Volume 199 — Illinois Appellate Court Reports

<p>Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 131*—when evidence sufficient to show that motorman gave signals on approaching crossing. In an action to recover for personal injuries sustained in a collision between a trolley car and an automobile at a crossing, where the evidence was conflicting as to whether the motorman gave signals on appreaching the crossing, but where the evidence of the motorman that such signals were given was corroborated by disinterested witnesses having the greater opportunity to hear such signals, held that a preponderance of the evidence showed that the signals were given.</p> <p>2. Street railroads, § 97*—when operator of automobile approaching crossing guilty of contributory negligence. In an action for personal injuries as a result of a collision between a trolley car and an automobile at a crossing, where it appeared from plaintiff’s testimony that when approaching the crossing the speed of the automobile was reduced to not more than nine miles an hour, and that the machine could be stopped within 15 feet, and where it also appeared that at a point 32 feet from the crossing an unobstructed view of the track could have been had in the direction from which the car came, held that the failure of the person operating the automobile to stop it in time to avoid the accident was a want of ordinary care for his own safety and those with him.</p> <p>3. Street railroads, § 131*—when evidence insufficient to show negligence in operating car at unreasonable rate of speed. In an action for personal injuries sustained in a collision between a trolley car and an automobile at a crossing, where the evidence was conflicting as to the. speed of the trolley car, but where such car was running through the open country on its own right of way and not on the highway, evidence examined and held not to show that the car was being run at an unreasonable rate of speed or without regard to the safety of those on the highway who were in the exercise of care for their own protection.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence, § 476*—when right to recover does not depend upon number of witnesses. The fact that a greater number of witnesses testify for a plaintiff does not necessarily determine his right to recover in the action.</p> <p>2. Witnesses, § 253*—when fury judges of weight and credibility of testimony. The jury, under proper instructions, are the proper judges of the weight and credence to be given to the testimony of the witnesses, as they see them on the stand and hear them testify.</p> <p>3. Assumpsit, action oe, § 89*—when evidence sufficient to support verdict for defendant. In an action- to recover a balance on a bill for undertaker’s services, and where the evidence was eonfiicting as to whether defendant promised to pay the bill, as plaintiff' alleged, evidence examined and held sufficient to support a verdict for defendant.</p> <p>4. Appeal and error, § 1778*-—when verdict not reversed on ground of insufficiency of evidence. It is not ground of reversal that the jury believed the testimony of one side rather than another, although the number of witnesses who testified for the party against whom the jury found was greater than the number testifying for the other side.</p>

<p>Appeal from the Circuit Court of Clinton county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 842*—when hill of exceptions insufficient. A paper purporting to be a bill of exceptions which is not signed by the judge who tried the case, and in which both the date and the place where the signature of the judge should be are left blank, is not sufficient as a bill of exceptions.</p> <p>2. Appeal and error, § 804*—how evidence preserved. The only way in which the evidence can be preserved for the consideration of a reviewing court is by a bill of exceptions.</p> <p>3. Appeal and error, § 1303*—when finding and judgment of trial court presumed correct. In the absence of a proper bill of exceptions, the Appellate Court will not review the evidence on appeal in an action at law and will presume that the finding and judgment of the trial court based thereon are correct.</p> <p>4. Appeal and ebbob, § 731*—what constitutes common-law record. The common-law record consists of the summons and return, the declaration, the pleadings subsequent thereto, and the verdict and judgment.</p> <p>5. Appeal and ebbob, § 788*—what bill of exceptions must contain. Where an appellant in an action at law desires to preserve for review anything outside of the common-law record, it must be contained in a bill of exceptions.</p> <p>6. Appeal and ebbob, § '804*—when question of sufficiency of evidence not considered on appeal. The question whether the finding of the trial court is in conformity with the evidence will not be inquired into on appeal where the evidence before the trial court is not preserved in a bill of exceptions.</p>

<p>Appeal from the Circuit Court of Williamson county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 225*—when evidence sufficient to show that deceased was hilled by marshal in self-defense. In an action under section 9 of the Dramshop Act (J. & A. If 4609) to recover for loss of support by the death of a person while intoxicated as a result of drinking liquor sold to him by defendants, evidence held to show that deceased was killed by a city marshal in self-defense.</p> <p>2. Intoxicating liquors, § 228*—when proof as to death by intoxication sufficient. In order to recover in an action under section 9 of the Dramshop Act (J. & A. If 4609) for loss of support caused by the death of an intoxicated person, the intoxication need not be shown to be the immediate, direct or proximate cause of the death, it being sufficient if the intoxication be the cause either proximate or remote.</p> <p>3. Intoxicating liquors, § 228*—when evidence sufficient to sustain finding that deceased met his death as result of intoxication. In an action under section 9 of the Dramshop Act (J. & A. ft 4609) to recover for loss of support as a result of the death of a person while intoxicated, where deceased was shot in self-defense by a city marshal at whom deceased had fired while intoxicated, evidence held to warrant the jury in finding that deceased came to his death as a result of the intoxication.</p> <p>4. Intoxicating liquors, § 228*—when evidence sufficient to sustain finding that intoxication of deceased caused by liquor sold by defendants. In an action under section 9 of the Dramshop Act (J. & A. ft 4609) to recover for loss of support as a result of the death of a person while intoxicated, evidence examined and held to warrant a.finding by the jury that the intoxication of deceased was caused in whole or in part by liquor sold to him by defendants.</p> <p>5. Instructions, § 159*—consideration of series as a whole. A series of instructions must be considered as a whole.</p> <p>6. . Intoxicating Liquors, § 261*—when instructions on cause of death not reversibly erroneous. In an action under section 9 of the Dramshop Act (J. & A. ft 4609) to recover for the loss of support as a result of the death of a person who, while intoxicated, fired at a city marshal and was killed by him in self-defense, instructions which do not in terms require that the intoxication should have been the cause of the attempt to shoot the marshal are not reversibly erroneous where the instructions, considered as a whole, plainly inform the jury that in order to entitle plaintiffs to recover it must appear that the intoxication caused the act which led to the death of deceased.</p> <p>7. Appeal and error, § 1560*—when refusal of instructions harmless error. It is not reversible error to refuse instructions which are involved and somewhat misleading where the judgment is sustained by the evidence and substantial justice appears to have been done.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Wm. Vandeventer, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventeb, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 325*—when evidence sufficient to show superseding of contract by new one not entitling landlord to rent. In an action to recover for breach of a lease of land demised for the production of oil and gas, where it appeared that the lease contained a covenant to pay plaintiffs an agreed rental and to supply them with gas for domestic use without cost, “while the product of each well in which gas only is found shall be marketed from said premises;” that the lease was assigned and the assignee drilled a well which produced gas only, which was marketed for general consumption; that the lease was afterwards assigned to defendant; that the flow of gas becoming insufficient to supply plaintiffs if allowed to go into defendant’s commercial line, plaintiffs shut it off from the line, and for some time used the gas without cost; that later an arrangement was made whereby the owner of land on which there were strong gas wells which were owned by defendant secured the right to use gas from plaintiffs’ well without cost for domestic purposes so as to increase the pressure in defendant’s commercial line from the wells on such other person’s land, defendant agreeing not to take up the pipe from the well as intended, which would have prevented plaintiffs from using the gas, but to allow it to remain with the well shut off from defendant’s commercial line; and plaintiffs claimed that the gas used by such other person was “marketed” within the meaning of the lease, entitling them to rental, held that under the evidence the lease was superseded by the new arrangement, and that plaintiffs could not recover for rental.</p> <p>2. Appeal Aim ebbob, § 1802*—when case reversed without remanding. Where the evidence shows that plaintiffs have no cause of action, the cause will not be remanded when reversed on appeal.</p>

<p>Abstract of the Decision.</p> <p>1. Trial, § 153*—when weight of evidence for jury. It is the province of the jury, who see the witnesses and hear them testify, to weigh the evidence of the respective parties when the evidence is conflicting.</p> <p>2. Sales, § 329*—when evidence sufficient to sustain finding that contract was substantially complied with. In an action to recover the contract price of ironing boards manufactured by plaintiff at defendant’s request, where the defense was that the contract was not substantially complied with, and where the evidence was conflicting, evidence examined and held to warrant the jury in finding a verdict for plaintiff.</p> <p>3. Sales, § 330*—when instruction as to presumption of acceptance of goods correct. In an action to recover the contract price of ironing boards manufactured by plaintiff at defendant’s request, an instruction that if after the completion of the work defendant called and inspected it and accepted part of the goods and agreed to pay for all of it, he is presumed to have accepted all of the work, held correct.</p> <p>4. Appeal and error, § 1523*—when error in one of series of instructions harmless. The fact that in one of a series of instructions there exists a slight ambiguity is not ground of reversal where appellant’s rights were so fully covered by other instructions that the jury could not have been misled.</p> <p>5. Appeal and error, § 1474*—when stating of conclusion by witness harmless error. It is not reversible, error to permit a plaintiff to state his conclusion as to whether defendant had made an objection as to the character of goods deliveréd in performance of the contract sued on where such witness also testifies to all the conversation which took place at the time when the objection was alleged to have been made.</p> <p>6. Appeal and error, § 1498*-—when exclusion of evidence harmless error. It is not reversible error to sustain an objection to questions asked of witnesses where the same witnesses were after-wards permitted to answer similar questions so that the evidence sought to be brought out by the questions was properly presented to the jury.</p>

<p>1. Witnesses, § 95*—where mortgagor not competent witness in suit to annul mortgage as cloud on title. In a suit in chancery to annul a mortgage as a cloud on title, where a cross-bill is filed by the administratrix of the mortgagee to foreclose the mortgage, the testimony of the mortgagor is not competent to prove a defense to the cross-bill, such mortgagor not being within any of the exceptions to section 2 of the Evidence Act (J. & A. jf 5519), relating to the competency of the testimony of interested witnesses in suits where the adverse party sues or defends as trustee, etc.</p> <p>2. Appeal and error, § 1301*—when presumed chancellor did not consider incompetent evidence. Where the competent evidence in a suit in chancery is sufficient to sustain the decree, such decree will not be reversed on account of the admission of incompetent evidence, the presumption being that the chancellor did not consider the incompetent evidence in arriving at his decision.</p> <p>3. Trial, § 286*—when chancellor may disregard evidence. In a suit in chancery it is the correct practice for the chancellor, who is the judge both of the law and evidence, to regard no portion of the evidence which is immaterial or illegal, and to decide the case on the legal evidence alone.</p> <p>4. Appeal and error, § 1772*—when case not reversed. Where several persons are made parties to a bill and all are served with process, while but one appeals, there must have been some error prejudicial to the rights of appellant in order to warrant a reversal, it being taken as granted that parties served with process and not appealing acquiesced in the action of the trial court.</p> <p>5. Bills and notes, § 109*—what constitutes negotiable instrument. In order to be negotiable either at common law or under our statute, an instrument, draft, bill of exchange or promissory note must be payable unconditionally, and any condition attached to its payment destroys its negotiability.</p> <p>6. Assignment, § 22*—when assignment does not vest title in assignee. An assignment of an instrument promising the payment of money, which promise is burdened with a condition as to payment, does not vest title In the assignee so as to enable such assignee to maintain an action in his own name.</p> <p>7. Bills and notes, § 13*—what does not constitute bill or note. If an order or promise to pay money be payable provided terms mentioned are complied with, or provided a certain act be done, such instrument is not a bill or a note.</p> <p>8. Bills and notes, § 92*—when memorandum on bill or note part thereof. A memorandum on a bill or note either after the signatures indorsed on the back or written in the margin, if contemporaneous with the execution of the instrument and by agreement of the parties, is a part of the instrument, and binds parties as though introduced in the body of the instrument.</p> <p>9. Bills and notes, § 92*—when party may show purpose of memorandum on bill or note. It is competent for any party to a bill or note to show when and for what purpose a memorandum appearing on the instrument was made, as affecting its negotiability.</p> <p>10. Bills and notes, § 92*—when memorandum on note part thereof. A memorandum on a promissory note that the note is secured by mortgage and is payable out of a certain fund as therein provided is part of the note, although appearing after the signature of the maker.</p> <p>11. Bills and notes, § 92*—when note containing memorandum of mortgage construed with mortgage. Where a note contains a memorandum that the note is secured by mortgage and is payable out of a certain fund as provided therein, it is to he considered in connection with provisions of the mortgage.</p> <p>12. Witnesses, § 106*—when mortgagee competent witness in behalf of mortgagor in suit to annul mortgage. In a suit in equity to annul a mortgage as a cloud on title, where the administratrix of the assignee of the mortgagee files a cross-bill to foreclose the mortgage, the testimony of the mortgagee is competent evidence on behalf of the mortgagor under section 2 of the Evidence Act (J. & A. 1[ 5519), relating to the competency of the testimony of interested persons in suits where the adverse party sues or defends as trustee, etc.</p> <p>13. Bills and notes, § 440*—when evidence sufficient to show non-negotiability of note. A note containing a memorandum that the note is secured by mortgage and payable out of a certain fund mentioned therein, which mortgage provides that the note shall be paid out of certain funds to be collected from a third person, is shown to be conditional and therefore not negotiable by evidence that the note was payable by the maker only in case the mortgagee failed to collect the fund from such other person.</p> <p>14. Mortgages, § 168*—when assignee of mortgage securing note may not maintain action on note. The assignee of a mortgage securing a note which is conditional as to the promise of payment does not take title to the note as negotiable paper, and no action can be maintained, either in his name or in the name of his legal representative, to collect the same.</p> <p>15. Mortgages, § 384*—when decree of foreclosure by assignee of mortgagee denied. Where.a bill is brought tó annul a mortgage as a cloud on title and the administratrix of the assignee of the mortgagee files a cross-bill to foreclose, the cross-bill is properly dismissed when it.appears that the note secured by the mortgage is conditional as to payment.</p> <p>16. Mortgages, § 169*—when mortgage lien enforceable by mortgagee for assignee of debt. Where a note secured by mortgage on an undivided interest in real estate is unenforceable in the hands of the administratrix of the assignee of the mortgagee because burdened with a condition as to payment, yet the mortgage is a lien on the property if rights in the property are given in the mortgage which, on compliance with conditions, the mortgagee may enforce.</p>

