Volume 201 — Illinois Appellate Court Reports

<p>Abstract of the Decision.</p> <p>1. Jury, § 9*—when parties no right to trial by jury. In a case settling up partnership añairs after the death of one partner, held the parties were not entitled to a trial by jury.</p> <p>2. Trial, § 289*—when propositions of law may be submitted. Propositions of law may only be submitted in cases where the right of trial by jury existed and the jury has been waived.</p> <p>3. Appeal and error, § 1166*-—-when propositions of law not reviewed. The correctness or incorrectness of rulings of the trial court on propositions of law submitted need not be considered on appeal where there was no right to submit propositions of law.</p> <p>4. Appeal and error, § 1712*—when assignments of error deemed waived. Assignments of error on appeal are considered waived if not argued.</p> <p>5. Appeal and error, § 1394*—when findings not disturbed as unsupported by evidence. On appeal in a partnership. accounting, rulings on objections to items of account will be sustained unless clearly against the manifest weight of competent evidence.</p> <p>6. Appeal and error, § 1265*—-when judgment, order or decree presumed correct. Unless all the evidence upon which a judgment, order or decree was based is preserved in the record on appeal, such judgment, order or decree will be presumed to be correct.</p> <p>7. Evidence, § 122*—when secondary evidence inadmissible. Where in a partnership accounting original books, accounts, checks, etc., are in evidence, transcripts and abstracts made therefrom by an expert accountant are not competent.</p> <p>8. Evidence, § 164*—what does not constitute admission against interest. Where a surviving partner in his account charged himself with a certain item, stating that the executrix of the deceased partner claimed that it was properly so chargeable but that he reserved the right to make proof of its correctness, held that the charging of such item was neither an admission against interest nor proof of its correctness.</p> <p>9. Evidence, § 366*—when inadmissible as conclusion of witness. Testimony of a witness that a surviving partner had admitted that certain items should be charged to him in his account and that the witness thought such items amounted to a certain sum, held inadmissible as being a pure conclusion of the witness.</p> <p>10. Partnership, § 404*—when presumed that items properly charged to firm’s account. Where a deceased partner had also been cashier of the bank on which checks payable to the surviving partner were drawn and charged to the firm’s account, held that on an accounting by the surviving partner it would be presumed that such items were properly so charged from the fact that the deceased partner had access to the books and there was no evidence that he objected to such procedure.</p> <p>11. Partnership, § 407*—when evidence sufficient to sustain allowance of item in action for accounting. A ruling of the trial court in a partnership accounting as to the correctness of a certain item as charged, sustained, though at variance with the deductions made by a partisan expert accountant from records not preserved in the abstract, where witnesses had been heard by the trial court and the expert’s deductions were shown to be unreliable.</p> <p>12. Costs, § 73*—when appellant properly charged with cost of additional abstract. Where the appellant’s abstract on appeal was defective, the cost of an additional abstract furnished by the appellee was, on affirmance of the judgment, taxed against the appellant.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 122*—when application not part of accident pot-icy. An application for an accident insurance policy, held not to have been made a part of a .policy stating that such application had been made a part thereof by indorsement thereon of a copy of such application, where such copy differed materially, as to facts stated, from the original application.</p> <p>2. Insurance, § 331*—when insurer may not forfeit policy. An insurance company cannot forfeit a policy for causes known to the agent at the time he issued it.</p> <p>3. Insurance—when knowledge by agent of facts concerning applicant which are ground for forfeiture question for jury. In an action on. an accident insurance policy, held a question for the jury whether the agent knew facts concerning the applicant at the time of issuance of the policy which, had he not known them, would 'have been ground for forfeiture.</p> <p>4. Insurance, § 686*—when manner of death of insured question for jury. In an action on an accident insurance policy, the question whether the insured was a temperate man and met his death by accident or as a result of alcoholism, held for the jury, the evidence being conflicting.</p>

<p>Abstract of the Decision.</p> <p>1. Trusts—what is a trust. A trust, in its simplest sense, is a confidence reposed in one person, called a trustee, for the benefit of another, called the cestui que trust, with respect to property held by the former for the benefit of the latter.</p> <p>2. Trusts, § 1*—what is an express trust. An express or direct trust is one created by the acts of the parties.</p> <p>3. Trusts, § 29*—what is an implied trust. An implied trust is one raised by operation of law.</p> <p>4. Trusts, § 19*—how created in real property. Trusts in real property must be created in writing.</p> <p>5. Trusts, § 12*—how express trusts in personalty created. Express trust in personal property may be created by parol.</p> <p>6. Trusts, § 3*—when evidence sufficient to show creation of express trust. On a bill for an accounting between the administrators with the will annexed of the estate of a. deceased cestui que trust against the executors of the will of the trustee, evidence held sufficient to show the creation of an express trust by the acts of the parties in relation to funds derived from the sale of real estate of the cestui que trust that was turned over to the trustee, and the interest actually received by him thereon.</p> <p>7. Equity, § 10*—when exclusive jurisdiction. Equity has exclusive jurisdiction to determine the rights of parties to an accounting in matters relating to express trusts.</p> <p>8. Courts, § 83*—when Circuit Court has jurisdiction. The Circuit Court has jurisdiction of an equitable action of accounting to determine the rights of parties in matters relating to express trusts.</p> <p>9. Limitation of actions, § 20*—when does not run to tar recovery of trust fund. The statute of limitations does not run to bar the recovery of a trust fund by an action of accounting until the disavowal of the trust by the trustee.</p> <p>10. Witnesses, § 50*—when competency of witnesses to testify measured. The competency of witnesses to testify must be measured not with reference to the time the testimony is given, but with reference to the time of the trial when it is considered.</p> <p>11. Witnesses, § 145*—when party incompetent to testify as to transactions with deceased person. Where the parties complainant to an action for an accounting, which was referred to a master during the life of the defendant, testified as to transactions with defendant, but, upon his dying before the hearing was completed and report made by the master, the personal representatives of the latter were substituted, held that such testimony was rendered incompetent and should have been excluded and that it was immaterial that the deceased testified in contradiction to parts of such testimony.</p> <p>12. Account, § 35*—what degree of proof required. The complainants to a bill for an accounting must make out their case by a preponderance of competent evidence.</p> <p>13. Appeal and error, § 1301*—when presumed trial court did not consider incompetent evidence. It must be presumed on appeal that a trial court, in an equitable action, did not consider incompetent evidence in making its findings.</p> <p>14. Appeal and error, § 452*—when objection may not be raised on appeal. An objection that a letter introduced in evidence was not identified may not he raised for the first time on appeal.</p> <p>15. Witnesses—when disqualified as party in interest to testify against representatives of estate of deceased person. A trustee, defendant to an action of accounting brought by the administrators of the estate of a cestui que trust, is a party in interest, and is disqualified to testify as to transactions with the deceased.</p> <p>16. Evidence, § 461*—when insufficient to overcome statements against interest. The testimony of a party in interest given years after a transaction is closed is insufficient to overcome evidence consisting of a letter written at the time of the transaction and which contained statements against his interest.</p> <p>17. Trusts, § 270*—when evidence sufficient to sustain finding of court charging trustee with proceeds of sale of land. On a bill for an accounting by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence held sufficient to sustain a finding of the court charging defendants with the entire amount of money received by the trustee from the sale of lands of the cestui que trust.</p> <p>18. Appeal and error, § 1399*—when finding of master not disturbed as unsupported by evidence. Where the finding of a chancellor on a question of fact follows the finding of the master, the Appellate Court will not reverse the decree on the ground that it is not supported by the evidence unless it is clearly contrary to the manifest weight of the evidence.</p> <p>19. Trusts, § 270*—when evidence sufficient to sustain finding of court charging defendants with interest upon funds of trust estate. On a bill for an accounting by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence held sufficient to sustain a finding of the court charging defendants with interest upon funds of the cestui que trust invested by the trustee.</p> <p>20. Evidence, § 164*—when paper admissible as statement against interest. On a bill for an accounting by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting, of the trust estate, held that a statement of account made by the trustee- to the cestui que trust which did not include two items which the trustee claimed to have paid, and which covered the period during which they were claimed to have been paid, was admissible as an admission against interest and as tending to show that the items had not been paid.</p> <p>21. Trusts, § 270*—when evidence sufficient to show that claims for credit and receipts for payment spurious. On a bill by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence held sufficient to sustain a finding of the court that two claims for which the defendants claimed credit and receipts given therefor were spurious.</p> <p>22. Trusts, § 230*—when trustee not liable for interest on funds. A trustee cannot be required to account for any interest on a trust fund except such as he receives therefrom, even when he mingles the trust fund with his own, provided he always has at his command funds with which to respond to all legal demands.</p> <p>23. Payment, § 29*—when evidence insufficient to show. On a bill by the administrator with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence consisting of a draft on the bank which the trustee owned, signed hy the cashier and indorsed hy the cestui que trust, held insufficient to establish a payment on a claim due the cestui que trust, where there was no evidence tending to connect the trustee or the funds in, his possession with the draft, or to show from what source it was received.</p> <p>24. Evidence, § 165*—when letter incompetent as self-serving. On a bill by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, held that a letter written by the trustee to a son of the cestui que trust stating that he inclosed a draft for a certain amount as the mother directed and that he and another person had settled for the land, held incompetent as self-serving.</p> <p>25. Trusts, § 270*—when evidence sufficient to sustain findings. On a bill for an accounting of a trust estate, held sufficient to sustain findings allowing certain claims of credit and disallowing another.</p> <p>26. Witnesses, § 95*—when party disqualified to testify against representative of deceased person. A trustee who is defendant to an action by the representatives of the estate of the deceased cestui que trust for an accounting is incompetent to testify in his own behalf against such representatives except in so far as the exceptions in Hurd’s Rev. St., ch. 51, sec. 2 (J. & A. ¶ 5519) apply.</p> <p>27. Appeal and error, § 1467*—when admission of evidence harmless error. The erroneous admission of the evidence of a disqualified witness in a trial before a court is harmless error when there was nothing in it that was considered by the trial court to the detriment of the adverse party.</p>

<p>1. Bills and notes, § 293*—when duty of maker to see that payments applied on note. The maker of a note making a payment on it before it is due must see that it is indorsed on the note as against an innocent purchaser before maturity.</p> <p>2. Bills and notes, § 255*—what are rights of purchaser before maturity without notice. A purchaser of negotiable paper before maturity without notice of defenses takes it free from all defenses.</p> <p>3. Mortgages, § 245*—when making payment before due not defense. Under J. & A. ¶ 7589, providing that mortgages shall be exempt from defenses to the same extent as negotiable paper described therein, it is not a defense to an action to foreclose a mortgage that the maker made payment, where such payment was made before due to the assignor of the mortgage and note and was not applied on the note by him.</p> <p>4. Appeal and error, § 1802*—when case reversed and remanded to pass on constitutionality of act involved. On a bill to foreclose a mortgage where the question of the invalidity of the act providing that mortgages shall be exempt from defenses to the same extent as negotiable instruments described therein, Session Laws 1901, p. 248 (J. & A. ¶ 7589), on the ground that the act was not properly passed, was not raised in the trial court, held, that a judgment for the defendants should be reversed and the cause remanded so as to give opportunity to litigate such question.</p>

<p>Error to the Circuit Court of Moultrie county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the April term, 1915.</p>

<p>1. Action—when evidence sufficient to show that suit is collusive. In an action on an assigned insurance policy, in which an intervening petition was filed, evidence held sufficient to show that the policy was purchased by funds of the defendant and that the suit was collusive.</p> <p>2. Action—when collusive suit dismissed. While a collusive suit is still pending on an assigned benefit insurance certificate purchased with funds of the company, the court will, on intervening petition of the parties in interest, dismiss such suit.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. Franklin H. Boses, Judge, presiding. Heard in this court at the April term, 1915.</p>

<p>1. Assumpsit, Action of, § 59*—when no recovery for compensation for use and occupation at common law. At the common law, rents or compensation for use and occupation could not be recovered except where the relation of landlord and tenant was shown to exist.</p> <p>2. Assumpsit, Action of, § 59*—when recovery .for compensation for use and occupation may he had under statute. To be entitled to recover under section 1 of chapter 80, Rev. St. (J. & A. ¶ 7039), upon the theory of an implied promise to pay reasonable compensation for the use of land, one must be the owner of some estate in the premises and the possession must not be under claim of title or adverse to that of the owner or under an agreement that he need not pay rent.</p> <p>3. Assumpsit, Action of, § 64*—when no recovery for compensation for use and occupation may he had. One having a mere right to redeem land claimed by the occupier under an adverse title has no right of action against such person, either at common law or under the statutes, either for rent or compensation for use and occupation.</p>

