at such time.</p> <p>4. Bills and notes, § 412*—when burden on one attacking title of holder to show bad faith., Where a promissory note is in the hands of a holder for value before maturity, the burden is on one who attacks the title of such holder to show by a preponderance of the evidence that such holder was guilty of bad faith in taking title to such note.</p> <p>5. Bills and notes, § 255*—what is basis of rule for protecting holder for value before maturity in absence of bad faith. The rule that the maker of the note can defend against the note in the hands of a holder for value before maturity only by showing that such holder acted in bad faith in taking title to the note Is based on the policy of the law giving full faith and credit to commercial paper transferred before maturity, in order that it may circulate with all the conveniences of currency as far as possible.</p> <p>6. Bills and notes, § 448*—what does not constitute evidence of fraud. In an action to recover on a promissory note where plaintiff is a holder for value and before maturity, and where the defense is grounded on fraud, the fact that plaintiff received the note by indorsement from his son, who in turn received it by indorsement from the payee, does not tend to show fraud, which cannot be inferred from the mere fact of the relationship, such indorser having the same right to transfer the note to his father as to any other indorsee.</p> <p>7. Fraud, § 87*—when not presumed. Where the defense to an action is fraud, the fraud relied on must be proved, and cannot be presumed.</p> <p>8. Bills and notes, § 440*—what constitutes prima facie case. In an action to recover on a promissory note, a prima facie case is established by proof of the note showing on its face title in plaintiff.</p> <p>9. Bills and notes, § 440*—when evidence sufficient to overcome prima facie case by proof of note. In an action to recover on a promissory note, where plaintiff was a holder for value before maturity, and where the defense was grounded in fraud, evidence held insufficient to overcome the prima facie case established by proof of the note.</p> <p>10. Bills and notes, § 461*—when verdict properly directed. In an action to recover on a promissory note, where the evidence in defense is insufficient to overcome the prima facie case established by the proof of the note, it is proper to direct a verdict for plaintiff.</p>

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

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

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

<p>Error to the Circuit Court of Franklin county; the Hon. E. E. Newlin, Judge, presiding.</p>

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

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

<p>1. Appeal and error, § 96é*—what errors considered on appeal. A court of review will consider only errors based on the record filed in the reviewing court.</p> <p>2. Appeal and error, § 711*—what matters not part of record on review. Matters not included in the bill of exceptions which is signed and sealed by the trial judge are not part of the record' on review.</p> <p>3. Appeal and error, § 800*—when objection that verdict against weight of evidence not considered. The objection that a verdict is against the manifest weight of the evidence will not be considered by a court of review where the bill of exceptions does not include the motion for a new trial and the ruling thereon, such motion and ruling being necessary to raise such objection on review.</p>

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

<p>Abstract of the Decision.</p> <p>1. Negligence, § 182*—when evidence of habits of injured person admissible to prove due care. While the general rule is that where there are eyewitnesses to an accident, testimony as to the habits of the person injured is not admissible for the purpose of proving due care on his part, yet where eyewitnesses are lacking to some part of an accident, it is proper to admit evidence of the careful habits of the party injured for his own safety and of his skill and experience in driving.</p> <p>2. Negligence, § 208*—when instruction on manner of proving due care and caution for one’s safety proper. On the issue of contributory negligence, it is proper to instruct the jury that due care and caution for one’s own safety are not necessary to be proven by direct and positive evidence, but may be proven also by facts and circumstances appearing on the trial.</p> <p>3. Automobiles and garages, § 3*—when instruction as to duty of driver of automobile to give warning proper. It is proper to instruct the jury that it is the duty of a driver of an automobile to give reasonable warning of his approach when meeting teams on the public highway though the only evidence of lack of warning is negative.</p> <p>4. Evidence, § 465*—what is comparative weight of positive and negative testimony. While negative testimony is not of as much weight as positive testimony, it is proper to be considered by the jury.</p> <p>5. Instructions, § 96*—when instruction on credibility of witnesses erroneous. An instruction that: “The jury are instructed that they are the sole judges of the credibility of the witnesses, and if they find and believe from the evidence that any witness had testified falsely as to any material fact, they are at liberty to disregard all the evidence of such witness,” is properly refused where it fails to add, “except in so far as their testimony may be corroborated by other credible witnesses, or by the facts and circumstances appearing on the trial,” and also omits the element of “wilfulness.”</p> <p>6. Trial, § 99*—when objection should be made to incompetent testimony. Specific objection should be made to testimony for its incompetency at the time it is offered rather than to wait until it is all in and then move to exclude it.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Principal and agent, § 72*—when agent acting for both parties not entitled to recover commission. While an agent’s right of recovery against his principal for commissions will not he defeated where the latter had knowledge that the agent was also acting for the other party to the transaction and consented to his receipt of compensation therefor, lack of such knowledge and consent on the part of the principal will defeat the agent’s action.</p> <p>2. Appeal and error, § 1411*—when verdict not disturbed on appeal. Where there is a direct conflict of evidence as to the knowledge of a principal that his agent was also acting for the other party to the transaction and as to the principal’s consent that the agent should receive compensation therefor, the question is one for the jury, whose verdict will not be disturbed on appeal in the absence of serious errors in the rulings on the admission of testimony or in the instructions.</p> <p>3. Appeal and error, § 1712*—when errors abandoned .in argument not considered. Where the appellant wholly abandons in his argument certain assignments of error on the record, the Appellate Court is not required, under the rules, to give them any attention.</p> <p>4. Brokers, § 84*—when evidence as to why transaction not completed competent. In a real estate broker’s action against his principal for commissions for effecting a sale or exchange of property, evidence as to why the transaction was never consummated held competent as tending to show that the broker had forfeited his right to commission.</p> <p>5. Appeal and error, § 1410*—when verdict not disturbed on appeal. In the absence of serious error in the rulings of the trial court where the questions involved are principally those of fact, the Appellate Court is not warranted in disturbing the verdict of the jury unless it is against the manifest weight of evidence.</p>

<p>1. Municipal corporations, § 1139*—when city liable for unauthorized acts of officers in misapplying proceeds of tax levy to pay tax warrants. An action in assumpsit will lie in favor of a bona fide holder for value of tax warrants duly issued by the proper authorities of a city in anticipation of a tax properly authorized and levied, where the proceeds of the levy have been diverted by the constituted city authorities to the payment of other debts of the city, and the holder of such warrants will not be confined to his remedy against the city officers, so unauthorizedly diverting such funds, and their bondsmen.</p> <p>2. Municipal corporations, § 1139*—when proceeds of tax levy to pay tax warrants trust fund to pay holders of warrants. Where anticipation tax warrants have been issued, the proceeds from such tax levy when collected constitute a trust fund in the hands of the city, levying the tax, in favor of the holders of the warrants.</p> <p>3. Assumpsit, § 13*—when lies against municipal corporation. An action in assumpsit will lie against a municipal corporation to recover money owing in equity and good conscience.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1411*—when verdict not disturbed. Where the evidence is conflicting the verdict will not he disturbed on appeal unless on a careful reading of the evidence it can be said that the verdict is against its manifest weight.</p> <p>2. Appeal and error, § 1411*—when verdict will not be set aside. Where the evidence is conflicting a verdict will not be set aside if the facts and circumstances, by a fair and reasonable intendment, will warrant the verdict, although such verdict may appear to be against the strength and weight of the evidence.</p> <p>3. Trial, § 153*—what is province of jury regarding evidence. It is the peculiar province of the jury to weigh evidence and to reconcile it if possible, or to decide the issues according to the weight of the evidence, if the evidence is irreconcilable.</p> <p>4. Automobiles and garages, § 3*—when instructions drawn on theory that law governing operation of automobiles inapplicable to team on private grounds properly refused. In an action to recover for personal injuries alleged to 'have been sustained as a result of the alleged negligent operation of defendant’s automobile, frightening plaintiff’s horse and causing plaintiff to be thrown down and injured, where it appeared that at the time of the accident plaintiff’s horse was in a private lot to which plaintiff had led it from the highway on the approach of the automobile, instructions requested by defendant drawn on the theory that the law governing the operation of automobiles on public highways did not apply to teams on private grounds, held properly refused.</p> <p>5. Instructions, § 151*—when requested instruction properly refused. Requested instructions substantially covered by instructions already given are properly refused.</p> <p>6. Instructions, § 96*—how instructions on credibility of witnesses should be framed. Instructions as to the credibility of witnesses should be general in character and should not call particular attention to any witness.</p> <p>7. Damages, § 127*—when verdict not excessive. In an action to recover for personal injuries, where it appeared' that plaintiff sustained an injury to her knee as well as being otherwise bruised and injured, but where the evidence was conflicting as to the extent of plaintiff’s injuries, a verdict for plaintiff for seven hundred dollars held not excessive, it appearing that at the time of the trial plaintiff was still suffering from the injuries, and was more or less disabled thereby.</p>

<p>Appeal from the Circuit Court of Hamilton county; the Hon. Jacob R. Creighton, Judge, presiding.</p>

<p>1. Carriers, § 482*—when instruction erroneous as not conforming to evidence. In an action of trespass by a passenger to recover for being wrongfully removed from a railroad train on the ground that plaintiff was intoxicated, an instruction that exemplary damages might he awarded if it was found that, in removing plaintiff, defendant’s servant threw plaintiff down, held erroneous, there being no evidence that such servant threw plaintiff down in removing him.</p> <p>2. Carriers, § 482*—when instruction that carrier has no right to remove intoxicated passenger erroneous. In an action of trespass by a passenger to recover for being wrongfully removed from a railroad train on the ground that he was intoxicated, an instruction leaving to the jury the question of gross and slight intoxication, and telling the jury that if plaintiff was not so intoxicated as to be disgusting, disagreeable or annoying to other passengers, or likely to become so, defendant had no right to remove plaintiff from the train, held erroneous under section 1 of the Act of 1911 (J. & A. 1[ 8887), providing that it shall be a criminal offense to drink intoxicating liquor or to he intoxicated on any railroad car used for the transportation of passengers, or on or about any railroad station or platform.</p> <p>3. Trial, § 187*—when question of authority of servant raised on motion for direction of verdict. In an action of trespass to recover for injury sustained by the wrongful act of one alleged to be a servant of defendant, a motion by defendant for a peremptory instruction in its favor raises the question of the authority of such alleged servant.</p> <p>„ 4. Carriers, § 526*—when evidence sufficient to show that conductor acted within scope of authority in ejecting person. In an action of trespass to recover for being wrongfully removed from a railroad train, where it appeared that plaintiff was removed by order of the train conductor by one alleged to have been a servant of defendant, but where there was no direct evidence as to the scope of such person’s authority, a finding that such act was within the scope of such servant’s authority held warranted under the evidence, it appearing that the jury were properly instructed, and that there were facts and circumstances surrounding the case from which the jury might properly so find.</p> <p>5. Trespass, § 45*—when evidence of justification competent under general issue. Evidence of justification is competent under a plea of the general issue, though the commencement and ending of the declaration describe the action as trespass, provided the body of the declaration describe an action in the nature of an action on the case.</p> <p>6. Trespass, § 45*—when evidence in mitigation of damages admissible under general issue. Evidence in mitigation of damages is competent under a plea of the general issue although the commencement and ending of the declaration describe the action as trespass, provided the body of the declaration describe an action in the nature of an action on the case.</p> <p>7. Pleading, § 38*—what part of declaration controls its character. The body of a declaration and not its commencement and ending will control its character.</p>

<p>1. Equity, § 285*—when allegations and proof must correspond. In equity pleading, the allegations of the bill, the evidence and the decree must correspond.</p> <p>2. Reformation of instruments, § 47*—when evidence sufficient to show award complies with intent of arbitrators. In a bill to reform ahd correct the award of arbitrators and alleging that owing to a mistake of the scrivener the award did not express the true intent of the arbitrators, evidence held to show that the award correctly expressed the intent of the arbitrators.</p> <p>3. Arbitration and award, § 75*—when equity will not relieve against error of law. No relief can be granted in equity for a mistake of law by arbitrators in misunderstanding the legal scope and effect of an award made by such arbitrators.</p> <p>4. Reformation of instruments, § 11*—what does not constitute mutual mistake. The execution of a written instrument representing the intention and understanding of the parties at the time of execution, with full knowledge of the facts, will negative a claim of mutual mistake and will operate to defeat a bill to reform on that ground, it being not a question of what parties would have intended had they been better informed, but of what they intended as they were informed.</p> <p>5. Reformation of instruments, § 12*—-what necessary to reform instrument on ground of mistake. In order to justify the reformation of a written instrument on the ground of mistake it is necessary, first, that the mistake be of fact and not of law; second, that the mistake be proved by clear and convincing evidence; and third, that the mistake be mutual and common to both parties.</p> <p>6. Words and phrases, —mistake of law. A mistake of law is an erroneous conclusion as to the legal effect of known facts.</p> <p>7. Contracts, § 205*—when construction of for court. The construction of words in an instrument is a matter of law.</p> <p>8. Equity, § 18*—when parties not relieved because of mistake of law. If the words of an instrument are written as intended by the parties, or as they supposed the words were written, when executing the instrument, no relief can be had either at law or in equity, no matter how much the parties may have mistaken the legal effect of the words used.</p> <p>9. Contracts, § 205*—when insertion of words for jury. The insertion of words in a written instrument is a question of fact.</p> <p>10. Reformation of instruments, § 11*—when written instrument may be reformed. A written instrument can be reformed only for mistakes of fact.</p> <p>11. Reformation of instruments, § 2*—applicability of rules to awards of arbitrators. The rules applicable to the reformation of written instruments apply- to the awards of arbitrators.</p> <p>12. Arbitration and award, § 52*—what is nature of award. The awards of arbitrators partake of the character of the findings and judgment of a court, the parties to the arbitration in effect agreeing to submit their ease to the arbitrators both on the facts and on the law.</p> <p>13. Arbitration and award, § 53*—when finding and award of arbitrators conclusive. There is no appeal from the finding and award of arbitrators if the proceedings before them are regular.</p> <p>14. Arbitration and award, § 50*—when awards may not be corrected. Awards made by arbitrators cannot be corrected for errors of law.</p> <p>15. Arbitration and award, § 64*—when party to arbitration agreement estopped to claim invalidity of agreement. In a bill to reform the award of arbitrators on the ground of mistake, where it appeared that some of the parties to the arbitration did not sign the agreement to submit the cause to the arbitrators, held that defendant was estopped to claim that the agreement was void on that ground, it appearing that defendant stipulated at the hearing that if such other parties were present they would testify that they had authorized complainant to enter into the agreement on their behalf.</p> <p>16. Arbitration and award, § 36*—when award void. An award of arbitrators which is not as broad as the submission is void.</p> <p>17. Arbitration and award, § 51*—when decree reforming award erroneous. In a bill to reform an award of arbitrators on the ground' of mistake, where the evidence showed that the award sought to be reformed was as intended by the arbitrators, a decree reforming the award held erroneous.</p>