<p>Abstract of the Decision.</p> <p>1. Trial, § 195*—when verdict erroneously directed. In an action for damages for fraud and deceit in falsely representing that a note secured by mortgage and given on an exchange for land was good and that the maker was solvent, where there was evidence tending to show that defendant had no title when he sold the land, that the land was worth only about one-tenth of the face of the note, and there was improperly excluded evidence that defendant had at one time traded the note to a third person who, upon finding that the note and mortgage were worthless, compelled defendant to take them back upon threat of a criminal prosecution, held that the court erroneously refused to direct a verdict.</p> <p>2. Fraud, § 100*—when evidence as to worthlessness of note improperly excluded. In an action for damages for fraudulently representing that a note and mortgage accepted by plaintiff on an exchange were good and that the maker was solvent, held that evidence that defendant had, prior to the exchange, traded the note to a third person who, upon finding that the note was worthless, compelled defendant to take it back upon threat of a criminal prosecution, was improperly excluded.</p>

<p>Appeal from the Circuit Court of Clinton county; the Hon. James C. McBbide, Judge, presiding. Heard in this court at the March term, 1915.</p>

<p>Appeal from the City Court of Granite City, Madison county; the Hon. M. R. Sullivan, Judge, presiding. . Heard in this court at the March term, 1915.</p>

<p>1. Appeal and error, § 1410*—when sufficiency of evidence to sustain finding only question on appeal. Where on appeal an assignment of error raises a question of fact, the only question to be decided by the reviewing court is whether the finding is against the manifest weight of the evidence.</p> <p>2. Mines and minerals, § 176*—when evidence sufficient to sustain finding as to unsafe condition of entry to mine. In an action by a miner to recover for personal injuries, where it was alleged that owing to the negligence of defendant in failing to sprinkle the entry where plaintiff was driving a car at the time of the accident, the dust raised by the car prevented plaintiff from seeing exactly where he was, and caused him to jump off. the car on a curve in such fashion as to strike the side of the entry and be thrown under the car and run over, plaintiff’s evidence examined and held to warrant the conclusion that at the time of the accident an unsafe condition existed in the entry.</p> <p>3. Mines and minerals, § 179*—when evidence sufficient to support finding for plaintiff as to cause of injury. In an action by a miner to recover for personal injuries where it was alleged that owing to the negligence of defendant' in failing to sprinkle the entry where plaintiff was driving a car at the time of the accident, as required by statute, the dust raised by the car prevented plaintiff from seeing exactly where he was and caused him to jump off the car on a curve in such faqhion as to fall against the side of the entry and to be thrown under the car and run over, a finding for plaintiff held supported by a clear preponderance of the evidence.</p> <p>4. Mines and minerals, § 41*—how Miners’ Act construed. Recent cases give a somewhat more liberal construction to the Miners’ Act (J. & A. H 7475 et seq.) than did the earlier cases.</p> <p>5. Mines and minerals, § 148*—when evidence sufficient to sustain declaration. In an action to recover for personal injuries sustained by a miner while driving a car in defendant’s mine, where the declaration charged that an unsafe condition existed in the entry where plaintiff was driving at the time of the accident, and that plaintiff was allowed to enter the same for work otherwise than under the direction of the mine manager, evidence held sufficient to sustain the declaration.</p> <p>6. Mines and minerals, § 86*—when mine owner liable for negligence of mine examiner. Hurd’s Rev. St. 1909, ch. 93, sec. 18, prescribing the duties of mine examiners, clearly contemplates that the mine owner shall keep his mine in a safe condition to protect the men employed by him therein from injury, so that a wilful failure of such examiner to make the examination and reports required by the section, if resulting in injury to miners, renders the mine owner liable therefor.</p> <p>7. Mines and minerals, § 85*—when failure of mine examiner to report dangerous condition of mine immaterial. Where a dangerous condition exists in a mine and is known to the mine examiner, it is unimportant, in so far as the liability of the mine owner for injury caused thereby is concerned, whether the mine examiner reports such condition to the mine manager, since under the Miners’ Act (J. & A. 7475 et seq.) the mine examiner is a vice principal of the mine owner.</p> <p>8. Mines and minerals, § 114*—who is vice principal. A mine examiner is a vice principal of the mine owner.</p> <p>9. Mines and minerals, § 182*—when question of dangerous condition of entry to mine for jury. In an action by a miner to recover for personal injuries sustained as a result of the alleged negligence of defendant in permitting a dangerous condition to exist in an entry of the mine, the question of the condition of such entry at the point where the accident occurred is a question of fact for the jury.</p> <p>10. Mines and minerals, § 84*—when permitting of employee to work wilful violation of Miners’ Act.° To permit a miner to entei a mine to work therein otherwise than under the direction of the mine manager, while a dangerous condition is known to exist therein, and before such dangerous condition is made safe, is a conscious violation of Hurd’s Rev. St. 1909, ch. 93, sec. 18, prescribing the ' duties of mine examiners, and renders the mine owner liable for a wilful violation of the act.</p> <p>11. Negligence, § 53*—when person liable for injury proceeding from two causes. Where an injury proceeds from two causes operating together, the parties putting in motion one of them is liable therefor as though it were the sole cause.</p> <p>12. Negligence, § 53*—what constitutes proximate cause. To be the proximate cause of an event, a negligent act or omission need not be the sole cause or the last or nearest cause, it being sufficient if such ■ act concurs with the other causes acting at the same time, which in combination with it causes the injury.</p> <p>13. Negligence, § 196*—when proximate cause question for jury. What is the proximate cause of an event is ordinarily a question of fact for the jury.</p> <p>14. Negligence, § 48*—what constitutes proximate cause. A cause may be the proximate cause of an injury, so as to render defendant liable, if it be one of the causes, though not the only cause, of the injury, but without which the accident would not have happened.</p> <p>15. Mines and minerals, § 80*—when mine owner liable for permitting employee to enter unsafe place. In an action by a miner for personal injuries, it is proper to refuse to hold a proposition that Hurd’s Rev. St. 1909, ch. 93, sec. 18, providing that miners shall not be permitted to enter dangerous places in a mine until the same are made safe, except under the direction of the mine manager, has no application to a dusty road in a coal mine except in so far as the question of explosions is concerned, where the declaration charges that an unsafe condition existed in the mine at the time of the accident and where the dusty condition of the mine was one of the elements which went to make up the unsafe condition charged.</p> <p>16. Mines and minerals, § 125*—when contributory negligence no defense. Under the Miners’ Act (J. & A. j[ 7475 et seq.) contributory negligence is eliminated where a wilful violation of the statute is alleged and proved.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Geobge A. Cbow, Judge, presiding. Heard in this court at the March term, 1915.</p>

<p>Appeal from the Circuit Court of Williamson county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquobs, § 229*—when evidence sufficient to sustain finding that wife injured in her means of support due to intoxication of husband. In an action under the Dramshop Act, see. 9 (J. & A. j[ 4609), hy a wife against saloon keepers for damages for injury to her means of support, evidence held sufficient to-sustain a verdict for plaintiff.</p> <p>2. Intoxicating liquobs, § 172*—when wife injured in her means of support by intoxication of husband. A wife is injured in her means of support due to the intoxication of her husband when her husband’s ability to furnish her with the comforts of life is lessened or destroyed, although she may not be deprived of the hare necessities of life.</p> <p>3. Husband and wife, § 5*—what is extent of duty of husband to support wife. The duty of a husband to support his wife is not limited to the bare necessities of life, but it includes the comforts of life as well, and whatever is suitable to her situation and the husband’s condition.</p> <p>4. Intoxicating liquobs, § 251*—when instruction on damages for injury to support not improper as not based upon evidence. In an action by a wife against saloon keepers under the Dramshop Act, sec. 9 (J. & A. | 4609), for damages for injury to her means of support due to the intoxication of her husband, an instruction that in estimating plaintiff’s damages, if the jury found for plaintiff, they should take into consideration the extent to which plaintiff’s husband neglected his business and the amount of money and property squandered hy him, if proven in consequence of such intoxication, so far as the evidence might enlighten the jury, held not erroneous because not based upon evidence where there was sufficient evidence that plaintiff’s husband squandered and wasted his money.</p> <p>5. Intoxicating liquors, § 249*—when instruction not improper as assuming that sales or gifts of liquor constituted cause of action. In an action by a wife for damages for injury to her means of support due to the intoxication of her husband, under the Dram-shop Act, sec. 9 (J. & A. j[ 4609), an instruction that the fact that plaintiff did, during the time it is charged in her declaration that defendants sold and gave intoxicating liquors to her husband which caused his habitual intoxication, engage in keeping boarders or in conducting a millinery business, did not constitute any defense to the sale or gifts of intoxicating liquors to her husband, causing his habitual intoxication, provided the jury found from a preponderance of the evidence that defendants did make such sales which resulted in the intoxication, held not erroneous as assuming that the alleged sales or gifts of intoxicating liquors constituted the cause of action, instead of the intoxication caused by the same.</p> <p>6. Intoxicating liquors, § 251*—when instruction on damages for injury to means of support of wife not erroneous. In an action by a wife for damages for injury to her means of support due to the intoxication of her husband, under the Dramshop Act, sec. 9 (J. & A. K 4609), an instruction that in order to sustain a claim for injury to her means of support it was not necessary to show that the wife had been actually without support or had been at any time, in whole or in part, deprived of means of support, but that means of support relate to the future as well as to the present, and that it was sufficient if she show that the sources to her future support had been cut off or diminished below what was reasonable and competent for a person in her station in life, and below what they otherwise would have been held proper.</p> <p>7. Intoxicating liquors, § 233*—what damages recoverable by wife for loss of means of support. The damages for injury to means of support which a wife may recover because of the intoxication of her husband, under the Dramshop Act, sec. 9 (J. & A. 1f 4609), include future as well as present support, and it is sufficient if she show that the sources of her future support have been cut off or diminished below what is reasonable and competent for a person in her station in life and below what they would otherwise have been.</p> <p>8. Intoxicating liquors, § 249*—when instruction on liability for sale or gift of not erroneous. Instructions in an action by a wife for damages for injury to her means of support, under the Dram-shop Act, sec. 9 (J. & A. If 4609), held not open to the objection that they informed the jury that any sale or gift of intoxicating liquor to a person in an intoxicated condition must be regarded as wilfully and wantonly made, where such instructions did not attempt to direct a verdict and there was evidence to support them.</p>