<p>1. Forcible entry and detainer, § 35*—what prerequisite to jurisdiction of action of forcible detainer. An action of forcible detainer, being in derogation of the common law, the statute under which it is brought must be fully complied with in order to confer jurisdiction.</p> <p>2. Forcible entry and detainer, § 30*—when demand in loriting prerequisite to maintenance of action of forcible detainer. A demand in writing is an essential prerequisite before bringing an action of forcible detainer by a purchaser of premises at sale under execution or decree, or those claiming under him.</p> <p>3. Forcible entry and detainer, § 36*—when court acquires no jurisdiction of action of forcible detainer. In an action in forcible detainer where no notice was served on one defendant and a notice served on the other bore no signature, as required by the statute, and incorrectly described the property' in question, held that the court acquired no jurisdiction, and its judgment for the plaintiff was a nullity.</p>

<p>1. Telegraphs and telephones, § 29*—what law governs liability for delay in transmission of interstate telegrams. All questions relating to liability for damages by reason of delay in transmission of interstate telegrams must be determined under the Federal law.</p> <p>2. Commerce, § 5*—what is effect of Carmack Amendment to Interstate Commerce Act. The Carmack Amendment to the Interstate Commerce Act supersedes all the regulations and policies of the States on subjects covered by it.</p> <p>3. Telegraphs and telephones, § 24*—what is extent of liability for delay in delivery of cipher message. Where an interstate telegraph message is in cipher and unintelligible and the telegraph company is not informed of the nature, importance or extent of the transaction to which it relates, the damages for delay in delivery are, where a stipulation on the back of the blank so provides, limited to the amount paid by the sender for its transmission, and if he has paid nothing, as where the message has been sent “collect,” he can recover nothing.</p> <p>4. Telegraphs and telephones, § 27*—when sender of interstate message hound hy terms on Maníes limiting liahility. A sender of an interstate telegraph message is bound by the terms relating to the company’s liability for delay, printed upon the back of the blank on which he writes the message, whether he knows of them or not.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1915.</p>

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

<p>Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 247*—what questions for jury in action for damages for assault by person intoxicated. Where, in an action for damages resulting from an assault by one alleged to have become intoxicated as the result of liquor sold him by the defendants, there was evidence that such intoxicated person had been drinking in the saloons of the defendants immediately prior to the assault, the question whether the plaintiff was injured in consequence of- such intoxication and whether such intoxication was caused in whole or in part by the liquor sold by the defendant, held for the jury.</p> <p>2. Intoxicating liquors, § 225*—when evidence sufficient to sustain verdict in action for damages for assault by intoxicated person. In an action for damages resulting from an assault committed in a mélée in the defendants’ saloon by one alleged to have become intoxicated by sale of liquor to him by the defendants, a verdict for the plaintiff held not unjustified by the evidence.</p> <p>3. Intoxicating liquors, § 256*—when instruction in action for damages for assault by intoxicated person properly modified. In an action for damages for an assault by an alleged intoxicated person, which the defendants claimed was made by such person in self-defense, an instruction that there could be no recovery if the plaintiff drew a revolver and pointed it at the person who committed the assault, thus inducing in his mind a reasonably well-founded belief that he was in actual danger of receiving great bodily injury, held properly modified by inserting after the word “plaintiff” the words “while not in discharge of his duty as a deputy sheriff,” where the fact that he was a deputy sheriff was known to the person committing the assault at the time thereof.</p> <p>4. Intoxicating liquors, § 256*—when instruction in action for damages for assault by intoxicated person properly modified. In an action for an assault on a deputy sheriff by an intoxicated' person, which was claimed by the defendants to have been made in self-defense, an instruction which told the jury that if they believed from the evidence that plaintiff unlawfully pulled a revolver on A, the person committing the alleged assault, so as to cause said A to fear he was about to receive bodily harm, etc., held properly modified by substitution for the word “unlawfully” the words “while not in the reasonable discharge of his duties as a deputy sheriff,” where A knew the plaintiff was a deputy sheriff.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1914. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>Appeal and error, § 1120*—when appeal dismissed for insufficiency of record. Where, in a proceeding to try the right to property taken on execution, the record on appeal fails to show any motion for a new trial or final judgment in the trial court, the appeal will be dismissed.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1914. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Appeal and error, § 1051*—When rulings on evidence not considered on appeal. Where neither in a motion for a new trial nor in the assignment of errors on appeal mention is made of rulings on the admission or rejection of evidence, such questions cannot he considered by the reviewing court.</p> <p>2. Assault and battery, § 15*—when question Whether officer acting Within scope of employment for jury. In an action for assault on the plaintiff by a special police officer in the employment of. the defendant, the question whether the acts done by the officer were within the scope of his employment, held for the jury.</p> <p>3. Trespass, § 64*—when a crime at common law. Unless a trespass is.accompanied by or tends to produce a breach of the peace, It is not a crime at common law.</p> <p>4. Trespass, § 64*—what does not constitute statutory trespass. Loitering around a railway company’s station, held not a statutory trespass as defined in the Criminal Code of Illinois.</p> <p>5. Trespass—what force may he used to remove trespasser. The use of any more force than necessary to remove a trespasser is wrongful.</p> <p>6. Assault and battery, § 17*—when instruction correct. In an action for an assault by a special police officer, an instruction that it was for the jury to determine whether the officer was acting within the scope of his authority, held correct.</p> <p>7. Assault and battery, § 22*—when punitive damages allowed. Apparently it is the law in this State that punitive damages can be allowed in an action against a railroad company for assault and false imprisonment by one of its watchmen, who is also a special policeman of a municipality, serving without pay.</p> <p>8. Assault and battery, § 17*—when requested instruction on right of special police officer to arrest person violating statute properly refused. In an action for assault on an alleged trespasser by a special police officer, an instruction that the officer had a right to arrest on sight any person who might he guilty of violating any statute, ordinance or breach of the peace, held properly refused where no ordinance creating any offense was in evidence.</p> <p>9. Assault and battery, § 22*—when instruction on punitive damages erroneous. An instruction stating under what circumstances punitive damages could be allowed for an assault by a special police officer in arresting a trespasser, held misleading and reversibly erroneous.</p>

<p>Abstract of the Decision.</p> <p>1. Criminal law, § 372*—When judgment not reversibly erroneous. The totaling up in a judgment, of the sentences inflicting penalties by fine and imprisonment on various counts of an information, held a technical informality or surplusage and not harmful to the defendant.</p> <p>2. Criminal law, § 485*—what should be pointed out and argued in brief. A mere technical informality in a judgment entered on a verdict of guilty, assigned as error on appeal but not pointed out and argued in the reviewing court, held not reversible error.</p> <p>3. Criminal law, § 521*—what is function of court on appeal in passing on conflicting evidence. A court of appeal should not usurp the functions of a jury in a criminal case by substituting its judgment for theirs in passing on the weight and credibility of conflicting evidence.</p> <p>4. Criminal law, § 520*—when verdict set aside on appeal as unsupported by evidence. It is only where the verdict in a criminal case is so palpably and manifestly against the weight of evidence as to indicate that the verdict is based on passion and prejudice that a verdict and judgment therein will be set aside by an Appellate Court.</p> <p>5. Intoxicating liquors, § 151*—when evidence insufficient to sustain conviction. Evidence held sufficient to sustain a conviction for selling intoxicating liquors in anti-saloon territory.</p> <p>6. Intoxicating liquors, § 148*—how guilt or innocence of defendant accused of illegally selling intoxicating liquor determined. The guilt or innocence of one accused of illegally selling intoxicating liquors is to be determined from the nature of the goods sold and not from the name under which they are ordered.</p> <p>7. Intoxicating liquors, § 75*—what constitutes. A fermented malt liquor called “Temp Brew” held within the Local Option Law (J. & A. ¶ 4,637 et seq.), prohibiting the sale of intoxicating liquors and defining them as including “all distilled, spirituous, vinous, fermented and malt liquors,” though claimed to be nonintoxicating.</p> <p>8. Criminal law, § 556*—when misconduct of juror harmless error. An assignment of error, on appeal from a conviction for illegally selling intoxicating liquors, that a person supposed to be pushing the prosecution had talked to a juror concerning his duties before he was called into the jury box, where no such occurrence is contained in the record and it is stated in the argument that such juror was excused for cause, held there is no basis for such assignment.</p> <p>9. Criminal law, § 583*—when assignments of error deemed waived. Assignments of error in a criminal case not argued are deemed waived.</p>

<p>Appeal from the Circuit Court of Douglas county; the Hon. Franklin H. Boggs," Judge, presiding. Heard in this court at the April term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 587*—when negligence of defendant in blowing off steam near horse on highway question for jury. In an action for personal injuries alleged to have resulted from the plaintiff’s horse, while being driven. along a public highway parallel to the right-of way of the defendant railway company, becoming frightened by steam allowed to escape from a passing engine onto the highway and enveloping the horse, the question whether the defendant was either negligent or wilful in blowing off steam in the manner and place alleged, held for the jury.</p> <p>2. Railroads—when liable for personal injuries resulting from frightening of horses. A railroad is responsible for personal injuries caused by the frightening of horses by unnecessary noises made in the negligent and reckless running of trains, or when such noises are made in a wanton, wilful or malicious manner in disregard of a traveler’s right on the highway.</p> <p>3. Railroads, § 582*—when evidence sufficient to sustain verdict for plaintiff in action for personal injuries due to frightening of horse. In an action for personal injuries alleged to have resulted from the plaintiff’s horse, while being driven along a public highway parallel to the right of way of the defendant railway company, becoming frightened by steam allowed to escape from a passing engine on to the highway and enveloping the horse, evidence held sufficient to sustain a verdict for the plaintiff.</p> <p>4. Evidence, § 436*—when objection to question put to expert witness properly sustained. In an action for personal injuries alleged to have resulted from the plaintiff’s horse becoming frightened by steam blown from a railroad locomotive, an objection to a question, addressed to an expert witness, as to whether, in his experience, the amount of steam, which was shown by the plaintiff’s testimony to have been blown out was any more than ordinarily necessary in the operation of trains, where it becomes necessary to blow off steam frequently, held properly sustained, since it could not be known on what the answer of the witness would be based, as that would depend on how much of the plaintiff’s evidence he had heard and his recollection and construction thereof.</p> <p>5. Trial, § 91*—when general objection to question put to witness insufficient. In an action for personal injuries, on the issue as to whether steam had been negligently blown off from the defendant’s engine at a certain time and place, a general objection to questions put to the engineer as to the condition of the pipes and engine with reference to the necessity of blowing off steam in order to successfully operate the engine, and as to his recollection with respect to the condition of the engine for proper and safe use at the time in question, and as to the quality of the water taken into the engine shortly prior thereto, held improperly sustained.</p> <p>6. Railroads, § 593*—when instruction in action for personal injuries not improper as being inapplicable to evidence. In an action against a railroad company for damages for personal injuries due to frightening plaintiff’s horse, under a complaint alleging a wilful, intentional, and malicious act of the defendant as the cause of the injury sustained, an instruction as to defendant’s liability on such issue, held not improper because there was no evidence of malice shown, since malice does not necessarily mean an intention to injure but may be a reckless disregard of the rights of others.</p> <p>7. Railroads, § 593*—when requested instruction on degree of care proper. In an action for personal injuries alleged to have resulted from the negligent act of a railroad company’s locomotive engineer in blowing steam from his engine so as to frighten the plaintiff’s horse, being driven on a highway adjacent to the company’s right of way, held that a requested instruction that, in determining the liability of the defendant, it should be treated not as a common carrier but as an ordinary owner of land and subject to no greater degree of care than would be a private owner of land abutting on the highway under the same circumstances, was correct and should have been given, although stating an abstract proposition of law.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the April term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Bailment, § 26*—when instruction on measure of damages for negligent injury to personal property erroneous. In an action by the owner of a barge to recover damages for injury to it, alleged to be due to negligence in unloading it and in failing to pump water from it by the consignee of a shipment of crushed rock, an instruction that the measure of damages, if the jury should find for plaintiff, was the difference between the fair cash value of the barge before and after the alleged injury, held erroneous where it appeared that the barge had been repaired.</p> <p>2. Bailment, § 28*—what is measure of damages for injury to personal property. The correct measure of damages for an injury to personal property, where the same can be repaired, is the necessary cost of making the repairs and the value of the use of such property while the owner is necessarily deprived of it, while it is undergoing repair.</p> <p>3. Bailment, § 26*—when instruction on liability of bailee returning personal property in damaged condition correct. In an action by the owner of a barge to recover damages for injury to it, alleged to be due to negligence in unloading it and in failing to pump water from it by the consignee of a shipment of crushed rock, an instruction that where personal property is placed in the hands of a bailee in good condition and is returned in a damaged condition, then the law presumed that the injury was due to the negligence of the bailee and the owner would be entitled to recover unless the bailee has shown by a preponderance of the evidence that it exercised such care as was reasonably necessary to care for the property approved.</p> <p>4. Bailment, § 27*—when presumed that property returned by bailee in damaged condition injured by negligence of bailee. Where personal property is placed in the hands of a bailee in good condition and is returned in a damaged condition, the law presumes that the injury was due to the negligence of the bailee, and the owner will be entitled to recover unless the bailee shows by a preponderance of evidence that it exercised such care as was reasonably necessary to care for the property.</p>