<p>Abstract of the Decision.</p> <p>1. Mortgages, § 12*—when assigned bond for deed constitutes mortgage. An assignment of a bond for a deed to land on the understanding that the assignee shall take the deed and hold the same as security for the repayment by assignor of advances of money to pay the amount due on the bond and the amount of taxes to be paid by the assignee amounts to a mortgage, and the deed so taken will stand as security for the money so advanced.</p> <p>2. Mortgages, § 716*—when bill to compel conveyance of land bill to redeem. Where the evidence shows that defendant’s predecessor in title to land took title under a verbal agreement to convey to complainant on payment of certain sums of money, a bill to compel such a conveyance is a bill to redeem and not a bill for specific performance.</p> <p>3. Fraud, Statute of, § 28*—when inapplicable to verbal agreement to convey land. The Statute of Frauds has no application to a case where one takes title to land under verbal agreement to convey to another on payment of certain sums of money, such transaction being a mortgage, and not an agreement for the sale of land.</p> <p>4. Mortgages, § 720*—when oral testimony of agreement to reconvey land admissible. In a bill to compel conveyance of land, alleging that the predecessor of defendant in title to certain land took title on a verbal agreement to convey to complainant on payment of certain sums of money, oral testimony of the agreement to reconvey is competent.</p> <p>. 5. Mortgages, § 12*—when evidence sufficient to sustain finding that bond for deed assigned as security for money advanced. In a bill to compel the conveyance of land alleging that complainant, having a bond for a deed of the land in question, assigned the bond to defendant’s predecessor in title thereto under a verbal agreement that such predecessor would advance the sums due on the bond, and the sums necessary to pay the taxes on the land, and would convey to complainant on payment of the sums so advanced, evidence held to sustain a finding that complainant assigned his bond to such predecessor as security for the money advanced.</p> <p>6. Appeal and error, § 1410*—when finding set aside on appeal. A finding will be set aside on appeal where it is against the manifest weight of the evidence.</p> <p>7. Mortgages, § 720*—when evidence insufficient, to sustain decree stating an account. In a bill to compel the conveyance of land, where it appeared that defendant’s predecessor in title to the land took title under an agreement to convey to complainant, on payment of certain sums of money, a decree stating an account showing the amount due from complainant and the amount paid by him, held sustained by the evidence except as to one item.</p> <p>8. Payment, § 29*—when evidence insufficient to establish payment. In a bill to compel the conveyance of land, where it appeared that defendant’s predecessor in title to the land took title under an agreement to convey to complainant, on payment of certain sums, a decree allowing in its statement of account a payment of $300 by complainant, held manifestly against the weight of the evidence, such finding being made on the uncorroborated testimony of complainant, which was contradicted by defendant’s evidence and impeached by evidence tending to show that complainant’s reputation for truth and veracity was bad in the community where he resided.</p> <p>9. Payment, § 29*—when •purported receipt entitled to little •weight as evidence of payment. In a bill to compel the conveyance of land, where it appeared that defendant’s predecessor in title to the land had taken title under an agreement to convey to complainant, on payment of certain sums of money, and where the payment of an item of $300 to the administrator of such predecessor was disputed, a paper reading: “John Henry to H. M. Britt, $300.00,” held not a receipt and entitled to little weight, the paper being not signed, and there being no evidence of handwriting, or to show how complainant came by the paper other than his own testimony, and there being evidence that complainant owed H. M. Britt $300 on another transaction at the time when the payment was alleged to have been made, to which the paper might have referred.</p> <p>10. Payment, § 27*—who has burden of proving payment. One claiming to have made a payment has the burden of proving the payment by a preponderance of the evidence.</p> <p>11. Mortgages, § 720*—when evidence sufficient to sustain finding that corn paid on indebtedness for land. In a bill to compel the conveyance of land, where it appeared that defendant’s predecessor in title to the land had taken title under an agreement to convey to complainant, on payment of certain sums of money, a finding that certain corn was paid on account of the sums due defendant’s predecessor and not as rent, held sustained by the evidence.</p>

<p>1. Limitation oe actions, § 10*—when declaration examined to determine which of two statutes applies. In an action against a physician to recover for injury sustained by alleged unskilful treatment of plaintiff by defendant, the question as to what statute of limitation applies, whether Hurd’s Rev. St., ch. 83, sec. 14 (J. & A. f 7209), providing that actions, inter alia, for an injury to the person shall be commenced within two years next after the cause of action accrues, or section 15 of the same chapter (J. & A. If 7210), providing that actions, inter alia, on unwritten contracts, expressed or implied, shall be commenced within five years of such time, is to be determined from an examination of the declaration, to see whether plaintiff sues.for breach of contract or in tort for injuries without reference to the contract.</p> <p>2. Physicians and surgeons, § 18b*—when declaration states cause of action for negligent and unsMlful treatment. In an action •against a physician to recover for injury sustained by alleged unskilful treatment of plaintiff by defendant, a declaration alleging that defendant “so unskilfully and negligently conducted himself in that behalf, that by and through his want of skill and care and neglect” plaintiff’s sickness was aggravated, causing the injury sought to be recovered for, held to state a cause of action for negligent and unskilful treatment by defendant, without relying on contract other than that implied by the law obliging physicians to use reasonable care and skill in treatment without reference to contract of hiring.</p> <p>3. Physicians and surgeons, § 17*—what is nature of action. Actions against physicians for malpractice and for negligent and unskilful treatment fall within the class of actions for personal injuries.</p> <p>4. Limitation of actions, § 4*—how statute construed. The words “all other civil actions not otherwise provided for” in Hurd’s Rev. St., ch. 83, sec. 14 (J. & A. 7209), providing that certain actions be commenced within five years next after the cause of action accrues, include only actions ejusdem generis with “contracts expressed or implied, or on awards of arbitration, or for the recovery of damages done to property real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof,” being the actions specifically included within the operation of the section.</p> <p>5. ' Limitation of actions, § 4*—how statute construed relative to action against physician for negligent injuries. An action against a physician to recover for injuries sustained as a result o'f unskilful and negligent treatment of plaintiff by defendant is not ejusdem, generis with actions on “contracts expressed or implied,” or on “awards of arbitration,” or “for the recovery of damages done to property, real or personal,” or "to recover the possession of personal property or damages for the detention or conversion thereof.”</p> <p>6. Physicians and surgeons, § 18b*—when demurrer to plea of statute of limitations properly overruled. In an action against a physician to recover for injuries sustained as a result of alleged “want of skill and care and neglect” by defendant in treating plaintiff, a demurrer to a plea of Hurd’s Rev. St., ch. 83, sec. 15 (J. & A. K 7210), providing that actions, inter alia, for injury to the person shall be commenced within two years next after the cause Of action accrues, held correctly overruled, and judgment thereon correctly entered.</p>

<p>1. Carriers, § 247*—when burden of proof on carrier attempting to avoid common-law liability. In order to relieve a carrier of its common-law liability’'for injury to live stock, it has the burden of showing that the shipper accepted the written contract of shipment imposing limitations on its liability, knew the contents thereof, and assented to its terms.</p> <p>2. Action on the case, § 12*—when evidence in controversion of matters embodied in special pleas admisible. Since under the plea of not guilty in an action on the case, the defendant may not only put the plaintiff upon proof of the whole charge contained in the declaration but may also give in evidence any matter in justification or excuse, evidence in controversion of such matters embodied in special pleas is admissible, though no replication by way of confession and avoidance thereof be filed.</p> <p>3. Appeal and error, § 1456*—when no reversal for irregular introduction of evidence under improper pleadings. Mere irregularity in the introduction of evidence under improper pleadings will not work a reversal of a case where no injustice has been done.</p> <p>4. Appeal and error, § 420*—when objection raised on appeal not considered. An objection raised for the first time on appeal that no replication was filed to special pleas on file in the court below will not be considered.</p> <p>5. Carriers, § 239*—when cannot limit liability for negligence. A common carrier cannot limit its liability for negligence in the transportation of live stock.</p> <p>6. Appeal and error, § 1410*—when finding of jury reversed. It being the province of the jury to determine what acts do or do not constitute negligence, a court of appeal will be slow to reverse their finding unless so manifestly against the evidence as to require it.</p> <p>7. Appeal and error, § 1258*—when defendant cannot complain that damages are inadequate. The defendant cannot complain that a judgment was for too small an amount.</p>

<p>Abstract of the Decision.</p> <p>1. Execution, § 6*—when exempt property should not be subjected to sale under execution. Where the court is satisfied, that personal property is exempt," such property ought not to be subjected to sale under an execution, except it is clearly made to appear that the debtor has in some manner forfeited his right to the exemption.</p> <p>2. Exemptions, § 26*—when description of property in schedule of exemption controlling. Where a description of property listed in a schedule of exemptions may reasonably be construed as applying to property sold under an execution, such construction will be adopted.</p> <p>3. Replevin, § 105*—when burden on plaintiff to prove property acquired after filing of schedule of exemptions. In an action of replevin to recover property levied on under execution and alleged to be exempt, by defendants, the burden of proving that the property was acquired after the filing of a schedule of exemptions is upon the plaintiff.</p> <p>4. Exemptions, § 38*—when levy on and sale of exempt property evasion of law. A levy upon and sale of property which the levying officer knows is sought by the debtor to be exempted by his schedule will be treated as an evasion of the law.</p> <p>5. Exemptions, § 25*—what is duty of officer holding execution towards debtor. An officer holding an execution is required to deal fairly and in good faith with the debtor and not to use the provisions of the exemption law to trap or catch debtors who are honestly and in good faith seeking to avail themselves of the benefit of its provisions.</p> <p>6. Exemptions, § 3*—how exemption laws construed. The exemption laws are made for the purpose of protecting the poor and unfortunate and should be liberally construed by the courts, and the right of such debtors should be fully upheld without stint or grudging.</p>

<p>Appeal from the Circuit Court of Hamilton county; the Hon. Jacob R. Creighton, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 4*—when subtenancy not created. A tenancy cannot be changed into a subtenancy by the execution by the landlord’s grantee to the landlord of a lease of which the tenant has no knowledge.</p> <p>2. Forcible entry and detainer, § 71*—what purchaser of interest of landlord must, prove to maintain action against tenant. In an action of forcible detainer against a tenant lawfully in possession at the time of the plaintiff’s acquisition of the landlord’s' interest in the premises, the plaintiff must show affirmatively not only his acquisition of title but, further, that the tenant’s rights under and by virtue of the tenancy have terminated.</p> <p>3. Forcible entry and detainer, § 32*—what notice must be given tenant from year to year. A tenant from year to year is en-. titled to sixty days’ notice to terminate his tenancy before an action of forcible detainer can be maintained against him.</p> <p>4. Instructions, § 10*—when giving large number improper. The practice of submitting large numbers of instructions upon simple issues is to be condemned as tending to confuse rather than to aid the jury in their deliberations.</p> <p>5. Judgment, § 270*—when court may amend record of nunc pro tunc. The court may on motion made after the expiration of' the term at which a judgment is rendered correct the record thereof nunc pro tunc.</p> <p>6. Forcible entry and detainer, § 11*—when owner executing lease may not maintain action. An owner of property, having executed a lease thereof under which the lessee is entitled to possession, may not maintain an action of forcible detainer against one in possession.</p>

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

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

<p>1. Jury, § 50*—when discharge of jury within discretion of court. The matter of discharging a jury after the trial of the case has been started, upon the ground that one of the jurors is related to one of the attorneys, lies in the discretion of the trial court.</p> <p>2. Jury, § 50*—when discretion to discharge jury not abused. The trial court did not abuse its discretion in refusing to discharge the jury after the trial had been started on the ground that one of the attorneys was related to one of the jurors, where the affidavit in support of the motion did not clearly disclose the relationship, and the attorney immediately withdrew from the case upon the making of the motion.</p> <p>3. Evidence, § 228*—when testimony of deceased witness at former trial may be admitted. The testimony of a witness upon a previous trial, as incorporated in the bill of exceptions, may be read upon a second trial where the witness at the time of the second trial is deceased, and the court reporter, who took the testimony at the former trial, testifies that he took such testimony, that it was, to the best of his knowledge and belief, true and correct, and that his notes were accidentally burned, as this did not constitute a reading from the bill of excepions. . (Distinguishing Illinois Cent. R. Co. v. Ashline, 171 Ill. 318.)</p> <p>4. Railroads, § 733*—when evidence sufficient to establish hilling of person by train. In an action for death of a person alleged to have been killed while attempting to cross a railroad track on a path near a station, evidence. held sufficient to establish that deceased was' killed by one of defendant’s trains.</p> <p>5. Pleading, § 431*—what does not constitute variance. There is no variance between the declaration and the proof where the allegations of the declaration are proved substantially in the manner alleged.</p> <p>6. Railboads, § 509*—who is not trespasser. One who uses a much frequented cinder path across a railroad near a station in a populous part of a city is not a trespasser.</p> <p>7. Railroads, § 588*—whether railroad company guilty of wilful and wanton conduct in operation of train as question for fury. In an action for the death of a person who was killed by a train while attempting to cross a railroad track near a station in a populous portion of a city, held that it was a question for the jury, whether defendant was guilty of wilful and wanton conduct in the operation of its train.</p> <p>8. Railroads, § 583*—when evidence sufficient to establish wilful and wanton conduct in operation of train. In an action for the death of a person who was killed by a train while attempting to cross the tracks of a railroad near a railway station in a populous portion of a city, evidence held sufficient to sustain a finding that the defendant was guilty of wilful and wanton conduct in the operation of its train.</p> <p>9. Trial, § 128*—when comment on evidence in argument not improper. It is not improper argument for the attorney for the plaintiff, in action for the death of a person, who was killed while attempting to pass over railroad tracks near a station in a populous portion of a city, alleged to be due to reckless operation of a train of defendant’s, to state that if the engineer was indicted for murder and the evidence was the same as in the present case, he could not escape.</p> <p>•10. Trial, § 131*—where conduct of counsel in commenting on witness improper. The conduct of counsel in calling a witness “poor Bice, commonly known as Burrhead Bice,” without any foundation in the evidence therefor, is improper.</p> <p>11. Appeal and error, § 1514*—when improper conduct of counsel not reversible error. While the conduct of counsel in calling a witness “poor Bice, commonly known as Burrhead Bice,” without any foundation in the evidence therefor, is improper, still such conduct does not constitute reversible error.</p> <p>12. Death, § 67*—when damages not excessive. In an action for death of a man sixty years of age who had been earning $1,000 per year, a verdict for $8,000 held not excessive.</p> <p>13. Appeal and error, § 1539*—when giving of inapplicable instruction not prejudicial error. The giving of an instruction defining negligence, when no 'such question is involved in a case, does not constitute prejudicial error where it could not have affected the result of the case.</p> <p>14. Railroads, § 593*—when instruction not erroneous as depriving defendant of defense that plaintiff was trespasser. In an action for death of a person killed while attempting to cross the tracks of a railroad on a much frequented path near the station in a village, an instruction which required the jury, as a prerequisite to a verdict for plaintiff, to find that the train was operated in a wilful and wanton manner, as defined in other instructions, was not erroneous as depriving the defendant of the defense that deceased was a trespasser, as, if the act was wilful and wanton, the mere fact that deceased was a trespasser was immaterial.</p> <p>15. Instructions, § 138*—when refusal of instruction as to immaterial matter harmless. It is not prejudicial error to refuse an instruction directing a verdict for want of proof of an immaterial matter.</p> <p>16. Instructions, § 151*—when not error to refuse requested instruction. It is not error to refuse an instruction covered by other given instructions. ,</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 140*—when instruction authorizing recovery for negligence not charged in declaration erroneous. In an action against a street railroad for damages for personal injuries sustained as a result of a collision between an automobile driven by plaintiff and defendant’s street car, in which the declaration alleged negligence, in operating the car at a high rate of speed and in failure to sound a bell, an instruction that the plaintiff could recover if the jury believed that the defendant operated its car in a careless and negligent manner, held erroneous as not confined to the negligence charged in the declaration, since there was evidence that the car was operated without a headlight, and the jury might find that the defendant was negligent in this respect.</p> <p>2. Damages, § 209*—when instruction erroneous because not limiting damages to compensatory amount. In an .action against a street railroad for damages for personal injuries sustained as a result of a collision between an automobile driven by plaintiff and defendant’s street car, an instruction that if the plaintiff was entitled to recover the verdict should be for such sum as the jury might believe from the evidence he was entitled to receive, not exceeding the amount stated in the declaration, held erroneous as not limiting the damages to a compensatory amount.</p> <p>3. Street railroads, § 146*—when instruction erroneous because allouHng recovery for act not proximate cause of injury. In an action against a street railroad for damages for personal injuries sustained as a result of a collision between an automobile driven by plaintiff and defendant’s street car, an instruction that if the jury believed from the evidence that the defendant failed to give the required signal upon approaching the crossing by ringing a bell or sounding a gong and that such failure contributed to the accident, held erroneous as allowing a recovery for an act of negligence which was not the proximate cause of the injury.</p> <p>4. Negligence, § 47*—necessity that negligence be proximate cause of injury. It is not sufficient to create a liability for negligence that the act contributed to the injury, hut it must have been the proximate cause of the injury.</p>