<p>Appeal from the City Court of Bast St. Louis; the Hon. Robert H. Blannigan, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>I. Bastabds, § 12*—when County Court of county in which defendant served has jurisdiction. The County Court of the county in which a defendant in bastardy proceedings is found and served with process has jurisdiction of such proceedings under Rev. St. ch. 17, sec. 1 (J. & A. If 703).</p> <p>2. Bastabds, § 64*—when exclusion of evidence harmless error. In bastardy proceedings where a witness for the defendant testified that he had had intercourse with prosecuting witness five or six days subsequent to the day on which the prosecuting witness testified that she had intercourse with defendant and eight and one-half months before the birth of the child, held that the exclusion of evidence as to subsequent intercourse with defendant was not prejudicial error where the court subsequently allowed the witness to testify as to intercourse during the following six weeks, it appearing that there was no evidence that the child was not fully developed.</p> <p>3. Bastabds, § 64*—when instruction not prejudicially misleading. In bastardy proceedings, an instruction to the jury that in considering the weight to be given to the testimony of the prosecuting witness they should take into consideration, so far as the same was shown by the evidence, her condition immediately before and at the time of the act of intercourse, which caused the conception; and if the jury believed from all such facts and circumstances that the bastard child was begotten by defendant at the time testified to by the prosecuting witness, then they should so find in their verdict, held not prejudicially misleading.</p> <p>4. Bastabds, § 64*—when instruction that prosecuting witness not party not prejudicially erroneous. An instruction in bastardy proceedings that the prosecuting witness was not a party to the suit, held not reversibly erroneous.</p> <p>5. Bastabds, § 6*—when prosecuting witness party to proceedings. The prosecuting witness in bastardy proceedings is a party to such proceedings.</p> <p>6. Bastabds, § 34*-—when instruction on credibility of defendant as witness not erroneous. In bastardy proceedings, an instruction that, in determining the weight to be given to the testimony of defendant," the jury should take into consideration his interest in the result of the suit, his demeanor while on the stand and his conduct at the trial so far as the same was disclosed by the evidence, held not erroneous.</p> <p>7. Bastabds, § 64*—when instruction not prejudicially erroneous. In bastardy proceedings, an instruction that if the jury believed that the prosecuting witness was mistaken as to the day that the alleged intercourse occurred, yet if they believed from the greater weight of evidence that the defendant was the father of the child, then they should find for the defendant, held not prejudicially erroneous although the prosecuting witness may have been mistaken as to the day, as the exact day is unimportant.</p> <p>8. Bastabds, § 19*—when prosecuting witness need not show exact day of intercourse with defendant. In bastardy proceedings it is not necessary that the prosecuting witness show the exact day of intercourse with defendant, from which conception is alleged to have resulted.</p> <p>9. Bastabds, § 22*—what degree of proof required to establish case. The prosecuting witness in bastardy proceedings cannot be required to establish her case by a “clear” preponderance of evidence, a preponderance being sufficient.</p> <p>10. Bastabds, § 62*—when verdict not disturbed as against weight of evidence. In bastardy proceedings where the evidence is conflicting, the verdict of the jury will not be disturbed as against the weight of evidence where no serious errors in the rulings of the court have intervened.</p>

<p>Appeal from the Circuit Court of Pulaski county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Error to the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Loins Bebnbeuter, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Clinton county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Eminent domain, § 224*—when attorneys’ fees, costs and expenses taxable in favor of defendant. The proviso of Rev. St., ch. 47, sec. 10 (J. & A. j[ 5260), relative to the payment of costs, attorneys’ fees and expenses by a petitioner in eminent domain proceedings, applies only where the petition is voluntarily dismissed by the petitioner, or where the petitioner fails to pay the compensation within the time fixed by the statute and does not apply where, after a preliminary hearing, the court on motion of the defendant dismisses the same.</p> <p>2. Eminent domain, § 224*—how statute allowing attorneys’ fees should be construed. Rev. St., ch. 47, sec. 10 (J. & A. 5260), allowing attorneys’ fees under certain conditions to the defendant in eminent domain proceedings, is in derogation of the common law, and should not be construed so as to authorize the taxation thereof unless the statute clearly warrants it.</p>

<p>Appeal from the Circuit Court of Washington county; the Hon. Louis Bekneeuteb, Judge, presiding. Heard in this court at the October term, 1915.</p> <p>Petition for certiorari dismissed.</p>

<p>Appeal from the Circuit Court of Massac county; -the Hon. William: N. Butler, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Geoeoe A. Cbow, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Bond county; the Hon. J„ F. Giixham, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Fayette county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 668*—when evidence insufficient to sustain finding that insured destroyed property and neglected to care for it. In an action to recover on a fire insurance policy for the loss of a house and contents, where it appeared that the fire happened at two o’clock in the morning, that plaintiff was a one-legged man and was engaged in looking after his family during the fire, evidence held insufficient to sustain a finding that insured destroyed his property and neglected to care for it.</p> <p>2. Evidence, § 366*—when evidence inadmissible as calling for conclusion of witness. In an action on a fire insurance policy where the ownership of a piano covered by another policy which was placed in the house subsequent to the date of the policy, was in dispute, the sustaining of an objection to evidence as to how long plaintiff had owned the piano, held not erroneous.</p> <p>3. Appeal and error, § 1474*—when question calling for conclusion of witness harmless error. In an action to recover on a fire insurance policy, where the ownership of a piano covered by another policy and which was placed in the building owned by plaintiff after the execution of the policy sued on, was in dispute, any error in asking plaintiff on cross-examination whether or not at the time the piano was insured the title was in him or in the seller, held harmless where the entire examination of the witness disclosed the fact that the piano was sold under a conditional sale contract.</p> <p>4. Insurance, § 120*—how contract of fire insurance construed. A contract of fire insurance should not he construed so as to nullify it, if avoidable.</p> <p>5. Insurance, § 226*—-when fire policy not forfeited by talcing of additional insurance. A fire insurance policy on a house and contents, providing that it shall be void if the insured at the time of the issuance thereof has, or thereafter procures, additional insurance “on property covered in whole or in part” by the policy should not be declared forfeited simply because the insured two years after the issuance of the policy procured insurance on a piano bought under a conditional sale contract, and to which title had not been procured at the time of the fire, especially where the piano was worth nearly twice the amount of insurance on the personal property.</p> <p>6. Insurance, § 245*—when forfeiture in contract not enforced. Forfeitures in insurance contracts are regarded with disfavor and will not be enforced unless clearly within the language and spirit of the contract.</p>

<p>Appeal from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 721*—when relationship of fellow-servants question of fact. The question of the relation of fellow-servants is ordinarily one of fact and only becomes a question of law when there is no dispute with reference to the facts, and the evidence, with all legitimate inferences to he drawn therefrom, is such that all reasonable and intelligent men must reach the same conclusion.</p> <p>2. Mines and minerals, § 183*—when existence of relationship of fellou>servam,ts between mine coal drivers question of fact. In an action by a mine coal driver for damages for personal injuries alleged to be due to the negligence of another coal driver, where it was undisputed that both coal drivers worked in the same west entry, plaintiff taking loaded cars from the western division of the entry east to the main south entry, and the other driver from the eastern division over the same track, each obtaining empty cars at the main south entry, held that the existence of the relationship of fellow-servants was one of fact.</p> <p>3. Mines and minerals, § 80*—when mine owner has constructive notice of obstructions on track of entry in mine. A mine owner must be deemed to have constructive notice of the existence of an empty, unlighted and unguarded car on the track in the eastern division of a mine entry at the time of the injury to a car driver proceeding from the western division of an east and west entry to a main south entry with loaded cars, where the entry, which was unlighted, was divided into two divisions, the western one of which was in charge of the injured servant as car driver and the eastern in charge of another car driver, and it was the practice for each to take loaded cars to a “parting” at the mouth of the main south entry over the single track and obtain empty ones, and the only method of delivering empty cars to the rooms off the east and west entry where the other driver worked was to bring out the load to the entry track, push it clear of the switch, and then run the empty into the room, and, while these changes were being made, either the loaded car or the empty was obstructing the track of the entry.</p> <p>4. Damages, § 123*—when judgment for fracture of both legs not excessive. A judgment for $3,000 in favor of a mine car driver for permanent injuries consisting of oblique fractures of both legs, still causing pain at the time of the trial four years after the injury, and decreasing plaintiff’s height one inch, held not excessive.</p>

<p>Abstract of the Decision.</p> <p>1. Partnership, § 274*—when evidence insufficient to show a sale of interest of partner to other and release from liability on partnership indebtedness by creditor. In an action of assumpsit by a wholesaler against a partnership for liquor sold to defendants where the sale was admitted, but one of the defendants ■ claimed that he had sold out to his partner and that the plaintiff had agreed to look to the other partner for payment of the partnership indebtedness, and the testimony was conflicting and a greater number of witnesses testified for defendants than for plaintiff, but defendant failed to call his partner to the stand, evidence held insufficient to sustain a finding that a sale had been made and that plaintiff had released such defendant from liability on any part of the partnership indebtedness.</p> <p>2. Evidence, § 480*—what is effect of failure to call witness in party’s control. The failure of partner in a suit for a partnership indebtedness, the defense of such partner being a sale to his copartner and a release from liability by the creditor, to call his copartner to the stand is evidence which may be considered in determining whether such partner was released from liability on such indebtedness.</p> <p>3. Partnership, § 274*—when burden of proof on partner to show sale to copartner and notice by creditor. The burden of proof is upon a partner in a suit on a partnership indebtedness to establish a sale of the interest of such partner to the other and notice thereof by creditor.</p> <p>4. Partnership, § 253*—when creditor without notice of change may recover for goods sold after change in partnership. A creditor who has no notice of change in a partnership by the sale of the interest of one partner to his copartner may treat it as a continuing partnership and recover for goods sold after the change in the partnership.</p> <p>5. Appeal and error, § 447*—when error in admission of testimony not reviewable. Error in the admission of testimony is unavailable where no objection was made to the testimony in the trial court.</p> <p>6. Evidence, § 73*—when evidence as to statements made to third persons competent to contradict witness. In an action on a partnership indebtedness, the defense of one of the partners being that he had sold out to his copartner and that plaintiff agreed to look to such copartner for payment, where defendant testified that he had told certain persons that he had sold out, held that the evidence of such persons was competent to contradict him upon the making of the sale.</p> <p>7. Instructions, § 151*—when requested instruction covered by charge properly refused. A requested instruction embodied in instructions already given is properly refused.</p> <p>8. Partnership, § 248*—when instruction on admission of liability of copartner misleading. In an action against a partnership which one of the partners defended on the ground that he had sold out to his copartner and the creditor had agreed to look to the copartner for payment, an instruction that the copartner had defaulted and admitted that he was liable for the debt, held properly refused as misleading.</p> <p>9. Appeal and error, § 1560*—when refusal of instruction assuming facts not reversible error. In an action against a partnership on an alleged partnership indebtedness where the defense of one of the partners was that he had made a sale to his copartner and that the creditor had agreed to look to the copartner for payment, the refusal of an instruction for defendant which assumed' that the debt was that of the partner defending, held not reversible error.</p>

<p>Error to the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Perry county; the Hon. Louis E. Berneeuter, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Appeal and ebbob, § 943*—how question of defective record raised. The better practice is to call the attention of the Appellate Court to a defective record by a proper motion, but where counsel calls its attention to such a vital defect as the absence of the signature of the trial judge to the bill of exceptions in his brief, the appeal will be dismissed.</p> <p>2. Appeal and ebbob, § 842*—when signature of trial judge to bill of exceptions necessary. The Appellate Court has no power to review anything contained in a purported bill of exceptions where it has not been signed by the trial judge.</p> <p>3. Appeal and ebbob, § 1120*—when case dismissed on appeal for insufficiency of record. A case may be dismissed on appeal where the purported bill of exceptions has not been signed by the trial judge.</p>

<p>Abstract of the Decision.</p> <p>1. Assignments, § 3*—when wages may he assigned. A power of attorney, authorizing an agent at any time that the maker thereof shall be indebted to a certain corporation to make an assignment of all wages due or thereafter becoming due to such corporation as collateral security for any indebtedness to such corporation, is limited to the time during which such maker is indebted to such corporation.</p> <p>2. Garnishment, § 76*—when duty of defendant to show that agent maTcing assignment of wages under power of attorney within terms thereof. In garnishment proceedings where the defendant sets up an assignment of wages due from wages made by an agent of the debtor under a power of attorney as a defense, it is the duty of the defendant to show that when the agent executed the assignment under such power of attorney he was within the terms thereof.</p> <p>3. Principal and agent, § 122*—when principal bound by acts of agent in making assignment of wages. Where conditions exist in the authority of a special agent to make an assignment of wages and his authority is limited and- depends upon the existence of certain facts and conditions, then it devolves upon the agent exercising the power to show that the conditions upon which the right to exercise it were then in existence, or that the act was in some way ratified by tbe principal.</p> <p>4. Principal and agent, § 189*—when act of special agent in making assignment of wages ratified. The act of a special agent in making an assignment of wages under a power of attorney, when the maker was not indebted at the time to the assignee, is ratified by the act of the maker in permitting the agent to draw all of his wages and pay only a portion thereof to him.</p> <p>5. Assignments, § 3*—ivhen power of attorney authorising assignment of wages valid. A debtor may execute a power of attorney authorizing an agent to make an assignment of his wages as collateral security for an existing indebtedness where he is in the employ of the corporation against whom the assignment is drawn at the time of the execution of the power of attorney.</p> <p>6. Assignments, § 15*—what constitutes equitable assignment of wages. Where a debtor making a power of attorney authorizing an assignment of his wages permits the agent to make such assignments from time to time and receives a portion of his wages from such agent, the assignment must be deemed to be at least an equitable assignment, although the maker was not indebted to the assignee at the time of the making of the assignment.</p> <p>7. Garnishment, § 130*—when equitable assignment of wages protected. An equitable assignment of wages will be protected by courts of law even in garnishment proceedings.</p> <p>8. Assignments, § 37*—when assignment of wages not presumed fraudulent. Where a debtor was actually indebted to a loan company at the time of the garnishment of his wages, an assignment of wages to the loan company under a power of attorney by the person owning the loan company will not be presumed fraudulent unless the acts are shown to be fraudulent or made for the purpose of hindering and delaying creditors.</p>