<p>Covenants, § 18*—what is personal covenant not running with land. A covenant in a lease, whereby the lessor of land agrees to purchase at the expiration of the lease improvements made on the land by the lessee at a certain percentage of the original cost is a personal covenant, and does not run with the land so as to bind the lessor’s grantee.</p>

<p>1. Appeal and error, § 1238*—when defendant estopped to claim error in hearing evidence on demurrer. A defendant who makes a motion for leave to withdraw rejoinders to special pleas and for leave to refile demurrer to a replication, and to require plaintiff to make proof of matters contained in the replication, is estopped on appeal to claim any error in hearing evidence on the demurrer.</p> <p>2. Pleading—when hearing of evidence on demurrer proper. The hearing of evidence on a demurrer to replication to special pleas, held proper.</p> <p>3. Pleading, § 183*—when special demurrer necessary. Where special pleas confess that the plaintiff in a personal injury action has sustained injuries and seek to avoid liability by pleading new matter, a special demurrer is necessary to point out formal defects.</p> <p>4. Pleading, g 211*—when demurrer not carried hack to defective declaration. A demurrer should be carried back to the first defective pleading, but a demurrer to a plea or replication cannot be carried back to a defective declaration when the plea of general issue has been filed.</p> <p>5. Appeal and error, § 198*—when cause involving constitutional question transferred to Supreme Court. Where, under the pleadings, in an action by an employee for personal injuries, it is necessary for the Appellate Court to pass upon the constitutionality of the Workmen’s Compensation Act, the case will be transferred to the Supreme Court, as the Appellate Court has no jurisdiction of constitutional questions.</p>

<p>Abstract of the Decision.</p> <p>1. Witnesses, § 218*—when cross-examination of party proper. Where an objector to executors’ accounts was examined as a witness on behalf of the executors as to what occurred when he gave a certain note to the testatrix, cross-examination, by his counsel, as to whether the testatrix assented to the surrender to him of one of his notes, held proper, as the executors had made him their witness as to such matter, but that the question was objectionable in form as calling for a conclusion.</p> <p>2. Executors and administrators, § 92*—when proceedings by citation not exclusive remedy to obtain note owed estate. On a hearing in the Circuit Court on appeal from an order entered in the County Court in proceedings on objections to an executors’ report, held that the executors could require the objector, who was in court and had possession of a note, the amount of which they claimed he owed the estate, to produce such note in evidence without filing an affidavit, and citing him in accordance with section 81 of the Administration Act (J. & A. ¶ 130).</p> <p>3. Executors and administrators, § 359*—when executor may deduct amount of note due estate from distributee’s share. In proceedings on objections to an executors’ report, an objector’s contentions that an executor has no right to deduct from the amount due a distributee any sum that may be due from the distributee to the estate, and that the statute of limitations was a defense to a note against the estate claimed to be due it, of which estate he was a distributee, held untenable on the facts.</p> <p>4. Executors and administrators, § 532*—when executors properly not charged with interest. Where a delay by executors in filing their report was caused by an objector thereto, in not paying a claim he owed the estate, held that the executors were properly not charged with interest.</p> <p>5. Executors and administrators, § 561*—when allowance to executors for settling estate not excessive. An allowance of $700 to executors in settling an estate amounting to $21,000, held proper.</p>

<p>1. Payment, § 29*—when evidence sufficient to show that note was given in payment of subscribed shares of stock. In an action . on a promissory note, made by a subscriber to stock in a proposed corporation by the indorsee thereof, evidence held to authorize a finding that the note was given in payment of subscribed shares and not in return for a loan made to-the subscriber by an agent of the promoters, though the note was, by such agent, made payable to the promoters.</p> <p>2. Bills and notes—-when burden of proof on plaintiff to prove indorsement of note. Where a promissory note payable to a proposed corporation for stock subscriptions, bearing the indorsement of the corporation to the order of hearer, was sued upon hy the transferee, a plea denying such indorsement held to throw the burden of proving the indorsement on the plaintiff.</p> <p>3. Corporations, § 27*—when promoters may not dispose of notes given for stock subscriptions. The promoters of a corporation have no authority to dispose of notes given for stock subscriptions until all the stock has been subscribed and the stockholders have elected officers.</p> <p>4. Bills and notes, § 327*—what defenses available against transferee of note improperly indorsed. Any defense available against the payee of a promissory note, not properly indorsed by him, is available in an action by a transferee thereof.</p> <p>5. Bills and notes, § 407*—who has burden of proof to show failure of consideration. In an action against the maker of a promissory note, the burden of proving failure of consideration is upon the defendant.</p> <p>6. Bills and notes, § 56*—what constitutes failure of consideration for note. Failure to organize a corporation amounts to a failure of consideration for a note given in payment of stock subscribed.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1466*—when admission of improper evi dence harmless error. In an action for damages resulting from the sinking of land alleged to have been caused by the defendant’s removing a substratum of coal without leaving sufficient surface support, admission of evidence that other land, adjacent to and between the plaintiff’s land and the defendant’s mine shaft, also sank, held improper in the absence of evidence that all the land sank at the same time, but, however, harmless error.</p> <p>2. Mines and minerals, § 60*—when evidence sufficient to support verdict in action for damages for negligent' removing of substratum. In an action for damages to land from sinking alleged to have been caused by the defendant’s removing a substratum of coal without leaving sufficient surface support, evidence held sufficient to support a verdict for the plaintiff.</p> <p>3. Mines and minerals, § 60*—when requested instruction properly refused. In an action for damages to land from sinking, alleged to have been caused by the defendant’s removing a substratum of coal without leaving sufficient surface support, a requested instruction for the defendant which stated that the plaintiff could not recover unless the proof showed that the defendant intentionally injured the plaintiff’s land, held properly refused, though the declaration alleged “that the defendant contriving and unjustly intending to, injure,” etc., negligently mined, etc., inasmuch as such words in the allegation were mere surplusage and a cause of action was stated without them.</p> <p>4. Mines and minerals, § 60*—when requested instruction properly refused. In an action for damages to land from sinking, alleged to have been caused by the defendant’s removing a substratum of coal without leaving sufficient surface support, the refusal of an instruction requested, by the defendant, to the effect that damages could not be given for depreciation of buildings on the land caused by lack of repair and natural decay, -held not error where the only evidence of depreciation introduced was that the buildings had not been kept painted, and there was no evidence as to the amount of such depreciation, and other instructions fully informed the jury as to the measure of damages under the facts shown.</p>

<p>1. Schools and school districts, § 66*—when propositions to purchase site and erect building not carried by majority vote. Where at a general election propositions to purchase a school site, to build a new school building, and to issue bonds for such purposes, were submitted along with other propositions, and the votes in favor of none of the school propositions amounted to a majority of the total number of votes cast at such election, held that the school propositions were lost and no authority was conferred on the Board of Education to act thereunder, although such propositions were submitted on a separate ballot from those on which the other propositions were submitted.</p> <p>2. Schools and school districts, § 65*—when a board of education may be enjoined from using funds of district. A board of education may be enjoined from using the funds of the school district for buying schoolhouse sites or building schoolhouses thereon when they have not been authorized to do so by a vote of the people.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 846*—What is effect of failure of trial fudge to sign hill of exceptions in time for filing.' Where a party has presented his bill of exceptions to the trial judge for his signature within the time fixed for filing the same, he has done all he can do and will not be prejudiced by the failure of the judge to sign it in time to have it filed within the period prescribed for that purpose.</p> <p>2. Appeal and error, § 846*—when hill of exceptions should he filed nunc pro tunc as of date of tender to fudge. The proper practice where the trial judge has failed to sign the bill of exceptions in time to have it filed within the period prescribed for that purpose is to have it filed nunc pro tunc as of the date when it was tendered to the judge for his signature.</p> <p>3. Appeal and error, § 1712*—when errors deemed waived. All errors assigned upon the record which are not presented and argued in the brief are deemed waived.</p> <p>4. Appeal and error, § 1303*—when presumed that verdict and fudgment are sustained hy evidence. Where the bill of exceptions fails to state that it contains all the evidence introduced in the trial, the presumption will be indulged that the verdict and judgment are sustained by the evidence.</p> <p>5. Insurance, § 120*—how provisions in policies construed. Provisions in insurance policies are construed most strongly in favor of the insured.</p> <p>6. Insurance—when special plea as to release from liahility on policy on animal because of failure to give notice of accident had. In an action to recover for the death of a stallion under a policy-insuring against loss by death from accident, disease, theft and fire, a special plea averring that defendant was relieved from liability because the insured did not render forthwith by telegraph or telephone to defendant notice of the accident as provided by the policy, held bad on demurrer, as' it did not aver any connection between the injury and the death of the stallion.</p>

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

<p>1. Guaranty, § 17*—when guarantors entitled to notice of default of principal debtor. Where a guaranty is a collateral, continuing one, the guarantors are entitled to a reasonable notice of the default of the principal debtor unless they expressly or impliedly waive notice, or unless the circumstances are such that they are not prejudiced for want thereof.</p> <p>2. Guaranty, § 17*—when notice of default sufficient. Where a contract of guaranty contains no provision for notice of default by the debtor it is sufficient if a notice of default be given within a reasonable time after such default.</p> <p>3. Guaranty, § 17*—when notice of default unnecessary. A creditor is not required to give notice of default by the debtor to the guarantors where the guarantors have notice from an independent source.</p> <p>4. Guaranty, § 17*—when failure to give notice of default within reasonable time after default not absolute defense. The failure of a creditor to give notice to a guarantor of default of the debtor within a reasonable time after such default is not an absolute defense to the action, but can only be availed of to the extent that the guarantor may have sustained loss or damage as the result of such failure to notify.</p> <p>5. Guaranty, § 17*—what is reasonable time in which to give guarantor notice of default of debtor." What is a reasonable time in which to give notice to a guarantor of default of the debtor depends upon the circumstances of each case.</p> <p>6. Guaranty, § 34*—when burden of proof on guarantor. Where a guarantor seeks to relieve himself from liability upon the ground that notice of the default was not given him within a reasonable time, the burden rests upon him to show the failure to give the notice, and the consequent injury by the loss of the whole or part of the debt for which he stood as surety.</p> <p>7. Guaranty; § 9*—how contract of construed. A contract of guaranty should be strictly construed in regard to the subject-matter of the guaranty, and in this respect the guarantor is bound only under the circumstances pointed out in the guaranty and no further, and his liability cannot be extended by implication, but in all other respects the contract is to be construed as favorable to the creditor as other written contracts.</p> <p>8. Guaranty, § 21*—when not avoided by extension of time to debtor. Where a contract for credit between a wholesaler and retailer of goods provides that the latter shall remit one-half of his receipts from his business each week until his account is balanced, but it has no period of limitation and is to continue during the satisfaction of both parties, and a continuing contract of guaranty provides that any extension shall not release the guarantors from liability, such contracts must be construed as authorizing such extension of time by the creditor to the debtor to make payments as the former sees fit without avoiding the contract of guaranty.</p>

