Volume 200 — Illinois Appellate Court Reports

<p>Abstract of the Decision.</p> <p>1. Account, § 35*—when evidence sufficient to support master’s findings. On a bill for an accounting, evidence examined and held to support master’s findings.</p> <p>2. Appeal and ebbob, § 1458*—when variance immaterial. On a bill for an accounting, variance between allegations of bill on the one hand and the findings of the master and the decree of the court on the other, examined and held not so material as to warrant a reversal.</p> <p>3. Pbincipal and agent, § 28*—what degree of good faith required in transactions between. In dealing with the property of the principal on his own behalf, the utmost good faith is required of the agent, and the burden is upon him to show that such good faith was exercised.</p> <p>4. Conteacts, § 268*—what evidence sufficient to set aside contract where fiduciary relation exists. Where a fiduciary relation exists, it is not necessary to establish intentional or actual fraud in order to set aside a contract.</p> <p>5. Principal and agent, § 55*—when settlement between principal and agent set aside. Where a warehouseman, in whose warehouse property of plaintiff had been damaged by fire, effected a settlement with insurers with whom it had insured the property for plaintiff’s benefit, and thereafter had a settlement with plaintiff without informing him of the amount it received for insurance and salvage, there is such a breach of the fiduciary relation between it and plaintiff as to warrant the court in setting aside the settlement between them in an action for an accounting.</p> <p>6. Account, § 35*—when burden of proof on agent on bill by principal for an accounting. On a bill for an accounting by the owner of property agaipst a warehouseman to recover the amount received by defendant as salvage on injury to complainant’s property by fire, the burden of showing the number of pounds of salvage and the price received therefor held, under the facts of the case, to be upon defendant.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon.- James C. Mastín, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Cabbebbs, § 476*—when evidence sufficient to support verdict in action for injury to passenger on street car. In an action by a passenger against a street railroad company to recover for personal injuries alleged to have been caused by being thrown against parts of the car on which he was riding by its collision with a wagon at a street crossing, evidence examined and held sufficient to support the verdict.</p> <p>2. Damages, § 110*—when damages in action for injury to passenger not excessive. In an action by a passenger against a street railroad company to recover for injuries caused by the collision of the car with a wagon, where the evidence shows that at the time of the accident plaintiff was about sixty years old, was healthy and active, was, and had been for about forty years, a stair builder, maintaining a shop, and tends to show that he was unable to attend to his business ds a result of his injuries and had to employ additional help, that following the accident he suffered great pain and continued to suffer more or less pain from the accident to the date of the trial, and is sufficient to warrant a finding that his injuries are permanent, a verdict of $3,000 is not excessive.</p> <p>3. Appeal and ebbob, § 1514*—when statement of belief by counsel harmless error. An expression of belief by counsel, in the course of argument, which is based wholly on the evidence, if erroneous, is harmless.</p> <p>4. Appeal and ebbob, § 1514*—when statement by counsel in argument harmless error. Where the only ill effect of an argument of counsel to which objection is made would be unduly to increase the amount of the verdict, and the Appellate Court has found that the verdict was not excessive, such argument is not ground for reversal.</p> <p>5. Trial, § 123a*—when argument of counsel improper. Argument of counsel in an action for personal injuries, examined and held improper.</p> <p>6. Appeal and ebbob, § 1514*—when argument of counsel not ground for reversal. Even though the argument of counsel was improper, where the court promptly sustained an objection thereto and directed the jury to disregard it, such argument is not ground for reversal.</p> <p>7. Instbuctions, § 88*—when instruction as to preponderance improper. An instruction that the preponderance of the evidence is not to be determined alone by the number of witnesses testifying, that in determining the question, the jury may take into consideration the number of witnesses, their conduct and demeanor while testifying, their apparent intelligence or lack of intelligence, their interest or lack of interest in the result of the suit, if any, their opportunities for knowing the matters about which they testify, and from all these circumstances determine on which side the preponderance of the evidence lies, is objectionable in that it limits the jury, in determining the question of preponderance, to a consideration of the elements enumerated.</p> <p>8. Instructions, § 88*—what may be considered by jury in determining question of preponderance of evidence. In determining the question of the preponderance of the evidence, the jury should be left free to consider all the evidence and all the facts and cir--. cumstances in evidence, determining where the "preponderance or greater weight of the evidence lies.</p> <p>9. Instructions, § 89*—when instruction as to preponderance of evidence objectionable. An' instruction which, after enumerating certain things that the jury should take into consideration in determining upon which side the preponderance or greater weight of the evidence lies, tells the jury that they should consider these in view of all the other evidence, facts and circumstances proven on the trial, is objectionable in that it omits the element of the number of witnesses.</p> <p>10. Instructions, § 88*—when instructions as to preponderance not misleading. Instructions as to preponderance of the evidence, examined and held not misleading, though not strictly accurate.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John A. Ma-honey, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Oscab M. Tobrison, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Contracts, § 32*—when element of meeting of minds lacking. Where the owner of goods in a warehouse directed an insurance solicitor to telephone an order to defendant insurance agent to place insurance on such goods and the solicitor so telephoned, but defendant understood the message to be to insure goods of the owner in another warehouse and so wrote the policy, there was no meeting of the minds of the parties giving rise to a contractual relation between them so as to render defendant liable upon the loss by fire of the goods sought to be insured.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in' this court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Vendor and purchaser, § 355*—when evidence insufficient to show false representations in procuring execution of contract. In an action to recover earnest money paid under a contract for the purchase of real estate, evidence examined and held insufficient to show that the execution of the contract was procured by false and fraudulent representations.</p> <p>2. Vendor and purchaser, § 38*—what insufficient to constitute fraudulent representations. In an action to recover earnest money paid under a contract for the purchase of real estate, representations as to the taxes on the property and as to the expense of the purchase money mortgages to be placed thereon, held to be rather in the nature of promises to be carried out in the future than representations of existent facts and therefore not to constitute fraud, though the contract was entered into in reliance upon such representations.</p> <p>3. Fraud, § 112*—what essential to establish. A mere allegation of fraud is insufficient, but it must be proven, and the acts or things done which in law constitute fraud must be proven by a preponderance of the evidence.,</p> <p>4. Fraud, § 87*—when not presumed. Fraud is never presumed, and when transactions may be fairly reconciled with honesty and the weight of the evidence favors an honest motive, the conclusion of integrity should be adopted.</p>

<p>Abstract of the Decision.</p> <p>1. Indemnity—when terms of original contract waived by acceptance of indemnity. Where a contract for construction authorizes persons letting it to retain out of any moneys due the contractors a sufficient amount to indemnify the former against any claim or lien for which they or their property may be liable, and on a threat by an employee of suit for personal injuries the contractors give to those letting the contract an indemnity bond to hold the latter free from liability, held that the contract between the parties and the bond of indemnity constitute different transactions, the contract being satisfied upon the payment and acceptance of the amount due thereunder, and the terms of the contract provided for the retention of money being waived by the acceptance of the indemnity bond.</p> <p>2. Indemnity, § 9*—how indemnity bond construed. Nothing can be read into an indemnity bond which does not .actually appear in it or which is not warranted by legal interpretation of the language used to express the intention of the parties, which intention must be gathered from such language.</p> <p>3. Indemnity, § 9*—when indemnity bond not construed as cov-' ering liability for attorneys’ fees and expenses. Where the covenant of an indemnity bond is limited to “all damages resulting or arising from such negligence which may hereafter be assessed against them in any action brought by any such person or persons,” and in the suit in which the bond is given no damages are recovered, the terms of the bond cannot be construed to hold defendant in the action liable for the attorneys’ fees and the expenses attendant upon the suit.</p>

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

<p>Abstract of the Decision.</p> <p>1. Receivers,' § 5*—when appointment pendente lite proper. Where during the pendency of a suit to determine the ownership of securities in the hands of a public official, such, official’s term of office expires, the appointment of a receiver pendente lite for such securities is proper for the protection of the rights of the parties.</p> <p>2. Receivers, § 12*—when bond from, receiver pendente lite not necessary. Where the parties moving for the appointment of a receiver pendente lite to hold certain securities, the title to which is involved in a suit, are not seeking to take the custody from a party claiming the title or interest in the securities but the custodian is one of the moving parties, the appointment of the receiver without requiring the "moving parties to give a bond is not erroneous.</p> <p>3. Receivers, § 6*—when Superior Court has constitutional jurisdiction to appoint. The Superior Court of Cook county .has constitutional jurisdiction of a controversy between the receiver of an insolvent bank and the creditors of such bank, involving the title to securities delivered by the bank’s officers to one of such creditors before the closing of the bank’s doors.</p> <p>4. Appeal and error, § 408*—when question of jurisdiction arises too late. Where the controversy is one within the constitutional jurisdiction of a court, and its jurisdiction of a particular controversy is first questioned on appeal by one who answered the original bill and filed a cross-bill asking affirmative relief, such jurisdictional question comes too late.</p> <p>5. Receivers, § 6*—when appointment within jurisdiction of court malting it. The fact that the proceedings for the winding up of a bank are pending in the Circuit Court does not deprive the Superior Court of jurisdiction to appoint a receiver for certain securities delivered by such bank to one of its creditors before the winding up proceedings, in a proceeding between the receiver of the bank and certain creditors to determine the title to such securities.</p> <p>6. Receivers, § 6*—when appointment proper pendente lite. Even though the jurisdiction of a court to appoint a receiver pendente lite of certain property is properly questioned, it is the duty of such court to protect the subject-matter of the litigation until the jurisdictional question can he properly decided.</p> <p>7. Receivers, § 5*—when appointment pendente lite proper. Where, pending a proceeding to determine title to certain securities as between the receiver of a debtor and certain creditors, the term of office of the public official holding such securities terminates, the court may, on motion of such custodian and other creditors, appoint a receiver for such securities pendente lite without determining first the title to the securities as between the parties.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</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 March .term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error—when question of abatement of action raised too late. The objection that an action involving the possession of premises should have been abated during the pendency of a writ of error in a similar proceeding for the possession of the same premises, brought by another plaintiff against the defendant, is raised too late when first raised on appeal.</p> <p>2. Abatement and revival, § 39*—when pendency of writ of error not available to abate similar action. The pendency of a writ of error cannot be invoked to abate another similar action unless the former operates as á supersedeas.</p> <p>3. Partees, § 31*—when substitution does not constitute new cause of action. Where a wife is made a joint defendant to an action of forcible entry and detainer originally brought against a husband, and thereafter the action is dismissed as to the husband and the case proceeds against the wife alone, such substitution of parties does not constitute a new cause of action.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 201*—when interest to he included in determine ing profits. Where the language of a contract expressly provides that a certain interest item therein shall be included for the purpose of determining profits in-the absence of any special provision for the determination of losses, it must be held that the same basis of computation was intended to apply to the losses.</p> <p>2. Contracts, § 201*—how losses to be determined. Loss is the antithesis of profit, and both are determined in the same manner unless otherwise provided in the contract.</p> <p>3. Courts, § 153*—what effect given to dictum on subsequent appeal. Though the statement of the Supreme Court on a former appeal as to a question not then before the court may he regarded as dictum, it will, nevertheless, on a .subsequent appeal be taken by the Appellate Court as indicating the view of the Supreme Court on a point at that time, especially when not inconsistent with anything heretofore said in the case.</p> <p>4. Partnership, § 89*—when advances by partners a firm obligation. Advances by partners which cannot be repaid by reason of a deficiency in the assets are to be treated as a debt of the firm.</p> <p>5. Interest, § 5*—when interest not allowed on advances not repaid to partner. Hurd’s Rev. St., ch. 74, sec. 2 (J. & A. If 6691), does not warrant the allowance of interest on an amount decreed to be due a partner for unpaid advances to the firm, the relationship of debtor and creditor not existing between such partners and the partner in whose favor the amount is decreed.</p>