<p>Appeal from the City Court of Harrisburg; the Hon. William H. Parish, Jr., Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventeb, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Instructions, § 22*—when reference to declaration not error. An instruction that if the jury believe from a preponderance of the evidence that plaintiff has made out his case as alleged in the declaration he is entitled to recover is not erroneous.</p> <p>2. Instructions, § 22*—when instruction making reference to declaration not erroneous. In an action on a sick benefit policy, an instruction that if the jury believed from a preponderance of the evidence that plaintiff had made out his case as alleged in the declaration he is entitled to recover is not objectionable as authorizing the jury to give the plaintiff such an amount as they think from the evidence he is entitled to receive, as the jury are required to base the assessment of damages on the evidence.</p> <p>3. Appeal and error, § 1241*—when giving of modified improper instruction not error. Where an instruction is improper as offered, and, after being modified, is still not good, it cannot be assigned as error by the party offering the instruction.</p> <p>4. Instructions, § 137*—when refusal of requested instruction proper. A requested instruction not containing a correct theory upon which the jury should decide the case is properly refused.</p> <p>5. Insurance, § 908*—when instruction in action for sick benefits erroneous as based upon an incorrect theory. In an action by a member of an insurance order on a sick benefit policy, a requested instruction that before the plaintiff could prosecute a claim against the company, where there had been an adverse decision to his rights by the officers of the company, that it was necessary for him to appeal from the decision of such higher officers as provided by the by-laws before he could institute the suit, held erroneous as being based upon an incorrect theory.</p> <p>6. Insurance, § 854*—when member must appeal from decision of officers of order. It is the duty of a member of an insurance order in all cases where the controversy is concerning the discipline, policy or doctrine of the order to proceed in the manner prescribed by the association, and if an appeal as to such matters is provided for, then such member must prosecute an appeal.</p> <p>7. Insurance, § 854*—when court has jurisdiction to enforce rights of member of insurance order. The courts have jurisdiction of an action by a member of an insurance order to enforce a money demand, although the by-laws of such order provide for an appeal from the decision of officers of the order before instituting a suit at law.</p> <p>8. Insurance—when evidence sufficient to sustain verdict in action for sick benefits. In an action by a member of an insurance order to recover for sick benefits, evidence held sufficient to sustain the verdict.</p> <p>9. Insurance, § 913*—when plaintiff on appeal precluded from claiming construction of by-law contrary to theory on which case tried. Where the plaintiff in an action on a sick benefit policy tries the case on the theory that under a section of the by-laws of the order he had a right to demand a total settlement and obtains an instruction construing the by-law in accordance with such theory, he is precluded from claiming on appeal that such section only warranted a compromise.</p> <p>10. Insurance, § 717*—when by-law of insurance order construed as not providing for compromise of claim for sick benefits. A bylaw of an insurance order providing that total settlement might be asked by a sick member or that it might be offered by the chief staff of officials, where the member was unable to prove his right to half benefits but his sickness, upon examination by physicians, was. found to be of such a nature as would disable him for an uncertain length of time, but not for his whole life, and that benefits given under the title of total settlements should not exceed the amount of a half benefit, which was fixed at a certain sum, construed as not providing for a compromise.</p> <p>11. Instjbance, § 717*—how by-laws of insurance order construed. Where" a benefit insurance order undertakes to insure a member against accident and such member has paid his dues and has been injured, he is entitled to such a reasonable and fair construction of the by-laws as will afford fair protection within their meaning.</p>

<p>Abstract of the Decision.</p> <p>1. Waters and water courses, § 8*—when right to have surface water flow over land of another exists. Where lands of one property owner are servient to those of another, such latter property owner is entitled to have the surface waters naturally coming -from his lands flow over and across the lands of the other.</p> <p>2. Waters and water courses, § 29*—when evidence sufficient to show construction of private ditch for exclusive use of property owner. On a hill by a property owner to enjoin two adjoining property owners on the south and west of complainant’s land from trespassing on his lands or from diverting water from their premises upon his land hy means of ditches, evidence held sufficient to sustain a finding that a ditch constructed by complainant’s predecessor in title along the west side of his land was solely for his own interest.</p> <p>3. Waters and water courses, § 12*—when owner of land not required to Tceep open private ditch for convenience of adjoining property owners. Where an immediate predecessor in title constructed a private ditch on his own land for the drainage of surface waters flowing from the lands, of adjoining property owners, the owner cannot be compelled to keep such ditch open for the benefit of such adjoining property owners.</p> <p>4. Waters and water courses, § 19*—when easemént hy prescription to carry surface water through private ditch not acquirable. Property owners, merely because of the fact that surface water flowing from their premises, as it was accustomed to flow in a state of nature, after it reached adjoining premises, was collected by a private ditch intended solely for the benefit of the owner, and was carried over such owner’s land, cannot acquire an easement by prescription to have the surface water 'from their land continue to drain through such ditch.</p> <p>5. Waters and water courses, § 29—when evidence sufficient to show natural flow of water from land of property owners over adjoining land. On a bill by a property owner to enjoin two adjoining property owners on the west and south of complainant from trespassing on his land or from diverting water from their premises on his land, by means of ditches evidence held sufficient to sustain a finding that the natural flow of the water from the land of defendants was from the south over and across complainant’s land.</p> <p>6. Waters and water courses, § 11*—-when adjoining property owner may not discharge surface water in ditches and drains oral servient estate. The fact that at the time of the purchase of land by a property owner, which was adjoined on the west and south by two separate tracts of land, there was a ditch south of and along an east and west road on his land, which connected with a north and south private ditch on his land and conveyed the surface water coming from such adjoining property owner’s land north, does not authorize the adjoining property owners to construct ditches and drains on their own lands so as to discharge such surface water in a body at any particular point on such owner’s land and thus interfere with the natural flow of the surface water.</p> <p>7. Waters and water courses, § 11*—how owner of servient heritage may convey surface water coming from dominant heritage. The owner of a servient heritage may construct ditches and drains in any manner he chooses on his own land to convey surface water coming from a dominant heritage, provided that in discharging it from his own land he does not interfere with the natural flow thereof.</p> <p>8. Waters and water courses, § 15*—when owner of servient heritage may construct embankments. The owner of a servient heritage has the right to construct an embankment upon his own land provided it does not obstruct the natural flow of water from the dominant heritage and operate to the damage of the owner of the latter.</p> <p>9. Waters and water courses, § 11*—when owner of dominant estate has no right to discharge surface water through ditches upon servient estate. The owner of a dominant estate who sells a right of way to another across such estate and allows him to grade the road above the natural surface of the land so as to interfere with the natural flow of the surface water, and to construct a' ditch along such road to convey the surface water to a certain point and thence over the servient estate, does not acquire the right to discharge the surface water in a body through such ditch upon the servient estate.</p> <p>10. Waters and water courses, § 15*—when owner of servient estate may construct embankments and barriers to prevent discharge of surface water on his land. Where surface water does not naturally flow from the dominant estate upon the servient estate at a particular point but is conveyed by means of ditches to such point, the owner of the dominant estate has the right to erect such embankments and barriers as will effectually prevent the discharge of the surface water upon his land at such point.</p> <p>11. Waters and water courses, § 19*—when easement by prescription to discharge surface waters not acquired. An easement by prescription to discharge surface water through a ditch conveying water from the dominant estate upon the servient estate in a manner interfering with the natural flow of the surface water is not acquired by continuous use thereof for six years.</p> <p>12. Waters and water courses, § 29*—when evidence sufficient to show that water would be naturally discharged on dominant estate after construction of ditch. On a bill by the owner of a servient estate to enjoin the owners of two dominant estates from trespassing on his land and interfering with the natural flow of water, evidence held sufficient to show that the natural flow of the surface water after the construction of a ditch on one of the dominant estates was over the other dominant estate.</p>

<p>Appeal from the Circuit Court of Bond county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the County Court of Saline county; the Hon. Charles D. Stilwell, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Counties, § 29*—when presumed that meetings of hoard of supervisors properly convened. It will be presumed that the members of a county hoard of supervisors, as public officers, have done their duty, that their meetings were properly convened and at the time designated by law.</p> <p>2. Counties, § 29*—what degree of exactness in procedure required of county hoard of supervisors at meetings. All reasonable liberality must be accorded to meetings of a county board of supervisors relative to the technicalities of procedure, and the mere fact that there was no formal motion or resolution expressly authorizing a building committee to contract for plans and specifications for a county building cannot affect the rights of the parties to such contract.</p> <p>3. Counties, § 57*—what constitutes ratification of act of committee of board of supervisors in making contract for public building. Where the report of a building committee of a board of supervisors recommending improvements to a county building and the employment of an architect is adopted by the board of supervisors, and the building committee, believing that such adoption confers' power upon it to act, procures the services of an architect, the action of the board at a subsequent meeting in adopting their report constitutes a ratification of their acts. <</p> <p>4. Contracts, § 188*—when acts of parties controlling in construing contract. Where the proper interpretation of a contract or other writing is in issue, the parties will be held to that interpretation which they themselves have placed upon it, and their acts may be shown to determine such interpretation.</p> <p>5. Counties, § 60*—how contract may be made with county. A contract may be made with a county by its board of supervisors acting through a properly constituted committee or agent.</p> <p>6. Principal and agent, § 187*—when acts of agent beyond scope of authority deemed ratified. Where an agent acts without authority, or where he transcends his authority, it is the duty of the principal to repudiate the act as soon as he has been fully informed of what has been done in his name by the agent, else he will be bound by the act as having ratified it by implication.</p> <p>7. Contracts, § 177*—when construed to carry into effect intention of parties. Contracts should be so construed as to carry into effect the intention of the parties where such intention may be ascertained and given effect without doing violence to the language used.</p> <p>8. Contracts, § 329*—when departure from terms of contract occasioned by party’s oton act no defense. Where one party to a contract, either directly or by implication, induces or causes the other party to depart from the letter and terms of the contract in his performance thereof, he cannot predicate a defense upon such departure or variance.</p> <p>9. Counties, § 57*—when evidence sufficient to show implied acceptance of building plans and specifications. In an action by architects against a county to recover for the making of plans and specifications for a new courthouse, where it appeared that the board of supervisors at a meeting ratified a report of a building committee recommending the employment of an architect, and that apparently only the question of making improvements to the existing courthouse was considered at such meeting, but, after presentation of resolutions to the board by citizens protesting against the remodeling of the existing building and requesting an entirely new building, at a subsequent meeting of the board, the committee directed the architects to make plans for a new building and the plans were prepared and presented by the committee at a subsequent meeting and retained by the board without objection or criticism thereto, evidence held sufficient to establish a recognition and implied acceptance of the plans and specifications.</p> <p>10. Counties, § 25*—when may ratify acts defectively done. Where a county has power originally to do a certain thing, it has the power to ratify and make valid an attempted effort to do the same thing, although the same may have been done defectively, informally, and even fraudulently, in the first instance.</p> <p>11. Counties, § 57*—when county liable to architect for preparation of plans and specifications for county building. A county which has impliedly accepted plans and specifications for a new courthouse procured by its committee by retaining them without objection or criticism is liable for the reasonable value of the services of the architect preparing the same, although it had previously only authorized the preparation of plans and specifications for the remodeling of the existing building.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court-at the October term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Contracts, § 157*—when no recovery may he had on illegal contract. The general rule is that a contract made in violation of a statute is void, and when a plaintiff cannot establish his cause of action without relying upon the illegal contract he cannot recover.</p> <p>2. Gaming—when gaming house proprietor may not recover from State’s Attorney money seized in raid. Money furnished by a proprietor of a gaming house to his employees for use at gaming tables which was seized by officers at the time of making a raid on the house and is in the possession of the State’s Attorney may not be recovered in an action by such proprietor against the State’s Attorney.</p>