<p>1. Appeal and error, § 1491*—when exclusion of evidence reversible error. In, an action to recover for breach of a contract between railroads providing that defendant should have the right to cross the tracks of plaintiff at grade but should before crossing “flag” such crossing, the exclusion of parol evidence that the term “flagging” as used in the contract had a special meaning, held reversible error.</p> <p>2. Contracts, § 198*—when evidence admissible to explain the word “flagging.” The term “flagging” as used in a contract between railroads with reference to the right of one railroad to cross the tracks of the other at grade is of a character requiring explanation of its special meaning as so used.</p> <p>3. Contracts, § 198*—when evidence competent to explain meaning of words. Parol evidence is competent to explain not only the technical words of art or science, but also words and phrases having a local or special meaning in a particular calling, trade, business or profession.</p> <p>4. Evidence, § 319*—when evidence as to meaning of words does not tend to contradict or vary instrument. Parol evidence that words used in a written instrument have a technical or special meaning as so used does not tend to contradict or change the instrument.</p> <p>5. Contracts, § 181*—how intention of parties to instrument containing technical terms ascertained. Evidence of a technical or special meaning of words used in a -written instrument is the only method of ascertaining the intention of the parties in entering into the agreement, the presumption being that such terms were used according to their understood meaning in the place or business with reference to which the contract is made.</p> <p>6. Contracts, § 197*—when presumed parties made contract with reference to business customs. One entering into a contract in the ordinary course of business is presumed to have done so with reference to any existing general usage or custom relating to such business.</p> <p>7. Evidence, § 403*—who should explain words having special meaning. Where a term used in a written instrument has a special meaning of which people living in one place have a better knowledge than those living in another place, it is necessary that the term be explained by those having the better knowledge of its-meaning.</p> <p>8. Evidence, § 154*—what constitutes an admission that meaning of term is doubtful. In an action to recover for breach of a written contract, a party impliedly concedes that the meaning of a term used therein is doubtful by offering evidence tending to show the meaning of such term, without showing that plaintiff knew of or acquiesced in "the offer.</p> <p>9. Evidence, § 403*—when testimony of experts admissible to explain term, “flagging a crossing.” In an action to recover for breach of a contract between railroads providing that defendant should have the right to cross the tracks of plaintiff at grade, but before crossing should “flag” such crossing, testimony of expert witnesses held proper to explain what was understood by railroad men by the term “flagging a crossing.”</p> <p>10. Instructions, § 115*—when instruction erroneous as presenting false issue to jury. In an action to .recover for breach of a written contract between railroads providing that defendant should have the right to cross the tracks of plaintiff at grade on certain conditions, in consideration of which it should indemnify plaintiff for loss sustained “by reason of the condition of the crossing or by the failure” of defendant to comply with the requirements of the contract, where the act relied on as breach was the failure of defendant to indemnify plaintiff for a judgment recovered against it for personal injuries sustained in a collision at such crossing between a train of plaintiff and a car of defendant, an instruction that plaintiff could not recover if the proximate cause of the accident was the negligence of plaintiff without reference to the conduct of defendant, held to present a false issue to the jury, the issue being whether defendant had complied with its contract, and there being no issue as to the negligence of either party.</p> <p>11. Contracts, § 393*—how fury should be instructed in action for breach of contract. In an action to recover for breach of a written contract, it is necessary to present to the jury fully and fairly the issue whether defendant has complied with the contract, with a proper interpretation of the terms used in the contract, where such terms are of the character to require such interpretation.</p>

<p>Appeal from the Circuit Court of Williamson county; the Hon. Carl E. Sheldon, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Williamson county; the Hon. Carl, E. Sheldon, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Workmen’s Compensation Act, § 12*—when not necessary to allege in all counts that employer had elected not to come under Compensation Act. In an action at common law to recover for personal injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, a general averment in one of several counts that the employer had elected not to provide and pay compensation as provided by the statute is sufficient although other counts contain no such averment, such averment being of a general character not peculiar to any count but pertaining to all counts.</p> <p>2. Death, § 36*—when not necessary to allege in all counts that deceased left next of hin. Although it is usual in practice in actions to recover for death to aver in all counts of the declaration that deceased left next of kin, it is not necessary to do so, and the statutory requirement is met if such allegation appear in one count.</p> <p>3. Limitation of actions, § 69*—when use of additional counts alleging survivorship does not constitute new cause of action. In an action to recover for death, where the declaration contains hut one count which alleges that deceased left next of kin, additional counts or an amended declaration averring survivorship in each count is not the statement of a new cause of action, but a restatement in amplified form of the original cause of action.</p> <p>4. Pleading, § 56*—when count preserved as part of declaration after direction of verdict. Where the evidence as to a count is stricken and a verdict directed as to the count, the count is not thereby stricken but remains part of the declaration for reference purposes and may furnish a sufficient basis for additional counts setting forth the cause of action in a manner more accurate and legal than in the disapproved count.</p> <p>5. Workmen’s Compensation Act, § 12*—when declaration in action for death sufficient. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the statute, declaration examined and held as a whole to state a complete cause of action.</p> <p>6. Workmen’s Compensation Act, § 12*—when declaration sustained by one good count. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, where defendant pleaded the statute of limitations to three counts not alleging that the employer had elected not to provide and pay compensation as provided by the statute, a demurrer to the plea held not erroneously sustained where a count to which the statute was not pleaded sufficiently alleged such election.</p> <p>7. Workmen’s Compensation Act—what is liability of employer under act. An employer operating under the Workmen’s Compensation Act is liable for all injuries sustained by his employees acting within the scope of their employment, regardless of questions of negligence, proximate cause or accident.</p> <p>8. Workmen’s Compensation Act, § 2*—when presumed that employer decided not to come under Workmen’s Compensation Act. In an action at common law to recover for personal injuries sustained by an employee since the enactment of the Workmen’s Compensation Act of 1913, it will be assumed as a fact that defendant had elected not to pay compensation in accordance with the act, where counsel conceded in argument that defendant was not operating under the act at the time of the injury and never had been so operating, although there was no evidence of such fact.</p> <p>9. Workmen’s Compensation Act, § 2*—when action of counsel constitutes declaration that employer not operating under statute. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, the action of counsel for defendant in offering evidence tending to show that negligence of defendant was not the proximate cause of the injury sought to be recovered for is equivalent to a declaration that defendant was not operating under the statute.</p> <p>10. Trial, § 34*—when courts reluctant to sustain objections. Courts are reluctant to sustain objections where a party has lost no rights by reason of the matters objected to and where nothing is to be gained by sustaining the objections.</p> <p>11. Evidence, § 206*—what constitutes a declaration against interest of deceased person. In an action to recover for personal injuries resulting in the death of plaintiff’s intestate, a miner, since the enactment of the Workmen’s Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the act, and where plaintiff’s injuries were the result of an explosion occurring immediately after deceased fired certain shots, and where defendant’s theory of the accident was that the shots were fired with the air, causing the powder smoke or carbon monoxid to be carried from one shot to another, causing the explosion, a statement of deceased’s buddy tending to confirm defendant’s theory is a statement against the interest of the declarant, it appearing that declarant was injured by the same explosion.</p> <p>12. Evidence, § 205*—when declarations of deceased person admissible. Declarations made by a deceased person against his interest are competent.</p> <p>13. Evidence, § 143*—what constitutes secondary evidence. Declarations made by a deceased person against his interest, when competent, are secondary evidence.</p> <p>14. Evidence, § 206*-—what constitute declarations by deceased person against interest. Declarations by a deceased person against his interest constitute a class of evidence embracing not only entries in books but all other declarations or statements of fact, verbal or written, whether made at the time of the fact declared or at a subsequent date.</p> <p>15. Evidence, § 205*—when declarations of deceased person competent. In order to render the declarations of a deceased person competent it must appear that the declarant is dead, and that while alive he possessed competent knowledge of the facts or that it was his duty to have such knowledge, and that the declarations sought to be proved were at variance with his interest.</p> <p>16. Evidence, § 464*—how weight and value of declarations against interest of deceased person determined. The weight and value as evidence of declarations of a deceased person against his interest is to be determined by other evidence in the case.</p> <p>17. Evidence, § 204*—when declarations against interest of deceased person competent. Declarations by a deceased person against Ms interest are competent to prove collateral or independent facts embodied in such declarations.</p> <p>18. Evidence, § 204*—when declarations against interest of deceased person competent. Declarations by a deceased person against his interest are competent in a suit between strangers.</p> <p>19. Evidence, § 177*—competency of declarations by third party. Declarations by a third party are not generally competent.</p> <p>20. Evidence, § 204*—when declarations of deceased person competent. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the statute, and where defendant’s theory of the explosion causing the injuries was that deceased fired shots in the air, causing the powder smoke ór carbon monoxid to be carried from one shot to another, resulting in the explosion, the exclusion of a declaration by deceased’s buddy, also injured by the explosion, tending to confirm defendant’s theory held erroneous, it appearing that the declarant was dead, and that the statement was against interest.</p> <p>21. Instructions, § 28*—when giving of erroneous oral instruction not cured. An erroneous oral instruction involving the statement of the opinion of the trial judge as to the sufficiency of the evidence to prove a contested fact is not cured by directing the jury to’ disregard such instruction.</p> <p>22. Instructions, § 28*—when no right to instruct orally. An oral instruction to a jury is in violation of section 73 of the Practice Act (J. & A. j[ 8610), providing that no judge shall instruct the jury in a civil or criminal case unless such instructions are reduced to writing. ,</p> <p>23. Appeal and error, § 590*—when exception to instruction timely as basis for error. An assignment of error in instructions is warranted where the exception to the instruction objected to as erroneous was taken immediately after the instruction was given. .</p> <p>24. Instructions, § 71*—when instruction assuming disputed facts erroneous. In an action at common law to recover for personal injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s' Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the statute, such injuries being caused by an explosion in defendant’s mine where deceased was employed as a shot firer, an instruction assuming that a dangerous condition existed in the mine at the time of the accident held erroneous where the facts assumed were contested, and where an erroneous oral instruction had previously been given on the same count.</p> <p>25. Mines and minerals, § 191*—when instruction as to duty of operator to sprinkle and clean roadways erroneous as being too broad. In an action to recover for injuries sustained resulting in the death of plaintiff’s intestate, a miner, since the enactment of the Workmen’s Compensation Act of 1913, where the employer had elected not to provide and pay compensation as provided by the statute, where two counts in the declaration alleged “that the defendant wilfully failed and neglected to have the entries and roadways thoroughly sprinkled or cleaned,” an instruction to find defendant guilty if the jury found that defendant committed the wilful violation charged in such counts, held erroneous as being broader than clause m of section 14 of the Miners’ Act (J. & A. If 7488), providing that “the operator of such mine must have such roadways regularly and thoroughly sprayed, sprinkled or cleaned."</p> <p>26. Mines and minerals, § 41*—what constitutes wilfulness within Mining Act. To constitute wilfulness within the meaning of the Miners’ Act (J. & A. j[ 7475 et seq.), the act charged to be wilful must be an act prohibited by the statute.</p> <p>27. Appeal and error, § 1391*—when evidence not discussed. Where a judgment is reversed for errors of law, the Appellate Court is not warranted in expressing views on the evidence.</p>

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

<p>Abstract of the Decision.</p> <p>1. Negligence, § 221*—when instruction not confining jury to negligence alleged erroneous. In an action to recover for personal injuries caused by the negligence of the defendant, an instruction which fails to confine the jury to the particular negligence alleged in the declaration as the cause of the injury sustained, but allows them to base their finding upon any character of negligence shown by the evidence, is erroneous.</p> <p>2. Negligence, § 216*-—when instruction on negligence as modified invades province of jury. In a personal injury action based on the defendant’s negligence, it is erroneous for the court to substitute the word “may” for “should” in the defendant’s instruction, reciting the negligence charged in the declaration, seeking to confine the negligence to that alleged and charging the jury that unless the negligence was of the character so described and alleged in the declaration they should find "the defendant not guilty, inasmuch as by such modification the discretion of the jury was substituted for their duty.</p> <p>3. Death, § 73*—when instruction erroneous as not limiting damages to pecuniary damages resulting from death. An instruction in an action for causing the death of the plaintiff’s intestate, that the plaintiff is entitled to recover “for the exclusive benefit of the widow and next of kin of the deceased, such damages as the jury may believe from the evidence the said widow and next of kin have sustained by reason of said death, not to exceed in all, however, the sum of ten thousand dollars,” is erroneous in not limiting the damages to the pecuniary damages resulting from the death.</p>

<p>1. Workmen’s Compensation Act, § 2*—when Workmen’s Compensation Act becomes part of contract of employment. When an employer elects to operate its plant and an employee to perform work for the employer under the Workmen’s Compensation Act, such act becomes a part of the contract of employment.</p> <p>2. Workmen’s Compensation Act, § 12*—when declaration in action of assumpsit by servant against master sufficient. A declaration in an action of assumpsit by an employee against his employer to recover compensation for injuries sustained in the course of the employment, alleging that the parties were working and operating under the Workmen’s Compensation Act, and, among other proper allegations, that, though requested to do so by the plaintiff, the defendant refused to appoint an arbitrator in accordance with the provisions of the act, is not subject to demurrer.</p> <p>3. Workmen’s Compensation Act, § 5*—when assumpsit and not mandamus lies in action t>y servant against master. Where an employer and employee are operating and working under the Workmen’s Compensation Act and the employee, having sustained injuries in the course of his employment, requests his employer to name an arbitrator in accordance with the provisions of the act, which request is not complied with, the employee may sue in assumpsit, for breach of contract and will not be compelled to resort to an action of mandamus, as that remedy would not give the plaintiff such speedy relief as he is entitled to.</p>