<p>Appeal1 from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 450*—when order and acceptance constitute contract. An order of goods followed by an acceptance of such order constitutes the contract between the parties.</p> <p>2. Sales, § 243*—when warranty implied. Where goods of a certain kind are ordered and such order, is accepted, there is an implied warranty on the part of the seller that the buyer will get the goods ordered.</p> <p>3. Sales, § 329*—when evidence insufficient to show acceptance. In an action to recover the contract price of certain goods, evidence examined and held insufficient to show an acceptance of the goods by the buyer.</p> <p>4. Sales, § 279*—when conduct of buyer insufficient to show waiver of implied warranty of quality. In an action to recover the contract price of goods sold, evidence that the buyer after inspecting the goods and rejecting them refused the request of the seller to have an inspection of the goods made by a third person, but continued to retain possession at the latter’s request, is not sufficient to show such acceptance as would waive an implied warranty as to quality of the goods.</p> <p>5. Sales, § 330*—lohen instruction erroneous. In an action to recover the contract price of goods, a requested instruction of the seller that if the jury believed from the evidence that the buyer accepted the goods it would be liable under its contract, should be refused where it excludes the element of implied warranty arising from the contract.</p> <p>6. Sales, § 330*—when instruction erroneous. In an action to recover the contract price of goods, an instruction which proceeds upon the theory that if the goods were not according to the contract but the buyer accepted them, the implied warranty as to quality was thereby waived, is erroneous.</p> <p>7. Sales, § 330*—when instruction erroneous. In an action to recover the contract price of goods, an instruction which erroneously states what will constitute a constructive acceptance and invades the province of the jury by assuming such acceptance should be refused.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 768*—when member of mutual benefit association not bound by by-laws increasing assessments. Where a certificate of insurance issued by a mutual benefit association provides that the application, together with the certificate and by-laws of the association, shall constitute the contract of insurance, and such certificate provides that the insured shall be liable for assessments according to the table in the by-laws, the rate of assessment for which he is liable is the rate existing at the time he became a member, and it cannot be increased under new by-laws made by a successor to the society.</p> <p>2. Insurance, § 783*—when forfeiture for nonpayment of assessments not declared. Forfeiture of a certificate of mutual benefit insurance for nonpayment of assessments will not be declared where the member alleged to be in default is not notified in the precise manner specified by the by-laws of the order.</p> <p>3. Insurance, § 245*—how forfeitures of insurance policies regarded in law. Forfeitures of insurance policies are not favored in law.</p> <p>4. Insurance, § 782*—when right of forfeiture for nonpayment of assessments does not exist. An insurance policy issued by a mutual benefit association may not be forfeited for nonpayment of assessments when the insured sent a sum which was sufficient to cover the assessments due if the rate had not been illegally increased in violation of his contract.</p> <p>5. Insurance, § 799*—when beneficiary not estopped to deny forfeiture of policy for nonpayment of assessments. A beneficiary is not estopped to deny the forfeiture of a policy by the nonpayment of assessments because the insured signed a false reinstatement health certificate, when the insured was not in default, and the insurer had no right to exact such a certificate.</p> <p>6. Insurance, § 904*—When evidence sufficient to show intention of insured not to make warranties as to his health. Where an insured, making application for reinstatement after alleged default by nonpayment of assessments, writes across the printed words containing the warranties the words “miscarriage of notice of assessment,” he must be deemed to have not intended to make any statement concerning the warranties but, on the contrary, to have expected his reinstatement to be based upon the supposed miscarriage of a notice of assessment to him.</p> <p>7. Insurance, § 852*—when evidence sufficient to show procurement of release by fraudulent statements of agent. In an action on an insurance policy, evidence held sufficient to establish that a release which was obtained from the beneficiary, the wife of insured, was obtained as a result of fraudulent representations.</p> <p>8. Insurance, § 852*—when release of insurance company from liability invalid. A release from liability which is procured by an agent of the insurer from the beneficiary, the wife of the insured, while the latter is in a serious mental and physical condition following the death of the husband, as the result of fraudulent representations as to the making of false statements by the insured in an application for reinstatement, and as to the right of recovery, is invalid.</p> <p>9. Insurance, § 862*—who is agent of insurance company for purposes of service of process. A representative of an insurance company who has authority to take applications for membership in an insurance corporation, to collect dues and to remit them to the company, to prepare proofs of death and take charge of them for the company, and upon receiving drafts in return to pay death claims to the beneficiaries and obtain releases, must be deemed an agent upon whom process may be served.</p> <p>10. Evidence, § 39*—when presumed that process sent through mails received. It must be presumed that an insurance company received a copy of summons served on its agent which was mailed by him in the due course of the mails.</p> <p>11. Process, § 78*—what constitutes laches in failing to question legality of service of summons. The failure of an insurance company during a period of six months while a suit at law was pending to question the legality of the service of summons on one alleged not to be an agent constitutes laches, which is a bar to equitable relief in action to vacate judgment.</p> <p>12. Judgment, § 286*—when equity will not set aside judgment at law for want of proper service of process. A court of equity will not lend its aid to set aside a judgment at law for want of proper service of process unless it appears that there is a meritorious defense to the judgment or to the claim upon which the judgment is founded.</p> <p>13. Equity, § 189*—when cross-hill seeking affirmative relief proper in action hy insurance company to set aside judgment on insurance policy. In an action in equity by an insurance company to vacate and set aside a judgment at law recovered by the beneficiary in an action at law on an insurance certificate against the company, to whose business complainant was successor, and to restrain the enforcement of such judgment, held that it was proper for defendant to file a cross-bill asking for affirmative relief and seeking a decree to compel complainant to pay the amount alleged to be due on the insurance certificate.</p> <p>14. Equity, § 23*—when jurisdiction may he exercised to adjudicate all rights of parties. Where a court of equity has jurisdiction of the parties and the subject-matter of the litigation, it has authority, for the purpose of administering equitable relief, to adjudicate- all the rights of the parties which are involved in the litigation.</p> <p>15. Equity, § 23*—when decree requiring insurance company to pay assumed indebtedness proper. Where an insurance company has assumed all the obligations of its predecessor, a decree is proper upon a cross-bill seeking' affirmative relief filed in an action by the company to set aside a judgment secured against such predecessor, requiring the complainant to pay such judgment.</p>

<p>1. Master and servant, § 98*—when remedy under Federal Employers’ Liability Act exclusive. Where an action for personal injuries by a servant is within the meaning and scope of the Federal Employers’ Liability Act, the master’s liability is exclusively governed by the Federal statute and no action can be maintained under the State law.</p> <p>2. Commerce, § 4*—when evidence sufficient to sustain finding that flagman struck by interstate car. In an action by a crossing flagman stationed at the intersection of two railroads, for personal injuries sustained while trying to stop a horse and vehicle from crossing the tracks, the gates for which were out of use, evidence held sufficient to sustain a finding that plaintiff was struck by one of defendant’s loaded cars coming from another State which were being pushed on a side track to be unloaded.</p> <p>3. Commerce, § 4*—when crossing flagman employed in interstate commerce at time of injury. A crossing flagman who, in the absence of proper gates to prevent the crossing of teams, attempts to prevent a team from crossing and is struck by a car coming from another State, which is being “shunted” on a side track for the purpose of unloading by the consignee, is engaged in interstate commerce within the Federal Employers’ Liability Act.</p> <p>4. Commerce, § 4*—when servant engaged in interstate commerce. It is not necessary that a coemployee whose negligence causes the injury to an employee of a railroad be also actually employed in interstate commerce to bring the injured employee within the Federal Employers’ Liability Act, where the latter is employed in interstate commerce.</p> <p>5. Master and servant, § 98*—when evidence sufficient to sustain finding that defendant is a railroad and common carrier. In an action against an alleged railroad for damages for injuries to a crossing flagman in its employ, evidence held sufficient to sustain a finding that defendant was in fact a railroad and a common carrier.</p> <p>6. Evidence, § 5*—when judicial notice taken of statute granting railroad charter and amendments. Judicial notice will be taken of a statute granting the charter of a railroad constituting part of the public laws and of amendatory acts changing its name.</p> <p>7. Master and servant, § 566*—when recovery may not be had under State law in action for personal injuries. A recovery cannot be had by a servant for injuries under a State law on pleadings counting only on that law, when the evidence discloses that the case is controlled by the Federal Employers’ Liability Act.</p> <p>8. Master and servant, § 834*—when defendant not estopped to raise question of variance between pleading and proof. The defendant in an action by a servant of an interstate railroad to recover damages for personal injuries under the State law is not estopped on appeal to raise the question of variance between the pleading and the proof, showing the right of action under the Federal law, where he was refused a peremptory instruction, and a requested instruction that the Federal law controlled was refused, and such point was also made on a motion for new trial.</p> <p>9. Master and servant, § 98*—how provision of Federal statute relative to nonassumption of risk construed. The Federal statutes only were intended by the phrase "any statute enacted for the safety of employees,” in the Federal Employers’ Liability Act, section 4 providing that the “employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any Statute enacted for the safety of employees contributed to the injury or death of such employee.”</p> <p>10. Master and servant, § 98*—what decision controlling in questions involving Federal Employers' Liability Act. The decisions of the United States Supreme Court are the final authority on questions involving the Federal Employers’ Liability Act, and must be taken as a guide in determining what force and effect State statutes and ordinances have in determining liability arising thereunder.</p> <p>11. Master and servant, § 835*—when judgment in case erroneously framed under State law reversed. Where, as is developed by the evidence, an action by a servant for personal injuries is erroneously framed under the State law instead of under the Federal Employers’ Liability Act, a judgment for plaintiff must be reversed.</p> <p>On Rehearing.</p> <p>Appeal and error, § 1236*—when party trying case on one theory estopped to claim that case tried on wrong theory. A party plaintiff, who tries a case upon the theory that he is the servant of the defendant and procures a judgment in the court below based upon such theory, and in his argument and statement of the case at the original hearing on appeal proceeds on such assumption, will not be heard to complain on rehearing after reversal of the judgment that the case was tried on a wrong theory and that he was not in fact a servant.</p>

<p>1. Dedication, § 25*—how statutes relative to platting of land and recording of plat construed. Statutory requirements as to the manner of platting land and as to the necessity of recording the plat are not intended to abridge the right of an owner of land to subdivide it and make a plat thereof, but rather to avoid confusion and establish some rule of uniformity.</p> <p>2. Dedication, § 25*—when approval of, proffered plat wrongfully refused 6y municipality. Municipalities may make reasonable regulations respecting the platting of land, but they cannot, by failing to make regulations, put themselves in a position to refuse to approve a proffered plat when the statutory provisions have been complied with and the plat appears to conform to ordinary custom and usage.</p> <p>3. Dedication, § 17*—what does not constitute acceptance of offer of dedication of streets and alleys. A city by approving a plat as required by statute does not accept the offer of the dedication of the street and alleys thereon, but the proper local authorities may take them in charge and improve them for public use when they deem fit.</p> <p>4. Mandamus, § 37*—when statutory approval of proffered plat enforced. The statutory approval of a proffered plat by municipal authorities is a ministerial act, and enforceable by mandamus.</p> <p>5. Dedication, § 26*—when petition to compel approval of profferred plat shows compliance with statutory requirements in making plat. On mandamus to compel municipal authorities to approve a proffered plat, held that a petition, to which a copy of the plat made in the customary way was attached sufficiently showed fulfilment of statutory requirements in making of the plat.</p> <p>6. Dedication, § 29*—when plat of land may not he recorded. An owner of land in a city cannot make and record a plat of his land without the approval of the city authorities.</p>