<p>Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vakdeventek, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 80*—when duty of owner to furnish employees with reasonably safe place to work. It is the duty of the mine owner to furnish his employees with a reasonably safe place to work.</p> <p>2. Workmen’s Compensation Act, § 2*—when assumed risk and contributory negligence no defense in action at common law. The right of the representative of a deceased employee to recover in an action at law for the employee’s death against a master who has elected not to operate his mine under the Workmen’s Compensation Act cannot be defeated by reason of any contributory negligence or assumed risk* of deceased.</p> <p>3. Mines and minerals, § 107*—when no duty devolves upon mine owner to warn experienced employee of danger. In the absence of a statute no duty devolves upon a mine owner to give warning to an experienced employee, engaged in wheeling refuse from a loaded car over an intermediate track and across a switch track, of the movement of an empty car on the switch track, which was used to supply the mine with cars to be loaded and which cars were operated by means of a cable working over a drum moved by an engine, where the mine at the time of the injury to the employee by a car on the switch track is operated in the usual way. and the track and machinery are in good condition, and there are no exceptional circumstances necessitating a warning in the particular case.</p> <p>4. Mines and minerals, § 185*—when verdict properly directed. A verdict is properly directed for the defendant in an action hy the. representative of an employee for the employee’s death, where the duty to give warning to deceased of a movement of a car, and negligence in operation which are the basis of the action, are not shown to exist.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Jefferson county; the Hon. Charles H. Milleb, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Courts, § 95*—when County Court presumed to have jurisdiction. A County Court is a court of general jurisdiction and as liberal intendment must be made in favor of its jurisdiction as of the Circuit Court.</p> <p>2. Courts, 95*—when County Court presumed to have jurisdiction of insanity proceedings. It will be presumed that a County Court had jurisdiction both of the person and of the subject-matter in insanity proceedings.</p> <p>3. Insane persons, § 10*—when notice to alleged insane person unnecessary in insanity proceedings. No notice to an alleged insane person is necessary in proceedings to determine sanity where the person is brought before the court.</p> <p>4. Insane persons, § 83*—when judgment of County Court in insanity proceedings may not he impeached.' A judgment of a County Court in insanity proceedings imports verity, and it may not be impeached by parol testimony of the clerk of the court showing that no notice was issued to the alleged insane person.</p> <p>5. Insane persons, § 73 *—when question of jurisdiction of person in insanity proceedings waived. The question of the jurisdiction of the person of an alleged insane person by a County Court in insanity proceedings is waived where such person since the adjudication of insanity presents a petition to the County Court of another county, her petition averring the existence of an order of the County Court in the insanity proceedings declaring her insane, the order of the County Court appointing a certain person as conservator and asking that the court take jurisdiction of the subject-matter and compel such conservator to render an account and that he be discharged as such conservator.</p> <p>6. Insane persons—when County Court has power to call jury to determine fitness of sane person to care for property in proceedings to remove conservator. A County Court after a formerly insane person has been declared sane in habeas corpus proceedings, and proceedings are taken to remove a conservator, has the power to summon a jury to determine whether or not the applicant is á fit person to have the care of her property.</p> <p>7. Insane persons—when instruction in proceedings to remove conservator not misleading. In an action by a formerly insane person who had been declared sane in habeas corpus proceedings to remove the conservator of her estate, an instruction setting forth the habeas corpus proceedings, the finding of the plaintiff to be sane, the rescission of the judgment of insanity, and further stating that in contemplation of law she was sane and was immediately entitled to all her rights and privileges that she had been entitled to before the adjudication of insanity, which was modified by the addition of the clause “unless other statutory causes are presented and proven by the evidence showing that the conservator appointed by petitioner ought not to be removed,” held not misleading because not stating what the statutory causes referred to were, especially where the court stated in other instructions that if plaintiff was a spendthrift and liable to waste her property then the conservator should not be discharged.</p> <p>8. Insane persons—when County Court has jurisdiction of subject-matter of proceedings to remove conservator. Where a resident of another county files her petition in the court of the county which appointed a conservator for her estate while she was insane, to remove such conservator the County Court of the latter county acquires jurisdiction of the subject-matter.</p> <p>9. Appeal and error, § 1408*—when verdict not set aside as unsupported by evidence. A verdict will not he set aside on appeal as unsupported by the evidence where there is some evidence to support it.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 264*—when evidence sufficient to show power of officers to hind company. In an action against a corporation to recover commissions on the sale of real estate, where the evidence shows that plaintiff acted under an agreement with the president of defendant and its secretary, who with two others constituted the directors and stockholders, and that the other two knew that plaintiff was acting as broker in the matter and made no objection and that the contract of sale was ratified in writing by all of the directors and stockholders, it was held that the officers had authority to bind defendant by employing plaintiff, even though there was no resolution of the board of directors authorizing the officers to do so.</p> <p>2. Brokers, § 8*—when evidence sufficient to show employment of hrolcer and agreement for commissions. In an action by a broker to recover commissions, evidence examined and held to show that plaintiff was employed by defendant to act as broker on its behalf to bring about a sale of the premises at a specified price, and that he was to receive the customary commission for his services.</p> <p>3. Brokers, § 90*—when evidence insufficient to show termination of employment. In an action by a broker for commissions, evidence examined and held to show that plaintiff’s employment was not terminated nor abandoned by him.</p> <p>4. Brokers, § 27*—when right to commission not affected. In an action by a broker for commissions where the evidence shows that plaintiff first presented to defendant a purchaser who offered and was able to pay the price fixed and who subsequently bought the premises for that sum, his right to his commission is not affected whether the purchaser acted for himself in purchasing or as agent of a company of which he was the president and controlling stockholder.</p> <p>5. Brokers, § 37*—when evidence sufficient to show procuring cause of sale. In an action by a broker for commissions, evidence examined and held to show that he and not another was the procuring cause of the sale although he was not present at the execution of the contract, and though the amount of the monthly deferred payments was greater than he had offered.</p> <p>6. Brokers, § 91*—when evidence insufficient to show fraud. In an action by a broker for commissions on the sale of realty, evidence examined as to agreement of plaintiff to divide commissions with one of defendant’s officers and held not to show fraud.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John Stklk, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Shebidan E. Eby, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 350*—when corporation may appeal from order appointing receiver. Where, on a hill by stockholders of a corporation on behalf of themselves and other stockholders against the corporation and its directors and officers, an order is entered appointing a receiver of the corporation pendente lite, the corporation may appeal therefrom.</p> <p>2. Corporations, § 561*—when interlocutory order appointing receiver pendente lite not reversed for lack of notice. The fact that on a bill by stockholders of a corporation on behalf of themselves and other stockholders against the corporation, its directors and officers an interlocutory order is entered, without notice to the corporation, appointing a receiver for it pendente lite is not ground for reversing the order where it appears that after the appointment of the receiver the defendant company entered its appearance, filed a demurrer to the bill and made a motion to vacate the order, which was denied.</p> <p>3. Corporations, § 563*—when allegations of stockholders’ hill insufficient to warrant appointment of receiver pendente lite. Allegations of a bill by minority stockholders against the corporation, its officers and agents, examined and held insufficient to warrant the entry of an interlocutory order appointing a receiver for the corporation pendente lite.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>■ 1. Automobiles and garages, § 3*—when evidence insufficient to refute proof of negligence. In an' action against one letting an automobile for injuries to plaintiff, a passenger therein, by the overturning of the automobile, where plaintiff introduces evidence tending to show that the accident was due to the chauffeur’s negligence, such evidence is not refuted by evidence that after the accident a defect was found in the steering gear which was not discoverable by the exercise of reasonable care in the inspection of the car before its use, where there is nothing to show that such defect did not result from the accident and the chauffeur was not called to prove that he had difficulty in steering the car.</p> <p>2. Automobiles and garages, § 2*—when one letting car liable for chauffeur’s negligence. One letting an automobile and furnishing a chauffeur for it is a private carrier for hire and liable for the negligence of the chauffeur.</p> <p>3. Automobiles and garages, § 2*—when one letting car liable to guests of hirer. One who lets an automobile and furnishes a chauffeur for the purpose of conveying the hirer and his guests enters into a contract of hire for the benefit of the guests as well as the hirer, and owes the same duty to each, without regard to the fact that he does not know the names or number of the guests.</p> <p>4. Automobiles and garages, § 3*—when evidence sufficient to support verdict. In an action against the owner of an automobile for injuries to one riding as a guest of the hirer, evidence examined and held to support a verdict for plaintiff.</p> <p>5. Appeal and ebboe, § 1487*—when admission of evidence harmless error. Error in admitting hearsay evidence is harmless where there is sufficient competent evidence to support the verdict.</p> <p>6. Appeal and ereoe, § 1567*—when refusal to hold propositions of law harmless error. Where a correct application of the law to the facts required the finding and judgment for plaintiff, the refusal of the court to hold as law certain propositions submitted to it by defendant is harmless error.</p>

<p>1. Negligence—when representative not liable as such for tort. In an action for personal injuries alleged to have been caused by negligence, one impleaded as trustee and as executor of a last will and testament is not liable for the > tort in such representative capacities.</p> <p>2. Appeal and error, § 1772*—when questions by counsel showing that defendant in personal injury case is insured ground for reversal. In an action to recover for personal injuries alleged to have been caused by defendant’s negligence where plaintiff’s counsel over defendant’s objection, propound to a witness questions calculated and intended to inform the jury that defendant was insured, against liability in the action, such questions not being justified by the conduct of defendant’s counsel, a judgment for plaintiff will be reversed where it was not small and the case was a close one on the facts.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hakby M. Htsheb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the February term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Judges, § 9*—when judge of a City Court of another county may sit as judge of Superior Court of CooJc county. The judge of a City Court outside of Cook county may sit as judge of the Superior Court of Cook county in the trial of an action against Cook county to recover appraiser’s fees.</p> <p>2. Counties, § 40*—when president of board of county com/inissioners may appoint appraisers. Where the board of county commissioners of a county adopts a resolution directing and authorizing its president to appoint and name persons to appraise and inventory all the personal property and effects of a certain institution, such resolution being in connection with the transfer of the institution to the State board of administration which had requested a detailed inventory of all the property, the president may appoint persons as expert building appraisers to appraise the buildings of the institution.</p> <p>3. Contbacts, § 382*—when evidence as to rate of compensation admissible. In an action against a county to recover compensation for services in appraising property, defendant cannot complain of the admission of evidence of an agreement between plaintiff, on the one hand, and the president of defendant’s board of county commissioners (by whom plaintiff was employed) and a committee, on the other, as to the rate of compensation, where, under the common counts of plaintiff’s declaration he would be entitled to recover on a quantum meruit which, the evidence shows, would give him a larger amount than he claimed or was awarded by the jury.</p> <p>4. Customs and usages, § 26*—when evidence inadmissible. In an action against a county to recover for services rendered in appraising property, evidence as to the customary manner of making an appraisal of such property is properly excluded where plaintiff had made the appraisal in conformity to the method prescribed by the board of county commissioners by which he was employed.</p> <p>5. Counties, § 40*—when resolution does not confer on president of board of county commissioners power to malee contract. A resolution of a board of county commissioners that its president be and is directed and authorized to name and appoint a certain number of persons who shall inventory and appraise certain property and shall be paid out of a certain fund, does not confer on him the power to make a contract.</p> <p>6. Municipal cobpobations, § 172*—when estopped to question right to compensation for services. Where a municipality has power to contract for services and such services have been rendered and it has accepted the benefits thereof, it is estopped to claim that the person rendering them is not entitled to compensation, and is liable for the reasonable value of such services.</p> <p>7. Counties, § 2*—when authorised to employ appraisers. A county has power to employ appraisers to appraise its property.</p> <p>8. Counties, § 71*—when appropriation valid. A resolution of a board of county commissioners providing for .the payment of the cost of the inventory and appraisal of a certain county institution out of the building • fund of such institution is valid.</p> <p>9. Contracts, § 384*—when evidence sufficient to support verdict. In an action against a county to recover for services rendered in appraising property, evidence examined and held to support a verdict for plaintiff.</p> <p>10. Payment, § 24*—when matter of defense. Payment is a matter of defense, and in the absence of evidence it will be presumed that it has not been made.</p>