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

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

<p>1. Corporations, § 448*—when contract not ultra vires. A contract between a brewery company and a saloon keeper for the loaning of money, the securing of a license and the sale of liquor under certain conditions, being in furtherance of the business for which the company was organized, is not ultra vires.</p> <p>2. Intoxicating liquors, § 58*—when contract for assignment of right of renewal of license invalid. A contract between a brewery company and a saloon keeper for the assignment by the latter to a designated third person of the alleged “right of renewal” of a saloon' license which might be issued to the saloon keeper is illegal and void, as there is no right of renewal of a saloon license.</p> <p>3. Intoxicating liquors, ‘ § 58*—right of renewal of saloon license. There is no right of renewal of a saloon license.</p> <p>4. Intoxicating liquors, § 24*—when person may not conduct saloon. A person cannot own and conduct a saloon under a license issued to and in the name of another.</p> <p>5. Intoxicating liquors, § 52*—when right to saloon license nonassignahle. The right to a saloon license for an unexpired part of a license year, if a municipal ordinance gives such a right, inheres in the license already issued, and cannot be disconnected therefrom, and made the subject of a separate assignment.</p> <p>6. Contracts, § 134*—when 'contract for operation of saloon illegal. A contract extending over a period of seven and a half years between a brewery company and a saloon keeper for the loaning of money, the sale of liquor, the loaning of the right to a saloon license for temporary use, all future rights to remain in the brewery company or a person designated by it, constitutes a contract to operate a saloon under a license owned by another, and is consequently illegal.</p> <p>7. Contracts, § 134*—when contract for purchase of liquor illegal. A contract for the purchase of liquor by a saloon keeper from a brewery company, based upon an illegal agreement for the operation of a saloon under a license not owned or controlled by the latter, is not enforceable.</p> <p>8. Intoxicating liquors, § 269*—when brewery loaning money to saloon Keeper may recover loan under contract. A brewery company which loans money to a saloon keeper to run his business under an illegal agreement to operate a saloon under a license not owned or controlled by the latter may recover the money loaned upon noncompliance by the latter with the terms of the contract.</p>

<p>1. Judgment, § 672*—when transcript of judgment insufficient to show jurisdiction in an action in foreign State. In an action in Illinois on a judgment rendered against an Illinois corporation in a foreign State, it is error to admit in evidence a transcript of such judgment, where it not only does not show either directly or by implication that defendant was transacting business in such foreign State, but the petition in the action in such State alleges defendant to be an Illinois corporation having its principal office and place of business in Illinois and maintaining no office or place of business in the foreign State nor complying with the laws of the latter as to foreign corporations doing business therein.</p> <p>2. Corporations, § 707*—when recital in sheriff’s return insufficient to show jurisdiction. In an action in Illinois against a domestic corporation on a judgment rendered against such corporation in a foreign State, the recital' in the sheriff’s return in the latter action that he summoned defendant, “a foreign corporation, by delivering to * * * personally, Secretary of State,” of such foreign State, a copy of the summons, is insufficient to show that defendant was doing business in the foreign State.</p>

<p>Abstract of the Decision.</p> <p>1. Trusts, § 222*—when allowance to trustee for litigation improper. Attorneys’ fees and expenses of a trustee in a litigation attacking the constitutionality of the Act of 1909, bringing trusteeships under jurisdiction of the Probate Court, held not properly allowed because not for the interest of the trust estate.</p> <p>2. Trusts, § 222*—when allowance improper. Allowance to trustee of $50 for attorneys’ fees improper where the trustee had already obtained sound and correct advice on the subject from another attorney.</p> <p>' 3. Trusts, § 222*—when allowance of fees in criminal proceeding against trustee improper. Allowance of atorneys’ fees in criminal prosecution against trustee properly disallowed as not being for benefit of trust estate.</p> <p>4. Trusts, § 222*—when allowance of solicitors’ fees improper. Allowance of solicitors’ fees in proceeding made necessary by unreasonable refusal of trustee to give proper information to beneficiaries as to management of- trust estate and by his improper disposition of considerable portions of trust funds properly disallowed.</p> <p>5. Trusts, § 221*—when credit properly not allowed to trustee. In an action for the beneficiaries against the trustee of an estate for the conversion and concealment of trust property of an estate under which he received a legacy, the fact that if defendant should account for all of the personal property of the estate there would be left, after the payment of all claims and costs, a balance applicable to the payment of his legacy, does not entitle him to be credited in his trusteeship account with the deficit between the amount of the legacy and the amount which could be credited thereto.</p> <p>6. Trusts, § 230*—when credit for interest improperly allowed. Credit for an overcharge for interest based on an allowance improperly made to trustee should not be allowed.</p> <p>7. Equity, § 431*—when rights waived by failure to object or except. In a suit by the beneficiaries of a will against the trustee for an accounting which is referred to a master to take account of the trust property, where complainants make no objection before the master as to certain items of credit and no exceptions to the court to the allowance of these items, they cannot be questioned on appeal.</p> <p>8. Trusts, § 221*—when trustee not entitled to credit for difference between the amounts collected and amounts for which sale could be made. In a suit by the beneficiaries under a will against the trustee for an accounting where it appeared that defendant sold accounts of the estate, hut that the beneficiaries objected to the sale on the ground of the amount received therefor, and that thereupon the trustee recalled the sale and subsequently was able to collect only a smaller amount, he is not entitled to a credit for the difference between the amount for which the accounts could have been sold by him and the amount collected.</p> <p>9. Trusts, § 233*—when investment not exercise of reasonable discretion. Evidence examined and held to show that an investment claimed by the trustee to have been made in securities of a foreign corporation was not proven, if made, was not in exercise of sound judgment and reasonable discretion.</p>

<p>Mechanics’ liens, § 56*—when right enforceable by partnership containing a licensed member. The fact that a member of a plumbing partnership is not licensed in accordance with the Act of July 1, 1897 (J. & A. 1f 8530), does not operate to prevent the enforcement of a mechanic’s lien for plumbing work, where one partner was a licensed plumber.</p>

<p>1. Banks and banking, § 146*—when payment of check on forged indorsement constitutes conversion. A bank paying a check drawn on it on a false or forged indorsement is liable to the payee, for conversion.</p> <p>2. Trover and conversion, § 11*—when maintainable for negotiable paper. Trover may be maintained for notes and bills.</p> <p>3. Trover and conversion, § 47*—what measure of damages for conversion of negotiable paper. In an action of trover for notes and bills, the measure of damages is, prima facie, the amount of the face value of the paper.</p> <p>4. Bills and notes, § 154*—when forged indorsement does not pass title. A forged indorsement does not pass title to commercial paper negotiable only by indorsement and does not justify the payment of such paper.</p>

<p>1. Gifts, § 30*—what requisite to constitute gift causa mortis. To constitute a valid gift causa mortis it must have been made with a view to the donor’s death from present illness, or from external and apprehended peril, the donor must die of that ailment or peril, and there must be a delivery.</p> <p>2. Gifts, § 34*—when delivery to third person sufficient. The delivery to a third person for the benefit of the donee is as effective as though it had been made directly to the donee.</p> <p>3. Gifts, § 34*—when third person presumed to be trustee of donor. The third person to whom delivery is made for the benefit of the donee is presumed, in the absence of a contrary showing, to be the trustee of the donor.</p> <p>4. Gifts, § 30*—when acceptance presumed. Where a gift is beneficial to a donee and imposes no burden upon him, acceptance by him is presumed as a matter of law.</p> <p>5. Gifts, § 30*—when bank book subject of gift causa mortis. A savings bank book is a proper subject of donation causa mortis.</p> <p>6. Gifts, § 37*—when evidence of written instrument and declarations by donor admissible. In a proceeding to establish a gift causa mortis of a savings bank book, a document written by the donor and placed in her safety deposit box stating a gift of the book to the claimant and evidence of declaration of the donor to a third person of the gift to the claimant, while not sufficient to establish the gift, are admissible in corroboration of other evidence tending to establish it.</p> <p>7. Gifts, § 34*—when delivery at time of gift causa mortis essential. Delivery at the time of making of the gift causa mortis is essential to establish the factum of a gift causa mortis, delivery and not possession being material.</p> <p>8. Gifts, § 37*—when circumstantial evidence admissible to show delivery of possession. Delivery of possession may be proved by circumstantial evidence in a proceeding to establish a gift causa mortis.</p> <p>9. Gifts, § 37*—when evidence insufficient to establish gift causa mortis. In a proceeding to establish a gift causa mortis of a bank book, evidence examined and held insufficient to establish a gift causa mortis.</p>

<p>1. Abatement and revival, § 3*—when cause of action survives against personal representative. The cause of action under the Campbell Act survives against the personal representative of the person whose wrongful act caused the death.</p> <p>2. Abatement and revival, § 65*—when right of action survives against surviving defendant. Under sections 12 and 13 of the Abatement Act (J. & A. If If 12, 13), in a case of two defendants, the right of action, if the cause of action survives, survives against a surviving defendant and not against the personal representative of the deceased defendant.</p>

<p>Abstract of the Decision.</p> <p>1. Fraud, § 19*—when representation of intention not fraud in law. The rule that a false representation as to a matter of intention not amounting to a matter of fact is not fraud in law, even though the transaction is influenced thereby, applies to the representation of an intention by a third party as well as to a representation of defendant’s intention.</p> <p>2. Fraud, § 5*—when knowledge of falsity of representation essential. In an action for deceit, the evidence must show that the representation alleged to be false was in fact false; if false, that it was known to be false by the person making it.</p> <p>3. Fraud, § 115*—when evidence insufficient to show actionable misrepresentation. In an action of deceit against the surviving partners of a firm, evidence examined and held insufficient to show actionable misrepresentation by the firm relied on by plaintiffs, which was the inducing cause of the loss sustained.</p>

<p>1. Husband and wife, § 223*—when recital in decree not part of contract. The recital in a decree for separate maintenance that the wife is thereby barred of dower does not constitute such recital a part of a contract entered into between the husband and wife before the entry of such decree for the conveyance of certain'property to the wife.</p> <p>2. Husband and wife, § 255*—what extent of jurisdiction to decree separate maintenance. A court of chancery has no power to decree separate maintenance independently of the authority conferred by statute.</p> <p>3. Dower, § 62*—when decree for separate maintenance cannot tar right. A court of chancery granting a decree for separate maintenance has no power to incorporate therein a provision barring the wife’s right of dower.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Courts, § 150*—when ruling on appeal to Supreme Court law of the case in transferred, cause. Where on an appeal to the Supreme Court in the first instance in an action to recover a statutory penalty, that court holds that no constitutional question is involved and transfers the cause to the Appellate Court, such decision disposes of the question of the constitutionality of the act under which the proceeding is brought.</p> <p>2. Physicians and surgeons, § 5*—when licensing act applicable to practicing physicians. Laws 1899, p. 273 (J. & A. If 7377), regulating the practice of medicine, is applicable to physicians practicing when the act took effect.</p> <p>3. Penalties, § 16*—when judgment imposing imprisonment until payment of penalty valid. A judgment in an action to recover for the violation of a penal law may provide, for defendant’s imprisonment until the payment of the judgment and costs.</p>

<p>Abstract of the Decision.</p> <p>1. Divorce, § 50*—when burden of proof on complainant. In a suit for divorce on the ground of adultery, the burden is on the complainant of proving by a preponderance of the evidence at least one charge of adultery made in the bill.</p> <p>2. Appeal and error, § 1414*—when findings of fact on bill for divorce not disturbed. On appeal in a bill for divorce, the trial court’s findings of fact will not be disturbed unless palpably and clearly contrary to the weight of the evidence.</p> <p>3. Evidence, § 23*—when inferences not, drawn from witness’ lacle of memory. The fact that a witness failed to remember matters as to which it would seem incredible that she had no recollection does not warrant the drawing of inferences from her testimony not deducible from the facts contained therein.</p> <p>4. Divorce, § 16*—when evidence sufficient to show condonation. On a bill for divorce on the ground of adultery, based on an alleged confession made on September 16, 1911, evidence that the parties continued to occupy the marital relation until the middle of May, 1912, and that complainant did not finally leave his wife until August 7, 1912, and that his letters to her during that time were in affectionate terms and contained no reference to the subject of her confession, held sufficient to show condonation.</p> <p>5. Divorce, § 46*-—when evidence insufficient to show confession of adultery. On a bill for divorce on the ground of adultery, evidence examined and held insufficient to show a confession of adultery.</p> <p>6. Divorce, § 46*—when evidence insufficient to shoio adultery. On a bill for divorce on the ground of adultery, evidence of private detectives employed by complainant to shadow defendant, which shows that they followed her and the co-respondent for several weeks and saw them together at times, but only in public places and surrounded by many people, is insufficient to show adultery.</p>

<p>1. Workmen’s Compensation Act, § 1*—when warehouse extraehazardous enterprise. A warehouse used by an employer for the storing and vending of its commodities which contains an electric elevator and is located in a city which regulates by ordinance the use and operation of elevators, is an extra-hazardous enterprise within the meaning of Laws 1913, seo. 3.</p> <p>2. Workmen’s Compensation Act, § 1—when liberally construed. The Workmen’s Compensation Act of 1913, though in derogation of common law is beneficent and therefore, to be liberally construed to carry out its objects.</p> <p>3. Workmen’s Compensation Act, § 1*—when provision abrogating common-laio defenses valid. The provision of the Workmen’s Compensation Act of 1913 abrogating the three common-law defenses is valid.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 131*—when negligence must Be proved By preponderance of evidence. The plaintiff, in an action on the case against a street railway company for damages for personal injuries alleged to be due to negligence in starting a car which had stopped, must sustain his case by a preponderance of the evidence.</p> <p>2. Street railroads, § 131*—when negligence in starting car not proved By preponderance of evidence. The plaintiff, in an action against a street railway company for damages for personal injuries alleged to have been sustained as the result of negligence in starting the car after it had stopped and while plaintiff was trying to get off, fails to sustain his case by a preponderance of evidence where the testimony of plaintiff and another that the car stopped and started with a jerk while plaintiff was attempting to get off was directly contradicted by six witnesses for defendant who testified that plaintiff alighted while the car was in motion.</p> <p>3. Appeal and error, § 49*—when Appellate Court may make findings of fact. When the Appellate Court, upon review, determines that the evidence fails to sustain the verdict, it may reverse the judgment with a finding of fact.</p>

<p>Abstract of the Decision.</p> <p>Master and servant, § 846*—when act of servant not within scope of employment. The commission of an assault by a servant, who was engaged in guarding employees of the master on their way home during a strike, upon a person unconnected with and uninterested in the strike during a purely personal altercation, was an act without the scope of the employment of the servant so as not to make the master liable.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1416*:—when master’s finding entitled to same weight as that of jury. The findings of fact by a master in chancery must be given the same weight by the Appellate Court as would the verdict of a jury in a suit at law.</p> <p>2. Mechanics’ liens, § 21*—when architect entitled to mechanic’s lien. An architect who draws plans and' specifications for a building to be erected upon a designated spot performs services for the purpose of building it so as to be entitled to a mechanic’s lien, even though he does not superintend the construction of the building, and even though a building of the same identical character is not erected.</p> <p>3. Estoppel, § 63*—when presentation of hill for amount less than contract price not. estoppel to recover contract price. An architect who agrees to draw plans and specifications for a building for a certain price may not be denied a lien for the contract price, upon performance of the contract, because he presented a bill for a lesser amount, where such bill was intended as a compromise and was not accepted.</p>