<p>Abstract of the Decision.</p> <p>1. Limitation of actions, § 58*—when declaration may he amended or additional count filed after running of statute. A plaintiff may amend his declaration or file an additional count stating his cause of action in a different way after the statute of limitations has run without subjecting his action to the bar of the statute.</p> <p>2. Limitation of actions, § 56*—when new cause of action set up hy amended declaration or additional count after running of statute harred. Where the cause of action set up by an amendment to the declaration or by an additional count is a new one and not a mere restatement of the cause of action set out in the original declaration, such amendment or additional count will not relate back to the commencement of the suit, and if the statute of limitations has run before such new cause of action has been stated, the plea of the statute will be a defense to such new cause of action.</p> <p>3. Negligence, § 119*—what plaintiff must allege in action for damages for personal injuries negligently caused. One of the three essential elements of a cause of action for damages for personal injuries negligently caused, which the plaintiff must aver and prove in order to entitle him to recover, is the existence of a duty on the part of defendant to protect the plaintiff from the injury of which' he complains.</p> <p>4. Negligence, § 119*—when'averment as to duty of defendant to prevent injury insufficient. An allegation in an action for damages for injuries alleged to be due to the negligence of another, that it is the duty of the defendant to do or not to do certain things, is a legal conclusion and insufficient, as the declaration must state the facts from which the duty may be raised.</p> <p>5. Pleading, § 466*—when defects or omissions cured by verdict. The general rule is that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet, if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by the verdict.</p> <p>6. Limitation of actions, § 60*—when amendment or additional count merely a restatement of cause of action. Where there is no demurrer to a declaration and the question whether the cause of action stated in an amended declaration or additional count filed after the running of the statute of limitations is the same cause of action as is stated in the original declaration arises upon the pleadings before verdict, such amended declaration or additional count will be held to only restate a good cause of action defectively stated in the original declaration, if the necessary allegations may be fairly and reasonably inferred or may reasonably be found to be implied in what is said in the original declaration.</p> <p>7. Landlord and tenant, § 258*—when presumed that lessee had object in having stairway repaired. Where a landlord is required by the terms of a lease to remodel a building so that the lower floor could be used for store purposes and the upper floor for flat purposes, by the lessee and to build an exterior stairway as means of access to such upper floor and to keep the stairway in good repair, it must be presumed in an action by the wife of lessee for damages for injuries alleged to be due to defects in the stairway that the lessee had an object in requiring the stairway to be kept in repair, and that it was intended by the lease that he should use it in some way connected with his own home or business.</p> <p>8. Husband and wife, § 73*—when roife of lessee right to use' stairway on leased premises. A wife has the right to use an exterior, stairway of premises leased by the husband, leading from an upper story used by them for flat purposes to the street.</p> <p>9. Limitation of actions, § 68*—when declaration defectively stating good cause of action not barred. An original declaration by a wife of a lessee against the landlord for damages for personal injuries sustained because of the failure of the landlord to keep an exterior stairway leading from the second floor of the leased building, the upper floor of which was used by lessee for residence purposes and the lower part for business purposes, to the street, in repair, which alleged that defendant entered into an agreement with the husband of plaintiff to keep the roof, stairway and outer walks of the leased building in good repair and condition, and further averred that thereby defendant undertook to keep said stairway in good repair and condition, held to defectively state a good cause of action as to the duty of the defendant to repair the premises and as to the right of-plaintiff to be upon the stairway when injured, so that when amplified by an additional count setting out the terms of the agreement—a lease—the statute of limitations was not a bar.</p> <p>10. Landlord and tenant, § 226*—when landlord liable to wife of lessee for damages for personal injuries due to defective stairway. Where a landlord has covenanted to keep premises in repair, the lower floor of which is used by the lessee for business purposes and the upper for residence purposes, he is liable to the wife of the lessee for damages for personal injuries sustained while using a defective stairway leading from the upper floor to the street.</p>

<p>Abstract of the Decision.</p> <p>1. Pleading, § 466*—when defects or omissions in, cured 6y verdict. Where there is any defect, imperfection or omission in any pleading, whether in substance or in form, which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so imperfectly' or defectively stated or omitted, and without which it is not to be presumed that the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by the verdict.</p> <p>2. Pleading, § 466*—when defective declaration in action for negligent injuries cured 6y verdict. In an action by a teamster for damages for personal injuries sustained as the result of the car from which plaintiff was unloading coal on a sidetrack of a railroad company being struck by another car being switched on the track by the company’s servants, a declaration which failed to allege that plaintiff was lawfully on such side track, held good after verdict.</p> <p>3. Damages, § 205*—when instruction that damages can only he based upon injury complained of is necessary. Where a plaintiff in a personal injury action is suffering disability that may have arisen only in part from the injury complained of, instructions as to the measure of damages that might otherwise be good should he carefully guarded, and the jury clearly informed that damages can be based only upon the injury complained of.</p> <p>4. Damages, § 202*—when instruction on measure of damages for personal injuries not misleading. In an action for damages for personal injuries sustained by a teamster engaged in unloading coal from a car on a railroad side track, as the result of the car being struck by another car so as to cause plaintiff to fall to the ground, an instruction on the measure of damages that if the jury found the defendant guilty in assessing damages “they should take into consideration all the facts and circumstances shown by the evidence before them, the nature and extent of plaintiff’s physical injuries, if any, so far as the same are alleged in the declaration and shown by the evidence,” held not misleading where the court gave other instructions limiting the plaintiff's damages to such as were the proximate result of the defendant's neglect, and were not due to other causes, and specifically told them that if they found from the evidence that the condition of plaintiff’s rupture which necessitated the operation he underwent did not result from’the accident as the natural and proximate consequence thereof, then, in determining the damages, they should leave out of consideration the fact of the operation, the time lost thereby, and the expense paid and suffering connected therewith.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Claibe C. Edwards, Hon. Chables H. Donnelly and Hon. Aethue H. Fbost, Judges, presiding era Sarao. Heard in this court at the October term, 1915.</p>

<p>1. Appeal and error, § 623*—what is effect of one defendant dying pending appeal by other defendants. Where one of several defendants dies pending the appeal hy other defendants and the death of the deceased is suggested, the suit may proceed without further action by appellants as to such deceased defendant or his representatives.</p> <p>2. Appeal and eebob, § 801*—when ruling of court striking amended special plea from files not reviewed. A ruling of the court striking an amended special plea from the files cannot be reviewed in a court of appeal unless the pleading and the showing and the ruling are preserved in a bill of exceptions.</p> <p>3. Appeal and eebob, § 1275*—when presumed court properly struck amended special plea from files. In the absence of a bill of exceptions, it will be presumed that the trial court properly struck from the files an amended special plea.</p> <p>4. Pleading, § 379*—when issue formed. Where a special count in a declaration against the guarantors on a promissory note was met by a plea of nonassumpsit, to which was filed a proper replication, held that the case was at issue.</p> <p>5. Appeal and eebob, § 1275*—when presumed that proofs justified finding and judgment. Where the proofs heard upon a trial are not preserved by a bill of exceptions, it must be conclusively presumed that the proofs justified the finding and the judgment.</p> <p>6. Pleading, § 379*—when oral issue formed by parties voluntarily going to trial. Where parties voluntarily go to trial without the formation of a written issue, the case is treated as if an oral issue was formed.</p> <p>7. Guabanty, § 30*—when executrix not proper party to action against joint guarantors of note. Where a suit is brought against several persons on a guaranty, including the executrix of a deceased guarantor, the suit is properly dismissed as to the executrix, as the cause could not proceed against them jointly.</p> <p>8. Appeal and eebob, § 1452*—when failure to amend declaration by striking out name of defendant dismissed from case not reversible error. Where a suit was brought on a guaranty against several persons jointly, including the executrix of a deceased guarantor, the fact that, upon dismissing the case as to the executrix the declaration was not amended by striking out her name as a defendant, held not reversible error.</p> <p>9. Guaranty, § 39*—when joint judgment lies only against living guarantors. In an action against several guarantors of a promissory note including the executrix of a deceased guarantor, a joint judgment can be rendered only against the living guarantors.</p>

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

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

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

<p>Appeal from the County Court of Putnam county; the Hon. Ibving E. Bboaddus, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Damages, § 57*—what is measure of damages for breach of contract to repurchase unsold land from vendee. Where land is sold by one person to another and a deed to other land and a contract for repurchase of the latter land taken as part payment of the purchase price, under which contract of repurchase the vendor of such latter land agrees to sell it for the vendees for a stipulated price within one year, and, if he fails to do so, to repurchase it at such price, the measure of damages for refusal to repurchase such latter land at the expiration of one year, after tender of a deed, is the contract price.</p> <p>2. Assumpsit, § 23*—when recovery may he had on common counts for money due. Where a contract has been fully executed and nothing remains to be done but to pay the amount specified, a recovery may be had under the common counts for money due.</p> <p>3. Pleading, § 161*—when defendant limited to defenses in affidavit of merits. A defendant is confined to the defenses set *up in an affidavit of merits.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Domicile—when evidence sufficient to show residence in another State. Evidence held sufficient to sustain a finding that a decedent was a resident of another State, where his family lived, and not of Illinois, where he died and had been engaged in transacting considerable business.</p> <p>2. Executors and administrators, § 30*—when creditor not entitled to preference in administration. Under the Administration Act, sec. 18 (J. & A. If 66), a creditor is not entitled to preference in administration of the estate of a nonresident over the public administrator, but the public administrator is preferred to all except the widow, husband and next of kin resident in this State.</p>

<p>Error to the Circuit Court of Kane county; the Hon. Clinton F: Irwin, Judge, presiding. Heard in this court at the October term, 1915.</p>

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

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

<p>Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Liens, § 8*—when lien for labor on chattels waived. A laborer waives his right to a lien on chattels by giving time beyond the date of delivery for payment.</p> <p>2. Contracts, § 331*—when stipulation for credit waived. A stipulation in a contract for thirty days’ credit after shipment of personal property upon which labor is to be performed is waived where the laborer requests payment without shipment and the owner complies with such request.</p> <p>3. Contracts, § 263*—when party may not rescind contract in part. A party in order to obtain the benefit of a provision of a contract favorable to him must conform to other provisions not in his favor.</p> <p>4. Contracts, § 253*—what is effect of modification of in part. A contract may be varied as to one of its provisions without affecting the liability of the parties under its other terms and conditions, unless such conditions are directly related to the modified condition, in which case the related conditions are also modified.</p> <p>5. Assumpsit, action of, § 70*—when recovery may be had under common counts for labor performed. .Where a contract for labor is substantially varied by subsequent agreement as to require more time and greater expenditure on the part of the plaintiff to complete the performance of it, he is not obliged to sue on the original contract but may recover on the common counts.</p> <p>6. Assumpsit, action of, § 70*—what is extent of recovery for labor in action on quantum meruit. Where work is done under a. special contract, the price must be governed by the stipulations of the contract, even when the plaintiff is justified in abandoning the contract and bringing his action for quantum meruit.</p> <p>7. Contracts, § 187*—what is effect of construction by parties in determining rescission or abandonment of. The construction placed upon the provisions of a contract by the parties is of great weight and often controlling in cases of doubt whether such changes and noncompliance exist as to permit a party to treat the contract, or a provision of it, as rescinded or abandoned.</p> <p>8. Liens, § 2*—when lien for labor on chattel exists. As a general rule a lien for labor on a chattel exists only when the laborer enhances the value.</p> <p>9. Appeal axd errob § 1679*—when variance waived. A variance between allegations and proof is waived if not suggested in the trial court.</p> <p>10. Appeal and ebror, § 1466*—when admission of evidence as to value of services harmless error. The admission of evidence of the plaintiff as to the reasonable value of services in rehandling rails in an action to recover for such services, when there was no proof as to the market value of the labor, held to be harmless error where no motion was made to exclude the evidence and no effort was made to show that the charge was excessive or unreasonable.</p> <p>11. Appeal and error, § 1470*—when proof of contents of letter without proof of its loss harmless error. Proof of the contents of a letter without proof of its loss is harmless error where such evidence adds nothing material to what is already in the case.</p> <p>12. Trial, § 130*—when remarlos of counsel improper. It is improper for counsel for the plaintiff in action against a railroad company to call the defendant the “black sheep” of the railroad business in his address to the jury.</p> <p>13. Appeal and error, § 1514*—when improper conduct of counsel in addressing jury harmless error. In an action against a railroad company, the action of the attorney for the plaintiff in calling the defendant the “black sheep” of the railroad business, held not reversible error under the condition of the record.</p>