<p>1. Injunction, § 173*—when parties complainant properly joined. On a bill by the People by the State’s Attorney on the relation of a tax payer and voter of a city to enjoin the enforcement of a rule of the board of education of the city prohibiting teachers in the public schools from belonging to certain societies or unions, parties complainant held properly joined.</p> <p>2. State’s attorney, § 5*—when bill maintainable by where disbursement of public school money affected. Under J. & A. f 616, the State’s Attorney is required to commence and prosecute a suit which involves the disbursement of money by the public schools.</p> <p>3. Injunction, § 173*—when taxpayer may maintain bill. A taxpayer of a city may maintain a bill to enjoin the enforcement of a rule of the board of education of such city involving the disbursement of its public school funds.</p> <p>4. Injunction, § 191*—when bill not prematurely brought. A bill by the State’s Attorney on the relation of a taxpayer of a city to enjoin the enforcement of a rule of the board of education of such city prohibiting the teachers from belonging to certain unions and societies under the penalty of dismissal is not prematurely brought though no teacher has been discharged, where the bill alleges that the board is preparing to send out notices requiring compliance with the rule, is spending money and threatening further to enforce the rule.</p> <p>5. Schools and school distbicts, § 104*—what extent of power of board of education to pass rules governing teachers. While the board of education of a city has power to pass rules regulating the teaching force, it cannot pass an unreasonable rule in violation of the statutes or constitution of the State.</p> <p>6. Schools and school districts, § 104*—when rule of board of ediication void. A rule of the board of education of a city which restricts employment of teachers to such as are not members of certain organizations is void as discriminating between certain classes and conferring special privileges.</p> <p>7. Schools and school districts, § 104*—when rule of board of education not valid as disciplinary measure. A rule of the board of education of a city restricting employment to such teachers as are not members of certain unions or societies, and prohibiting membership in such unions or societies under the penalty of dismissal, • cannot be sustained as a disciplinary measure.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 683*—uMat proof essential in action for injury by explosion in tunnel. In an action by an employee to recover for personal injuries alleged to have been caused by the accumulation of inflammable gas in dangerous quantities in a tunnel connecting with the one in which plaintiff was working and by failure of defendant to warn him thereof, in order to show negligence it is incumbent on plaintiff to prove that there was inflammable gas in dangerous quantities accumulated in such connecting tunnel and that defendant knew or by the exercise of ordinary care should have known of the presence of the gas and that it was capable of producing injury, and that plaintiff did not know and did not have equal opportunity with defendant of knowing thereof at the time of the injury.</p> <p>2. Evidence, § 466*—when circumstantial evidence insufficient. When circumstantial evidence is relied on to prove a fact, the circumstances must be proved and not themselves presumed.</p> <p>3. Evidence, § 23*—when one presumption not basis for another, A presumption of fact is not alone a legitimate foundation for a second presumption of fact.</p> <p>4. Master and servant, § 683*—when evidence insufficient to support a verdict. In an action by a servant for personal injuries, evidence examined and held insufficient to support a verdict for plaintiff.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 908*—when burden of proving defenses on insurer. In an action to recover on a fraternal benefit certificate, where defendant admits that unless the defenses which he relies upon are established by the legal degree of evidence, plaintiff should recover, it is proper to instruct that the burden is on" him of establishing his defense by a preponderance of the evidence.</p> <p>2. Trial, § 53*—when defendant entitled to open and close. Where the defendant’s admissions place upon him the burden of proof, he is entitled to open and close.</p> <p>3. Insurance, § 797*—when right of forfeiture for false statements in application and on medical examination waived. The provisions of the by-laws of a, fraternal benefit society for a forfeiture of the certificate for false statements in the application and on the medical examination may be waived by the act of the local council in collecting assessments from the insured, though officers of the council knew the facts and that the statements of the insured were untrue.</p> <p>4. Insurance, § 897*—when question of waiver of by-laws for jury. In an action on a fraternal benefit certificate, the question whether the conduct of officers of the local council of the insurer was not such as to induce a belief on the part of the insured that the council did not intend to exercise its right of forfeiture for false statements by insured in the application and medical examination, but intended to recognize insured as a member in good standing, held for the jury.</p> <p>5. Insurance, § 908*—when instruction misleading. In an action on a fraternal benefit certificate, an instruction examined and held not supported by the evidence in making it the duty of the officers of defendant’s local council to notify insured or hear charges in case knowledge that he has made false statements should come to them.</p>

<p>Abstract of the Decision.</p> <p>1. Forcible entry and detainer, § 1*—when questions of title cannot be adjudicated. Questions of title cannot be tried or adjudicated in a forcible detainer action.</p> <p>2. Forcible entry and detainer, § 5*—what constitutes forcible entry. A surreptitious entry into a vacant tenement without right or title and without the consent or knowledge of the owner is a forcible entry which entitles the owner to invoke the statute (J. & A. If 5843) to regain possession.</p> <p>3. Forcible entry and detainer, . § 20*—when possession by another is possession by owner. The owner of a building is in possession thereof where it is partly occupied by tenants and the part thereof forcibly detained was in possession of the owner’s son, who had the keys until defendant secured them from him by a false pretense.</p> <p>4. Forcible entry and detainer, § 2$*—when laches not defense. The fact that the owner of property failed to commence suit to recover possession until seven months after demanding possession is not a defense where defendant’s entry was unlawful and the detention without right, notice or demand for possession not being necessary in such case.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment—when evidence sufficient to support verdict on foreign judgment. In an action on a foreign judgment, evidence examined and held to show that the foreign court had jurisdiction of defendant and of the subject-matter of the suit, and that defendant was represented at the trial by counsel having authority from him to appear.</p> <p>2. Judgment, § 580*—when foreign judgments binding on parties. In an action on a foreign judgment where the evidence shows that the foreign court had jurisdiction of defendant and of the subject-matter of the suit and that defendant was represented by counsel having authority from him to appear, the judgment of the foreign court binds all the parties to it.</p> <p>3. Judgment, § 670*—when jurisdiction of foreign court presumed. In an action on a foreign judgment, the recital in the record of the appearance of defendant by attorney is presumptive evidence that the court had jurisdiction of defendant’s person, the authority of the attorney being presumed.</p> <p>4. Judgment—when evidence sufficient to show jurisdiction of foreign court. In an action on a foreign judgment where the record recites the appearance of defendant by .attorney and there is evidence of one of the attorneys that his firm was employed and that the suit was defended by it, and that the services rendered in such defense were paid for by defendant, all the elements necessary to render the judgment effective are present in the record.</p> <p>5. Appeal and ebbob, § 1485*—when admission of evidence harmless error. In an action on a foreign judgment, even though it is error to receive evidence of attorneys for the defendant in the action in the foreign court that they were employed by defendant, that the suit was defended by them and that services rendered were paid for by defendant, such error is harmless where the recital of appearance appears in the record.</p> <p>6. Judgment, § 658*—when defense made too late on action in foreign judgment. In an action on a foreign judgment, the contention that the claim in the foreign action was against another corporation of the same name as defendant and that the record showed that such claim was contracted before defendant’s incorporation, comes too late when first made in the action on the foreign judgment.</p> <p>7. Depositions, § 22*—when judge may read depositions before offered or read by counsel. The trial court may read the depositions in the case before they are offered or read by counsel.</p>

<p>1. Sales, § 1*—when evidence sufficient to show transaction to he a sale. In an action of trover, evidence examined and held to show that as to certain articles involved the transaction was a sale vesting title, and as to others that the title was retained by the shipper.</p> <p>2. Sales, § 436*—when third person purchasing goods sold on memorandum does not acquire title. Where goods are sold to a buyer on memorandum, the seller retaining title, the third person receiving them in pawn from the buyer does so at his own risk and gains no title by the transaction, the title remaining in the seller, whether or not such third person has knowledge of the illegal conduct of the buyer in pawning such articles.</p> <p>3. Contracts, § 205*—what is duty of court in an action on a written contract. In an action of trover where the transaction involved are in writing and made the contract of the parties, it is the duty of the court to construe the contract and instruct the jury as to its legal import.</p> <p>4. Appeal and error, § 1316*—when instructions presumed in accordance with law. Where the appellant complained of instructions given by the court at the appellee’s request and set forth in the abstract these particular instructions but failed to set forth any of the instructions given by the court, the trial court will not go to the record to ascertain what instructions the court gave but will assume that they were in accordance with law and sufficient to cure any defect appearing in the instructions objected to.</p> <p>5. Set-off and recoupment—when not permissible in action of tort. An action in assumpsit cannot be set off in an action of tort.</p> <p>6. Pawnbrokers and secondhand dealers, § 5*—when evidence insufficient to show lien in action of trover. In an action against a pawnbroker for trover, evidence examined and held insufficient to show that defendant had, under an agreement with a third person, a lien on the articles in question for the payment of the claim set up by it.</p> <p>7. Trover and conversion, § 31*—when demand for return of articles, unnecessary. In an action of trover to regain goods pawned with defendant hy person having no title to them, no demand for the return of such articles is necessary to render defendant liable.</p> <p>8. Evidence, § 160*—when evidence of attempt to compromise inadmissible. Conversations between the parties to an action of trover or their representatives in an attempt to effect a compromise are not admissible as evidence.</p> <p>9. Appeal and erbob, § 897*—when loose document in record not reviewable. Loose documents contained in an envelope between pages of the record and designated on the envelope as “Exhibits referred to in stenographer’s report and incorporated therein by reference thereto,” but having no earmarks to identify them, cannot be resorted to on review.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthha, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Assault and battery, § 14*—when evidence sufficient to support verdict. In an action oí trespass to recover for an alleged assault upon plaintiff by defendant, evidence examined and held to support a finding that defendant assaulted plaintiff without provocation and to warrant an award of exemplary damages.</p> <p>2. Assault and battery, § 17*—when instruction as to consideration of defendant’s pecuniary circumstances proper. In an action of trespass to recover damages for an alleged assault, evidence introduced by plaintiff as to defendant’s pecuniary circumstances was sufficient to warrant an instruction to the jury that in assessing exemplary damages they had the right to take into consideration defendant’s pecuniary circumstances.</p> <p>3. Appeal and error, § 1406*—when amount of verdict not ground for reversal. Even though the damages awarded in an action of trespass for assault are excessive, where they are not so excessive as to show prejudice on the part of the jury the amount of the verdict is not ground for reversal.</p> <p>4. Assault and battery, § 22*—where plaintiff’s conduct ground for mitigation of damages. In an action of trespass for an alleged assault where the plaintiff’s conduct while not sufficient to warrant or excuse the assault was not entirely decorous and not entirely free from censure, it should be considered in mitigation of the damages.</p> <p>5. Damages, § 246*—when remittitur proper on appeal. In an action of trespass for assault where the Appellate Court finds that the amount of damages allowed is excessive, it will require the plaintiff to remit the excess from the judgment as a condition of affirmance.</p>

<p>Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

<p>1. Conspibacy, § 50*—when evidence sufficient to sustain conviction. Evidence in prosecution for conspiracy to bribe city council and for embezzlement, examined and held sufficient to sustain conviction.</p> <p>2. Cbiminal law, § 520*—when verdict not set aside on appeal as against weight of evidence. Verdict in criminal case will not be set aside on review, as against the weight of evidence, unless the evidence clearly gives rise to a well-founded doubt in regard to the guilt of the accused.</p> <p>3. Indictment and infobmation, § 48*—when several counts relating to same transaction may be joined in one indictment. Where several counts relate to one general transaction they may be joined in one indictment even though the transaction, if established as laid in one count, necessarily terminated prior to the time when it would have terminated if the evidence supported another count. ■</p> <p>4. Indictment and information, § 55*—when within discretion of court to compel election between counts of indictments. The right of compelling an election between counts of an indictment and time for the exercise of such election lies in the sound discretion of trial court.</p> <p>5. Indictment and information, § 56*—when refusal of court to compel election between counts of indictment before trial not erroneous. Refusal of trial court to compel, before trial, election between counts in an indictment charging conspiracy to corrupt, conspiracy to collect a fund for political purposes, and others charging conspiracy to defraud, conspiracy to embezzle, and embezzlement, where all counts related to one general transaction, held not error.</p> <p>6. Indictment and information, § 54*—when motion to compel election between counts of indictment too late. Motion to require election between counts of an indictment comes too late if not made until after verdict.</p> <p>7. Indictment and information, § 56*—when within discretion of court to refuse motion to compel election between counts of indictment. Where there is ample evidence to sustain finding of guilty on each of several properly joined counts of an indictment, it is within discretion of trial court to refuse motion to compel election between such counts.</p> <p>8. Embezzlement, § 18*—when evidence that money embezzled collected for unlawful purpose admissible. In a prosecution for embezzlement, evidence that the money embezzled was collected by the defendant for an unlawful purpose is admissible.</p> <p>9. Conspiracy, § 49*—when evidence as to refusal to return funds collected for the purpose of bribery admissible. Refusal of one indicted for conspiracy to bribe to return funds collected for that purpose is admissible as tending to show unlawfulness of purpose of such collection.</p> <p>10. Criminal law, § 589*—when admission of evidemee under proper and improper counts not erroneous. Where, after finding of guilty on charges of both conspiracy to bribe and embezzlement, the latter count is dismissed, the defendant cannot, even if the latter count was improperly submitted, complain of admission of evidence showing embezzlement where such evidence was admissible also on the conspiracy charge.</p> <p>11. Criminal law, § 227*—when People’s case may be reopened to allow introduction of testimony. After the close of the People’s case and before the opening of the defense, the court may reopen the People’s case to allow introduction of testimony where the delay in introducing it was not attributable to the People.</p> <p>12. Criminal law, § 227*—when defendant estopped to complain that his case was interrupted to allow introduction of testimony for People. Where testimony properly receivable after the close of the People’s case and before the opening of the defense is not received at that time because of objection of the defendant, he cannot complain that later his own testimony is interrupted to receive such offered testimony.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John Coubtney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 863*—what evidence should not be included in certificate of evidence. Where a cause has been referred to a master to take and report the evidence and his conclusions, evidence other than that heard before him should not be included in the certificate of evidence filed on prosecution of writ of error.</p> <p>2. Equity, § 438*—when evidence not before master not considered. Where a cause has been referred to a master to take and report the evidence and his conclusions, it is not competent that other evidence be considered.</p> <p>3. Appeal and error, § 855*—when certificate of evidence unnecessary on error. A certificate of evidence is unnecessary and has no proper place in the record on writ of error where all the evidence is taken before the master and included in his report.</p> <p>4. Appeal and error, § 1399*—when findings of master conclusive. The finding of a master, where no objections are filed to his report, are conclusive.</p> <p>5. Appeal and error, § 484*—when objections prerequisite to review of findings. Objections to the findings of a master are a prerequisite to review of findings of fact.</p> <p>6. Appeal and error, § 1094*—when briefs containing vituperative language stricken from files. Briefs and arguments containing vituperative, unwarranted and impertinent expressions as to opposing counsel, masters in chancery and judges of the court before whom a case was heard, will be ordered stricken from the files.</p>