<p>1. Appeal and error, § 219*—when defendant cannot complain of peremptory instruction in favor of codefendant. A defendant cannot complain of a peremptory instruction in favor of a codefendant where he did not object to the instruction when given.</p> <p>2. Instructions, § 20*—when instruction that fury should take law from court proper. An instruction that the jury shall take the law from the court and not from counsel is proper in order to counteract the effect of misinformation concerning the law indulged in by counsel in argument.</p> <p>3. Instructions, § 88*—when instruction as to preponderance of evidence improper. Where defendant puts in no evidence, an instruction as to the preponderance of the evidence is improper, as the jury in such case consider the case on the evidence of plaintiff.</p> <p>4. Instructions, § 85*—when instruction on evidence improper. Where the defendant puts in no evidence, an instruction that “if the evidence is equally balanced, they must find for, defendant” is properly refused.</p> <p>5. Municipal corporations, § 1100*—when instruction on proximate cause erroneous. In an action against a city and a railroad company to recover for the death of plaintiff’s intestate, where it was alleged that a horse which deceased was driving at the time of the accident was frightened by the blowing of defendant railroad company’s locomotive whistle and bolted, causing the wheel of the wmgon in which deceased was riding to fall into a large hole or rut in defendant city’s public street, throwing plaintiff out and causing his death, an instruction offered by defendant city that the jury should find such defendant not guilty if it appeared that the accident was proximately caused by the blowing of the whistle is properly refused, being bad as ignoring the other element of proximate cause, the defective condition of the street.</p> <p>6. Trial, § 207*—what is effect of direction of verdict to find one defendant guilty. In an action against a city and a railroad company to recover for the death of plaintiff’s intestate alleged to have been caused by defendants’ negligence, a peremptory instruction to find one defendant not guilty leaves only the question of the negligence of the codefendant, and a verdict finding such codefendant guilty fixes its liability independently of the negligence of the other defendant.</p> <p>7. Municipal corporations, § 1098*—when evidence sufficient .to sustain verdict for injuries due to defective street. In an action against a city and a railroad company to recover for the death of plaintiff’s intestate, where it is alleged that the horse which deceased was driving at the time 'of the accident was frightened by the blowing of defendant railroad company’s locomotive whistle and bolted, causing the wheel of the wagon in which deceased was riding to fall into a large hole or rut in defendant city’s public street, throwing plaintiff out and causing his death, evidence held sufficient to justify a verdict for plaintiff.</p> <p>8. Appeal and error, § 1523*—when case not reversed for errors in instructions. Where the evidence in an action clearly justifies a verdict for plaintiff, or where defendant offers no countervailing evidence, such verdict will not be reversed for errors in instructions unless it is clear that the jury were misled by. such instructions in a matter material to the issue.</p> <p>9. Torts, § 32*—when verdict against one tort feasor justified without regard to negligence of other. In an action where the declaration charges two defendants with separate acts of negligence contributing to cause the injury sought to be recovered for, a verdict against one defendant is justified without regard to the negligence of the other.</p> <p>10. Appeal and error, § 438*—when objection as to variance too late. In an action where the declaration charges two defendants with separate acts of negligence contributing to cause the injury sought to be recovered for, and where a peremptory instruction in favor of one defendant is given, plaintiff going to trial against the codefendant without amending, the objection of variance made for the first time, on appeal comes too late, since if the objection had been seasonably made, plaintiff could have amended by striking the negligence averred against the other defendant, and retaining only the averment of negligence against the defendant found guilty.</p> <p>11. Evidence, § 154*—when failure to offer evidence admission of facts. Where a defendant offers no evidence to meet the case fnade by plaintiff’s evidence, and allows the case to go to the jury on the facts so established, such defendant thereby admits the truth of such facts.</p>

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

<p>Abstract of the Decision.</p> <p>1. Brokers, § 88*—-when evidence sufficient to establish contract to procure purchaser. In an action to recover a broker’s commission for the sale of a house, where defendant denied making a contract with plaintiff to procure a purchaser, hut where plaintiff was corroborated by another witness, a finding that such contract was made, held not against the weight of the evidence.</p> <p>2. Brokers, § 91*—when evidence insufficient to establish unfait dealing such as to bar recovery. In an action to recover a broker’s commission for the sale of a house, unfair dealing such as to bar a recovery is not shown by the fact that after the sale plaintiff’s employee asked and received $10 from the purchaser “for finding the house,” where there was no evidence that there was a contract between plaintiff and the purchaser for the payment to plaintiff by such purchaser of a commission in case plaintiff found the house, and where there was no evidence that the acts of plaintiff’s employee were with the knowledge or by the direction of plaintiff.</p> <p>3. Brokers, § 62*—when right to commission not barred by receipt of commission from other party. The rule that a broker, acting as the agent of both parties in an exchange of real estate with a contract for the payment of commission from each party, cannot recover from one of them who did not know of or consent to his employment by the other has no application to a case where plaintiff’s agent, without his knowledge or direction, asks and receives such a commission from the purchaser of a house, for the sale of which plaintiff is seeking to recover a commission from the seller.</p>

<p>Appeal and error, § 1514*—when improper argument of counsel reversible error. Where, in an action by a five-year-old girl against a street railway company for damages for personal injuries, necessitating the amputation of a leg, counsel for plaintiff in his argument gave his individual opinion as to the amount of damages stated that the verdict should be for an amount sufficient to support plaintiff for the rest of her life, made reference to her humble circumstances, alluded to her going down “into the valley of the shadow of death” while under the anesthetic, discussed her mental pain and spoiled matrimonial prospects, and when objection was made by defendant’s counsel, repeatedly continued his argument without giving opportunity for a prompt ruling, and without rebuke by the court, and remarked that defendant’s counsel was trying “to break up his argument,” that he “expected it” and called the jury’s attention to the fact that he was being “interrupted and bully-ragged every minute,” and withdrew improper statements repeatedly “to save time,” without a ruling by the court, held that the judgment should be reversed.</p>

<p>1. Municipal Court op Chicago, § 13*—when statement of claim does not state ground of liability in action against officers of corporation for corporate debt. A statement of claim in an action in the Municipal Court of Chicago against the officers of a corporation on notes of the corporation alleging that the notes purported to have been executed by the United Publishing Company, a pretended corporation; but that said corporation had never complied with the laws of the State relating to corporations, and had never been authorized or licensed to execute said notes, or otherwise transact business in the State; but that such notes were the obligations of the defendants as makers, such defendants being or pretending to be stockholders, officers, agents and the board of directors of such corporation, and assuming as such to exercise corporate powers under such corporate name, held, not to state a ground of legal liability.</p> <p>2. Corporations, § 297*—nonliability of officers assuming to exercise corporate powers of foreign corporation. The General Incorporation Act, Sec. 18 (J. & A. If 2531), which makes persons assuming to exercise corporate powers of a corporation liable under specific circumstances for debts contracted by them in its name, has no application to the failure of a foreign corporation to take out a license to do business within the State.</p> <p>3. Municipal Court of Chicago, § 13*—when necessary that statement of claim disclose ground of legal liability.' A statement of claim in a fourth class case in the Municipal Court of Chicago must show a ground of legal liability.</p>

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

<p>Abstract of the Decision.</p> <p>1. Contracts, § 4*—what constitutes contract for services. Where a writing signed by the defendant only, purporting to engage the services of the plaintiff to appear at the defendant’s théater, is orally accepted by the plaintiff, and the defendant makes an entry on its books of the plaintiff’s engagement, a valid contract, oral if not written, is entered into, on the breach whereof by the defendant, in refusing to allow the plaintiff to perform in accordance with the terms thereof, a suit will lie for the stipulated remuneration, such writing not being a mere proposal revocable by defendant and subject to cancellation before performance of such services.</p> <p>2. Contracts, § 196*—when printed portion of contract not controlling. A written agreement consisting of a printed form, filled in and signed by the defendant, whereby he engages the services of the plaintiff fop one week, reciting that a failure on the part of either party to perform on “such week” shall not be a violation of its terms, will, on the refusal of the defendant to accept performance, support an action by the plaintiff to recover the stipulated remuneration for such services on his tendering performance, it being evident that the printed form was designed to cover a case where the term of the engagement extends over a period longer than one week.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 683*—when question whether overvaluation in proofs of loss fraudulent for jury. It is a question oí fact whether an overvaluation in the proofs of loss by fire of property is intentionally fraudulent, even though there is a considerable discrepancy between the amount stated by the insured in the proofs of loss and the value found by the jury.</p> <p>2. Fraud, § 87*—when not presumed. Fraud is never presumed.</p> <p>3. Fraud, § 89*—when burden of.proof upon party alleging fraud. The burden of establishing fraud is upon the party alleging it. '</p> <p>4. Insurance, § 633*—when evidence insufficient to establish fraudulent overvaluation. In an action on a fire insurance policy on a building, evidence held insufficient to establish fraud in making an overvaluation in the proofs of loss.</p>

<p>Abstract of the Decision.</p> <p>1: Accord and satisfaction, § 4*—what constitutes where claim, disputed. Where there is a dispute as to the weight of metal sold and the parties agree that the seller shall weigh up the metal and that the purchaser shall make payment at once on the basis of the weight thus ascertained, and, after the metal is correctly weighed, a bill is presented in which a shortage of weight is deducted, and a.check given in payment therefor is accepted, there is an accord and satisfaction so as to preclude a recovery for an alleged balance.</p> <p>2. Payment, § 29*—when evidence sufficient to establish payment of disputed claim. In an action to recover an alleged balance for metal sold where it appeared that there was a dispute as to the weight, and there was undisputed evidence that the plaintiff carefully weighed and checked the metal, pursuant to an agreement of the parties, held that the evidence was sufficient to establish payment for all metal that had been delivered.</p>

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

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

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

<p>Fraudulent conveyances, § 15*—when creditor of vendor of goods in bulle cannot recover personal judgment against vendee. The creditor of a vendor of goods in bulk cannot recover a personal judgment against the vendee because of the mere failure of such vendee to comply with the Bulk Sales Act, providing that such sale shall be void as against the creditors of such vendor unless the vendee gives certain notice to such creditors.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 667*—when evidence sufficient to sustain finding that insured did not die as result of an accident. In an action by the beneficiary named in a policy of accident insurance for the death of insured, alleged to be due to a lump of coal falling on insured’s foot, evidence held to sustain a finding that insured did not come to his death by accident.</p> <p>" 2. Insurance, § 421*—-when insurer not liable under policy for death due to blood poisoning or infection. A policy of accident insurance providing that insurer should not be liable “in the event of * * * injury due wholly or in part to or resulting directly* or indirectly in or from * * * any disease or bodily infirmity, or • * * * infection in any form or manner, * * * held expressly to except death due to blood poisoning or infection through insured’s foot, alleged to have been caused by an injury due to the fall of a piece of coal on the foot.</p> <p>3. Insurance, § 488*—when beneficiary estopped by settlement from maintaining action. In an action by the beneficiary named in a policy of accident and health insurance to recover the amount payable in case of the accidental death of insured, where the policy also provided for an “illness indemnity,” and an indemnity “if the death of the member results from sickness,” and where it appeared that after the death of insured plaintiff was paid the amounts required by the policy in the last-named cases, signing a receipt “in full settlement of all claims,” held that the action was barred, there being no evidence of fraud, and the right of action sought to be maintained depending upon contingencies and facts within the knowledge of plaintiff, so that she could settle with defendant on the basis of such knowledge, and, having done so, was precluded from asserting another claim.</p> <p>4. Insurance, § 421*—when claim for payment for accidental death due to blood poisoning not within policy. Under a policy of accident and health insurance, which provides for a payment to beneficiary in case of the death of insured from sickness, a provision that disability resulting from ulcers and blood poisoning shall be classified as sickness excludes any claim for payments for accidental death, where it appears that insured died from an ulcer of the foot alleged to have been due to blood poisoning as the result of a lump of coal striking insured’s foot.</p>

<p>1. Continuance, § 19*—when motion for continuance to obtain absent witnesses properly denied. A motion for continuance to enable parties to secure the attendance of absent witnesses is properly denied where there is no sufficient showing of diligent effort before the trial to secure such attendance or of a reason why the depositions of such witnesses could not have been taken.</p> <p>2. Municipal Court of Chicago, § 13*—when statement of claim in action by employee against railroad for negligent injuries sufficient. In an action by an employee against a railroad company to recover for personal injuries, brought under a statute of a foreign State providing that “every person or corporation operating a railroad in this state shall be liable in damages to any person suffering injury while * * * employed by such person or corporation so operating such railroad, * * * for such injuries * * * resulting in whole or in part from the negligence of any of the officers, agents or employees of such person or corporation,” statement of claim examined and held to state a cause of action.</p> <p>3. Municipal Court of Chicago, § 13*—when statement of claim sufficient. A statement of claim will be deemed sufficient where no objection is made to it before trial and no objection is made to the evidence offered at the trial .on the ground of variance.</p> <p>4. Railroads—when evidence sufficient to establish operation of railroad. In an action by an employee to recover for personal injuries brought under the statute of a foreign State, where it appeared that at the time of the injury plaintiff was employed by-defendant as a section hand, held that evidence that when so injured plaintiff was pushing a hand car loaded with scrap, shovels and iron bars, on top of which was a large door, along the tracks of defendant, and was injured by the door falling upon him, was sufficient to show an operation of the railroad within the meaning of the statute making defendant liable for plaintiff’s injuries sustained by the negligence of defendant’s servants “in or about the handling, movement, or operation of any train, engine, or car on or over such railroad.”</p> <p>5. Railroads—what constitutes operation of railroad. The movement of a hand car along a railroad is as much a use and operation of the railroad as the movement of a train of cars drawn by a locomotive.</p> <p>6. Master and servant, § 737*—when question whether section foreman negligent in placing door on top of loaded hand cm for jury. In an action by a railroad section hand to recover for personal injuries sustained as a result of being struck by a large door which fell from a hand car plaintiff was pushing -when injured, such door having been placed by defendant’s section foreman on top of a load of scrap, shovels, iron bars, etc., the question whether the foreman was negligent in placing the door on top of the load is for the determination of the jury.-</p> <p>7. Master and servant, § 626*—when evidence of strong wind competent as bearing on negligence in placing door on top of loaded hand car. In an action to recover for personal injuries sustained by a railroad section hand as a result of being struck by a large door which fell from a hand car which plaintiff was pushing when injured, such door being placed by defendant’s section foreman on the car on top of a load of scrap, shovels, iron bars, etc., evidence that at the time of 'the accident a strong wind was blowing is competent on the question of the negligence of the foreman, either in loading the car or in failing to secure the door, or both.</p> <p>8. Master and servant, § 697*—when evidence sufficient to sustain finding of negligence of foreman. In an action to recover for injuries sustained by a railroad section hand as a result of being struck by a large door which fell from a hand car which plaintiff was pushing when injured, such door being placed by defendant’s section foreman on the car on top of a load of scrap, shovels, iron bars, etc., a finding that the foreman was negligent, held proper under the evidence.</p>