<p>Appeal from the Circuit Court of Du Page county; the Hon. Mazziki Slusseb, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Contracts, § 279*—what is effect of rescission of contract. The operation and effect of a rescission of a contract is to terminate all the rights of the parties under the original contract.</p> <p>2. Sales, § 284*—when right of seller to recover purchase price not affected by storage of goods subject to order of purchaser. Where a contract of sale is rescinded by the purchaser, the right of the seller to recover the purchase price is not affected by the fact that the purchaser delivers the goods to the seller and they are stored by the seller subject to the purchaser’s order.</p> <p>3. Sales, § 284*—when seller may bring action of quantum, meruit on abandonment of contract by purchaser. Where books are sold under a special contract, the seller may, upon default of the purchaser, treat the contract as abandoned or “rescinded” and bring an action of quantum meruit, and the price is governed by the stipulation in the abandoned contract.</p> <p>4. Appeal and error, § 1802*—when cause must be remanded for further proceedings upon reversal. In the absence of a waiver of the right to trial by jury, a judgment for plaintiff may not be entered upon reversal of the judgment for defendant, but the cause must be remanded for further proceedings.</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 7*—when evidence sufficient to sustain finding that contract to sell property not made. In an action by a broker for commissions, where it appeared that the owner had practically arranged a sale of property to the purchasers, evidence held sufficient to sustain a finding that the owner did not enter into a contract with the broker to find a purchaser for the property.</p> <p>2. Brokers, § 95*—when requested instruction that plaintiff had furnished buyer properly refused. In an action by a broker for commissions, a requested instruction including a holding that plaintiff had proved by the greater weight of evidence that he furnished the buyer, held properly refused, there being sufficient evidence to sustain a finding that a contract was not entered into.</p> <p>3. Instructions, § 114*—when requested instruction properly refused as inapplicable to issues. In an action by a broker to recover commissions for the sale of real estate, a requested instruction that</p> <p>' the measure of recovery was what the services were reasonably worth, held properly refused where no question of value of the services was in issue and it was uncontradicted that such services, if rendered, were worth more than plaintiff claimed.</p> <p>4. Brokers, § 84*—what evidence inadmissible. In an action by a broker for commissions, evidence that the officers of the purchaser and the seller of the property were not on speaking terms, and that an officer of the purchaser never talked with the seller about the purchase before a slip of paper with the price of property marked thereon, which the broker had received from the seller and had given to one officer of the purchaser, was given by such officer to another officer of the purchaser, held inadmissible where it was not claimed that such latter officer had seen the owner before he got the slip of paper, and it appeared that he did in fact go to the owner and negotiate the sale of the property.</p>

<p>1. Negligence, '§ 95*—what degree of care required of children. L child is not required to exercise the same degree of care to avoid njury as an adult, but only such care as a child of his age, intelli;ence, experience and capacity would ordinarily exercise.</p> <p>2. Negligence, § 4*—what degree of care required not to injure Iphildren. Adults must take notice of the lack of judgment, caution and discretion in children and their consequent inability to take care of themselves, and conduct business with that in view and reasonably guard against injuring them.</p> <p>3. Negligence, § 201*—when contributing negligence of child is for fury. Although the evidentiary facts are undisputed, still the question of contributory negligence is one of fact for the jury and not of law for the court, unless all reasonable minds must agree as to the conclusion to be drawn from the admitted facts.</p> <p>4. Electricity, § 28*—when contributory negligence of child in handling live wire for jury. In an action for the death of a boy ten years of age who, while traveling on a highway, left it to examine a fallen electric wire on land adjoining a public highway, and was killed upon touching the exposed end of the wire while handling it, held that it was a question for the jury whether the deceased was guilty of contributory negligence.</p> <p>5. Electricity, § 27*—when evidence sufficient to sustain finding that city was guilty of negligence in failing to repair break in electric wire. In an action against a city for the death of a boy ten years of age, as the result of his handling a live wire in a field adjoining a public highway, where it appeared that the line had been in operation three or four weeks and that a severe storm occurred two days before the accident, evidence held sufficient to sustain a finding that defendant was guilty of negligence in failing to investigate and repair the line.</p> <p>6. Electricity, § 9*—what degree of care must be taken to prevent injury to persons from current of electric light supply line. An felectric light supply line is a dangerous agency, and care commensúrate with the danger must he taken to prevent injury to persons from the electric current.</p> <p>7. Trespass, § 11*—what does not constitute trespassing on premises of city. A boy who leaves the public highway and goes into a field, which a city has a license to use for its electric light supply line, to experiment with a fallen electric light wire, is not a trespasser on premises of the city, regardless of whether or not he was a trespasser as against the owner of the land.</p> <p>8. Electricity, § 25*—when not presumed that boy has full knowledge of danger from electric wire. It is not to be presumed that a boy ten years of age has any knowledge of electricity and its dangers compared with workmen employed around electric wiring.</p> <p>9. Appeal and error, § 1772*—when judgment not reversed. A judgment should not be reversed where the record discloses no material error of law.</p> <p>10. Instructions, § 47*—when instructions which direct verdict may be refused. Requested instructions advising the jury that plaintiff’s decedent ivas guilty of negligence under the facts, held improper.</p> <p>11. Instructions, § 153*—when not duty of court to modify. It is not the duty of the court to modify requested instructions which in effect direct a verdict.</p> <p>12. Appeal and error, § 1241*—when party may not oomplain of modification of erroneous requested instruction. One who asks a court to give an improper instruction cannot be heard to complain of the court’s action in modifying it, although the court fails to make it good.</p> <p>13. Appeal and error, § 1544*—when error in instructing jury to pass on question of contributory negligence as matter of law harmless. Any error in an instruction in an action for negligent death, that it allowed the jury to pass on “contributory negligence” as a matter of law, held harmless where the jury were told in other instructions that the plaintiff was not entitled to recover unless the deceased was at and before the accident in the exercise of due care there defined.</p> <p>14. Death, § 73*—when not erroneous as telling jury to consider all the evidence in determining damages for negligent death. An instruction in an action for negligent death, that if the jury believed from a preponderance of the evidence in the case that the defendant was guilty as charged in plaintiff’s declaration or some count thereof, then in determining the amount of damages, if any, to be awarded to plaintiff as administrator, they should fix such amount for their verdict, as would, in their judgment, from all the evidence be a fair and just compensation to the next of kin of deceased for the pecuniary loss, if any, resulting to them by reason of his death, held not erroneous as requiring the jury to consider “all the evidence” instead of limiting their consideration to the facts and circumstances attending the injury.</p> <p>15. Death, § 73*—when instruction on damages in action for negligent death not bad as ignoring defense of contributory negligence. An instruction on damages for negligent death is not bad as ignoring the defense of contributory negligence where it does not direct a verdict, but is only intended to guide the jury in assessing damages, if they find the defendant guilty.</p> <p>16. Death, § 73*—when instruction in action for negligent death limiting recovery to pecuniary damages proper. In an action for the negligent death of a child, an instruction on damages held proper as confining the jury to pecuniary damages.</p> <p>17. Appeal and error, § 1542*—when instruction on damages not reversibly erroneous. An instruction on damages cannot be held reversibly erroneous where there is no claim, or ground for claim, that the damages are excessive.</p>

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

<p>Error to the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. • Heard in this court at the October term, 1915.</p>

<p>1. Trial, § 68*—When party not required to state facts to be proved by answer to question. Where a question is in proper form and clearly admits of an answer relative to the issue and favorable to the party on whose side the witness is called, the party is not bound to state the facts proposed to be proved by the answer unless the court requires him to do so.</p> <p>2. False imprisonment, § 85*—when evidence admissible in mitigation of exemplary damages. In an action by a girl fourteen years of age for damages for false imprisonment by a saloon keeper who detained her and turned her over to the police while she, with a party of children, was passing defendant’s saloon, and some one had thrown open the door of the saloon and broken the glass, held that evidence that defendant had been instructed, upon a prior complaint to a policeman, to catch parties making disturbances and get their names or send them to the police station, and that he would see that the disturbances were stopped, was admissible in evidence in mitigation of exemplary damages.</p> <p>3. Appeal and error, § 1523*—when error in instruction harmless. In an action by a child for damages for false imprisonment, any error in an instruction on the right of a private person to make an arrest for a crime committed or attempted in his presence, held harmless where there was little question as to the right of the defendant to arrest and detain the plaintiff.</p> <p>4. Instructions, § 155*—when method of modification to be condemned. The' practice of modifying instructions, leaving the part struck out so that the jury can read it, is to be condemned.</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 88*—when evidence sufficient to show acceptance of offer to act as broker for specified commission. In an action by brokers for commissions for the exchange of real estate, evidence held sufficient to sustain a finding that plaintiffs’ proposition to act as brokers for a specified commission was accepted by defendant.</p> <p>2. Brokers, § 88*—when evidence sufficient to sustain finding that terms of contract to act as broker not modified. In an action by brokers to recover commissions for the exchange of real estate, evidence held sufficient to sustain a finding that the contract fotf commissions was not modified so that no commissions were to be paid until the property received in exchange was in turn exchanged for other property.</p> <p>3. Brokers, § 95*—when instruction on burden of proof in action - for commissions correct. In an action by brokers for commissions for the exchange of real estate, an instruction that the burden of proof was upon the plaintiffs to show a contract for commissions and that the contract, if so shown, stood until a rescission or change was shown, and that the burden of proof was upon defendant to show a rescission or change, held correct.</p> <p>4. Brokers, ' § 95*—when instruction improperly modified as not conforming to pleadings. In an action by brokers for commissions for the exchange of real estate in Minnesota for property in another State, which latter property defendant claimed plaintiffs agreed as part of the contract to exchange for Illinois property, a requested instruction that if the jury believed that there was an agreement between plaintiffs and defendant to trade the foreign property for land in Illinois “or elsewhere” and the undertaking was not performed by plaintiffs they could not recover, held improperly modified by striking out the words “or elsewhere” on the ground that there was a departure from the pleadings, as, if a later and different agreement was made, it was admissible under the general issue.</p> <p>5. Appeal and error, § 1565*—when error in modifying instructions as not conforming to pleadings harmless. In an action by brokers for commissions for the exchange of real estate in Minnesota for property in another State, which latter property defendant claimed plaintiffs agreed as part of the contract to exchange for Illinois property, any error in modifying requested instructions that if the jury believed that there was an agreement between plaintiffs and defendant to trade the foreign property for land in Illinois “or elsewhere” and the undertaking was not performed by the plaintiffs they could not recover, on the ground that it was a departure from the pleadings to so instruct, held harmless where the jury had been informed in other instructions that if there was a later and different agreement the plaintiffs could not recover.</p> <p>6. Instructions, § 151*—when instructions covered by given instructions properly refused. Requested instructions which are adequately covered by given instructions are properly refused.</p> <p>7. New trial, § 102*—how motion for on ground of newly-discovered evidence should be supported. A motion for new trial founded on newly-discovered evidence should be supported by the affidavits of the witnesses by whom it is proposed to prove the facts relied upon, or some excuse should be shown for not obtaining them.</p> <p>8. Appeal and error, § 1236*—when neither party may complain of amount of verdict. Where the jury are instructed by agreement of counsel, in an action by brokers for commissions for the exchange of real estate, that if they found for the plaintiffs to render a verdict for a stipulated amount, neither party can complain of the amount of the verdict.</p>