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

<p>Abstract of the Decision. .</p> <p>1. Bills and notes, § 440*—when evidence sufficient to sustain verdict. In an action on a promissory note evidence held sufficient to justify a finding that the note was not materially altered after it was executed, that it was executed by the defendant and that neither it nor the note for which it was given, as a renewal, had been paid.</p> <p>2. Bills and notes, § 426*—when evidence as to ability of maker to pay unpaid note before outlawed inadmissible. Where suit on a promissory note had not been commenced until more than six years after the date of maturity, held that evidence as to the ability of the maker to pay it.during that period was inadmissible, since no presumption of payment arises from delay, amounting to less than the period limited by the statute of limitations, in proceeding to collect a debt of a living debtor.</p> <p>3. Bills and notes, § 426*.—when evidence as to ability of maker to pay unpaid note before outlawed inadmissible. Where suit was not brought on a promissory note until more than six years after the date of its maturity, evidence of the maker’s ability to pay it during that period held inadmissible, though the plaintiff had testified that the bringing of a suit at an earlier date would have been unavailing, since the reasons for failure to make an earlier attempt to collect was immaterial.</p> <p>4. Appear and error, § 1088*—necessity that brief refer to pages of abstract where rulings complained of appear. Where no reference is made in the brief to the pages of the abstract on which alleged erroneous rulings appear, they will not be considered on appeal.</p> <p>5. Instructions, § 120*—when properly refused as not conforming to evidence. An instruction that the jury, in determining what facts were proven, should consider all the evidence before them, together with all the circumstances of the transaction in question, held properly refused, in that it did not limit the circumstances to be considered to those shown by the evidence.</p> <p>6. Evidence, § 457*—when testimony at former trial not competent. Testimony of a present witness given on a trial is not competent evidence on a subsequent trial.</p> <p>7. New trial, § 61*—when properly denied. Refusal to grant a new trial on the ground that the defendant was taken by surprise because the plaintiff testified differently than he did on a former trial, and that the defendant did not have time to obtain a transcript of such former testimony for use in impeachment held proper.</p>

<p>Abstract of the Decision.</p> <p>1. Gaming, § 43*—when evidence sufficient to show that transactions are of gambling nature. In an action to recover a balance alleged to be due the plaintiffs on account of transactions made on the Chicago Board of Trade, held that the evidence showed that such transactions were gambling transactions, and that a verdict for the plaintiff was clearly and manifestly contrary to the weight of the evidence.</p> <p>2. Trial, § 204*—when refusal to direct verdict is error.' In an action of assumpsit, covering several items, the refusal of the trial court to direct, at the defendant’s request, a verdict against him on a certain item for which the evidence showed him liable, held error.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1915.</p> <p>Certiorari denied by Supreme Court (malting opinion final).</p>

<p>1. Insurance, § 837*—when payment of premiums on mutual benefit certificate does not create debt. Payments of premiums on a mutual benefit insurance policy by strangers thereto, in accordance with an agreement with the beneficiary, to which the insured was not a party, are but voluntary payments, and do not make the insured a debtor to those so making such payments, and thus do not create a beneficial interest in such policy.</p> <p>2. Abatement and revival, § 50*—when right of action terminated by death of party to agreement. An agreement between a beneficiary in an' insurance policy and others not beneficiaries, to which agreement the insured was not a party, whereby the parties thereto were to pay certain proportions of the premiums and in return receive proportionate shares of the proceeds of the policy, while enforceable in equity as between the parties, had the parties survived the insured, held terminated by the death of the beneficiary before that of the insured.</p> <p>3. Insurance, § 837*—when insured not bound by agreement between beneficiary of mutual benefit certificate and third persons. An insured under a mutual benefit life insurance certificate, on which he has paid the premiums, is not bound by an agreement, to which he was not a party, between the beneficiary and others as to the distribution of the proceeds of the policy.</p> <p>4. Insurance, § 825*—what does not constitute deprival of right to change beneficiary of mutual benefit certificate. Voluntary payments of premiums by those not beneficiaries under a mutual benefit life insurance certificate do not deprive the insured of the right to change the beneficiary therein.</p> <p>5. Insurance, § 830*—what are rights of third persons making voluntary payment of mutual benefit insurance premiums. Voluntary payments of premiums by persons not named as beneficiaries in a mutual benefit life insurance certificate give them no vested equitable interest therein.</p> <p>6. Insurance, § 825*—when by-law of fraternal benefit society as to change of beneficiary valid. A by-law of a fraternal benefit society declaring that any attempt to change the payee of benefits under a certificate by will or otherwise than by compliance with such by-law shall be void, held reasonable and binding upon • the insured, so as to render an attempted disposition by will of part of such benefits, otherwise than as provided by such certificate, of no avail.</p> <p>7. Insurance, § 837*—when proceeds not part of estate of insured. Money payable by virtue of a mutual benefit life insurance certificate, in which is named a beneficiary other than the estate of the insured, does not become a part of the estate of the insured, and cannot become the subject of testamentary disposition.</p>

<p>Abstract of the Decision.</p> <p>1. Husband and wife, § 228*—when offer to take wife back ineffectual. In separate maintenance proceedings, the defendant’s offer to receive the complainant back as his wife was held coupled with so many conditions and limitations that no self-respecting woman could comply therewith and that she was not compelled to accept it.</p> <p>2. Husband and wife, § 249*—when allowance for solicitors’ fees not excessive. Allowance of one hundred dollars as solicitors’ fees in a separate maintenance proceeding, held not excessive.</p> <p>3. Husband and wife, § 265*—when decree for lien on real estate in separate maintenance proceedings proper. A decree in separate maintenance proceedings held proper in making allowances of alimony and solicitors’ fees a lien on defendant’s real estate and household furniture.</p> <p>4. Husband and wife, § 265*—when decree for payment of solicitors’ fees in separate maintenance proceedings erroneous. A decree in separate maintenance proceedings held erroneous in making solicitors’ fees payable to the clerk of the court for the use of the complainant’s solicitors, as it should have required the money to be paid to complainant or to the clerk for her use.</p>

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

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

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

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

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

<p>1. Bills and notes, § 74*—what does not constitute material alteration of note. The detachment from a negotiable promissory note of a statement that certain stock had been deposited with the payee as security for payment thereof, held not to change the tenor or effect of such note or the liability of the maker thereon, and not an alteration as would prevent a recovery by the payee.</p> <p>2. Bills and notes, § 74*—what constitutes material alteration of note. The detachment from a promissory note, by the payee thereof, of a contemporaneous agreement whereby the maturity of the note was to be extended on the payment of certain monthly instalments thereon by the maker, held a material alteration of the note justifying opening of a judgment entered thereon by confession.</p> <p>3. Bills and notes, § 56*—what constitutes failure of consideration for note. Failure of the payee of a promissory note to carry out an agreement, attached thereto, to deliver to the maker certain shares of stock, for which such note was given in payment, held to amount to a total failure of consideration.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. B’ean'klim' H. Boggs, Judge, presiding. Heard in this court at the October term, 1915. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 37*—when broker not procuring cause of sale. Where, in an action for commissions for the sale of the defendant’s farm, there was no contradiction of the purchaser’s testimony that he, when told by the plaintiff that the defendant’s farm was for sale, knew it was for sale and so stated to the plaintiff, and uncontradicted evidence showed that the plaintiff did nothing further in connection with the sale, held that the plaintiff was not the efficient or procuring cause of the sale and not entitled to commissions.</p> <p>2. Evidence, § 222*—when evidence inadmissible as hearsay. In an action for real estate commissions, testimony of the plaintiff that the defendant’s son stated, out of the presence of the defendant, that the defendant would treat the plaintiff right in the matter of paying him commission, held improperly admitted.</p> <p>3. Trial, § 133*—when remarks of counsel to jury improper. In an action for breach of contract, a remark to the jury by counsel for the plaintiff that the defendant was a business man, successful and rich, held improper and vicious.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 482*—when binding upon heirs of estate. On petition by an administrator de bonus non to sell real estate, after termination of the widow’s life estate therein, for payment of debts of the estate, held that the heirs, who had been duly made parties to a proceeding • in which the widow’s dower had been set off to her by a decree which had been unchallenged could not object to the validity of such decree on the ground that the widow was allowed to take both under the will and the statute.</p> <p>2. Executors and administrators. § 372*—what are remedies of secured creditors. A secured creditor of an estate may present his claim for allowance in the Probate Court where the estate is being administered, or he may resort to his security, or he may pursue both methods.</p> <p>3. Executors and administrators—when claims are promptly paid. Where letters testamentary were issued a month after the deceased’s death and, within four months after the expiration of the time within which claims could have been presented, the executor reported the amount of money in his hands and obtained an order allowing liquidation of claims, so far as funds were available, and within a year thereafter filed another report showing balance due with interest on unpaid claims and balance on hand, and, as it appeared that no other funds could be realized until the death of the testator’s widow, obtained an order directing payment and excusing him from making further reports until that time, held that the contention that claims had not been promptly paid and that interest had been unnecessarily allowed to accrue was not tenable.</p> <p>4. Executors and administrators, § 526*—when attorneys' fees properly allowed. Where the judge who entered a decree directing the sale of real estate and payment of claims of an estate was a member of a firm of attorneys acting for the executor, their fees were allowed to 'stand, there being no showing that they were exorbitant or more than other attorneys would have charged for the same service.</p> <p>5. Homestead, § 94*—when reallotment of to widow not permissible. In the absence of a showing of fraud in the allotment of a homestead to a testator’s widow, held that it was not incumbent on creditors of the estate to have a reallotment made on the ground that the homestead was, at the time it was allotted, worth more than prescribed by the statute, or that it had subsequently increased in value, and to have the surplus applied to their claims.</p> <p>6. Homestead, § 100*—what does not constitute abandonment of. Failure of a widow to live on a homestead, held not to amount to an abandonment thereof where she controlled it, rented it and had the proceeds from it.</p> <p>7. Appeal and error, § 1466*—when admission of evidence harmless error. On a hearing on a petition for the sale of land of an estate to pay a balance on' claims due beyond payments ordered by a prior decree, the admission of evidence that claims so ordered paid by such decree were, in fact, paid, held harmless error, if any, since the payment of such prior dividends was not in question, and, in the absence of proof to the contrary, they are presumed to have been paid.</p> <p>8. Executors and administrators, § 374*—when creditors not guilty of laches in failing to subject land to claims. An order of a Probate Court directing the payment by an executor of claims pro rata so far as funds were available, and excusing him from making any further report until the death of the- testator’s widow, to whom dower had been assigned in the testator’s land, held to present creditors, who relied and acted thereon, from being held guilty of laches in not proceeding, before the widow’s death, to subject the land to the payment of their claims.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 919*—What constitutes prima facie case of negligence in causing fire. In an action for damages resulting from a fire alleged to have been caused by sparks escaping from the defendant’s locomotive, evidence held to justify a finding that the fire was so caused and, under Hurd’s Rev. St. ch. 114, sec. 103 (J. & A. ¶ 8891), to make a prima facie case of negligence justitying the submission of the case to the jury.</p> <p>2. Trial, § 153*—when case should go to jury. When there is any evidence in the record from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments in the declaration had been proven, the case should go to the jury.</p> <p>3. Railroads, § 919*—when burden of proof on railroad in action for negligence in causing fire. Where the plaintiff, in an action for damages caused by fire resulting from sparks escaping from the defendant’s locomotive, has made out a prima facie case of negligence under Hurd’s Rev. St. ch. 114, sec. 103 (J. & A. ¶ 8891), the burden of proof to overcome such a case is on the defendant.</p> <p>4. Railroads, § 932*—when evidence sufficient to sustain verdict in action for negligently causing fire. A verdict for the plaintiff in an action. for damages resulting from fire caused by sparks escaping from the defendant’s locomotive, held justified by the evidence.</p> <p>5. Railroads, § 941*—when instruction in action for negligence in causing fire not misleading. In an action for damages resulting from a fire caused by sparks escaping from the defendant’s locomotive, an instruction held not open to the criticism that it was likely to be understood by the jury to mean that the defendant was required to disprove negligence by the preponderance of the evidence, in view of another instruction that the plaintiff, in order to recover, was required to prove, among other things, by a preponderance of the evidence, that the defendant was negligent and that the damage resulted therefrom.</p> <p>6. Damages, § 207*—when instruction on not erroneous. The rule that an instruction is bad which advises the jury that it is their duty to assess damages, if they believe certain facts to be established by the evidence, applies only to cases where exemplary damages may be recovered and not to those in which compensatory damages only are sought.</p> <p>7. Appeal and error, § 1466*—when admission of evidence harmless error. In an action for damages for the destruction of property by fire, a question as to what was the total fair cash value of all the property destroyed, held improper but harmless error, where it amounted simply to a request to the witness to add up items of damage previously testified to by him, and the Verdict was for an amount substantially less than such estimate.</p>