<p>Error to the Municipal Court oí Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 85*—when evidence as to negotiations of with purchaser admissible. In an action by brokers against an owner of real estate for commissions for the sale thereof, the defendant may introduce evidence of negotiations by him with the purchaser in support of his defense that the sale was consummated through his efforts and not those of the plaintiffs.</p> <p>2. Instruction, § 135*—when party may not complain that instructions not given. Where a party makes no request to the trial court therefor, he cannot complain on review that certain instructions were not given.</p> <p>3. Instructions, § 126*—when properly refused as abstract. It is not error to refuse to give instructions stating abstract principles of law.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 388*—what are remedies of purchaser for breach of warranty. Where there is a sale and delivery of personal property, with an express or an implied warranty, if the property is found to be defective, the purchaser may keep and use the property and sue for damages on a breach of warranty, or. when sued for the price, he may recoup such damages.</p> <p>2. Sales, § 389*—when purchaser may recoup damages for breach of warranty. Where there is a warranty of goods sold, without fraud, and they have been accepted and there is no stipulation in the contract that they may be returned, the vendee has no right to annul the contract, without the consent of the vendor, for a breach-of warranty, but where sued for the purchase price, may recoup damages sustained by reason of the breach of warranty.</p> <p>3. Sales, § 404*—what is measure of damages for breach of warranty. The measure of damages for breach of warranty is the difference between the value of the article as warranted, and its actual value in its alleged defective condition.</p> <p>4. Sales, § 389*—when damages for breach of warranty may not be set off in action for purchase price. In an action for the purchase price of an article, no damages for breach of warranty can be set off in the absence of evidence of the amount thereof.</p> <p>5. Corporations, § 710*—what does not constitute doing business within State by foreign corporation. Soliciting of orders in this State by an agent of a foreign corporation is not doing business by such corporation, within the meaning of the statute regulating activities of foreign corporations within the State.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 182*—when evidence of knowledge of existence of provision in receipt limiting liability to certain sum admissible in action against shipper for fraud. In an action by a carrier, based on fraud and deceit of a shipper in delivering to it for shipment goods of a value greater than $50 without stating the value thereof, to recover damages sustained by the recovery of a judgment against it by the consignee for loss of the shipment, evidence of knowledge by the shipper’s shipping clerk that the receipt for the shipment contained a provision limiting the carrier’s liability to $50, unless the true value exceeding that amount be stated, is admissible.</p> <p>2. Carriers, § 134*—who may sue for loss of goods in transit. On delivery to a carrier of a shipment purchased by the consignee he becomes the owner thereof, and alone can recover for loss in transit caused by carrier’s negligence.</p> <p>3. Carriers, § 172*—when consignee not bound by restrictions in bill of lading. Without authority from the consignee to do so, the consignor cannot bind the consignee by restrictions in the bill of lading.</p> <p>4. Carriers, § 168*—what does not constitute actionable fraud or deceit by consignor. Delivery of shipment to carrier by consignor, without stating the value thereof, though he knows there is a clause in the receipt limiting carrier’s liability to $50 in case a higher value is not given, does not amount to fraud and deceit entitling the carrier to recover damages sustained by recovery of a judgment against it by the consignee for loss of shipment.</p> <p>5. Judgment, § 502*—when judgment by consignee against carrier for negligence conclusive in action by carrier against consignor. Where a consignee has recovered judgment against a carrier for loss of shipment caused by the latter’s negligence, such carrier cannot recover damages sustained thereby of the consignor based on his fraud and deceit in not stating the true value of the shipment under contract limiting carrier’s liability to a certain amount unless such shipment is valued in excess thereof.</p>

<p>Municipal Court of Chicago, § 13*—when statement of claim in tort insufficient. A statement of claim in tort in a fourth-class case, which is wholly silent as to the care exercised by plaintiff and gives no facts whatever touching his conduct or position in relation to the accident does not state a cause of action.</p>

<p>Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Cabbiebs, § 476*—when evidence sufficient to sustain finding that passenger throum from car under wagon by negligent starting of car. In an action for personal injuries, evidence held to justify a finding that the plaintiff was thrown from one defendant’s street cars in front of or alongside of its codefendant’s wagon through the negligent starting of the car and that the plaintiff’s leg was run over and broken by a wheel of the wagon.</p> <p>2. Cabbiebs, § 480*—when negligence in starting car question for jury. In an action for personal injuries, questions whether a defendant street car company was negligent in starting its car whereby the plaintiff was thrown to the street and run over by a wagon, held for the jury.</p> <p>3. Roads and bbidges, § 240*—when negligence of driver of wagon in running over passenger thrown from street car question for jury. In an action for damages for personal injuries to a passenger who was thrown out of a street car upon its starting and was run over by a passing wagon, the question whether the driver of the wagon was guilty of negligence in running over plaintiff’s leg held to be for the jury.</p> <p>4. Pleading, § 453*—when defects are waived. A party having submitted an issue to the jury cannot complain that it is not presented by the pleadings.</p> <p>5. Cabbiebs, § 452*—when declaration sufficiently alleges causal connection between negligence of street railroad and accident. In an action for personal injuries, declaration held to sufficiently allege causal connection between the negligence of the defendant street railroad- company and the accident.</p> <p>6. Pleading, § 466*—when want of express averments cured by verdict. If a declaration contains terms sufficiently general to include, by fair and reasonable intendment, any matter necessary to be proven and without proof of which the jury could not have given the verdict, the want of an express averment of such matter is cured by the verdict.</p> <p>7. Carriers, § 372*—what is duty of conductor of street car towards boarding passenger. A street car conductor must exercise the highest degree of care and caution to see that an intended passenger in the act of boarding his car is not put in danger by the starting of the car.</p> <p>8. Roads and bridges, § 231*—what is duty of teams.ter approaching street car from rear to passengers. Upon a teamster approaching from the rear a standing street car rests the duty to see if by driving between the car and the curb he is endangering those attempting to get on or off the car.</p> <p>9. Appeal and error, § 1533*—when defective instruction not reversibly erroneous. Where a reading of an instruction in its entirety leaves no doubt as to its meaning, the omission of words or the substitution of erroneous ones is not reversible error.</p> <p>10. Appeal and error, § 1565*—when modification of instruction on credibility of witnesses not reversible error. The substitution of the word “of” for “or” in a charge that the jury might consider the probability or improbability of the truth of the statements of witnesses, held not reversible error.</p> <p>11. Appeal and error, § 1533*—when omission of word in instruction harmless error. The omission of the word “if” from the charge, “The court instructs the jury that ‘if’ you find for the plaintiff you will then be required to determine the amount of her damages,” held not reversible error.</p> <p>12. Damages, § 122*—when verdict for injuries to both legs of woman not excessive. Verdict for $9,000 awarded a woman thrown from a street car to the street and run over by a wagon, which broke both bones of one leg and injured the other leg, held not excessive.</p> <p>13. Carriers, § 476*—when evidence sufficient to show negligence of street car company in starting car and causal connection unth injury. In an action for personal injuries resulting from being thrown from a street car of one defendant and run over by other defendant’s wagon, evidence held to justify a finding of negligence on the part of the street car company and existence of causal connection of the company with the injury.</p> <p>14. Roads and bridges, § 239*—when evidence sufficient to show negligence of driver of wagon in running over street car passenger and causal connection with injury. In an action for damages for personal injuries resulting from being thrown from a street car as it started, under a wagon approaching the car from the rear, evidence 'held sufficient to show negligence of the driver of the wagon and the existence of causal connection of the driver with the injury.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph P, Rai-febty, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the March</p> <p>term, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baxdwin, Judge, presiding. Heard in this court at the October term, 1915.</p> <p>Petition for certiorari dismissed.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 13*—when statement of claim in action on promissory note sufficient. In an action on a promissory note, it is unnecessary to set forth the consideration therefor in the statement of claim.</p> <p>2. Municipal Court of Chicago, § 13*—when statement of claim sets up cause of action on note only. A statement of claim setting up a promissory note given the plaintiff by the defendant and alleging that the parties had entered into settlement agreements whereby they had adjusted disputes arising out of certain prior agreements and that the note was one of several executed and delivered pursuant to the settlement agreements, held to state a cause of action based on the note only.</p> <p>3. Municipal Court of Chicago, § 13*—when affidavit of merits does not state legal defense to action on promissory note. To a statement of claim, based on a promissory note given the plaintiff by the defendant, alleging that the consideration for such note was the adjustment by settlement agreements of disputes growing out of prior agreements, an affidavit of merits admitting the execution and delivery of the note but claiming that the settlement agreements adjusted only such matters as were then in dispute, that no dispute had then arisen as to title to certain personal property which “it was understood” would be returned to the defendant, that he did not discover that such property had not been returned to him until after the execution of the settlement agreements but believed that it had been, setting up grounds by way of excuse for failure to make such discovery, claiming a total failure of consideration and offering to pay the balance due on said note upon the return of the property, held, not to state a legal defense.</p> <p>4. Wobds and phbaseS'—what is justice. Justice, as administered by the courts, is not something separate and apart from the legal or equitable principles on which it rests.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Appeal from the Superior Court of Cook county; .the Hon. Edwabd M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>1. Pleading, § 200*—what is effect of demurrer. A demurrer admits the truth of material allegations of fact in the pleading demurred to.</p> <p>2. Municipal corporations, § 143*—when reinstated patrolman not entitled to pension. A patrolman who has been discharged and reinstated so that his total time of service is less than twenty years is not entitled to receive a pension from the police pension fund provided for by chapter 24, Hurd’s Illinois Statutes (J. & A. TTir 1862-1887).</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 293*—when covenants of enforced. Where there is no fraud or mistake in the preparation of an instrument, and it appears that the parties signing understood its language and purpose, its covenants will be enforced.</p> <p>2. Injunction, § 206*—who has burden of showing that contract does not conform to understanding of parties. In a suit to restrain a. lessor from confessing judgments for rent in accordance with the lease, the one claiming that the contract does not contain the true understanding of the parties thereto has the burden of proving the truth of such claim.</p> <p>3. Injunction, § 65*—when relief from contract causing hardship not granted. The fact that the enforcement of an obligation will work a hardship cannot, in the absence of fraud or mistake, furnish ground for equitable relief therefrom by injunction.</p> <p>4. Injunction, § 206*—when evidence insufficient to authorize decree restraining lessor from confessing judgments according to lease. In a suit to restrain a lessor from confessing judgments for rent in accordance with the terms of a lease, evidence of the complainant that the terms under which, in accordance with the lease, such judgments could be confessed were considered, mere matters of form at the time of its execution, and not intended to be enforced, and such lease as written did not represent the true understanding of the parties, held not sufficient to justify the relief prayed.</p> <p>5. Cancellation of instruments, § 37*—when decree requiring proper. In a suit in chancery, a prayer that defendant be directed to deliver up to complainant a note, coupons and trust deed granted, the settlement of the obligation having been acknowledged by the defendant.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Vendor and purchaser, § 305*—when purchaser entitled to return of earnest money. One who, having contracted for the purchase of real estate, pays to the vendor’s broker earnest money, which is to be applied to the payment of expenses and brokerage, and balance paid to the vendor, is entitled to the return of such earnest money from such broker on failure of the vendor to tender a deed in accordance with his contract.</p> <p>2. Appeal and error, § 493*—when erroneous judgment against one joint defendant only not disturbed on appeal. Though the rule is that a plaintiff suing two or more on a contract must recover against all or none, a judgment entered against one defendant only in accordance with verdict will not be disturbed on appeal in the absence of an objection thereto in the trial court.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>1. Appeal and error, § 1725*—when decision in prior case binding on appeal. The decision of the Appellate Court on a former review is the law of the case binding upon the parties, the trial court and the Appellate Court.</p> <p>2. Contracts, § 371*—when presumed that written contract contains entire agreement of parties. It will be presumed that a written contract embodies the agreement of the parties to it, and that all contemporaneous oral agreements are merged in it.</p> <p>3. Municipal Court op Chicago, § 19*—when judgment for plaintiff on pleadings not objectionable as being entered without evidence. In an action on a written contract where plaintiff relied upon his sworn statement of claim and the pleading of defendant which set up matters dehors the record and which tended to contradict the written contract, and defendant offered evidence which had been held improper on a prior appeal as tending to vary an unambiguous contract, held that a judgment for plaintiff was proper, and was not objectionable as being entered without evidence.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 870*—what abstract should not contain. An abstract should not contain argumentative matter.</p> <p>2. Appeal and error, § 1298*—when presumed that jury regularly impaneled and that their verdict regular. It will be presumed on appeal that a jury was regularly impaneled in an action upon a stay bond and that their verdict was regular when objection is made for the first time on appeal.</p> <p>3. Appeal and error, § 1886*—when right to have damages assessed by jury in action on bond. The defendant in an action upon a bond given upon the prosecution of a writ of error in a forcible entry proceeding is entitled to have the damages assessed by a jury, as such damages are unliquidated.</p> <p>4. Appeal and error—what is procedure in action on stay bond after striking affidavit of defense. Where the affidavit of defense to an action upon a stay bond given upon the prosecution of a writ of error in a forcible entry proceeding is stricken from the files, all that remains to be done is to assess the damages of plaintiff, and all that defendants may do on such assessment is to cross-examine witnesses in diminution of damages.</p> <p>5. Appeal and error, § 1883*—what is effect of striking affidavit of defense in action on stay bond. Every material averment of a statement of claim in an action on a stay bond stands admitted where the affidavit of defense is stricken from the files.</p> <p>6. Appeal and error, § 1859*—when defendants in action on stay bond estopped by recitals thereof. The recital of the judgment in a stay bond offered in evidence is sufficient proof of its existence, and the defendants are estopped from denying such recital or other recitals.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles N. Goodhow, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence, § 10*—judicial notice of ordinance. A trial court must take judicial notice of a municipal ordinance.</p> <p>2. Municipal Court of Chicago, § 39 *^when presumed that ordinance violated as charged in complaint. It will be presumed on appeal from a judgment of conviction for the violation of a municipal ordinance, where such ordinance is not found in the record, that it was proven to have been violated as charged in the complaint.</p> <p>3. Municipal Court of Chicago, § 39*—when finding of trial judge in prosecution for violation of ordinance not disturbed. The finding of a trial judge in a prosecution for the violation of a municipal ordinance will not be disturbed as against the weight of evidence where it appears that his finding is sustained by credible evidence appearing in the record.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Denis W. Sullivan, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 1725*—when opinion on prior appeal law of case.' The opinion of the Appellate Court on a prior appeal is the law of the case.</p> <p>2. Evidence, § 232*—when coroner's verdict admissible. A coroner’s verdict containing a finding as to the location of the place where an accident occurred is admissible in evidence in an action for the negligent death of the person killed.</p> <p>3. Negligence, § 109*—when instruction on negligence of parents of child proper. In an action for the negligent death of a boy seven years of age at a street intersection while on his way from his father’s shop to his home, about one block away, an instruction that if the jury believed “from the evidence that the parents of the deceased, or either of them, was negligent in allowing deceased to go upon the street at the place of the accident and at the time of the accident," then their verdict should be for the defendant, held proper.</p> <p>4. Roads and bridges, § 239*—when evidence sufficient to sustain finding that driver of team not intoxicated. In an action for the negligent death of a boy seven years of age who was killed near a street intersection as the result of being run over by a wagon, evidence held sufficient to sustain a finding that the driver was not intoxicated.</p> <p>5. Appeal and error, § 1526*—when giving of erroneous instructions on negligence of defendant not prejudicial error. The giving of an erroneous instruction on the negligence of a defendant is not prejudicial error where the jury, which rendered a verdict for defendant, could not reasonably have rendered any other verdict.</p> <p>6. Roads and bridges, § 239*—when evidence insufficient to show negligence of driver of wagon in running over hoy. In an action for damages for the death of a boy seven years of age who, while on his way north on a street to his home instead of passing north on a crosswalk over an intersecting street, wandered down such latter street and crossed to the rear and west of two street cars standing near such intersection, and was struck and run over as he stepped from behind such cars by a wagon which had just turned the corner from the north and was proceeding on the north side of such cars, evidence held sufficient to show that the driver was not negligent.</p>