<p>1. Landlord and tenant, § 364*—how word “immediately" in Landlord and Tendnt Act construed. The word “immediately” as used in section 17 of the Landlord and Tenant Act (J. & A. If 7055), requiring one levying a distress warrant to immediately file with the clerk of a court of record of competent jurisdiction a copy of the warrant together with an inventory of the property levied upon, does not require him to file them immediately, but only requires him to act promptly and to file them in such convenient time as is reasonably requisite for doing so.</p> <p>2. Landlord and tenant, § 398*—when evidence sufficient to establish an immediate filing of copy of distress warrant and inventory. Where within forty-four hours after the seizure, under a distress warrant, of goods which were removed, inventoried and stored, a copy of the warrant and the inventory were filed with the clerk of the court whose office was situated ten miles from the place of seizure, a jury may properly find that such filing was done “immediately” within the meaning of the statute.</p>

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

<p>1. Pleading, § 400*—when liability of each defendant must be established. Where suit is brought against two defendants, the plaintiff, in order to recover,must prove the liability of both.</p> <p>2. Husband and wife, § 164*—what does not constitute family expense chargeable on property of both husband and wife. Under section 15, ch. 68, Rev. St. (J. & A. K 6152), providing that expenses of the family shall be chargeable upon the property of both husband and wife, or of either of them, no recovery may be had against a husband for a dress made on the order of his wife which she has refused to accept, it not having been bought for family use and actually used or kept for use in the family.</p>

<p>1. Parties, § 14*—when party to contract need not he joined as party plaintiff. Where in one instrument there are embodied two distinct contracts, one between the defendant and the plaintiff, and another between the defendant and the plaintiff and another, the plaintiff may sue on the former without joining his cocontractor in the latter, inasmuch as the contracts are as independent, for purposes of suit, as though embodied in separate instruments.</p> <p>2. Master and servant, § 11*—what constitutes satisfactory services. Where a contract provides that services to be performed must be satisfactory to the employer, such clause means that the services should be such that, as a reasonable person, the employer ought to be satisfied therewith.</p> <p>3. Architects and engineers, § 16*—when evidence sufficient to sustain judgment. In an action to recover for architect’s services in preparing plans for a field house, evidence held sufficient to sustain a finding and judgment for the plaintiff.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1748*—when judgment based upon verdict will be affirmed. The Appellate Court will not disturb a judgment resting upon the verdict of a jury unless it is apparent from all the evidence that the verdict is clearly contrary to its preponderating force, or that the rulings of the court in its procedure and in its instructions were calculated to mislead the jury to the complaining party’s injury.</p> <p>2. Trespass, § 49*—sufficiency of evidence as to amount of soil taken. In an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land, evidence held sufficient to sustain a finding that the amount of soil taken and its value was as claimed by defendant.</p> <p>3. Trespass, § 48*—when penal ordinance prohibiting removal of soil inadmissible. An ordinance of the City of Chicago, section 1495 of the Revised Municipal Code, providing for a penalty for the offense of unlawfully taking away earth from the land of another without first obtaining a permit, is inadmissible in evidence in an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land.</p> <p>4. Trespass, § 48*—when evidence of obtaining permit to dig and cart away soil immaterial. In an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land, evidence that defendant obtained a permit to take away the soil is immaterial in the absence of proof that such permit was obtained from the owner of the land.</p> <p>5. Appeal and error, § 1466*—when admission of immaterial evidence harmless error. The admission, in an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land, of immaterial evidence as to having obtained permit from one other than the owner of the soil pilfered, was harmless error where the question involved was as to the amount of the soil taken.</p> <p>6. Trespass, § 48*—when evidence of arrest of defendant’s employees for taking soil irrelevant. In an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land, evidence that some of defendant’s employees were arrested for purloining soil from land of plaintiff was irrelevant, the only issue being the amount of the soil taken.</p> <p>7. Trespass, § 48*—when evidence that person not employed by defendant took soil admissible. In an action of trespass for breaking the close of plaintiff and digging and carting away soil from plaintiff’s land, in which the issue is to the amount of soil taken, evidence that men who were not servants or agents of defendant dug and carted away soil of plaintiff’s is admissible to rebut any inference that such men were acting for defendant, so that he should be charged with the soil removed by them.</p> <p>8. Appeal and error, § 524*—when objection to argument of counsel insufficient. A general objection to the argument of counsel at the end thereof is insufficient, as objections should be specific so that the court may be able to rule thereon.</p> <p>9. Instructions, § 96*—when instruction on credibility of witness correct. An instruction that if the jury believed from the evidence that any witness had sworn falsely as to any material fact in issue then the entire testimony of the witness might be disregarded, except in so far as corroborated by other credible evidence or by facts or circumstances proved on the trial, approved.</p>

<p>1. Bills and notes, § 426*—what evidence inadmissible to show payment of coupon notes. In an action upon two detached negotiable interest coupon notes payable to bearer without condition by the holders, held that evidence of payment by the maker of the interest upon the entire issue by indorsement of an architect’s certificate to the holder of the trust de,ed securing the bonds from which the coupons were detached was properly excluded where it was not shown that the trustee had any sum belonging to defendant in its possession or that the architects had authority to make such a certificate.</p> <p>2. Bills and notes, § 102*—when interest coupon negotiable instrument. Interest coupons which are detached from bonds and are- payable to a bearer at a specific time and place, subject only to the limitation that the bond has not been paid before maturity of the interest coupon, are negotiable, and are free from any limitation "contained either in the bond from which they were detached, or the trust deed securing them.</p> <p>3. Bills and notes, § 84*—how terms of interest coupon notes construed. The terms of interest coupons which are payable to bearer at a specific time and place, subject only to the condition that the bonds are not paid before maturity, must be construed strictly against the maker, without reference to the bond from which they were detached, or the trust deed securing them.</p>

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

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

<p>Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding.</p>

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

<p>1. Husband and wife, § 274*—when State need not prove that wife at time of abandonment was “in destitute or necessitous circumstances.” Hurd’s Rev. St., ch. 68, sec. 24 (J. & A. If 3431), providing that “every person who shall without good cause abandon his wife and neglect and refuse to maintain and provide for her, or who shall abandon his or her minor child or children under the age of 12 years, in destitute or necessitous circumstances,” shall be guilty of a misdemeanor, does not require the State to prove, in order to obtain a conviction for wife abandonment under the statute, that at the time of the abandonment charged the wife was in “destitute or necessitous circumstances,” the statute being disjunctive, providing two classes of cases, the abandonment of the wife and the abandonment of the children, so that the words “in destitute and necessitous circumstances” apply only to the second class of cases, leaving the first class to consist of abandonment of the wife without good cause, and refusing and neglecting to provide for her.</p> <p>2. Husband and wife, § 272*—statute on wife abandonment not retroactive. The Act of 1915 providing that every person who shall, without any reasonable cause, neglect or refuse to provide for the support of his wife, said wife being in destitute or necessitous circumstances, shall be guilty of a misdemeanor, has no retroactive effect and cannot apply to a prosecution for a similar misdemeanor commenced before the act went into effect.</p> <p>3. Statutes, § 252*—when criminal statutes not retroactive. In a criminal case a conviction must be measured by the statute as it existed when the information was filed.</p> <p>4. Husband and wife, § 272*—what are elements of offense of wife abandonment. Under Hurd’s Rev. St., ch. 68, sec. 24 (J. & A. If 3431), the elements necessary to a conviction are abandonment of the wife and neglect and refusal to maintain her.</p> <p>5. Husband and wife, § 275*—when judgment of conviction for wife abandonment sustained. A conviction is proper in an information charging defendant with wife abandonment, under Hurd’s Rev. St., ch. 68, sec. 24 (J. & A. If 3431), where the information charges all which is necessary to constitute the crime alleged under the statute then in force and where the evidence sustains the charge in the information.</p>

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

<p>Abstract of the Decision.</p> <p>1. Trial, § 295*—when erroneous refusal to hold propositions of law not available as error. The erroneous refusal to hold propositions of law cannot he availed of as error where it appears that the propositions refused were submitted after the entry of findings and judgment.</p> <p>2. Appeal and error, § 1065*—when assignment of error raises question of sufficiency of evidence to sustain findings and judgment. An assignment of error that the court erred in finding for plaintiff in a case heard without a jury goes only to the question whether on the evidence the court was warranted in so finding the issues and in entering judgment thereon.</p> <p>3. Corporations, § 516*—when evidence sufficient to sustain finding that money was borrowed by officer for corporation. In an action against a corporation to recover money borrowed for its use by one of its officers, where the defense was that the money was borrowed for the personal use of another officer thereof who was also its principal stockholder, a finding for plaintiff is warranted where there is evidence that such principal stockholder suggested to the officer borrowing the money that she borrow money to send out solicitors to secure advertising contracts for a publication published by defendant.</p> <p>4. Corporations, § 266*—when creditors' rights not affected by depositing of corporate funds in name of officer of corporation. The action of an officer of a corporation in closing out the corporation’s bank account and depositing corporation funds to the personal account of another officer thereof merely affects the internal management of the corporation and does not affect the rights of its creditors.</p> <p>5. Corporations, § 516*—-what weight given to fact that officer made no entry of alleged loan on corporate books. In an action against a corporation to recover money borrowed by an officer thereof for its use, and where the defense is that such officer had no authority to borrow money for the corporation, the fact that such officer made no entry of the transaction on the, books of the corporation is a material but not a controlling fact which should be taken into consideration in determining the issues.</p> <p>6. Corporations, § 369*—when liable for money borrowed by officer without authority. Where a corporation has had the use of money borrowed for the purpose of paying its expenses, it is liable for its repayment although borrowed by one having no authority to borrow it.</p> <p>7. Corporations, § 516*—what weight given to affidavit by seller of stock regarding amount of indebtedness as against creditors. Where one buying a controlling interest in the stock of a corporation takes an affidavit from his vendor as to the amount of outstanding indebtedness of the corporation at the time of the sale of the stock, such affidavit is not available as against creditors unless such creditors had knowledge thereof, and then only as a material but not controlling circumstance affecting the issue.</p>

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

<p>Abstract of the Decision.</p> <p>1. Husband and wife, § 217*—what proof necessary to maintain Mil for separate maintenance. In order to maintain a bill for separate maintenance, it is necessary to show that complainant was living separate and apart from her husband at the time the bill was filed, without fault on her part.</p> <p>2. Husband and wife—what rules of evidence inapplicable to proceeding under Separate Maintenance Act. The rules as to the evidence necessary in order to obtain a divorce do not apply to a proceeding under the Separate Maintenance Act (J. & A. If 6159 et seq.).</p> <p>3. Husband and wife, § 268*—•when wife not required to live with husband. While a wife is not permitted to leave her husband because of incompatibility or trivial difficulties, she is not required to live with him if guilty of conduct endangering her health or making married life miserable or unendurable. '</p> <p>4. Husband and wife, § 216*—how word “fault” in Separate Maintenance Act construed. The word “fault” as used in section 1 of the Separate Maintenance Act (J. & A. If 6159) means a voluntary consenting to the separation of the husband and wife, or such failure of duty or misconduct on the part of the wife as “materially contributes to the disruption of the marital relation.”</p> <p>5. Husband and wife, § 217*—when wife living separate and apart from husband without fault on her part. Even though a wife leaves her husband without being warranted in doing so, yet if afterwards she requests to be permitted to return and live with him, and he refuses, the wife is thereafter considered as living separate and apart without fault on her part, within the meaning of section 1 of the Separate Maintenance Act (J. & A. K 6159).</p> <p>6. Husband and wife, § 264*—when evidence sufficient to sustain finding that conduct of husband calculated to force wife to leave. In a bill for separate maintenance, where the evidence was conflicting, but where there was evidence that the home provided by defendant was inadequate and the environment disturbing and unpleasant to complainant, evidence held to warrant an inference that the conduct of defendant was calculated to force complainant to leave him, it also appearing that after leaving defendant complainant frequently requested defendant to permit her to return to his home, but defendant refused.</p> <p>7. Evidence, § 476*—when weight not determined by number of witnesses. The number of witnesses testifying on each side of the case is not alone determinative of the question of the preponderance of the evidence.</p> <p>8. Appeal and error, § 1395*—when finding in chancery case not reversed on appeal. The rule applicable to trials by jury, that reversals on the ground that the verdict is against the weight of the evidence are only authorized where the error is clear and palpable, applies equally to findings in cases in chancery where the evidence is conflicting and the witnesses have been examined orally in court.</p> <p>9. Appeal and error, § 1395*-—when finding in chancery case not reversed on appeal. The rule that a finding in a chancery case, where the evidence is conflicting and the witnesses are examined orally in court, will not be reversed unless clearly and palpably against the weight of the evidence is just, where the evidence believed warrants the decree, since the chancellor has opportunity of observing the witnesses while testifying, and thus has facilities of great importance in determining the weight and credibility of the evidence which are not possessed by a reviewing court.</p> <p>10. Appeal and error, § 1387*-—how court of review may determine whether finding against weight of evidence. A court of review in determining whether a finding is clearly and manifestly against the weight of the evidence can only follow the words of the witnesses as transcribed in the record, knowing that some of the evidence is always lost in transcription.</p> <p>11. Husband and wife, § 264*—when evidence sufficient to sustain finding that wife living apart from husband without fault of her own. In a bill for separate maintenance, where the evidence was conflicting, a decree finding that complainant at the time the bill was filed was living separate and apart without fault of her own, held not clearly and manifestly against the weight of the evidence.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1347*—when presumed that no certificate of evidence was filed. Where on appeal the prwcipe of the record shows that the clerk was asked to prepare a complete transcript of the record in the cause appealed, and where the clerk certifies that the record presented is as requested in the prwcipe, it will be presumed that no certificate of evidence was ever filed in the cause, none appearing in such record.</p> <p>2. Equity, § 553*—when decree sustained. A decree not supported by findings of fact set forth therein or by a certificate of evidence is none the less properly made if the bill and answer set forth sufficient facts to warrant such decree.</p> <p>3. Partnership,- § 74*—when agreement for dissolution of partnership construed as agreement to pay stipulated sums for interest in business. An agreement for the dissolution of a partnership providing that all partnership assets were to belong to complainant and all partnership liabilities paid by him and “for and in consideration of all interests in said firm owned by” defendant, complainant “agrees to pay to” defendant “twenty-five ($25.00) dollars per week” between named dates, defendant to “give such services as he may be able to give until such last named date,” held to be construed as an agreement to pay the amounts named in consideration of defendant’s interest in the partnership, and not as obligating defendant to render services for which he was to be paid $25 a week.</p> <p>4. Reformation of instruments, § 2*—when agreement not ambiguous so as to require reformation. In a bill to reform a written agreement on the ground that it did not express the true intent of the parties, agreement examined and held not to require reformation, on the ground of ambiguity.</p> <p>5. Partnership, § 425*—when finding sustained by record. In a bill praying inter alia that all liabilities of complainant to defendant as partners be adjusted, where the record showed that complainant made a valid agreement to pay defendant $25 each week from May 28th to December 31st of a certain year, which agreement was not performed, a finding for defendant for $350 held warranted by the record.</p> <p>6. Appeal and error, § 1258*—when error in finding not available to complainant. A complainant in a chancery suit cannot complain that the court erroneously found against him in a less sum than warranted by the record, as such action was favorable to his interest.</p> <p>7. Appeal and error, § 1079*—-when error in finding not available to defendant. A defendant in a chancery suit in whose favor the court has found in a less sum than warranted by the record cannot complain of the error where such party has not assigned a cross-error.</p> <p>8. Injunction, § 262*—when temporary injunction properly dissolved. A temporary injunction restraining defendant from prosecuting an action at law is properly dissolved where it appears that such action was based on a sufficient cause of action.</p> <p>9. Injunction, § 386*—when finding sufficient as basis for decree for damages. A finding in a final decree that a certain sum was due defendant for the wrongful issuance of an injunction is a sufficient" finding of fact on which to base a decree, adding the amount to the amount of defendant’s damages, although the record does not show any evidence on which such finding was based, it appearing from the record that the injunction was issued and dissolved and that a suggestion of damages was filed.</p>