<p>1. Mandamus, § 154*—when answer in proceeding to compel reinstatement of member of fraternal benefit society sufficient. Where it appeared from the averments of the answer, in a mandamus proceeding to compel the reinstatement of a member of a fraternal benefit society, that the relator, on becoming a member of the society, had agreed to be bound by its constitution and bylaws which required, among other things, that members submit to its duly constituted tribunals and abide by the decisions thereof, and that a tribunal provided by the laws of the society for that purpose as set out in the answer, having before it the relator and a complaint charging him with a violation of the laws and rules of the society, proceeded in the manner provided by the laws of the society, found him guilty, expelled him from the society and canceled his benefit certificate, held that a demurrer to the answer was improperly sustained, it appearing that the action of the society had been conducted in accordance with the rules and regulations provided in such a case.</p> <p>2. Insurance, § 856*—when decision of internal tribunal binding. The courts will not interfere with the merits of a controversy between a fraternal benefit society and one of its members where rules and laws of such society governing such controversies, to which the member has agreed to be bound on becoming a member, have been duly observed.</p> <p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1915.</p>

<p>1. Statutes, § 152*—when not repealed by implication. Repeals of statutes by implication are not favored, and both a prior and subsequent statute will remain in force unless they are so repugnant that they cannot operate together.</p> <p>2. Bills and notes, § 240*—when purchaser not holder in due course. A purchaser for value before maturity of a promissory note bearing on its face a statement that it is secured by chattel mortgage is not a holder in due course, and such note is subject to the defense of breach of warranty of the article for which it was given in payment.</p> <p>3. Bills and notes, § 440*—when evidence sufficient to show notice by purchaser of breach of warranty. In an action on a promissory note by a purchaser thereof before maturity, evidence held to justify a finding that the plaintiff had actual notice of a warranty of a machine for which the note was given in payment and that there was a breach of such warranty.</p> <p>4. Trial, § 195*—when peremptory instruction properly refused. A peremptory instruction for a defendant is properly refused where there is evidence fairly tending to support the plaintiff’s case.</p> <p>5. Evidence, § 134*—when secondary evidence inadmissible. Admission of secondary evidence of the contents of letters written by an adverse party’s attorney, held improper in the absence of any showing that an attempt had been made to produce the originals, though they were without the State.</p> <p>6. Evidence, § 275*—when letters improperly admitted in evidence. Where secondary evidence of letters was improperly admitted, held that originals of letters written in reply thereto, without sufficient proof of their genuineness, were improperly admitted on the theory that they were part of the correspondence.</p> <p>7. Appeal and error, § 1498*—when exclusion of evidence harmless error. Where a witness gave evidence identical with that which certain questions were intended to elicit, held that a ruling sustaining objections to such questions was harmless error, if any.</p> <p>8. Sales, § 273*—when notice of failure to conform to warranty waived. A seller, by acting on a notice that an article was not according to a warranty, which is different from the kind of notice required by the contract of sale to be given it, thereby waives such term of the contract.</p> <p>9. Bills and notes—when assignee not entitled to notice of breach of warranty of article. The assignee of a note secured by chattel mortgage is not entitled to notice of claimed defects constituting a breach of warranty of an article for which such note was given in payment, in order that such breach may be set up as a defense in an action by him on the note.</p> <p>10. Instructions, § 1*—when requested instruction properly refused. An involved, uncertain, argumentative instruction, not based on the evidence, held properly refused.</p>

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

<p>Appeal from the County Court of Scott county; the Hon. F. C. Funk, Judge, presiding. Heard in this court at the April term, 1915.</p>

<p>1. Drainage, § 94*—when mandamus does not lie to compel commissioners to construct bridge. Where a contractor, having a contract with drainage commissioners for the construction of a levee, dug a ditch across a highway in direct violation of the terms of his contract and against the express instructions of the commissioners, held that a road district, under whose jurisdiction the highway was, could not by mandamus compel the commissioners to construct a bridge across the ditch.</p> <p>2. Mandamus, § 6*—when writ of awarded. A writ of mandamus will not be awarded except when a clear right is shown to have the thing done which it is sought thereby to have done.</p>

<p>1. Bastards, § 22*—what evidence sufficient to warrant conviction. A preponderance of the evidence is sufficient to warrant a conviction in a bastardy case.</p> <p>2. Bastards, § 22*—when evidence sufficient to sustain conviction. Evidence in a bastardy case held sufficiently corroborative of the evidence of the complaining witness to justify a conviction.</p> <p>3. Witnesses, § 207*-—when extent of cross-examination matter of discretion of court. The extent to which cross-examination of a witness will be permitted is, to a large degree, a matter in the sound discretion of the trial court, and its rulings in connection therewith will not warrant a reversal of a judgment unless such discretion has been abused.</p> <p>4. Witnesses, § 225*—when cross-examination not unduly restricted. Cross-examination of the prosecuting witness in a bastardy case held not unduly restricted.</p> <p>5. Instructions, § 96*—when instruction on credibility of witnesses erroneous. In a bastardy case, an instruction to the effect that when a witness wilfully swears falsely to any matter material to the issue the jury may disregard his entire testimony, except where he is corroborated by other credible evidence, without adding the phrase “or by facts and circumstances proven on the trial,” held erroneous.</p> <p>6. Appeal and error, § 1241*—when party cannot complain of error in instruction. A party cannot complain of an error in an instruction where the same error was contained in an instruction given at his instance.</p> <p>7. Bastards, § 34*—when assumption of facts in instruction proper. An instruction given in a bastardy case to the effect that if the jury believe from the evidence that the defendant is the father of the child they should find him guilty, even if the prosecuting witness was mistaken as to the month and day when she had sexual intercourse with him, held not erroneous in that it assumed that if the defendant was the father of the child he had had sexual intercourse with its mother.</p> <p>8. Bastards, § 34*—when instruction on proof of alibi correct. An instruction in a bastardy case to the effect that, in order to be availing to the defendant, proof of his alibi must cover the whole time during which conception might have taken place so as to render it impossible that the defendant could have committed the act, held correct.</p> <p>9. Bastards, § 64*—when giving of erroneous instruction harmless error. In a bastardy proceeding, the giving of an instruction telling the jury what the defendant would be required to do if he were found guilty, held improper, but not reversible error.</p>

<p>1. Counties, § 166*—when liable on contract for printing of ballots. In an action by a printer against a county on a contract with the county clerk for the printing of election ballots, where the defense was that the clerk had no authority to contract for the printing of the ballots, as the county had a yearly contract with another printer, held that a judgment for the plaintiff was proper where the record showed that there was a bid made by the second printer but failed to show that it was accepted by the county board, or that the committee of the board of supervisors was authorized to execute the so-called contract based thereon.</p> <p>2. Contracts, § 8*—when contract void for uncertainty. A contract to do printing for a county based on a bid, setting out the rate at which certain items were to be printed and providing that any other printing required by the county would be done “at fair and reasonable prices,” held void for uncertainty as to those items as to which no prices were stated.</p> <p>3. Counties, § 166*—when liable for ballots ordered printed by county cleric. A county board of supervisors is liable for ballots ordered printed by a county clerk where, in ordering them, he violates no law, contract or rule of the board.</p>

<p>1. Appeal and error, § 1712*—when errors waived. Errors assigned but not argued on appeal are considered waived.</p> <p>2. Municipal corporations, § 85*—when question of correct passage of ordinance immaterial. The question whether an ordinance was correctly passed, held immaterial where it-was not denied that it was duly made a part of a later codification and not contended that it had been repealed.</p> <p>3. Municipal corporations—what is effect of acceptance of contract ordinance. Where a contract ordinance has been accepted by the grantee of rights thereunder it becomes a special contract,, binding upon the parties thereto.</p> <p>4. Constitutional law, § 103*—when city may not impair contract by ordinance. Where an ordinance has, by acceptance by the grantee thereunder, become a contract between the grantee and the city, the latter, by the passage of a later ordinance, cannot impair the obligation of such contract.</p> <p>5. Municipal corporations, § 83*—when special ordinance controls. When a special ordinance conflicts with a general ordinance, the former controls.</p> <p>6. Municipal corporations, § 820*—what does not constitute police regulation. Where, by a special ordinance,' the right was granted to a telephone company to use streets and alleys for the erection of its poles and wires, and it was provided therein that the right of the grantee thereunder should be subject to future police regulation, held that the rental for poles occupied by the company, provided for by a subsequent ordinance, could not be collected, as such ordinance was not a police regulation, and to allow the collection of such rental would be to impair the obligation of the telephone' company’s contract.</p> <p>7. Appeal and error, § 1805*—when case not remanded upon reversal. Where the reason for the reversal of a case is fatal to the ultimate right of the plaintiff to recover and cannot be remedied upon retrial, the case will not be remanded.</p>

<p>1. Township organization, § 37*—when anticipation warrants void. Anticipation warrants are void unless they are made payable solely from taxes already levied, and show on their face that they are to be paid from such taxes only.</p> <p>2. Township organization, § 39*—what does not constitute prima facie case in action on anticipation warrant. An anticipation warrant which does not on its face show that it is to be paid solely from taxes already levied is not regular on its face, and the plaintiff in an action thereon does not, by offering it in evidence, make out a prima facie case of liability on the part of the party issuing it.</p> <p>3. Township organization, § 32*—when contract ~by commissioners of highways invalid. Where a statute provides that commissioners of highways cannot let a contract for a sum in excess of a certain amount without the approval of the county superintendent of highways, a contract involving a sum in excess of such sum is void though no county superintendent has been appointed.</p> <p>4. Township organization, § 39*—when declaration in action on warrant by assignee defective. A declaration in an action by an assignee of a non-negotiable warrant, held defective in not alleging on oath that the plaintiff was the actual and bona fide holder thereof, and in not setting forth how and when he acquired title thereto.</p>

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

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 544*—what declaration in action for injuries by another servant must allege. In an action by a servant against his master for damages for an injury alleged to have resulted from the negligence of another servant of the master, the declaration must allege that the servant whose negligence caused the injury was not a fellow-servant of the plaintiff, or allege facts which will negative such relation.</p> <p>2. Master and servant, § 544*—when declaration-does not sufficiently aver nonexistence of fellow-servant relation. In 'an action for injuries sustained by a circus employee while riding along, a street on a circus wagon, resulting from the horses attached thereto becoming frightened and running away, as the result of the alleged mismanagement of them by the driver, an averment that the plain-tie had nothing to do with the management of the horses, held not a sufficient averment that the plaintie and the driver were not fellow-servants.</p> <p>3. Master and servant, § 760*—when proximate cause of injury to employee question for jury. Where, in an action by a circus employee for personal injuries from horses attached to a wagon in which the plaintiff was riding running away, there was evidence that if a bystander had not waved some object at the horses after they became unmanageable the accident would not have happened, the question of what was the proximate cause of the injury was held for the jury.</p> <p>4. Master and servant, § 770*—when direction of verdict in action for personal injuries improper. In an action for personal injuries by an employee against his employer, an instruction directing a verdict for the plaintiff on proof by a preponderance of the evidence of the facts alleged in the declaration, held erroneous where the declaration failed to deny the assumption of risk by the plaintiff and that the servant, whose negligence was alleged to have caused the injury, was a fellow-servant of the plaintiff.</p> <p>5. Instructions, § 89*—when instruction on noncontrolling effect of number of witnesses erroneous. An instruction charging the jury “you are not bound by the number of witnesses who may testify on one side or the other of any particular fact or state of facts,” held incorrect, as, in some cases, where other things are equal, the number of witnesses may be controlling.</p>

<p>Abstract of the Decision.</p> <p>1. Damages, § 200*—when instruction on measure of is erroneous. An instruction, in a personal injury action, authorizing the jury to return a verdict for the whole amount of damages shown by the evidence to have been suffered by the plaintiff, held erroneous in not directing them to allow the defendant credit for an amount which the plaintiff admitted had been paid to him by the defendant for lost time.</p> <p>2. Instructions, § 118*—when should not he given. Instructions not based on the evidence should not he given.</p> <p>3. Damages, § 207*—when instruction on is erroneous. Where damages are susceptible of exact measurement and proof, such as those for loss of time and inability to pursue a former occupation, "it is error to charge the jury that they may be estimated from observation and experience.</p> <p>4. Release, § 26*—when fraud in obtaining is question for jury. Where the defendant in a personal injury action claimed that the plaintiff had executed a release of his claim, held that the question whether such release had been obtained by fraud or circumvention was for the jury.</p>

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

<p>Abstract of the Decision.</p> <p>1. Mechanics’ liens, § 196*—when material man entitled to lien. To entitle one furnishing building materials to have a lien declared on the premises, it must appear both by averment and proof that the materials were for the construction of some things that were to become part of or be an improvement on the real estate, as distinguished from such things as, when completed, still retain their character as personal property, and that the petitioner had an existing right to compensation therefor.</p> <p>2. Mechanics’ liens, § 61*—when material man not entitled to lien. Where a lumber company furnished material to the lessee of real estate, which was used in the construction of a baseball grand stand, bleachers, etc., and later purchased the structure from the lessee and leased it back to it, in both transactions treating the property as personal property and reserving the right to enter at the expiration of the lease and remove it, the owner of the real estate knowing nothing about the transaction, held that the lumber company could not have a lien declared on the real estate for the value of the materials so furnished.</p> <p>3. Deeds, § 80*—when conveyance not construed as conditional. A conveyance absolute on its face will not be construed to be a conditional one except on competent proof which clearly shows that the intention of the parties was that it should be conditional.</p>