<p>1. Appeal and error, § 1034*—when judicial notice taken of warrant of attorney not set out in bill of exceptions. In the absence of a special demurrer to a declaration which expressly makes a part thereof and1 files therewith, as an exhibit, a warrant of attorney to confess judgment, the reviewing court will take notice of such warrant of attorney though not set out in the bill of exceptions.</p> <p>2. Judgment, § 17*—when power of attorney to confess judgment on award of arbitrators invalid. A power of attorney to confess judgment on a common-law award of arbitrators to be made after the execution of the power is invalid.</p> <p>3. Judgment, § 80*—when judgment by confession may be vacated after expiration of term. A court may vacate a judgment by confession after the expiration of the term at which it was rendered if it was without jurisdiction to enter the judgment.</p> <p>4. Judgment, § 13*—when judgment by confession void. A judgment by confession entered under an invalid power of attorney is void.</p> <p>5. Judgment, § 81*-r-when suit dismissed upon vacation of void judgment. Where, after vacation of a void judgment by confession, the plaintiff declined to take further proceedings, the suit may be dismissed.</p>

<p>1. Attorney and client, § 134*—when evidence as to good character of attorney incompetent in action for fees. On the trial of an action of assumpsit for attorney’s fees in the Circuit Court on appeal from the Justice’s Court, testimony that the plaintiff’s reputation for honesty and fair dealing was good, held incompetent, even though remarks attacking the plaintiff’s reputation in that regard were made by the defendant’s attorney in his opening statement, since such remarks are no part of the pleadings in such an action.</p> <p>2. Appeal and error, § 546*—when evidence objected to and preserved for review considered on appeal. Where admission of testimony is properly objected to and preserved for review, the ruling will be passed upon on appeal, although similar testimony is subsequently introduced without objection.</p> <p>3. Instructions, § 153*—when refusal to modify requested instructions not error. A refusal of the trial court to modify bad requested instructions and give them as modified is not error.</p>

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

<p>Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Instructions, § 31*—when court may instruct orally as to verdict. It is not competent for a court to instruct a jury orally, concerning the verdict they should render, except in relation to matters that pertain strictly to the form of the verdict, or to a correction of the form thereof.</p> <p>2. Instructions, § 31*—when oral instruction erroneous as being on matter of substance and not of form of verdict. Where, in an action on a promissory note to which the general issue and partial payment were pleaded, the jury returned a verdict: “We, the jury, find the issues for the defendant and assess the plaintiff’s damages at the sum of $1,049.42,” an oral instruction that the jury should deduct such amount from the amount of the note and return a verdict for the plaintiff for the difference, held erroneous as an oral instruction on a matter of substance and not of form of the verdict, and also as amounting to directing a verdict.</p> <p>3. Instructions, § 28*—when giving of oral instructions reversible error. It is reversible error for a trial court to orally instruct a jury concerning the law of the case, or to orally qualify or explain a given written instruction.</p> <p>4. Instructions, § 31*—ivhen oral instruction as to method in arriving at amount of verdict error. It is error for a court to orally instruct a jury as to the method they are to pursue in arriving at the amount of a verdict.</p> <p>5. Instructions, § 46*—when improper as invading province of jury. Where the evidence is conflicting it is error for the court to assume, in an instruction, that a verdict will or should be returned for any particular sum or any particular party.</p> <p>6. Trial, § 260*—when court may not reconcile self-contradictory verdict with supposed facts. Where the real findings of the jury are conjectural, a court may not reconcile a self-contradictory verdict with what he believes the findings to have been.</p>

<p>1. Roads and 'bridges, § 54*—when petition to lay out new road contains sufficient number of signatures by landowners. A petition. to lay out a new road, under Rev.- St. 1913, ch. 121, sec. 75 [Cal. Ill. St. Supp. 1916, If 10000 (75) ], which is signed by sixteen landowners residing in the township or road district within two miles of the road to be laid out, is sufficient even though they could not constitute two-thirds of the landowners in the township residing within such distance, as the provisions of the statute are alternative.</p> <p>2. Roads and bridges, § 54*—when petition to lay out new road shows qualification of petitioners. A. petition to lay out a new road under Rev. St. 1913, ch. 121, sec. 75 [Cal. Ill. St. Supp. 1916, If 10000 (75) ], sufficiently shows the qualification of the petitioners where it appears merely from the recitals thereof that they are qualified.</p> <p>3. Roads and bridges, § 55*—when description of proposed new road in petition for sufficient. Where the description of a proposed new road in a petition therefor under Rev. St. 1913, ch. 121, sec. 75 [Cal. Ill. St. Supp. 1916, fl 10000 (75) ] is reasonably certain, it is sufficient.</p> <p>4. Roads and bridges, § 54*—when petition for new road sufficiently shows names of owners of lands over which it will pass. A petition for a proposed new road under Rev. St. 1913, ch. 121, sec. 75 [Cal. Ill. St. Supp. 1916, If 10000 (75) ], which states that “said proposed road is projected across the land of the following landowners,” and gives the names of such landowners, is sufficient.</p> <p>5. Roads and bridges, § 54*—when questions of vacating of old road and laying out of new need not be included in same petition. Under the Roads and Bridges Act, ch. 121, sec. 75 [Cal. Ill. St. Supp. 1916, If 10000 (75) ], it is not necessary, although proper, that the questions of the vacating of an old road and the laying out of a new road, even where each is a part of a general plan of improvement to be carried out, be included in one petition to the commissioners of highways.</p> <p>6. Roads and bridges, § 53*—when petition for vacation of old road and for establishment of new may be considered together. A petition for the vacating of an old road and one for the laying out of a new road may be contemporaneously considered, and the projects proposed may be carried out simultaneously as part of the same general enterprise.</p> <p>7. Costs, § 30*—when highway commissioners denying petition to vacate old road and t.o establish new road not personally liable for costs. Where highway commissioners act in good faith in denying petition to vacate an old road and to lay out a new one, they are not individually liable for costs in mandamus proceedings, to compel their further action in compliance with law, upon judgment going against them.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 693*—when evidence sufficient to show that cars striking car repairer at work in front of detached car were pushed with unusual violence. In' an action under the Federal Employers’ Liability Act for the negligent death of an assistant (ar repairer who was caught between the buffer of a standing mail car which had been detached from the train by a road engine and which he was inspecting, and the buffer of the foremost car of the rest of the train upon which a switch engine was working , at the other end to “cut off” two coaches, evidence held sufficient to sustain a finding that the switch engine bumped against the standing cars, during the operation of cutting off such coaches, with such violence and unusual force as to cause the string of cars to move to the place where decedent was working.</p> <p>2. Master and servant, § 337*—what risks employee does not assume. An employee assumes only the ordinary risks and dangers of his employment and does not assume extraordinary or unusual risks thereof.</p> <p>3. Master and servant, § 337*—when assistant ear inspector does not assume risk of being struck by cars during switching operations. An assistant railway car inspector, who, after a mail car has been detached from the rest of a passenger train by a road engine and moved from four to six feet from the rest of the cars standing on the track, is working in front of the buffer of the car inspecting it, does not assume the unusual and extraordinary risk of being .struck by the foremost car of the rest of the train which, with other cars, is set in motion as the result of a switch engine working at the other end of the train bumping against the standing cars with unusual violence, as such a risk is an extraordinary one.</p> <p>4. Negligence, § 74*—when person not bound to anticipate negligence of another. The law does not impose upon one to anticipate the negligence of another, as it is presumed that every person will properly perform the duty which is enjoined upon him by law or imposed by contract.</p> <p>5. Master and servant, § 716*—when negligence of defendant in cutting off coaches from cars moving against car repairer question for jury. In an action for the alleged negligent death of an assistant car repairer as the' result of being caught between the buffer of a detached mail car and the foremost car of the rest of the train, while inspecting the detached car, as the result of the moving of the string of cars against him, upon their being struck by a switch engine during the operation of cutting off two coaches from the other end of the train, held that it was a question for the jury whether defendant was guilty of negligence.</p> <p>6. Master and servant, § 759*—when contributory negligence of car repairer standing between mail car and rest of train question for jury. In an action for the negligent death of an assistant car repairer who was killed by being crushed between a detached mail car, which he was inspecting, and the rest of the train, from which two coaches were being “cut off” by a switch engine working at the other end of the train, as the result of the engine striking the cars with such force as to set them all in motion, held that it was a question for the jury whether the deceased was guilty of contributory negligence in being in the position he was at the time of the accident.</p> <p>7. Master and servant, § 98*—what is effect of contributory negligence on right of recovery under Federal Employers’ Liability Act. Under the Federal Employer’s Liability Act, contributory negligence does not bar the right of recovery, but affects the amount of damages which may be recovered, and the damages are to be diminished by the jury in proportion to the amount of negligence attributable to the employee.</p> <p>8. Death, § 63*—when damages for negligent death not excessive. In an action for negligent death under the Federal Employers’ Liability Act, a verdict for $7,200 upon reduction of $800 for the contributory negligence of the plaintiff, held not excessive nor disproportionate.</p>