<p>Abstract of the Decision.</p> <p>I. Contracts, § 171*—construction as a Whole. The entire language of a contract should be construed together.</p> <p>2. Contracts, § 196*—when written clause prevails over printed clause. Where a written and printed clause conflict, the former prevails.</p> <p>3. Contracts, § 196*—how contract for purchase of goods containing written and printed clauses construed. A contract for the sale of dress patterns, fashion books and fashion guides wherein the seller was authorized to ship the purchaser “an assortment of new Peerless Patterns” to be “issued at 5 cents each, not to exceed an average of $10.00 per month, one each size of every new pattern issued except 32 bust,” the portion in italics being written and the remainder printed, construed as controlling and as obligating the purchaser to purchase patterns of the value of $10 monthly only if the value of new patterns except 32 bust amounted to such sum each month.</p> <p>4. Contracts, § 384*—when evidence sufficient to sustain finding that purchaser of patterns returned them, for credit on - standing debit. In an action for an alleged breach of a contract to purchase patterns and fashion guides for a certain period under which goods of a certain value were to be considered as a standing debit and to draw interest throughout the term of the contract, after the expiration of which, all conditions having been fulfilled, the defendant could return all “live patterns in good saleable condition” at the original purchase price, in payment of the standing debit, evidence held sufficient to sustain a finding- that when the purchaser returned the pattern shortly after entering into the contract he intended to return them for credit on the standing debit and not on the “discard account.”</p> <p>5. Damages, § 66*—what recoverable for breach of contract to purchase goods for definite period. In an action for alleged breach of a contract to purchase patterns and fashion guides for a definite period, under which goods of a certain value were to be considered as a standing debit and to draw interest throughout the term of the contract, after the expiration of which, all conditions having been fulfilled, the defendant could return all “live patterns in good sale-able condition” at the original purchase price, in payment of the standing debit, where defendant rescinded the contract and returned the patterns on hand shortly after the beginning of the term of the contract with the intention that credit be given him on the standing debit, held that plaintiff was entitled to recover the interest on the standing debit only during the period that the goods were retained and also, as minimum damages, its loss of profits sustained as a result of the failure of the defendant to purchase new patterns and as a result of the failure to order fashion guides in such numbers as were provided for in the contract.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 111*—when burden of proof on plaintiff to show freedom from contributory negligence. The burden of proof is on the plaintiff, in an action against a street railroad for damages for injuries alleged to have been negligently inflicted, to show his freedom from contributory negligence.</p> <p>2. Street railroads, § 131*—when evidence sufficient to show contributory negligence in attempting to cross trades. In an action against a street railroad company for damages for personal injuries to plaintiff as a result of being struck by an eastbound car as he was about to cross the tracks, evidence held sufficient to show that plaintiff could have seen the eastbound car at the last time he claimed to have looked if he had in fact looked, and to overcome his uncontradicted testimony that he looked at such, time.</p> <p>3. Witnesses, § 311*—when testimony of interested witness will not he accepted. The testimony of an interested witness as to facts inherently unprobable need not be accepted by a court or jury, although such testimony is not contradicted by other direct testimony in the case, and although the witness is not otherwise impeached.</p> <p>4. Trial, § 125*—right of counsel to state to fury their views as to the law. .Counsel may properly state to the jury what they believe to be the law and base arguments thereupon.</p>

<p>Abstract of tlie Decision.</p> <p>1. Witnesses, § 93*—how statute relative to testimony of party in interest against representative of estate of deceased person construed. Hurd’s Rev. St. ch. 51, sec. 2" (J. & A. 1f 5519), relative to the testimony of a party to a civil action or a person directly interested against the representative of a deceased person, should he construed according to its spirit and not literally or technically.</p> <p>2. Witnesses, § 140*—when testimony of witness is in hehalf of a representative of deceased person. In an action by the executrix of a deceased person against a corporation, the owner of a delivery automobile, for damages for negligent death of testate due to the negligent driving, of the car after business hours, by a servant where the chauffeur on his direct examination, as a witness for the defendant and in response to a question as to where he was going on the trip, volunteered the statement that he had been instructed to take out the machine for advertising purposes, and he was cross-examined further regarding this conversation by the plaintiff, held that the testimony of the witness as to the alleged conversation, both the volunteered statement and those brought out on cross-examination, constituted testimony of a witness in behalf of the executrix, within Hurd’s Rev. St ch. 51, sec. 2, subd. 4 [J. & A. If 5519 (4) ], so as to render admissible the evidence of the officer of defendant, with whom the conversation was held, as to such conversation.</p> <p>3. Witnesses, § 286*—when party may introduce evidence contradictory to testimony of his own witnesses. While a party may not discredit his own witness by general evidence, he is not precluded from putting in evidence contrary to the testimony of one of his own witnesses even though the incidental effect of such testimony is to impeach or discredit a witness already examined in his behalf.</p> <p>On Rehearing.</p> <p>Automobiles and garages, § 3*—when evidence sufficient to sustain finding that driver of automobile not using automobile on master's business. In an action for the negligent death of a person alleged to have been caused by an automobile driven after business hours by a servant of the owner, evidence held sufficient to sustain a finding that the driver was not using the automobile on his master’s business at the time of the accident.</p>

<p>Abstract of the Decision.</p> <p>1. Roads and bridges, § 239*—when evidence sufficient to sustain,, finding that driver of wagon guilty of negligence in injuring prospective street car passenger. In an action for damages for personal injuries alleged to be due to defendant running over the heel of plaintiff with the left rear wheel of its wagon while plaintiff was facing and about to enter a pay-as-you-enter street ear at a street intersection, where it appeared that there was nothing to prevent the driver of defendant’s wagon from seeing plaintiff in time to avoid striking him, evidence held sufficient to sustain a finding that defendant was guilty of negligence.</p> <p>2. Roads and bridges, § 239*—when evidence sufficient to sustain finding that prospective street car passenger struck by wagon not guilty of contributory negligence. In an action for damages for personal injuries alleged to be due to defendant running over the heel of plaintiff with the left rear wheel of its wagon while plaintiff was facing and about to enter a pay-as-you-enter street car at a street intersection, evidence held sufficient to sustain a finding that plaintiff was not guilty of contributory negligence.</p>

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

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 13*—when affidavit of merits and set-off properly stricken from files. In an action of the fourth class in the Municipal Court of Chicago, to recover for goods sold and delivered, affidavit of merits and statement of set-off examined and held properly striken.</p> <p>2. Municipal Court of Chicago, § 13*—when uncertain statement of set-off properly stricken. In an action of the fourth class in the Municipal Court of Chicago, to recover for merchandise sold and delivered, where the statement of set-off filed by the defendant is so uncertain and indefinite as not to allow the court to tell therefrom how the defendant arrived at the amount of its claim, it is properly stricken.</p> <p>3. Municipal Coubt of Chicago, § 13*—When statement of set-off properly stricken. In an action of the fourth class in the Municipal Court of Chicago, to recover for merchandise sold and delivered, where there is no showing that defendant’s claim of set-off grew out of the purchases for which plaintiff seeks to recover, and the damages sought to be set off are unliquidated, such statement is properly stricken.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 127*—what essential to enforcement of subscription to stoclc. Where an action is brought upon a stock subscription, where it appears that a corporation has ceased to do business but owes no debts and the amount to he collected on the subscription is to be distributed among the other stockholders to equalize the losses, it is essential before a recovery that the amount of losses be ascertained and determined and that it be shown what amount is due and unpaid from each subscriber and what disposition has been made of the assets of the company before a recovery can he had.</p> <p>2. Corporations, § 125*—when notice of assessment on stock subscription essential. Where a resolution of the stockholders of a corporation provides that if an assessment of over ten per cent, on stock be made, thirty days’ notice shall be given, such resolution being in conformity with the terms of the subscription list, the making of such assessment and the giving of notice are prerequisite before a recovery on a subscription.</p>