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

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Carriers, § 30*—when laws governing interstate commerce control. When a contract is made for the transportation of goods from a point in one State to a point in another State, and the goods are loaded and started for their destination, the laws governing interstate commerce control, whether the goods ever leave the State or not.</p> <p>2. Carriers, § 30*—what is object of Carmack, Amendment to Interstate Commerce Act. The object of the Carmack Amendment to the Interstate Commerce Act was to help and not to hinder interstate shippers in recovering for losses of goods while in transit, and it should be construed in the light of such purpose.</p> <p>3. Carriers, § 138*—when evidence admissible to show who lawful holder of bill of lading. While the presumption is that one in possession of a bill of lading is the lawful holder thereof, it may be shown by competent evidence that another is in fact the lawful holder so as to entitle him to bring an action under the Carmack Amendment of the Interstate Commerce Act for loss to goods during transit.</p> <p>4. Carriers, § 58*—when shipper remains owner of goods. In an action by a shipper under the Carmaclt Amendment of the Interstate Commerce Act, for loss of goods during transit, where bills of lading were delivered to the drawees of sight drafts attached thereto, with the stipulation that the goods were to be delivered to them only on payment of such drafts, held that the shipper still remained the owner of the goods so as to entitle him to maintain the action.</p> <p>5. Conflict of laws, § 33*—when law of forum governs. In regard to the introduction of evidence, courts are governed by the laws of the forum.</p> <p>6. Carriers, § 138*—when affidavit of weighers admissible. In order that an affidavit of one having personal knowledge of the weight of a shipment delivered to a consignee by common carriers may be admissible in evidence, under Hurd’s Rev. St. ch. 114, par. 118, sec. 1 (.1. & A. ¶ 8920), it is not necessary that the affidavit state that the affiant comes within the class named in the statute, but such evidence may be shown by other competent proof.</p> <p>7. Carriers, § 138*—when affidavits of' toeighers admissible. Where grain is sold subject to the weight taken by weighers of a board of trade at its destination and is delivered by the carrier without being weighed, affidavits of such weighers as to the amount delivered are competent evidence in an action by the shipper for loss of shipment.</p> <p>8. Trial, § 74*—when proof of value of lost property may be introduced. In an action against a carrier for the loss of a part of a shipment, proof of the value of the part lost may be introduced either before or after proof of the amount lost.</p> <p>9. Witnesses, § 194*—when evidence of witness refreshing memory from book admissible. In an action for loss of a shipment of grain, evidence of the plaintiff, who had made prior sales at the point of destination of the shipment in question and had made notations thereof in a book kept by him for that purpose, as to what the prices were at such point, a,s his memory was refreshed by the book, held admissible after proof that the entries in' the book were correct.</p>

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

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

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

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

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

<p>Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1915. Certiorari denied hy Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. CoiosTirr D. Myebs, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Judgment, § 82*—when affidavit not in compliance with stipulation for opening of judgment. Where after entry of a judgment by confession it was agreed by stipulation between the parties that the. case should be opened and tried by the court and that the defendant would give the plaintiff notice of all special defenses to be offered, held that an affidavit made before the making of the stipulation was not a compliance therewith.</p> <p>2. Corporations, § 175*—when sale of stock to by stockholder deemed to he in good faith. A sale by a stockholder of the stock in a corporation to the corporation, held to have been made in good faith and that the assignee of notes given by the corporation in payment thereof was entitled to recover the face value thereof.</p> <p>3. Corporations, § 481*—what is not defense available to in action on note. A corporation cannot, in an action by an assignee of notes given to a stockholder in payment of stock bought by him, defend on the ground that the stockholder fraudulently overvalued property turned into the corporation by him at the time of its organization.</p> <p>4. Corporations, § 337*—when have right to buy and sell shares of own stock. A corporation may, if it acts in good faith, buy and sell shares of its own stock.</p> <p>5. Appeal and error, § 1035*—when errors not considered on appeal. Errors not assigned or argued will not be considered on appeal.</p>

<p>Error to the County Court of Coles county; the Hon. John P. Habbah, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Executors and administrators, § 273*—when Probate Court power to set aside order of allowance of claim after term. Where a claim against an estate was allowed by mistake and in violation of. the terms of a stipulation between the administrator and the claimant, whereby it was agreed that no order should be entered until further hearing, held that the order allowing the claim should have been set aside on the administrator’s petition though filed after the close of the term at which it was made, the administrator not having learned of the entry thereof, prior to that time, since a Probate Court has in such cases powers of a court of equity over its orders.</p>

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

<p>Appeal from the Circuit Court of Cass county; the Hon. Güy R.. Williams, Judge, presiding. Heard in this court at the October term, 1915.</p>

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

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

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

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the Octoher term, 1915:</p>

<p>Abstract of the Decision.</p> <p>1. Trial, § 74*—when evidence properly admitted out of order. In an action on a promissory note, admission of evidence of a, conversation between the defendant and one claimed by him to have been the agent of the plaintiff at the time of the execution of the note, on the promise of the defendant to show that an agency existed, held not error where, though the defendant introduced no such evidence, the evidence introduced by the plaintiif tended to show the existence of the agency so as to make the question one of fact for the jury.</p> <p>2. Bills and notes, § 421*—when evidence as to other signatures inadmissible. In an action on a promissory note, an objection to a question asked a witness, who had testified as to the dissimilarity of the signature on the note to that of admitted genuine signatures of the maker in his possession, as to whether he had any signatures anything like the signature to the plea, held properly sustained as calling for matters immaterial to the issue.</p> <p>3. Bills and notes, § 421*—when evidence as to other signatures inadmissible. Where the genuineness of a signature to a promissory note sued upon was in issue, held that an objection to proof that conceded genuine signatures of the maker were different from the signature to the oath attached to the defendant’s plea was properly sustained as immaterial and incompetent.</p> <p>4. Bills and notes, § 408*—when burden of proof on plaintiff. In an action on a promissory note, the burden of proof of the genuineness of the maker’s signatures held to be on the plaintiff.</p> <p>5. Bills and notes, § 460*—when genuineness of signature question for jury. In an action on a promissory note, the question of the genuineness of the signatures of the maker held for the jury.</p> <p>6. Appeal and error, § 1514*—when remark of counsel harmless error. A remark by counsel to the jury that when a client goes to his lawyer he tells him the truth, held not reversible error.</p> <p>7. Appeal and error, § 523*—what objections to instructions insufficient to preserve question for review. General objections to the giving and refusal of instructions are not sufficient to preserve the question of the correctness of such rulings thereon for review.</p>

<p>Error to the City Court of Canton; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the October term, 1915.</p>

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

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

<p>1. Appeal and error, § 16*—when right to appeal exists. An appeal can only be taken where the right to do so is conferred by statute.</p> <p>2. Appeal and error, § 17*—how statutes on right of appeal construed. Rev. St., ch. 110, sec. 123 (J. & A. ¶ 8661), authorizing an appeal from an interlocutory order denying motion to dissolve a temporary injunction, must be construed in connection with section 118 of the same chapter (J. & A. ¶ 8655), limiting appeals to the Appellate Court to cases in which the validity of a statute or the construction of the Constitution are not involved and which do not relate to the revenue, and in which the State is not interested as part or otherwise.</p> <p>3. Appeal and error, § 198*—when Appellate Court no jurisdiction on appeal. The Appellate Court has no jurisdiction to entertain an appeal from an order denying a motion to dissolve a temporary injunction, restraining a tax collector from collecting 'taxes levied pursuant to an order of a board of review, where the bill alleges that the statute under the authority of which the board acted is unconstitutional.</p> <p>4. Appeal and error, § 309*—when appeal does not lie. Rev. St., ch. 110, sec. 123 (J. & A. ¶ 8661) does not authorize an appeal to the Supreme Court from an interlocutory order denying a motion to dissolve a temporary injunction.</p> <p>5. Courts, § 138*—when case not transferred to Supreme Court. An appeal to the Appellate Court from an order denying a motion to dissolve a temporary injunction, restraining tax collectors from collecting taxes levied pursuant to an order entered by a board of review, where the bill. challenged the validity of the statute under which such board acted, is properly dismissed and not transferred to the Supreme Court, inasmuch as there is no provision for an appeal to .such court in such a case.</p> <p>6. Courts, § 138*—when case not transferred to Supreme Court. Where the Appellate Court has no jurisdiction to hear an appeal the case will not be transferred to the Supreme Court under Rev. St., ch. 110, sec. 102 (J. & A. ¶ 8639) if that court has no jurisdiction to hear the appeal.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1915.</p>

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

<p>Error to the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1916.</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, 1916.</p>

<p>Error to the Circuit Court of Morgan county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 800*—what hill of exceptions must contain. The question whether the trial court erred in not permitting the plaintiff to file counter-affidavits on a motion to open a judgment entered by confession and for leave to plead, held not saved for review where neither the motion nor the ruling thereon was preserved for review in the bill of exceptions.</p> <p>2. Judgment, § 82*—when leave to file counter-affidavits denied. Where an affidavit filed by a defendant on a motion to open a judgment by confession and for leave to plead shows a prima facie defense to the merits, it is not error to deny a motion by the plaintiff for leave to file counter-affidavits.</p> <p>3. Sales, § 282*—when evidence as to parol warranties admissible. In an action on a promissory note given in payment for machinery, held that oral warranties, made by the seller’s agent after the buyer had signed the contract for the purchase and before the seller had approved it, were competent to show that the written contract as signed had been changed.</p> <p>4. Sales, § 401*—when evidence sufficient to show breach of warranty. In an action on a promissory note given in payment for machinery, evidence held to show a breach of warranty of the age and capacity of the machine.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>1. Appeal and error, § 1411*—when judgment not disturbed. Where there is no clear preponderance of the evidence either way, a reviewing court will not review the evidence or set aside the judgment unless for errors of law.</p> <p>2. Trial, § 79*—when exclusion of evidence on surrebutted proper. In an action on a promissory note given in payment for an automobile, admission of evidence cumulative of that offered in support of a plea of breach of warranty, when offered on surrebuttal, held discretionary with the court and its exclusion not error.</p> <p>3. Witnesses, § 224*—when cross-examination proper. In an action on a promissory note given in payment for an automobile, where the defense was a breach of guaranty by the seller to keep it in repair for one year, a question asked on cross-examination of one of the defendants, who had testified that he had asked the seller to guaranty against all kinds of breakage and usage, as to who should pay the repair bills if the defendant ran into anything and broke the machine up, held proper.</p> <p>4. Appeal and error, § 1521*—when submission of modified interrogatory to jury without inspection by opposing counsel is harmless error. Submission to the jury of an interrogatory, as modified by the court so as to make it conform more closely to the issues made by the pleadings, without submitting it as modified to counsel not offering it, held not reversible error where such counsel had knowledge of its substance.</p> <p>5. Bills and notes, § 462*—when instruction not erroneous. In an action on a promissory note given in payment for an automobile, where the defendant admitted that a certain amount was due the plaintiff but set up as a defense a partial failure of consideration, held that an instruction directing the jury to insert in the- form of verdict given them the amount they should find for the plaintiff, under the evidence and instructions, was not erroneous, though they were not told that there was a partial failure of consideration.</p> <p>6. Appeal and error, § 479*—when instructions not reviewed. Errors in instructions cannot be urged on appeal in the absence of objection thereto in the trial court.</p> <p>7. Bills and notes, § 462*—when instruction on burden of proof properly modified. In an action on a promissory note given in payment for an automobile, where the defense was a partial failure of consideration, held that an instruction that the burden of proof was on the plaintiff to establish his case by a preponderance of the evidence was properly modified by inserting after the word “establish” the words “the execution and delivery of the note in question,” as the burden was on the defendant to prove the partial failure of consideration.</p> <p>8. Appeal and error, § 864*—necessity that alleged errors be indicated. A court of review will not on its own motion seek for reasons to reverse a case where counsel fail to indicate alleged errors permitted at the trial court.</p> <p>9. Sales, § 402*—when instruction on breach of warranty properly modified. An instruction as to what would constitute a breach of warranty of an automobile sold the defendant, held properly modified by the court so as to make it more nearly conform with the wording of the plea.</p> <p>10. Appeal and error, § 1523*—when giving of erroneous instruction on damages harmless error. Where, in- an action on a promissory note given in payment for an automobile, the jury found that there was no breach of warranty as claimed by the defendant, held that the defendant could not have been prejudiced by an instruction on the measure of damages for the breach, if there had been error therein.</p>