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

<p>1. Parliamentary law—what is proper action by legislative body when measure returned with veto. Under parliamentary rules, the proper action to be taken by a legislative body when a measure adopted by it has been returned to it by a veto of the proper authority, is to move to reconsider the vote by which the measure was adopted. '</p> <p>2. Parliamentary law—what is proper action after adoption of motion to reconsider vetoed measure. Where the majority of a legislative body adopt a motion to reconsider a vetoed measure, it is then proper to move that the measure be adopted notwithstanding the veto, or that it be passed over the veto.</p> <p>3. Parliamentary law—when measure adopted over veto. Where the required majority adopt a motion that a vetoed measure which has been reconsidered be adopted notwithstanding the veto, the passage of ordinances over veto of the mayor, made for-</p> <p>4. Municipal corporations, § 85*—what is effect of departure from form prescribed for passage of ordinance. Departure from the form prescribed for the passage of an ordinance will not affect the validity of such action unless the governing law makes such formality vital.</p> <p>5. Municipal corporations—what constitutes a reconsideration of vetoed ordinance. In an action by a mayor to recover salary due him, in which it was contended that an ordinance reducing the salary.of the mayor was invalid because a motion to reconsider the vote by which the ordinance was originally passed was not made before adopting the ordinance over the mayor’s veto, held that as neither the general act for the incorporation of cities, article III, sec. 19 (J. & A. jf 1319), nor. a city ordinance governing the passage of ordinances over the veto of the mayor, made formality vital, the action of the city counsel, upon the ordinance being returned by the mayor, in making, seconding and carrying a motion by a vote of six to one that the ordinance be passed over the mayor’s veto, constituted in effect a reconsideration and the ordinance was consequently lawfully passed.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence, § 35*—when possession is proof of title. As a general rule the possesion of personal property is proof of title.</p> <p>2. Executors and administrators, § 97*—when burden of proof upon confidential agent to show right to personalty in his possession after death of owner. A confidential agent of the owner of personal property who has lawful access thereto and abundant opportunity to transfer it to his possession without the knowledge of the owner, and has possession of the property after the death of the owner, is required to assume the burden of establishing as a defense that he came by such property in good faith in proceedings by citation under the Administration Act (J. & A. H 130).</p> <p>3. Executors and administrators, § 97*—when evidence sufficient to show fiduciary relation. In proceedings by citation under the Administration Act, sec. 81 (J. & A. V 130), for the discovery of concealed effects of a decedent alleged to be in possession of respondent, evidence held sufficient to show the existence of a fiduciary relation between decedent and respondent.</p> <p>4. Executors and administrators, § 97*—when evidence sustains finding that respondent did not make expenditures out of own or borrowed funds. In proceedings by citation under the Administration Act, sec. 81 (J. & A. If 130), for the discovery of concealed , effects of a decedent alleged to be in possession of respondent, evidence held sufficient to sustain a finding that respondent did not expend money for the building of a house for decedent, for which he claimed the right to certain securities belonging to decedent in payment, out of his own or borrowed funds.</p> <p>5. Executors and administrators, § 97*—when evidence sufficient to show that note belonging to decedent not given in payment ■for services. In proceedings by citation under the Administration Act, sec. 81 (J. & A. V 130), for the discovery of concealed effects of a decedent alleged to be in possession of respondent, evidence held sufficient to sustain a finding that a note belonging to decedent was not given to respondent in payment for alleged services.</p>

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

<p>1. Pleading—when plea to jurisdiction not waived. A defendant does not, after a demurrer to a plea to the jurisdiction has been sustained, waive such plea by making motions to dismiss the suit, because no bond has been filed to protect a nominal plaintiff, and for a rule on the plaintiff to file a bond for costs, before a judgment, to answer over has been entered.</p> <p>2. Pleading, § 79*—when plea to jurisdiction invalid. A plea to the jurisdiction stating as a legal conclusion, merely, that the action is not of such a character as permits the defendant to be sued in the jurisdiction where suit is brought, is invalid.</p> <p>3. Pleading, § 79*—when plea to jurisdiction insufficient. A plea to the jurisdiction failing to aver that the beneficial plaintiff does not reside in the county in which suit is brought is insufficient.</p> <p>4. Pleading—what is effect of absence of valid plea to jurisdiction. In the absence of a valid plea to the jurisdiction, the presumption is that the plaintiff is a resident of the county in which suit is brought.</p> <p>5. Pleading, § 379*—when ease treated as if oral issues joined. Where parties voluntarily go to trial without the formation of written issues, the case is treated as if oral issues had been joined.</p> <p>6. Insurance, § 660*—what constitutes prima facie case in action on policy for death of animal. In an action on a policy of insurance on a stallion, containing a clause insuring against death or theft and, in another paragraph, restrictions and limitations as to certain causes of death for which the insurer would not be liable, the plaintiff makes out a prima facie case by showing that the animal died, and the burden is then cast on the insurer to show that the cause of death was one not covered by the policy.</p> <p>7. Principal and agent, § 8*—when relation exists. In an action on an insurance policy, where it appeared that the application was signed by a party as special agent whose name, as such, was indorsed on the back thereof, and the defendant in a plea averred that such person was its special agent, held not error to permit a witness to refer to such person as the defendants’ agent.</p> <p>8. Insurance, § 663*—when evidence sufficient to show Tack oj fraud in procuring policy on animal. In an action on a policy of insurance on a stallion, evidence held to show no fraud in the procurement thereof.</p> <p>9. Appeal and error, § 1459*—when objection to admission of testimony not considered on appeal. An objection to testimony will not be considered on appeal where the same testimony had been previously received in evidence without objection.</p> <p>10. Insurance—when provision in policy on animal that it should not be shipped out of State waived. A provision in a policy of insurance on a stallion, to the effect that he should not be shipped out of the state, held waived by issuance of the policy with knowledge on the part of the insurer that he had been shipped out.</p> <p>11. Insurance, § 329*—when insurer of stallion in foreign State may not contend that law of such State forbids insurance of animals. Where an application for a policy of insurance on a stallion is made in Illinois and the policy is sent to Iowa to the owner of the stallion, to whom he had in the meantime been shipped with knowledge of the insurer, the insurer cannot defend on the ground that it is against the law of the latter State to insure animals.</p>

<p>1. Railroads, § 634*—when operation of engine backwards without light in front at night in violation of ordinance constitutes negligence. In an action against a railroad company for death, the defendant held guilty of negligence in running a locomotive hack-wards over its tracks within city limits in the nighttime without displaying a light on its advancing end, in violation of an ordinance.</p> <p>2. Railroads, § 641*—when backing of train over crossing without warning constitutes negligence. Backing a train across a much-traveled street crossing, in the nighttime, without ringing a bell or having the crossing guarded by a trainman with a lighted lantern, or by a flagman, held negligent.</p> <p>3. Railroads, § 640*—when backing of train over crossing at excessive speed constitutes negligence. Backing a train across a street crossing at a speed in excess of that allowed by city ordinance is negligent.</p> <p>4. Appeal and error, § 1245*—when party procuring exclusion of competent evidence may not complain of failure to establish due care. In an action for death where competent evidence as to the sobriety, cautiousness, industriousness, prudence and carefulness of the deceased was ruled out on the defendant’s objection thereto, held that the defendant could not he heard to argue on appeal that the plaintiff was not in the exercise of due care at the time of his death.</p> <p>5. Railroads, § 661*—when person about to cross track has right to rely upon obedience of ordinance in operation of train. One about to cross a railroad at a street crossing has a right to rely upon the railroad’s servants obeying city ordinances in the operation of its trains.</p> <p>6. Death, § 46*—what may he considered on question of due care in action for death. In an action for death the jury may, on the question of due care on the part of the deceased, consider the instinct common to man, prompting to the preservation of life and avoidance of danger.</p> <p>7. Death, § 73*—when instruction need not contain requirement that jury should find that deceased was in exercise of due care. In an action for death due to defendant’s negligence, an instruction relating solely to the measure of damages need not contain the requirement that the jury should find that the deceased was in the exercise of due care.</p> <p>8. Death, § 67*—when verdict for not excessive. A verdict for $7,000 for the death of an able-bodied man thirty-six years old, earning $924 per year, and having at the time of his death a wife and three children, aged five, four and three years, respectively, held not excessive, where, though his family had gone to a foreign country, there was no evidence that he had ceased to support them.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal corporations, § 1107*—when knowledge by pedestrian of defect in street question for jury. In an action against a city by a former member of the council to recover damages for personal injuries sustained on a dark night, as the result of stepping off a sidewalk and falling into a hole in a street, where it appeared that plaintiff had long been accustomed to use such street and thought he was turning at right angles on another intersecting sidewalk, held that it was a question for the jury whether plaintiff knew of the hole in the street.</p> <p>2. Estoppel, § 56*—when former member of city council not es-topped to recover for personal injuries due to defeat in street. A former member of a city council is not precluded from recovery against a city for damages for injuries sustained as the result of stepping off a sidewalk into a hole in the street because of the fact that such defect existed at the time he left office.</p> <p>3. Municipal corporations, § 979*—when city guilty of actionable negligence in neglecting to repair or guard excavation. In an action for damages for personal injuries sustained as the "result of a pedestrian stepping off a sidewalk into an unguarded hole in the street, where years before a catch-basin for a sewer had been put in and the hole left open, held that the city was guilty of actionable negligence in permitting the excavation to remain in such condition, uncovered and unguarded.</p> <p>4. Municipal corporations, § 1025*—when city charged with notice of defect in street. A city is charged with notice of the existence of an unguarded hole near a sidewalk in the street where such hole has existed for years.</p> <p>5. Municipal corporations, § 1107*—when contributory negligence of pedestrian injured by stepping off sidewalk into unguarded hole in street question for jury. In an action by a former member of a city council to recover damages for personal injuries sustained on a dark night, as the result of stepping off a sidewalk into an unguarded hole in the street which had existed for years, where it appeared that plaintiff was familiar with the streets, that the hole existed during his term of office as a member of the city council, but that he thought that he had reached an intersecting sidewalk along which he intended to pass, held that it was a question for the jury whether plaintiff was exercising ordinary care for his safety.</p>

<p>Error to the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1915.</p>

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

<p>Abstract of the Decision.</p> <p>1. Estoppel, § 33*—when giving of deed as mortgage does not estop grantor to claim that later deed not mortgage. The fact that the owner of property gives one deed as a mortgage to cover indebtedness does not estop him from claiming that another deed reciting that the grantee assumes and promises to pay other mortgage incumbrances was not intended as a mortgage.</p> <p>2. Mortgages, § 38*—when evidence sufficient to establish absolute conveyance and not mortgage of real property. In an action of assumpsit to recover the market value of an equity in residence property which was conveyed by deed from plaintiff to defendant under an alleged oral agreement not performed by defendant, evidence held sufficient to sustain a finding that the deed was intended as an absolute conveyance of the property as claimed by plaintiff, and not as a mortgage, as contended by defendant.</p> <p>3. Damages, § 66*—what is measure of for breach of oral contract to convey property. In an action of assumpsit to recover the market value of an equity in residence property which was conveyed by deed to defendant by plaintiff under an alleged oral agreement by which plaintiff was to convey such property, subject to the mortgages thereon, to defendant and pay a certain sum of money equivalent to three notes against plaintiff which had been held by defendant, but had been transferred to another person, in consideration of the cancellation of such notes and the conveyance of other property, an instruction that if the jury found that the agreement was as stated and defendant refused to perform the contract they should find for the plaintiff and assess his damages at such sum as they believed, from a preponderance of the evidence, the fair market value of plaintiff’s interest in such property exceeded the incumbrance thereon, approved.</p> <p>4. Courts, 138*—when cause not transferred to equity side of court. A vendee sued at law for the purchase price of real estate cannot transfer the action to the equity side of the court by pleading and attempting to prove that the deed was given as a mortgage unless he succeeds in establishing the truth of his statements.</p> <p>5. Assumpsit, action of, § 6*—when lies to recover value of property conveyed under oral agreement. Where land is conveyed to another under an alleged oral agreement by which the vendor is to convey such property, subject to incumbrances, to the vendee and to pay a certain sum equivalent to outstanding notes of vendor’s in favor of vendee, in consideration of the cancellation of such notes and the conveyance of other property, the refusal of vendee to convey such other property constitutes a termination of the express contract and authorizes an action in assumpsit to recover on an implied agreement.</p> <p>6. Assumpsit, action of, § 89*—when evidence sufficient to sustain verdict as to value of property. In an action of assumpsit to recover the market value of residence property conveyed to defendant under an oral contract, which was breached by defendant, evidence held sufficient to sustain the verdict as to the value of such property.</p> <p>7. Appeal and erbob, § 1447*—when error in refusing leave to file special pleas and in sustaining demurrers to special pleas harmless. Any error in an action of assumpsit in refusing defendant leave to file special pleas and in sustaining demurrers to special pleas is harmless where defendant is not deprived in the introduction of evidence, or in the instructions to the jury, of any legal right to which he is entitled under the facts.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hop. Jos A. Davis, Judge, presiding. Heard in this court at the October term, 1915.</p>