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

<p>1. Appeal and error, § 1751*—when copies of record of judgment must be filed to prevent affirmance of judgment or dismissal of appeal. Section 100 of the Practice Act (J. & A. If 8637), providing that where on appeal copies of the record of judgment are not filed as required by the section the judgment appealed from shall be affirmed or the appeal dismissed on the filing by appellee of the certificate of the clerk, applies exclusively to appeals from final judgments and has no application or reference to appeals from interlocutory orders or decrees.</p> <p>2. Appeal and error, § 270*—how appeals from interlocutory orders or decrees governed. Appeals from interlocutory orders or decrees are exclusively governed by section 123 of the Practice Act (J. & A. H 8661).</p> <p>3. Appeal and error—when short record filed by appellee as basis for motion to dismiss appeal will be stricken. A short record filed by appellee in the Appellate Court for the purpose of moving to dismiss the appeal will be stricken, whether the decree appealed from be interlocutory or final, where it appears that the short record was filed before the expiration of the time allowed for perfecting an appeal from a final judgment.</p>

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

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

<p>Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Limitation of actions, § 76*—when statute may he pleaded to amended declaration. Where an amendment to a declaration, filed after the period of limitation has run, sets up a new cause of action, differing from that stated in the original declaration, the statute of limitations may he pleaded in bar.</p> <p>2. Limitation of actions, § 61*—what constitutes commencement of new action. An amendment to a declaration stating a new and different cause of action is to be treated as the commencement of a new action.</p> <p>3. Limitation of actions, § 58*—when amendment to declaration relates hack to commencement of action. Where an amendment to a declaration states no new matter or claim but merely restates in a different form the cause of action set up in the original declaration, such amendment relates back to the commencement of the action.</p> <p>4. Limitation of actions, § 49*—when statute arrested by bringing action. The running of the statute of limitations to a cause of action is arrested by bringing an action on such cause.</p> <p>5. Pleading, § 50*—how question whether cause of action in declaration and that in amendment are the same determined. The question whether the cause of action stated in the original declaration and that stated in an amendment or additional count are the same or different causes of action is to be determined as matter of law from an inspection of the pleadings alone.</p> <p>6. Negligence, § 132*—when no recovery for negligent acts not pleaded. In an action involving negligence, plaintiff must recover on the case made by his declaration and cannot allege a' specific act of negligence and recover on proof of negligence of another character.</p> <p>7. Pleading, § 56*—how determined whether different counts constitute same or different cause of action. One of the tests by which it is to be determined whether different counts constitute the same or different causes of- action is whether the same evidence will support both counts.</p> <p>8. Pleading, § 45*—when declaration containing one supported count sufficient. Where a declaration states in different counts two or more causes of action, it is sufficient if one cause is established by evidence.</p> <p>9. Pleading, § 50*—when additional count does not set up new cause of action. A demurrer to a plea of the statute of limitations interposed to an additional count, on the ground that it stated a different cause of action than the original declaration, is rightly sustained where the gist of the additional count is the failure of defendant to furnish plaintiff with a car in a reasonably safe condition with which to work, and where the original declaration also covers such cause of action, although alleging in connection therewith specific acts of negligence on the part of defendant’s foreman.</p> <p>10. Master and servant, § 154*—what is duty of street railroad to provide safe cars. Street railroads are charged by the law with the positive obligation of furnishing to its employees cars in a reasonably safe condition with which to work.</p> <p>11. Master and servant, § 689*—when evidence sufficient to sustain verdict for personal injuries due to unsafe condition of street car. In an action to recover for personal injuries sustained by a motorman as a result of the alleged unsafe condition of the car defendant’s foreman ordered him to operate, where the jury were correctly instructed, a verdict for plaintiff held not clearly and manifestly against the weight of the evidence.</p> <p>12. Master and servant, § 779*—when instruction on liability of master for negligence of foreman not inapplicable to facts. In an action to recover for personal injuries sustained by a motorman as a result of the alleged defective condition of a car which defendant’s foreman ordered him to operate, an instruction requested by plaintiff that where a master confers authority upon one of its employees to take charge of a certain class of work, such employee in governing and directing the men under his charge is the direct representative of the master and not a mere fellow-servant, and that if he negligently exercises his authority in directing the work the master is liable, held not erroneous as being inapplicable to the facts.</p>

<p>1. Appeal and error, § 16*—when right of appeal exists. The right of appeal is a statutory creation and did not exist at common law.</p> <p>2. Appeal and error, § 626*—when appeal from interlocutory order or decree must he taken. The right to appeal from an interlocutory order or decree is based entirely on Hurd’s Rev. St., sec. 123 (J. & A. If 8661), providing that the appeal must be taken within thirty days from the entry of the decree or judgment, and be perfected in the Appellate Court within sixty days from such entry.</p> <p>3. Appeal and error, § 25*—when Appellate Court exclusive jurisdiction of appeals. The Appellate Court has exclusive jurisdiction of appeals under Hurd’s Rev. St., sec. 123 (J. & A. If 8661), from interlocutory orders and decrees.</p> <p>4. Appeal and error, § 669*—when bond must be filed as basis for appeal. The only manner in which an appeal can be taken from an interlocutory order or decree under Hurd’s Rev. St., sec. 123 (J. & A. 1f 8661), is by filing a proper bond approved by the clerk of the court where the proceeding is heard.</p> <p>5. ' Appeal and error, § 637*—when no prayer for an appeal necessary. In order to appeal from an interlocutory order or decree under Hurd’s Rev. St., sec. 123 (J. & A. If 8661), no prayer for an appeal is necessary.</p> <p>6. Appeal and error, § 642*—when no conditions may be fixed for allowance of appeal. On an appeal from an interlocutory order a decree under Hurd’s Rev. St., sec. 123 (J. & A. jf 8661), no conditions can be fixed on which the appeal is to be allowed.</p> <p>7. Municipal corporations, § 1237*—when may appeal mthout giving bond. Section 98 of the Practice Act (J. & A. If 8635), providing that municipal corporations may in all cases appeal or sue out a writ of error without giving bond, includes appeals from interlocutory orders or decrees.</p> <p>8. Municipal corporations, § 1237*—when must comply strictly with statute granting right to• appeal. The fact that under section 98 of the Practice Act (J. & A. jf 8635), municipal corporations are exempted from giving a bond in order to appeal from an interlocutory order or decree under section 123 of the same Act (J. & A. jf 8661), does not exempt such municipal corporations from strict conformity in other respects with the statute granting the right to appeal.</p> <p>9. Appeal and error, § 669*—when bond must be filed in Appellate Court on appeal from interlocutory order. The meaning of Hurd’s Rev. St., sec. 123 (J. & A. 1f 8661), providing that an appeal from an interlocutory order or decree must be taken within thirty days, is that the bond approved by the clerk of the lower court must be filed in the Appellate Court within thirty days from the entry of the order or decree appealed from.</p> <p>10. Appeal and error, § 646*—how appeal from interlocutory order or decree perfected. An appeal from an interlocutory order or decree under Hurd’s Rev. St., sec. 123 (J. & A. If 8661), requiring that the appeal he perfected in the Appellate Court within sixty days from the entry of the order or judgment appealed from, is perfected only by the filing in the Appellate Court within sixty days from the entry of the order or decree appealed from a transcript of the record from which the correctness of the order complained of can he determined.</p> <p>11. Appeal and error, § 270*—when appeal from interlocutory order may be talcen. Section 100 of the Practice Act (J. & A. If 8637), relating to appeals from final judgments, orders and decrees, has no application to appeals from interlocutory orders or decrees under section 123 of the same Act (J. & A. If 8661).</p> <p>12. Appeal and error, § 270*—what is purpose of statute allowing appeal from interlocutory order. Section 123 of the Practice Act (J. & A. If 8661), providing for appeals from interlocutory orders and decrees, was intended to secure a quick and summary review of such orders or decrees.</p> <p>13. Appeal and error, § 624*—when motion to file supplementary record too late. On an appeal from on interlocutory order or decree under section 123 of the Practice Act (J. & A. If 8661), a motion made more than sixty days after the entry of the order or decree appealed from to file a supplementary record will be denied.</p> <p>14. Appeal and error, § 1129*—when appeal dismissed for insufficiency of record. An appeal to the Appellate Court will- be dismissed if the record on file is not sufficiently complete to present the errors complained of for the determination of the court.</p> <p>15. Appeal and error, § 1120*—when record insufficient for purpose of review. On appeal from an interlocutory order or decree under section 123 of the Practice Act (J. & A. 1f 8661), a record containing only a copy of the decree appealed from without assignment of errors presents no question for the determination of the Appellate Court, and a motion to dismiss such appeal must he allowed.</p> <p>16. Costs, § 67*—when statutory damages not allowed upon dismissal of appeal. On an appeal from an interlocutory decree under section 123 of the Practice Act (J. & A. If 8661), held that statutory damages, on dismissing the appeal because of insufficiency of the record, should not be allowed.</p> <p>17. Appeal and error, § 624*—when motion suggesting diminution of record and ashing leave to file supplemental record improper. On appeal from an interlocutory decree under section 123 of the Practice Act (J. & A. IT 8661), where a short record is on file in the Appellate Court within the time fixed by the statute for perfecting the appeal, appellant has no right to make a motion suggesting the diminution of the record and asking leave to file a supplemental record.</p> <p>18. Appeal and error, § 1143*—when motion for leave to file supplemental record must he made on appeal from final judgment. In cases of appeals from final judgments, orders or decrees, the record must be filed in the Appellate Court not later than the second day of the term succeeding the rendition of the judgment, order or decree appealed from, and if a short record is then on file in the Appellate Court, a motion suggesting the diminution of the record and asking leave to file a supplemental record must be made on or before the second day of such term.</p> <p>19. Appeal and error, § 864*—when revietoing court no jurisdiction to hear appeal. Failure of appellant to comply with the statute in regard to the filing of the record on appeal divests the reviewing court of jurisdiction to hear the appeal, notwithstanding any acts or stipulations of the parties, or orders of court.</p> <p>20. Appeal and error, § 1143*—when motion for leave to file supplemental record allowed in vacation. A motion suggesting the filing in the Appellate Court of a short record on appeal and asking leave to file a supplemental record may be allowed in vacation.</p> <p>21. Appeal and error, § 1138*—when dismissal of appeal does not affect merits of proceeding. The dismissal of an appeal from an interlocutory order or decree does not affect the merits of the proceeding in which the order or decree appealed from was entered.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Enoch E. Newlin, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Negligence, § 19*—what does not constitute attractive nuisance. A barrel possesses no quality attractive to children, as does a turntable or push car, or boards or logs floating on a pool of water, so as to be held to be an attractive nuisance.</p> <p>2. Negligence, § 19*—when doctrine of turntable cases inapplicable. The doctrine of the turntable cases as to attractive nuisances is not to be extended to the case of a barrel containing hot tar used in making asphalt.</p> <p>3. Negligence, § 18*—when person liable for maintaining attractive nuisance causing infwry to children. It is a necessary element of liability for maintaining an attractive nuisance that the thing causing injury be such as to tempt children, and be so located as to attract them from the street or other public place where they may be expected to be, so that the owner may be held bound to anticipate that the children would come on the premises, but an owner cannot be held liable for maintaining for his own use something which might be dangerous to children who trespassed on the owner’s land without being attracted thereto.</p> <p>4. Negligence, § 19*—when person not guilty of actionable negligence in maintaining attractive nuisance.' In an action to recover for injuries sustained by a six-year-old child as a result of defendant’s alleged negligence, where it appeared that plaintiff, while trespassing on land of defendant used in making asphalt, put his hand into a barrel containing hot tar, burning the hand, plaintiff being engaged with other children in making tar balls when injured, held that defendant was not guilty of actionable negligence.</p>

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

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

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

<p>1. Municipal Court of Chicago, § 13*—when statement of claim in action to recover for breach of contract states cause of action. In an action to recover for breach of a contract to sell and deliver a quantity of linseed cake, where plaintiff’s statement of claim alleged that defendant telegraphed plaintiff in code: “Please make us firm offer P. W. cif Antwerp 500 T. March or first half April;” that plaintiff replied by code telegram: “Make you firm offer 1200 T. March or April cif Antwerp at .Frs. 16. Crushers or bankers guaranteeing contract;” that defendant replied by code telegram: “We accept your offer cif Antwerp 1200 T. March or April at Frs. 16,” held; that the statement of claim stated a cause of action, it appearing that the letters “P. W." as used in the telegram meant “prime western linseed cake,” and that the word “firm” similarly used meant “positive.”</p> <p>2. Contracts, § 197*—when construed, in light of usages of trade and, of telegrams. Where defendant telegraphed to plaintiff asking an offer for the sale and delivery of a named quantity of goods, to which plaintiff replied by code telegram making an offer for a larger quantity, which defendant accepted by code telegram, a contract was made to be interpreted in the light of the usages of the trade in which the parties were engaged, and the previous telegrams between the parties. .</p> <p>3. Contracts, § 44*—how offer must he accepted. An offer to make a contract must be accepted as made, and a modified acceptance is a new offer which cannot constitute a contract until accepted unconditionally.</p> <p>4. Contracts, § 42*—what constitutes acceptance of offer hy telegraph. Where an offer to make a contract is sent by telegraph, a telegram in reply saying “we accept,” followed by enough of the offer to identify it, is an acceptance of the offer in its entirety.</p> <p>5. Contracts, § 52*—when stipulation that informal agreement shall he reduced to writing does not prevent agreement taking effect. The mere fact that parties intended or stipulated that an informal agreement, either oral or written, should later be reduced to writing will not prevent the informal agreement from taking effect at once, the question whether such agreement does so take effect depending on the intention of the parties.</p> <p>6. Contracts, § 52*—when requirement that contract he reduced to writing waived. In an action to recover- for breach of a contract for the sale and delivery of linseed cake, where the contract was made by telegraph, the right of defendant to insist that the contract be reduced to writing, held waived by sending a later telegram requesting an extension of the time for delivery fixed by the contract, such request being a recognition of liability on the contract.</p> <p>7. Trial, § 163*—when place of delivery under contract question of law. In case of a breach of a written contract for the sale and delivery of linseed cake, the question of the place of delivery is a question of law to be determined by the court.</p> <p>8. Damages, § 191*—when question of what market shall he taken in assessment of damages for court. . In case of breach of a contract for the sale and delivery of linseed cake, the question of what market shall be taken in assessing damages is a question of law for the court.</p> <p>9. Evidence, § 461*—when evidence as to legal aspect of document to he disregarded. Testimony as to the legal aspect of a particular kind of contract is merely testimony as to the law of the case and must be disregarded.</p> <p>10. Sales, § 71*—what constitutes a c. i. f. contract. A “c. i. f.” contract is a contract for the sale and delivery of goods at a price to cover the cost of freight and insurance, payment to be made on the receipt of shipping documents by the acceptance of a draft for the amount of the contract price.</p> <p>11. Sales, § 122*—what is place of delivery under contract for foreign shipment. Where the vendor in a c. i. f. contract from Chicago to Antwerp knows that the goods are intended for Antwerp, the place of delivery under the contract is Antwerp, and not the point on the American coast where the goods are to he placed on shipboard.</p> <p>12. Sales, § 376*—what is measure of damages for breach of contract of sale. If, at the time of making a contract of sale, a vendor knows that the goods are to be sold in another market, his liability is measured by adding to the contract price at the agreed time and place the cost of transportation to such market, less the price at such market at the time the goods would have reached their destination had there been no breach.</p> <p>13. Sales, § 376*—what is measure of damages for breach of contract for foreign shipment of goods. In an action to recover for breach of a contract requiring the shipment of goods from New York to Antwerp on April 30th, at the latest, plaintiff is entitled to have damages assessed on the basis of the market price of the goods at Antwerp on May 14th, at which time a vessel sailing from the Atlantic coast April 30th, would usually arrive, and is not limited to nominal damages because there is no evidence of the market price at Antwerp on April 30th, of goods to arrive May 14th, plaintiff having the right to wait until May 14th and to regard the contract as prospectively binding until that time.</p>