<p>1. Schools and school districts, § 184*—when school directors not liable for tuition of pupils attending high school in another district. School directors of a school district having no high school are not liable for the tuition of pupils residing within their district who have attended a high school in another district without their approval being obtained in accordance with Hurd’s Rev. St. 1913, ch. 122, sec. 470 (J. & A. ¶ 10143).</p> <p>2. Schools and school districts, § 145*—when board of education not liable for costs. On an unsuccessful appeal by a board of education of a school district to recover for tuition of pupils of another district in a high school under its jurisdiction, costs may not be taxed against it.</p>

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

<p>Abstract of the Decision.</p> <p>1. Pleading, § 320*—who may sign affidavit of merits denying indorsement of note. In an action against tlie maker of a promissory note, the indorsement of the note cannot be put in issue by an affidavit of merits signed by an agent of the defendant, but can only be done so by an affidavit signed by a party to the action as provided by the Practice Act, sec. 52 (J. & A. ¶ 8589).</p> <p>2. Bills and notes, § 422*—when note'may be read in evidence. Where in an action on a promissory note against the maker thereof the indorsement of the note is not put in issue, the note may be read in evidence.</p> <p>3. Bills and notes, § 351*—when authority to make assignment of note may not be questioned. In an action by an assignee on a promissory note against the maker thereof, the authority to make the assignment cannot be questioned in the absence of an affidavit of merits by a party to the action, putting the assignment in issue.</p> <p>4. Municipal Court of Chicago, § 13a*—what does not constitute variance between statement of claim and proof. Where a promissory note, offered in evidence, was made a part of the statement of claim sued on, held that the fact it was indorsed “Lyon, Taylor & Company by M. H. Taylor,” though made payable to the order of “Lyon-Taylor Company,” did not constitute a variance, as the statement could be treated as averring that the payee, by the name employed in the indorsement, assigned the note.</p> <p>5. Municipal Court of Chicago, § 14*—when statement of claim not proof that substituted plaintiff not entitled to sue. Where a party was substituted as plaintiff and filed a new statement of claim on which the issues were tried, held that the statement of claim filed by the original plaintiff was properly excluded from the evidence as not constituting proof that the substituted plaintiff was not the party entitled to sue.</p> <p>6. Bills and notes, § 428*—when letter by attorney of payee to maker inadmissible. In an action by an assignee on a promissory note against the maker, who claimed that the plaintiff was not a bona fide holder before maturity, a letter written to the defendant after maturity of the note by an attorney, stating that the attorney had the note in his possession for collection for the payee, held inadmissible in the absence of proof that the payee or the attorney actually had possession of the note at that time, and that the latter was then in the exercise of authority to collect it for the payee, or that the declarations in the letter were made in the presence of or with the knowledge of the plaintiff.</p>

<p>1. Carriers, § 476*—when evidence insufficient to show negligence of defendant. Where a passenger on a railway train in the nighttime stepped on the platform of the car after the hrakeman had announced the station at which he wished to alight and, seeing a train running on a parallel track in the same direction and at the same speed as his own, supposed that both trains had reached the station and were standing still, and stepped off the train into the darkness at a point where there were no lights, 800 feet from the station, held, in an action for an injury thereby sustained, that the evidence presented a question for the jury as to the defendant’s negligence, and justified a verdict for the defendant.</p> <p>2. Carriers, § 476*—when evidence sufficient to show contributory negligence of passenger alighting from train. Evidence that a passenger on a train at nighttime who, from the fact that another train on a parallel track was moving at the same rate of speed and in the same direction as the one on which he was riding, supposed that he had reached the station and that the. trains were standing still, stepped off into the darkness at a point 800 feet from the station without looking for the usual sign of a station and relying on his absence of sense of motion of the train, held sufficient to support a finding that he was not in the exercise of reasonable care for his own safety.</p> <p>3. Carriers—what does not constitute invitation to alight from train. In an action by a passenger on a railway train for injuries resulting from his alighting from the train before reaching his station, held that the mere announcement of the station by the hrakeman was not an invitation to alight.</p> <p>4. Carriers, § 362*—when duty to maintain lights does not exist. A railway company held under no obligation to maintain lights at a distance 800 feet from its passenger station.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 965*—how points of law may not he preserved for review. An agreement between parties as to what questions of law are to be determined upon the trial of a case is not a compliance with the requirements that, to preserve points of law for review, written propositions must be presented to the court to be held as such.</p> <p>2. Carriers, § 93*—when consignee may not maintain action for damages for nondelivery of goods. Where, on failure of a carrier to deliver a shipment to a consignee in accordance with the bill of lading, the consignee canceled the order, held that he could not maintain an action against the carrier for damages resulting from his having to substitute other goods in lieu of those shipped, as his special interest in the goods shipped was lost on the cancellation of the order.</p> <p>3. Carriers, § 162*—what is effect of failure to timely present claim for damages. Failure of a consignee of goods to present a claim in writing to the carrier within four months, as stipulated in the bill of lading, after the time delivery should have been made, held to preclude a recovery by him for damages for nondelivery.</p>

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

<p>1. Injunction, § 29*—when suit in foreign jurisdiction will not he restrained. A court of equity will not restrain the prosecution of a suit in a foreign-jurisdiction unless a -clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injustice.</p> <p>2. Injunction, § 29*—when suit in foreign State will not he enjoined. Where, from the facts set out in a petition for an injunction order restraining the defendants in a suit in this State from prosecuting a suit concerning the same subject-matter in a foreign State, it does not appear that the petitioner will be denied any relief or equitable rights he might otherwise obtain in this State, or that the parties sought to be restrained seek the denial of any such right or the evasion of the laws of this State, or what will work a fraud or oppression upon the petitioner, an injunction will be denied.</p> <p>3. Injunction, § 29*—when suit in foreign State will not he enjoined. Defendants in a suit in this State will not be enjoined from seeking relief by suit in a foreign State, which they are entitled to as matter of right, concerning the same subject-matter of litigation as is involved in the suit in this State and which cannot be obtained here by them, merely because of the added expense of litigating the same questions in issue in both suits.</p> <p>4. Judoment, § 495*—when matters determined in suit hy trustee of estate are res adjudicate. Matters properly determined in a suit by the trustee of an estate created by a will, seeking a construction of the will, the court’s directions concerning the trust and a settlement of the trustee’s accounts, would be res adjudicate in a suit in a foreign court by beneficiaries of the estate seeking the removal of the trustee, a settlement of his accounts and a partition of the trust property.</p> <p>5. Injunction, § 29*—when suit in foreign jurisdiction improperly enjoined. In a suit by the trustee of an estate created by will, seeking a construction of the will and the court’s directions concerning the trust fund and the settlement of the trustee’s accounts, an order restraining parties defendant from prosecuting a suit in a foreign court within whose jurisdiction the property was situated, seeking the removal of the trustee, an accounting and the partition of the property, held improperly granted on the mere ground that the prosecution of both suits would involve the litigation of the same matters and entail unnecessary expense.</p>

<p>1. Landlord and tenant, § 209*—when lessee not obliged to make outside repairs to building. A lessee of a part of a building under a lease requiring her to keep “the premises” in repair, held not obligated to make outside repairs on the building, such as painting exterior walls, fire escapes, etc.</p> <p>2. Landlord and tenant, § 209*—-when contract by tenant to make repairs not created. Where a lessee of a part of a building was not, under the terms of the lease, required to make outside repairs, held that her making such repairs in compliance with a request of the lessor did not create a new contract to make them, a breach of which would authorize the lessor to terminate the tenancy.</p>

<p>Abstract of the Decision.</p> <p>1. Telegraphs and telephones, § 32*—what is measure of damages for error in transmission of telegram. Where a telegram in' which the plaintiff offered to purchase potatoes at sixty-nine cents a bushel was erroneously transmitted by the defendant so as to read seventy-nine cents, which offer was accepted by the addressee, and after the error had been discovered the shipment was made and paid for by the plaintiff at the latter price, held that in the absence of any proof as to the value of the potatoes at the time in question and of evidence from which it could be reasonably inferred that the -plaintiff suffered any loss by reason of the alleged negligence of the defendant, the plaintiff was entitled to recover only the amount paid for the transmission of the telegram and interest thereon.</p> <p>2. Telegraphs and telephones, § 37*—when burden of proof is on plaintiff. In an action for damages alleged to have resulted from the negligence of the defendant in transmitting a telegram, held that the burden of proving the damages was on the plaintiff.</p>

<p>Judgment, § 190*—when may not he entered against only one of several joint defendants. Where a summons was issued against only one of several defendants sued jointly on a contract, held that a judgment against such defendant only could not be sustained.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1752*—when judgment affirmed. Where the trial court refused to allow the defendants’ counterclaim for rent alleged to be due them from the plaintiff under a lease, which the defendants did not set up in their abstract of record on appeal, a judgment for the plaintiff was affirmed, the court holding that it would not go to the record to correct an abstract or to supply omissions in order to reverse a judgment.</p> <p>2. Set-off and recoupment, § 40*—when evidence sufficient to sustain disallowance of counterclaim. Evidence in an action for goods sold and delivered by the plaintiff to the defendants, wherein the defendants sought to counterclaim for rent alleged to be due them from the plaintiff under a lease, held to justify a judgment for the plaintiff and a disallowance of the counterclaim.</p>

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

<p>1. Master and servant, § 653*—when expert evidence admissible in action for death of dynamo tender. In an action for the death of a dynamo tender employed in an electric power house, caused by his coining in contact with an equalizing switch, held that expert testimony as to the standard custom in wiring such switches was properly admitted on the question of contributory negligence of the deceased. •</p> <p>2. Master and servant, § 627*—when expert evidence admissible in action for death of dynamo tender. In an action for the death of a dynamo tender employed in an electric power house, caused by his coming in contact with an equalizing switch, held that expert testimony as to the cost of wiring the switch in accordance with the general practice was properly admitted on the question of the defendant’s negligence, in view of evidence that the defendant’s method of wiring was dangerous and an admission by the defendant’s superintendent that he knew of the danger.</p> <p>3. Master and servant, § 823*—when instruction on burden of proof properly refused. In an action against an employer for the death of an employee alleged to have resulted from defective appliances, the refusal of an instruction to the effect that, in ordeto recover, the burden was on the plaintiff to prove that the employer had notice of the defect, was not error where the declaration charged and the evidence tended to show negligent construction of the appliances.</p> <p>4. Master and servant, § 698*—When evidence insufficient to show knowledge by dynamo tender of dangerous condition of switch. In an action for the death of a dynamo tender employed in a power house, resulting from his coming in contact with an electric switch not wired in the customary manner, evidence held not to show that the deceased had either actual or constructive knowledge of the dangerous condition of the switch.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 878*—When question of insufficiency of evidence to sustain judgment may not he raised on appeal. The contention that the evidence was insufficient to support the amount of a judgment cannot be raised for the first time in the appellant’s reply brief.</p> <p>2. Insurance, § 704*—when judgment will not he set aside on appeal as unsupported by evidence. In an action on a policy of burglary insurance, providing that there could be no recovery for loss if the accounts and records of the assured were not so kept that the actual loss could he accurately determined therefrom, held that the Appellate Court could not say that the finding of the trial court that the loss could he determined from the accounts and records was not supported by evidence which tended to show that the plaintiffs kept a ledger, cashbook, checkbook, invoices, sales slips and an inventory, the latter being made up some- months before the loss, and including testimony of one of the plaintiffs that from these the amount of the loss could be determined, where the inventory, invoices, sales slips and checkbook were not preserved in the record.</p> <p>3. Insurance, § 287*—what is purpose of condition in policy for keeping of accounts. On an appeal by an insurer from a judgment for a loss entered in favor of the insured under a policy of burglary insurance, providing that there could be no recovery for loss if the accounts and records of the insured were not so kept that the actual loss could be accurately determined therefrom, held that the judgment would not be reversed on the ground that the condition in respect to the keeping of accounts had not been fulfilled by the insured where it was not claimed that the judgment did not represent the amount of the loss, as such condition was merely intended to protect the insurer against an excessive claim.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Clinton F. Ibwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