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

<p>Appeal from the County Court of Lake county; the Hon. Persy L. Persons, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. New trial, § 52*—when proper because verdict against evidence. "When the weight of evidence is clearly and manifestly against the verdict, it is the duty of the trial court to grant a new trial, failing in which the judgment will he reversed upon appeal.</p> <p>2. Evidence, § 315*—what is purpose of documentary evidence. Photographs, diagrams and drawings are often proper, not as evidence within themselves, hut for the purpose of enabling the jury to understand and apply the testimony.</p> <p>3. New trial, § 79*—when motion for on ground of newly-discovered evidence properly denied. A motion for a new trial on the ground of newly-discovered evidence, held properly denied where no reason was given why certain witnesses, whose testimony was relied on, were not produced at the trial.</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1915.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding. Heard in this court at the April term, 1915.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. S. C. Stough, Judge, presiding. Heard in this court at the April term, 1915.</p>

<p>1. Assignments, § 11*—when approval by debtor not necessary. A rule of the relief department of a railroad that an assignment of a claim of a member of such department cannot be legally made without the approval of the department superintendent is not a bar to an action based on an assignment.</p> <p>2. Assignments, § 11*—when acceptance of assignment of part of claim necessary. An assignment of a part of a claim or demand is not legally binding upon the payor, unless such assignment is accepted by him.</p> <p>3. Assignments, § 25*—what are rights of assignee. While under section 18 of the Practice Act (J. & A. 8555), the assignee of a claim or demand may sue in his own name to recover the amount due, his rights are otherwise no greater, thereunder, than they were at common law.</p> <p>4. Assignments, § 11*—when acceptance by debtor necessary. A member of the relief department of a railroad held not entitled to recover for the use of the assignee on an assignment, of part of his claim for injuries, which had not been accepted by the superintendent of the department.</p>

<p>1. Bills and notes, § 411*—when burden on defendant to show fraud. Where duress or fraud are set up as a defense to an action on a promissory note the burden is on the defendant to prove such averments by a preponderance of the evidence.</p> <p>2. Bells and notes, § 441*—when evidence insufficient to show fraud in procuring execution of. In an action on a promissory note, the preponderance of the evidence held to negative fraud and duress in procuring the signing, thereof.</p> <p>3. Bills and notes, § 50*—When supported by consideration. Where a promissory note, given in discharge of an obligation of another than the defendant, was signed by the defendant on a day subsequent to that on which it was signed by such other party, but it was not intended by the payee to be, and was not in fact, accepted until it was signed by the defendant, held that no new consideration moving to the defendant was necessary to make him liable thereon, inasmuch as the signing by both parties and the acceptance were a part of the same transaction.</p> <p>4. Bills and notes, § 50*—when consideration sufficient to bind signer. The discharge of an existing indebtedness of another is a sufficient consideration to bind one signing a note, given in discharge thereof, whether he signs as joint principal, maker or surety.</p> <p>5. Trial, § 292*—when propositions of law assuming facts properly refused. It is not error to refuse to hold propositions of law assuming facts which do not agree with actual facts as shown by the evidence.</p> <p>6. Appeal and error, § 1567*—when incorrect rulings on propositions of law harmless error. Conclusions of law based on an assumed state of facts are abstract propositions, and incorrect rulings in abstract propositions of law are harmless error where the judgment is in accordance with the law and evidence governing the case.</p> <p>7. Appeal and error, § 1567*—when refusal to hold correct propositions of law harmless error. Refusal to hold propositions of law on matters not in issue, even though they are correct, is not reversible error.</p>

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

<p>Abstract of the Decision.</p> <p>1. Contracts, § 190*—when separate papers considered as one instrument. Where two papers signed are a part of the same transaction, one signed by one party to the contract and the other by the other party thereto, both papers constitute one contract and are to be considered as one instrument.</p> <p>2. Judgment, § 343*—when Mil to restrain enforcement of execution on judgment by confession defective. In a suit to restrain the enforcement of an execution on a judgment alleged to have been entered by confession upon a pretended power of attorney, purporting to have been signed by the complainant, a bill alleging that the complainant did not, to his knowledge, execute such a power, or, if he did, its execution was procured by fraud, and having attached to it as an exhibit a paper alleged to evidence a contract entered into between the complainant and defendant, but which appeared to be only a part of an instrument evidencing the entire contract as entered into, held defective, inasmuch as the other part of the instrument might contain the power of attorney upon which such judgment was entered.</p> <p>3. Judgment, § 343*—when bill to restrain enforcement of execution on judgment by confession on power of attorney insufficient. In a bill to restrain the enforcement of an execution alleged to have been issued upon a pretended judgment entered upon a paper pretended to contain a power of attorney to confess judgment against the complainant, allegations that if the paper contained the complainant’s signature it was a forgery, but if the signature was genuine it was obtained by misrepresentation, fraud, false pretenses and circumvention, held to be inconsistent, and neither a positive allegation that the signature was a forgery nor that it was genuine, but was obtained by fraud and misrepresentation, and insufficient in not stating facts upon which the claim of fraud and misrepresentation was based.</p> <p>4. Judgment, § 343*—what bill to restrain enforcement of judg-. ment on ground of fraud must contain. While equity takes concurrent jurisdiction with law courts in matters of fraud, accident or mistake, the facts constituting such fraud, accident or mistake, as a defense to the enforcement of a judgment, must be set out in a bill to restrain its enforcement.</p> <p>5. Judgment, § 321*—when injunction lies to restrain enforcement of execution. To entitle one to an injunction to restrain the enforcement of an execution on the ground of fraud, a'ceident or mistake, it must be evident not only that the complainant had a defense upon the merits to the action in which such judgment was entered, but that such defense has been lost to him without the loss being attributable to his own omission, negligence or default.</p> <p>6. Judgment, § 309*—when injunction to restrain enforcement of judgment denied. Injunction to restrain the enforcement of an • execution on a judgment, the entry of which the complainant alleged first came to his knowledge after the close of the term at which it was entered, held properly denied, as the complainant had an adequate remedy at law inasmuch as he could, at the succeeding term, have filed a motion to vacate the judgment and for leave to plead.</p> <p>7. Judgment, § 80*—-when motion to vacate in time. A motion to vacate a judgment by confession, filed at the next ensuing term after a confession of the judgment, is in apt time.</p> <p>8. Execution, § 104*—what proper method of relief from improper levy of execution. The proper method of relief against an improper levy of an execution is by application to the court issuing the execution to quash the levy.</p> <p>9. Injunction, § 170*—what county a hill to restrain proceedings at law to he filed in. A bill to restrain proceedings at law must be filed in the county in which such proceedings are being taken.</p>

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

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

<p>Appeal from the Circuit Court of Stephenson county; the Hon. Richaed S. Fabband, Judge, presiding. Heard in this court at the April term 1915.</p>

<p>Appeal from the County Court of Kane county; the Hon. S. N. Hoover, Judge, presiding. Heard in this court at the October term, 1915.</p>

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

<p>Abstract of the Decision.</p> <p>1. Husband and wm:, § 275*—when finding insufficient as basis for conviction for uHfe desertion. On an information charging that the defendant “wilfully, malitiiously and without reasonable cause, did abandon in destitute circumstances” his wife, “and did then and there neglect and refuse to maintain and provide for her,” where the defendant pleaded: "That he is not guilty of wilfully, maliciously and without reasonable cause abandoning in destitute and necessitous circumstances * * * [his wife] in manner and form as charged in the said information,” even though the offense of abandoning, which was repealed before the information was filed, be considered as surplusage, a conviction cannot be sustained on a finding that “the said defendant, * * * is guilty of wilfully, maliciously and without reasonable cause abandoning in destitute and necessitous circumstances * * * [the wife] in manner and form as charged in said information,” since no issue would have then been formed and there was no finding made on the charge of neglect or refusal to provide for the support of the wife as set out in the repealing statute in force at the time of the filing of the information.</p> <p>■2. Husband and wife—when resident of another State not guilty of refusal to support wife. Under Cal. Ill. St. Supp. 1916, K 3433(1) et seq., making refusal of a husband to support his wife a criminal offense, a conviction cannot be had of a husband who was a resident of another State at the time the act went into effect and at the time the information was filed.</p>

<p>Abstract of the Decision.</p> <p>Appeal and error, § 1341*—when presumed that quashing of fee hill correct. Where, on appeal from a ruling on a motion to quash a fee bill, neither the motion nor the proofs heard for or against it are preserved by bill' of exceptions, the presumption is that the ruling was correct and the judgment will be affirmed.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Abthub W. Deselm, 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 Carroll county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 861*—when action properly brought against local and national organizations of mutual benefit association. Where a local organization of a benefit association was part of and under the control of the national organization, the former collecting dues and having custody of the benefit fund which the latter controlled and whose authority was necessary to permit the local organization to pay benefits, held that a suit for a death benefit was properly brought against both organizations.</p> <p>2. Insurance, § 816—when person in part dependent. Where a member of a benefit association lived with his son, to whom he gave his wages, and the son, from such wages and those earned by himself, supported his family and his father, held that the son was partly dependent on the father for support, and entitled to recover a death benefit payable to one in whole or in part dependent on a member for support.</p> <p>3. Insurance, § 897*—when dependency question of fact. Whether one is dependent for support on a member of a benefit association, within the meaning of the certificate, is a question of fact to be determined from the facts and circumstances of each particular case.</p> <p>4. Insurance, § 816*—when person entitled to recover as dependent. In order to entitle one to recover on a death benefit certificate as a dependent of a deceased member of a benefit association, it is not essential that there should have been any legal duty of the deceased member to support such dependent.</p> <p>5. Insurance, § 816*—when person entitled to recover as dependent. In order to entitle one to recover as a dependent, a death benefit of a deceased member of a benefit association, it is only necessary that such dependency exist to a substantial extent.</p>

<p>Error to the Circuit Court of Kane county; the Hon. Clinton F. Ibwin, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Error to the Circuit Court of Lake county; the Hon. Charles Whitnet, Judge, presiding. Heard in this court at the April term, 1916.'</p>

<p>Abstract of the Decision.</p> <p>1. Set-off and recoupment, § 41*—when evidence sufficient to sustain verdict. In an action by an employee to recover for wages as a screw machine operator, when the amount of work done was undisputed, but defendant endeavored to recoup damages for defective work which had been returned by a purchaser and credit given the latter for a certain sum, where there was evidence that the cost of the materials and labor amounted to the sum claimed by defendant, that the returned articles were worthless for sale, but no proof that the articles might or might not be of any value for any other purpose, evidence held sufficient to sustain a verdict in which defendant was allowed about one-half of his claim. *</p> <p>2. Appeal and erbob, § 1523*—when error in instruction harmless. Any error in a given instruction is harmless where it is not misleading and it cannot have any effect on the verdict.</p>

<p>Insurance—when insured confined in house within health insurance policy. An insured, under a health and accident insurance policy providing for payments during such time as the insured might be necessarily confined in the house, by reason of disease or illness which would wholly deprive her from pursuing her occupation, held entitled to recover though she went to and from her house to the office of her physician to receive treatment.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this 'court at the April term, 1916.</p>