<p>1. Contracts, § 385*-—when evidence sufficient to sustain finding as to existence of contract for advertising and compliance therewith. In an action to recover for advertising, evidence examined, and held to warrant a finding that defendants made a joint original promise to pay for the insertion of advertising in plaintiff’s newspapers, and that plaintiff caused the insertion of the advertisements in accordance with the terms of defendants’ promise.</p> <p>2. Evidence, § 110*—when act of publishing newspaper may be proved without producing newspaper. In an action to recover for advertising, it is not error to admit evidence that advertisements were inserted in newspapers without the production of the newspapers containing the advertisements, since the act of publishing a document regarded as distinct from its terms may he proved without producing it.</p> <p>3. Contracts, § 384*—-when evidence sufficient to sustain verdict in action for advertising. In an action to recover for advertising, evidence examined and held sufficient to sustain a verdict for plaintiff.</p>

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

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

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

<p>Abstract of the Decision.</p> <p>1. Judgment, § 82*—when motion to open judgment by confession properly denied. A court is not authorized to open a judgment by confession in an action against two defendants to recover rent due under a written lease under which one defendant was lessee and the other guarantor, where the affidavit filed in support of the motion to open shows that at the request of plaintiff defendant guarantor removed defendant lessee from the demised premises for keeping a disorderly house, such facts not being a defense to the action for rent.</p> <p>2. Landlord and tenant, § 6*—when guarantor of lease regarded as lessee. In an action to recover rent due under a written lease where one defendant executes as lessee and the other as guarantor, the rights of the parties must be admeasured by the lease, and both defendants are, as to plaintiff, lessees thereunder and bound to perform its covenants, including that for payment of rent, although the relation of principal and guarantor may exist as between defendants and lessee may be bound to recompense guarantor for amounts which he may be compelled to pay as such.</p> <p>3. Landlord and tenant, § 443*—when relation not terminated by act of colessee. Where a lease is executed by one as lessee and by another as guarantor, the relation of landlord and tenant existing by virtue of the lease between lessor and guarantor is not terminated, and such guarantor is not relieved from liability as such by reason of the fact that at the request of lessor guarantor removed lessee from the demised premise», for keeping therein a disorderly house, guarantor being liable to lessor for allowing his cotenant to conduct a disorderly house on the demised premises, and under a duty to suppress such conduct by such cotenant.</p> <p>4. Contracts, § 164*—when parol evidence not admissible for purpose of construction. Where a written instrument is not ambiguous, parol evidence to construe its terms is incompetent.</p>

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

<p>Abstract of the Decision.</p> <p>1. Criminal law, § 505*—when not presumed that court did not order entry of plea of not guilty. In a prosecution charging defendant with attempt to commit larceny, where the record shows that defendant refused to be arraigned, but the record appears on its face not to be a complete record, the court will not presume that on defendant’s refusal to be arraigned the court did not order the entry of a plea of not guilty or that such plea was not in fact entered.</p> <p>2. Criminal law, § 497*—when every presumption in favor of judgment upon review. Where the record on review in a criminal case is on its face fragmentary and incomplete, the judgment reviewed will he supported by every reasonable intendment and presumption.</p> <p>3. Criminal law, § 444*—when HU of exceptions need not contain plea of not guilty. On review of a judgment pf conviction in a criminal case, it is immaterial that the bill of exceptions does not show that a plea of not guilty was entered by or for defendant, since the place where such plea should appear is the common-law record and not the bill of exceptions.</p> <p>4. Criminal law, § 444*—what is office of bill of exceptions. The use of a bill of exceptions in a criminal case is not to embrace in it matters of record, but to make a part of the record matters which otherwise would not be such.</p>

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

<p>Abstract of the Decision.</p> <p>1. Inteburban railroads, § 4*—when person driving team over crossing guilty of contributory negligence. In an action to recover for injuries sustained hy being struck by defendant’s electric train while driving a dump cart across a crossing, where plaintiff just before reaching the crossing had an unobstructed view of the track for five hundred feet in the direction from which the train came, the accident occurring at about Í p. m. on a clear day, there being also evidence that plaintiff was plainly seen from the train at a distance of two hundred feet before reaching the crossing, held that plaintiff was guilty of contributory negligence proximately contributing to his injury, although plaintiff testified that before starting to drive across the track he stopped and looked, seeing no train, since if plaintiff looked as he testified he must have seen the train.</p> <p>2. Intertjbban railroads, § 4*—when failure to look and listen at crossing precludes recovery. It is the duty of one approaching an interurban railroad crossing on a highway to look and listen for approaching trains if a reasonably prudent person so situated would have looked and listened, and, under such conditions, failure to look and listen will preclude recovery where by looking and listening the injury would have been prevented, unless there were circumstances justifying such failure or unless the view was obstrvfcted.</p> <p>3. Interurban railroads, § 4*—when evidence that person before crossing track looked and did not see train, of no weight. A plaintiff in an action for personal injuries is not allowed to testify that he looked before starting to cross an interiirban railroad track and saw no train where the view was unobstructed and where, if he had properly exercised his sense of sight, he must have seen the train.</p>

<p>Abstract of the Decision.</p> <p>1. Malicious prosecution, § 13*—when person acting on advice of counsel protected. One who in good faith institutes a criminal prosecution on the advice of counsel is not liable in an action for malicious prosecution for so doing if such person in obtaining such advice communicates to such counsel all the facts of which he has knowledge, or could have ascertained by reasonable diligence hearing on the guilt of the accused.</p> <p>2. Malicious prosecution, § 78*—what evidence essential to establish that defendant acted under advice of counsel. In an action for malicious prosecution, in order to sustain a plea that defendant acted under the advice of counsel, it must appear that he in good faith made a full and fair statement to such counsel of all material facts and in good faith acted on such advice.</p> <p>3. Malicious prosecution, § 85*—when question whether defendant fairly communicated facts to counsel and acted in good faith on advice for jury. Where a defendant in an action of malicious prosecution defends on the ground that he acted under the advice of counsel, the question whether defendant fairly communicated all the material facts to such counsel and acted on tie advice in good faith is a question of fact to he determined by the jury on all the evidence.</p> <p>4. Torts, § 17*—when judgment may be taken against one defendant upon dismissal as to another. In an action of tort it is not error to dismiss as to one defendant on motion of plaintiff after a verdict of guilty as to both and to enter judgment against the other defendant on the verdict, since in such case defendants might have been separately sued.</p> <p>5. Malicious prosecution, § 98*—when verdict not disturbed. In an action of malicious prosecution the amount of damages to be awarded is a question for the jury, and its verdict as to damages will not be disturbed unless manifestly excessive.</p> <p>6. Malicious prosecution, § 97*—when punitive damages recoverable. Punitive damages are recoverable in an action for malicious prosecution where the arrest is made under such circumstances as to indicate a wanton disregard by defendant of the rights of plaintiff in causing his arrest, or where the arrest is procured by means of a false affidavit.</p> <p>7. Malicious prosecution, § 97*—how punitive damages should be assessed. In assessing punitive damages in actions of malicious prosecution there should be a wide difference between cases where defendant slightly fails to use ordinary care and acts without justifiable cause, but without malice, in causing plaintiff’s arrest, and cases where defendant intended to do plaintiff a wrong, and uses criminal process to gratify hatred and ill-will, each case being governed by its own facts, and to be decided reasonably and equitably.</p> <p>' 8. Malicious prosecution, § 98*-—when verdict not excessive. In an action for malicious prosecution, where plaintiff after his arrest on a criminal warrant was in confinement in a cell for four hours before being released on bail, a verdict for plaintiff for $1,000 held not so excessive as to indicate passion or prejudice in the minds of the jury.</p> <p>9. Appeal and error, § 1406*—when verdict not disturbed on ground of excessiveness on appeal. The Appellate Court is not warranted in reducing the amount of a verdict, although on some single aspect of the case a smaller amount would be more satisfactory, where the trial court when appealed to refused to interfere and where the Appellate Court is unable to assign a clear and satisfactory reason for interference.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1691*—when defendant by offering evidence accepts ruling that burden of proof is upon him to establish set-off. In an action to recover on a contract, where defendant pleads set-off, a ruling that under the pleadings in the case and the court rules applicable thereto plaintiff’s claim was admitted, and that the affirmative of the issue was with defendant on his set-off, is accepted by defendant by offering evidence to prove the set-off.</p> <p>'2. Appeal and error, § 461*—when question whether finding against weight of evidence and law not preserved for review. In an action to recover on a written contract, the question that the finding in a case tried without a jury is against the law is not preserved for review where no objection is pointed out, no motion made, the denial of which would preserve a question for review, and no propositions of law submitted calling for a construction of the contract or any other holding, there being in such case no ruling of the trial court on which to predicate error.</p> <p>3. Appeal and error, § 594*—when motion for new trial preserves no question for review. In an action tried without a jury, a motion for a new trial preserves no question for review.</p> <p>4. Assumpsit, action of, § 41*—when money voluntarily paid not recoverable. Money voluntarily paid with full knowledge of all the facts and without fraud, duress or extortion cannot be recovered back although paid under a mistake of law.</p> <p>5. Pleading, § 117*—when offering evidence of set-off constitutes admission of terms of contract. In an action to recover on a written contract, where defendant pleads set-off, the act of defendant in offering evidence tending to prove his set-off involves a recognition of the terms of the contract.</p> <p>6. Appeal and error, § 578*—when lack of exception to judgment does not prevent consideration of sufficiency of evidence. The absence of an exception to a judgment, in a trial without a jury, does not preclude consideration of the sufficiency of the evidence to sustain it.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 11*—what constitutes contract for personal services. A contract providing that defendant shall pay plaintiff’s intestate $50 per month during the term of the contract, and further providing that plaintiff “will perform such clerical services f or”' defendant “as she may be called upon to do and as she may be physically able to perform without injury to her health or strength," but expressly allowing plaintiff’s intestate to be the judge of whether or not she is able to work within the meaning of the contract, is to be construed as a contract for personal services.</p> <p>2. Master and servant, § 76*—when death before time for payment of instalments of salary bars recovery. In an action to recover on a written contract of employment, where the pleadings show that the contract sued on was for personal services, and the affidavit of merits shows as an admitted fact that the contractor died before any of the instalments of salary fell due, such pleadings present no legal cause of action.</p> <p>3. • Pleading, § 345*—when exhibits not part of. Exhibits “annexed" to common-law pleadings are not part of such pleadings.</p> <p>4. Municipal Court of Chicago, § 13*—when contract sued on part of pleadings. In an action in the Municipal Court of Chicago to recover on a written contract, where the contract sued on is “annexed" to the statement' of claim, hut where defendant’s affidavit of merits is predicated on the existence of such contract, the contract is to be treated as having been made part of the pleadings, although it does not appear whether it would be part of such pleadings under the rules of the Municipal Court, the system of pleading and practice being loose, and it being in such case proper to construe such pleadings liberally.</p> <p>5. Master and servant, § 80*—when question of law only presented in pleadings. In an action to recover on a written contract of employment where the pleadings show a contract for personal services, and also show as an admitted fact that contractor died before any of the instalments of salary sued for fell due, the pleadings present merely a question of law.</p> <p>6. Contracts, § 164*—when parol proof inadmissible in construction of. In an action to recover on a written contract for personal services, contract construed and held not ambiguous or uncertain so as to require proof of extraneous facts or circumstances in aid of construction.</p> <p>7. Contracts, § 164*—how unambiguous contract construed. Where the language of a written instrument is unequivocal it must be construed as written.</p> <p>8. Master and servant, § 11*—when contract for personal services construed as providing for bona fide exercise of judgment by employee whether able to work. A contract providing that the master shall pay to the servant a stated sum each month during the term of the contract, the servant to perform such services for the master “as she may be physically able to perform without injury to her health or strength,” and making the servant the judge as to whether she is able to work within the meaning of the contract, does not leave it optional with the servant whether to work or not, but calls for a bona fide exercise of her judgment in that regard.</p> <p>9. Master and servant, § 11*—how contract for rendition of personal services construed. In an action to recover on a written contract providing that defendant should pay plaintiff’s intestate a stated sum of money each month during the term of the contract, intestate to “perform such clerical services” for defendant “as she may be called upon to do and as she may be physically able to perform without injury., to her health or strength,” and making intestate the judge of whether she was able to work within the meaning of the contract, the contract reciting that it was executed in part consideration óf a general release given by intestate to defendant and others of liability for injuries sustained by intestate, held that the contract was to be construed as contemplating that defendant was to have the benefit of intestate’s services whenever by a bona fide exercise of her judgment she was able to work without injury to her health or strength, and that in addition to the sum paid as consideration for the release defendant was to furnish intestate with employment for the term of the contract at the stipulated salary without deductions for absence when unable to work.</p> <p>10. Trial,—when .finding and judgment for defendant enteradle upon motion mthout evidence. Where the pleadings in trial without a jury present no issue of fact and no cause of action, it is proper on motion to enter a finding and judgment for defendant without evidence.</p> <p>11. Contracts, § 289*—how contract for personal services terminated. A contract for personal services is terminated by the death of contractor.</p>