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

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

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

<p>Abstract of the Decision.</p> <p>1. Bastards, § 22*—when evidence sufficient to sustain finding that relatrix is unmarried. Where the relatrix in a bastardy proceeding swore in her complaint that she was unmarried, a finding that she was unmarried was held justified in the absence of evidence. that she was married.</p> <p>2. Bastards, § 22*—when evidence sufficient to sustain finding that defendant is father of child. In a bastardy proceeding, a finding that the defendant was the father of the child, held justified where the defendant had not denied that he had had sexual intercourse with the relatrix and the only testimony offered by him tended to show that other men had had sexual intercourse with her about the time of conception, which was denied by the relatrix.</p> <p>3. Evidence, § 480*—what is effect of failure of defendant to testify. The defendant sitting silent during the trial of a bastardy proceeding, held a circumstance to be considered against him on the issue as to whether he was the father of the child.</p>

<p>Abstract of the Decision.</p> <p>Civil service, § 30*—when reinstated assistant county agent not entitled to position of first assistant. Where, in obedience to a writ of mandamus, the petitioner was reinstated as assistant county' agent and subsequently, as the result of art examination, an assistant other than the petitioner, receiving the highest mark, was certified by the civil service commission to the position of first assistant, held that though the petitioner, prior to his unlawful discharge, had performed duties subsequently performed by the first assistant so appointed, a rule on the defendants to show cause why they should not be punished for contempt for not reinstating the petitioner as first assistant was properly discharged, since the examination which the petitioner originally took was for the performance of the duties of superintendent of substations and not for a general supervisory position, and it was clearly within the power of the civil service commission to reclassify and regrade the positions of assistant county agents to provide for the position of first assistant county agent.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 129*—when evidence insufficient to show illegality of. The repudiation by the defendant of a contract entered into with the plaintiff whereby the latter agreed to raise the defendant’s house, held not justified on the ground of illegality, because an ordinance prevented the performance of the work if certain alterations were not made, which were not included in the contract, in the absence of a showing that it was intended that the work should be done without compliance with the ordinance and in the absence of any proof of the ordinance.</p> <p>2. Contracts, § 98*—when evidence insufficient to show fraud in procuring execution of. In an action for the breach by the defendant of a contract, whereby the plaintiff agreed to raise the defendant’s house, evidence held not to show that the defendant had been induced to enter into the contract by fraud.</p> <p>3. Municipal Court of Chicago, § 4*—when judge of another court may sit in Municipal Court. A judgment of the Municipal Court of Chicago held not illegal because it was entered by one not a judge of that court, where the placita showed the presiding judge to have been a “judge of the County Court of Lake County, Illinois, holding a branch of the Municipal Court of Chicago at the reguest of the judges of the said Municipal Court,” as such authority is expressly conferred by the Municipal Court Act, sec. 13 (J. & A. ¶ 3325).</p> <p>4. Trial, § 45*—when prejudice and Mas not exhibited by trial judge. Record on appeal in an action for breach of contract, held not to sustain a contention that prejudice and bias were exhibited by the trial court.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Mabcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence—when exclusion of parol evidence contradicting memorandum erroneous. In an action to recover for breach of a parol contract to repurchase stock assigned by defendant to plaintiff, it appeared that plaintiff received a certain certificate, assigned in blank, and surrendered it for cancellation, receiving a new certificate, and that defendant, who was president of the' corporation issuing the stock, made on the face of the canceled certificate a memorandum, which was never delivered to or seen by plaintiff, to the effect that a new certificate had been delivered to plaintiff in lieu of that which was canceled. Parol evidence of the contract sued on was excluded, on the ground that it contradicted a written instrument, the memorandum being the instrument referred to. Held, that the exclusion was erroneous, the memorandum not being a contract between the parties, for which reason the rule invoked did not apply.</p> <p>2. Contracts, § 32*—when memoranda not binding as contract. Memoranda made by officials of a corporation for their own convenience- in keeping their records are not binding on strangers who are ignorant of the existence of such memoranda.</p> <p>3. Appeal and error, § 365*—what points not reviewable. Points not made at the trial cannot be made for the first time on review.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1916. Petition for certiorari dismissed.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William Feximore Cooper, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Workmen’s Compensation Act, § 11*—when death not caused by accident within meaning of act. Tlie death of a workman who, after four or five days’ employment as a heater in a blacksmith and forge room, becomes unconscious and dies within half an hour is not caused by an accident within the meaning of the title of the Workmen’s Compensation Act of 1913 (Cal. Ill. St. Supp. 1916, ¶ 5475 et seq.), providing for “compensation for accidental injuries or death suffered in the course of employment.”</p> <p>2. Master and servant, § 701*—when evidence insufficient to show death resulted from violation of statute. In a proceeding brought under the Occupational Diseases Act (J. & A. ¶ 5433 et seq.), to recover compensation for the death of a workman who, after four or five days’ employment as a heater in a blacksmith and forge room, became unconscious and died within half an hour, evidence held insufficient to show that deceased came to his death through any omission or act of the employer in violation of the act.</p> <p>3. Master and servant, § 701*—what proof necessary as to cause of death. In order to recover compensation for the death of a workman under the Occupational Diseases Act (J. & A. ¶ 5433 et seq.), requiring employers to employ certain devices and methods to prevent such diseases, it must be proved that the cause of the death was the failure of the employer to comply with the act.</p> <p>4. Master and servant, § 50b*—when evidence sufficient to show cause of death. In a proceeding under the Occupational Diseases Act (J. & A. ¶ 5433 et seq.), to recover compensation for the death of a workman who, after four or five days’ employment in a blacksmith and forge room, became unconscious and died in half an hour, evidence examined and held to show that the cause of deceased’s death was apoplexy.</p>

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

<p>Interlocutory appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1301*—when finding of trial court on conflicting evidence presumed to he correct. In an action tried without a jury, where the evidence is conflicting and where a contrary finding, if made, might he sustained by the evidence, the Appellate Court, on review, will indulge in favor of the finding made, the presumption obtaining from the fact that the trial court sees and hears the witnesses and observes their manner of testifying, and is therefore better able to determine the weight and credibility of their testimony, advantages which the Appellate Court does not possess.</p> <p>2. Set-off and recoupment, § 41*—when verdict disallowing claim in recoupment sustained by evidence. In an action to recover on a contract between an individual and a municipality for the disposition of garbage by means of water transportation, where it was admitted that a certain sum was due plaintiff on the contract, but where defendant sought to recoup on the ground of an unseaworthy boat, whose sinking occasioned loss to defendant, a finding for plaintiff held not palpably against the weight of the evidence.</p> <p>3. Navigable waters, § 4*'—what are. The Chicago River is a navigable stream under the control of the Federal government.</p> <p>4. Set-off and recoupment, § 18*—when municipality may not recoup expense of removing obstruction in navigable stream. In an action to recover on a contract between an individual and a municipality for the disposition of garbage by means of water transportation, where it is admitted that a certain sum is due plaintiff on the contract, defendant cannot recoup on the ground that the sinking of an unseaworthy boat caused an obstruction whose removal caused defendant expense, where it appears that the sinking took place in a navigable river, since defendant could not have been compelled to remove the obstruction, and cannot enforce a claim against plaintiff for expense incurred in voluntarily performing a duty not cast upon it by law.</p>

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

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

<p>1. Divorce, § 70*—when proceedings wilV not be reviewed on merits. Proceedings on a bill for divorce will not be reviewed on the merits where the case has not been tried as required by law.</p> <p>2. Divorce—when reference to master unwarranted. Under the present statutes the reference to a master of a contested bill for divorce is unwarranted and without precedent, although prior to the revision of the statutes in 1874 it was the practice to make such references.</p> <p>3. Divorce—when. hearing by court mandatory. The provision of the Divorce Act, sec. 8 (J. & A. ¶ 4223), that in default cases, where the bill is taken for confessed, the court shall proceed to hear the cause by examination of witnesses in open court, is mandatory, and default cases cannot be otherwise heard.</p> <p>4. Divorce, § 53a*—when party entitled to jury trial. While a divorce case does not, as do cases at law, stand for trial by jury unless a jury trial is waived, yet either party, on request, is entitled to a jury trial.</p>

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

<p>1. Divorce, § 87*—when temporary alimony cannot be decreed. On a bill for divorce, be court is without jurisdiction to decree temporary alimony to the wife until the marriage is established.</p> <p>2. Divorce, § 135*—when counsel fees not allowable. On a bill for divorce, counsel fees cannot be allowed until the marriage is established.</p> <p>3. Divorce, § 52*—when bill sufficient admission of marriage. Where in a bill against a wife for divorce complainant averred the marriage, and where in her answer defendant admitted the marriage, held that the fact thus averred and admitted warranted the chancellor in finding that the marriage relation existed between the parties, although in his answer to a cross-bill by the wife for separate maintenance the complainant denied the marriage, since a fact averred and admitted needs no further proof, and since a court of chancery, as a court of conscience, will not permit a party to deny facts averred under oath, in order to escape a legal obligation arising from such averment.</p> <p>4. Divorce—when complainant estopped to deny marriage. A complainant who in his sworn bill for divorce avers the marriage, is estopped from denying the truth of such averment on a motion for alimony pendente lite.</p> <p>5. Divorce—when complainant estopped to deny marriage. A complainant, who in his sworn bill for divorce avers the marriage, is estopped from denying the truth of such averment on a motion for solicitors’ fees.</p> <p>6. Divorce, § 33*—when evidence inadmissible to prove marriage. Where complainant in a bill for divorce avers the marriage under oath and such fact is admitted by the answer, no evidence is competent either to rebut or maintain such averment.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1303*—when evidence presumed sufficient to sustain finding. In the absence of a certificate of evidence, every intendment is to be indulged necessary to sustain the ultimate fact found in a decree, and in such case it will be presumed, as matter of law, that the evidence is sufficient to sustain such finding.</p> <p>2. Equity, § 549*—what decree need not recite. It is not necessary to recite evidential facts in a decree, it being sufficient if the ultimate fact found from the evidence is recited.</p> <p>3. Partition, § 54*—when award in eminent domain proceeding not challenged by hill. Where during the pendency of partition proceedings, in which the validity of a tax title on the property in question is attacked, a proceeding is commenced which results in the taking of such property by eminent domain, in which an order is made setting apart a sum to be paid to the owner of the tax title, a cross-bill filed after the termination of the condemnation proceedings to secure a distribution of the sum set apart by the order admits the propriety of the order where such cross-bill does not challenge such propriety.</p> <p>4. Partition, § 53*—when party estopped to dispute right of court to determine who is entitled to fund. Where, during the pendency of partition proceedings in which the validity of a tax title on the property is attacked, a proceeding is commenced which results in the taking of such property by eminent domain and in which an order is made setting apart a sum to be paid to the owner of the tax title, a cross-bill filed after the termination of the condemnation proceedings to secure a distribution of the sum set apart by the order, partakes of the nature of a bill of interpleader, in which the only question is to whom the money shall be paid, and complainant in the cross-bill is estopped to dispute the right of the court to determine such question.</p> <p>5. Partition, § 15*—what is character of proceeds of sale in eminent domain proceedings. Where, during the pendency of partition proceedings, the property sought to be partitioned is taken by condemnation proceedings, the money awarded stands in the place of the land.</p>

<p>1. Replevin, § 164*—what question presented on appeal from judgment awarding writ of retorno habendo. On appeal from a judgment in an action of replevin tried without a jury, which judgment finds for defendant and awards a writ of retorno habendo for the return of the property replevied, the only question presented for review is whether plaintiff made out a prima facie case on which a finding in its favor, if made, could have been sustained.</p> <p>2. Sales, § 436*—who bound by contract of conditional sale. A contract whereby the vendor sells an article on condition that payment be made in instalments, the article to become the property of vendee when fully paid for, until which time title is to remain in the vendor, is binding as between the parties and those having knowledge of the transaction.</p> <p>3. Replevin, § 123*—when evidence insufficient to charge subsequent purchaser with knowledge of conditional sale. In an action of replevin to recover possession of a piano sold under an agreement of conditional sale, which piano had not been paid for, where it appeared that defendant bought the piano from one not the vendee of plaintiff, and who had the piano in his possession, evidence held insufficient to charge defendant with knowledge of the nature of the transaction between plaintiff and the vendee under the agreement of conditional sale.</p> <p>4. Sales, § 436*—what possession is prima facie evidence of. The possession of a chattel is prima facie evidence of its ownership by the possessor.</p> <p>5. Sales, § 436*—when subsequent purchaser takes free from claims of seller. One who buys a chattel from one in whose possession it is takes it free from rights and claims of which the purchaser has no knowledge.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Look-wood Honors, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>