<p>Appeal from the Circuit Court of Marshall county; the Hon. Theodore N. Gbeen, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>1. Account stated, § 15*—when no presumption that omitted items not chargeable. The rule that omission of items from repeated statements of accounts raises a presumption that such items are not properly chargeable does not apply where certain items are omitted under an express agreement of the parties.</p> <p>2. Contracts, § 285*—what does not constitute an abandonment of a claim under contract. Failure to demand or collect during a period short of that fixed by the statute of limitations does not amount to an abandonment of a claim under a contract.</p> <p>3. Insurance, § 64*—when failure to demand payment does not defeat recovery by agent on contract for extra commissions. Failure of an insurance agent, for a number of years, to demand payment for extra commissions earned, where there was no evidence of an intent to abandon the claim, held not sufficient to defeat a recovery for commissions which became payable within the period limited by the statute of limitations.</p> <p>4. Insurance, § 64*—when action by insurance agent on contract for extra commissions not prematurely brought. In an action by an insurance agent to recover extra commissions which, according to contract, were to be a certain percentage of the excess of premiums over losses during each year of the agent’s employment, the action having been brought after the termination of such yearly periods, held that the possibility that there might be future losses on policies in force at the time of the institution of the action was immaterial.</p> <p>5. Contracts, § 349*—when third person may maintain action on in his own name. An insurance agent who had, under a trade name, contracted with an insurance company for commissions, held entitled to recover under the contract in his own name, he having at all times been the sole proprietor of the business, which fact was known to the company.</p> <p>6. Appeai and error, § 1494*—when exclusion of evidence as to existence of partnership harmless error. In an action, brought in his own name, by an insurance agent to recover commissions under a contract entered into by him under a trade name, held that the ruling out of evidence offered by the insurance company to show that the plaintiff was not the only one interested in the business but that he was in partnership with another at the time of making the contract, was harmless error, if error at all, the evidence being so strong as to leave no doubt that he was the sole proprietor of the business and that the defendant company knew it.</p> <p>7. Insurance, § 64*—when instruction in action 6y agent for commissions under contract correct. In an action by an insurance agent for commissions, under a contract calling for payments at yearly intervals, an instruction that such contract, if proven by a preponderance of the evidence, would, as a matter of law, be presumed to be in force until it was shown by the evidence that it had terminated, or that it was the intention of the parties to abandon or rescind it, held proper.</p>

<p>Bonds, § 25*—when holder of interest coupons secured hy trust deed has right of action. A trust deed securing bonds and interest coupons, held neither expressly nor impliedly to deprive the holder of coupons of a right to bring an action thereon at common law.</p>

<p>Appeal from the Circuit Court of Whiteside county; the Hon. Prank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>1. Intoxicating liquors, § 149*—when evidence sufficient to connect defendant with offense. On a prosecution for selling intoxicating liquors in anti-saloon territory, evidence held sufficient to connect defendant with the offense.</p> <p>2. Intoxicating liquors, § 130*—when presumed that beer is intoxicating. It. will be presumed that beer sold at a place where intoxicating liquors are sold is intoxicating liquor.</p> <p>3. Intoxicating liquors, § 151*—when evidence sufficient to sustain conviction for sale of. On a prosecution for selling intoxicating liquors in anti-saloon territory, evidence held sufficient to sustain a conviction.</p> <p>4. Intoxicating liquors—when immaterial whether officer could close common hall to premises under judgment. Where a person is charged with selling liquor in anti-saloon territory at a place known as “129 North State street,” which is a building with a common hall dividing the part used by defendant and that used by another person, if the keeping and selling of liquor by the defendant is abated it is immaterial whether the officer could close the hall under the judgment.</p> <p>5. Criminal law, § 624*—what place defendant may not be sentenced to in order to worlc out fine. A convicted person may not be sentenced to a “county poor farm” to work out a fine under Hurd’s Rev. St., ch. 38, If 168b (J. & A. f 3795).</p> <p>6. Intoxicating liquors, § 259*—when judgment of conviction for selling intoxicating liquor sustained in part. On conviction of a person for selling liquor in anti-saloon territory, held that although the judgment was invalid and must be reversed in so far as it related to working out the fine, if not paid, on a “county poor farm,” it was otherwise valid and should be affirmed.</p>

<p>1. Appeal and ebbob, § 963*—how record, 'may not he impeached. The record of the trial court imparts verity and may not be impeached by affidavits on appeal.</p> <p>2. Appeal and ebbob, § 930*—when record may he amended. Where a record filed is incorrect, or omits necessary matter supposed to have occurred in the trial court, the record can only be corrected by application to the court below in term time, and the trial court has jurisdiction to hear and determine the matter at a later term, if there exists anything to amend the record by.</p> <p>3. Appeal and ebbob, § 1345*—when presumed that hill of exceptions presented to trial judge before expiration of judgment term. It will be presumed that a bill of exceptions signed by a trial judge after the expiration of the judgment term was presented to him before the expiration of such term, where there is nothing in the record on appeal to show when it was presented to him and he did not follow the customary practice of indorsing upon the bill the fact and date of its presentation to him for signature.</p> <p>4. Appeal and ebbob, § 831*—when hill of exceptions may he presented to trial judge. A hill of exceptions may be presented to the trial judge at any time during the term at which the judgment was rendered without any previous order permitting the same to be so presented and filed.</p> <p>5. Appeal and ebbob, § 839*—when right to file hill of exceptions expires. If a bill of exceptions is not presented during the term and no order is granted fixing the time for its presentation beyond the term, the right to file such a bill of exceptions expires with the term.</p> <p>6. Appeal and error, § 846*—when judge may receive and sign dill of exceptions after term. Where a bill of exceptions is not presented within the term, the judge may not thereafter receive and sign such a bill except by consent of parties, and the order of the court, by such consent, in term time extending the time.</p> <p>7. Intoxicating liquors, § 151*—when evidence insufficient to show that defendant Jceeper of place where liquors sold. On a prosecution for the sale of intoxicating liquor, where it appeared that defendant had sold the premises in which it was alleged that the liquor was sold to his wife, and that the premises had been rented to another person to be used for the sale of soft drinks, but that defendant had a desk in the front part of a room on the premises, evidence held insufficient to establish that defendant was the keeper of a place in which intoxicating liquors were sold, so as to authorize its abatement as a nuisance.</p> <p>8. Criminal law, § 594*—when judgment reversed as a whole. A judgment of conviction for selling intoxicating liquor in anti-saloon territory under one count and of being the keeper of a place which is a nuisance under another count must be reversed as a whole, where the defendant is not guilty under the latter count.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon.. Arthur W. Deselm, Judge, presiding. Heard in this court at the April term, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the County Court of Woodford county; the Hon. Arthur G. Fort, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the April term, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the County Court of Lee county; the Hon. John B. Crabtree, Judge, presiding, Heard in this court at the April term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Assignments, § 4*—when estates in expectancy may be assigned. Estates in expectancy may be assigned and assignments thereof will be enforced in equity when such estates become vested, and this is so though such expectancy is made contingent by the provisions of a will.</p> <p>2. Bankruptcy, § 58*—what is effect of discharge. The discharge in bankruptcy of the assignor of an estate in expectancy, subsequent to the assignment, will not defeat the right of the assignee to enforce in equity the lien created by such assignment.</p>

<p>1. Divorce, § 87*—when temporary alimony properly allowed. Where, on the hearing of a petition for alimony and suit money pending a suit for separate maintenance, it appeared that a marriage ceremony between the parties had be£n celebrated, held that such allowance was properly granted though the defendant in his answer denied the validity of such marriag'e.</p> <p>2. Marriage, § 26*—what does not constiiute prima facie case as to invalidity of marriage between divorced parties. Proof that parties domiciled in Illinois who, within one year after being divorced from their respective husband and wife, were married in another State, does not amount to making out a prima facie case that such marriage was void, in the absence of proof that the parties contracted the marriage outside the State with the intent to circumvent the Illinois statute prohibiting divorced persons from marrying within one year from the granting of the divorce.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stoke, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>1. Bills and notes, § 109*—when order not negotiable. An order payable on the completion of the construction of a railroad, held not negotiable, inasmuch as the event named might never have happened.</p> <p>2. Assignments, § 33*—when recovery on assigned non-negotiable chose in action denied because of insufficiency of pleading. Where a plaintiff suing in his own name as assignee of a nonnegotiable chose in action failed to allege on oath that it was the actual bona fide owner thereof, or how or when it acquired title thereto, except that the date of such acquisition was laid under a videlicet, held that no recovery could be had, inasmuch as the plaintiff had not complied with section 18 of the Practice Act (J. & A. IT 8555).</p>

<p>1. Intoxicating liquors, § 6*—when presumed that addresses of signers of petition for local option election correct. Where the residence addresses of the signers of a petition for a local option election are in the appropriate column and the supporting affidavits state that such addresses are correct, it will be presumed that such addresses are correct.</p> <p>2. Intoxicating liquors, § 6*—when given addresses of signers of petition for local option election sufficient. Where a petition for a local option election by the inhabitants of a town lying wholly in a farming community contains in the appropriate column the addresses of the inhabitants as in the designated town, county and State, it is sufficient in such respect, and it is unnecessary that the signers designate the particular pieces of land on which they reside.</p> <p>3. Mandamus, § 190*—when judgment not reversed because moot case. A judgment awarding a peremptory writ of mandamus to compel a town clerk to submit the local option question to the voters will be affirmed, where the judgment was right and the enforcement was prevented by the respondent until after the election was held.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 158*—when instruction as to what constitutes correct. On a prosecution ,for selling intoxicating liquor in violation of the Local Option Law (L & A. 1 4637 et seq.), an instruction in the language of the statute (L & A. If 4637) that the words “intoxicating liquor” “include all distilled, spirituous, vinous, fermented and malt liquors,” regardless of whether said liquors would, as a matter of fact, produce intoxication, held correct.</p> <p>2. Intoxicating liquors, § 5*—when statutory definition valid. The Legislature has the power and right to declare malt liquor to be an intoxicating liquor, irrespective of its intoxicating character.</p> <p>3. Intoxicating liquors, § 159*—when instructions on burden of proof properly refused. On a prosecution for selling intoxicating ■ liquor in violation of the Local Option Law (J. & A. If 4637 et seq.), the refusal of requested instructions on behalf of defendant that the burden was upon the prosecution to prove beyond all reasonable doubt that he sold liquor which was, in fact, intoxicating, held proper.</p>

<p>Appeal from the County Court of Jersey county; the Hon. Habry W. Pogue, Judge, presiding. Heard in this court at the April term, 1915.</p>

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

<p>Appeal from the County Court of Brown county; the Hon. W. Y. Baker, Judge, presiding. Heard in this court at the April term, 1915.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1915.</p>

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

<p>1. Appeal and error, $ 269*—what is final judgment. A judgment on a motion to quash an execution is a final judgment, and an appeal will lie therefrom.</p> <p>2. Judgment, .§ 252*—when cleric no authority to amend record. A clerk has no authority, on his own motion, to amend the record of a judgment in vacation.</p> <p>3. Judgment, § 112*—when judgment by default sufficient in form. Where the defendant, in a case appearing upon the judge’s docket under its correct number, but with the first name of the defendant incorrect, was defaulted, held that the judgment was in fact rendered against the real defendant in the case as appeared in the pleadings.</p> <p>4. Execution, § 113*—when special execution should be quashed. Refusal to quash a special execution issued on a judgment, the record of which had been altered by the clerk of his own volition by changing the first name of the defendant, held error.</p>

<p>Intoxicating liquors—when recovery may he had on bond for payment of purchase price of interstate shipment. Recovery may be had on a bond given to secure a payment of the purchase price of beer shipped by a dealer outside the State to a point within dry territory in the State and consumed there.</p>

<p>Abstract of the Decision.</p> <p>Conteacts, § 86*—when promise to pay off incumbrance unsupported by consideration. A promise by the widow of a deceased member of a religious congregation to pay off an incumbrance on church property in consideration of funeral rites performed and to be performed upon the deceased, and empowering the trustees of the congregation to enforce the promise, held not to be a promise by anybody to anybody, except to the maker thereof, and not founded upon a valid consideration.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1915.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the April term, 1915.</p>